                                                                      ACCEPTED
                                                                  12-15-00237-CR
                                                     TWELFTH COURT OF APPEALS
                                                                   TYLER, TEXAS
                                                             12/9/2015 2:30:50 PM
                                                                        Pam Estes
                                                                           CLERK

              NO. 12-15-00237-CR

                     IN THE                      FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
        TWELFTH COURT OF APPEALS          12/9/2015 2:30:50 PM
                                                 PAM ESTES
          SITTING AT TYLER, TEXAS                  Clerk


      ___________________________

           APRIL ALLISON POWERS,
                  Appellant,

                        v.

             THE STATE OF TEXAS,
                   Appellee.

      ___________________________

Appealed from the 145TH Judicial District Court of
          Nacogdoches County, Texas
            Trial Court No. F1421312

              APPELLANT’S BRIEF

                         Noel D. Cooper
                         Texas Bar No. 00796397
                         LAW OFFICES OF NOEL D. COOPER
                         117 North St., Suite 2
                         Nacogdoches, Texas 75961
                         Telephone: (936) 564-9000
                         Telecopier: (936) 715-6022
                         Email: noelcooper@noelcooper.com
                         ATTORNEY FOR APPELLANT,
                         APRIL ALLISON POWERS

                         ORAL ARGUMENT REQUESTED
                IDENTITY OF PARTIES & COUNSEL

     Appellant certifies that the following is a complete list of the parties,

attorneys, and any other person who has any interest in the outcome of this

lawsuit:


Noel D. Cooper
Texas Bar No. 00796397
LAW OFFICES OF NOEL D. COOPER
117 North St., Suite 2
Nacogdoches, Texas 75961
Telephone: (936) 564-9000
Telecopier: (936) 715-6022
Email: noelcooper@noelcooper.com
ATTORNEY FOR APPELLANT,
APRIL ALLISON POWERS

Carolyn Ann Gilcrease
State Bar No. 24053934
Nacogdoches County District Attorney
101 W. Main, Suite 250
Nacogdoches, Texas 75961
Telephone: (936) 560-7766
Fax: (936) 560-6036
Email: cgilcrease@co.nacogdoches.tx.us
ATTORNEY FOR APPELLEE

APRIL ALLISON POWERS
TDCJ-ID # 02003575
Marlin Unit
2893 State Highway 6
Marlin, TX 76661-6588
APPELLANT




                                      -2-
                                    TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL .......................................................... 2
TABLE OF CONTENTS ................................................................................. 3
INDEX OF AUTHORITIES ........................................................................... 4
STATEMENT OF THE CASE ........................................................................ 6
ISSUES PRESENTED ................................................................................... 7
STATEMENT OF FACTS ............................................................................... 7
SUMMARY OF THE ARGUMENT...............................................................13
ARGUMENT AND AUTHORITIES..............................................................14
        Issue 1:                  Is the offense of Vehicle Involved in Accident
                                  unconstitutional on its face? ...................................14

        Issue 2:                  Is the offense of Vehicle Involved in Accident
                                  unconstitutional as Applied to Appellant? .............14

        Issue 3:                  Was the evidence is legally sufficient to
                                  support the jury’s finding that Appellant
                                  committed the offense of Vehicle Involved
                                  in Accident? ............................................................19

CONCLUSION ............................................................................................. 22
PRAYER ...................................................................................................... 23
CERTIFICATE OF COMPLIANCE .............................................................. 24
CERTIFICATE OF SERVICE....................................................................... 25
APPENDIX .................................................................................................. 26




                                                      -3-
                                 INDEX OF AUTHORITIES

Case Law

Barnes v. State, 876 S.W.2d 316
     (Tex. Crim. App. 1994) ....................................................................... 20

Bowden v. State, 172 Tex. Crim. 578, 361 S.W.2d 207
    (Tex. Cr. App. 1962) ...................................................................... 21, 22

Brooks v. State, 323 S.W.3d 893
     (Tex. Crim. App. 2010) .......................................................................19

Conner v. State, 67 S.W.3d 192
    (Tex. Crim. App. 2001) ...................................................................... 20

Ex parte Lo, 424 S.W.3d 10
     (Tex. Crim. App. 2014)........................................................................14

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

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489
     102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ................................................ 17

Jackson v. Virginia. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
     (1979) ..................................................................................................19

King v. State, 29 S.W.3d 556
     (Tex. Crim. App. 2000) .......................................................................19

Malik v. State, 953 S.W.2d 234
     (Tex. Crim. App. 1997) ....................................................................... 20

Penagraph v. State, 623 S.W.2d 341
     (Tex. Crim. App. 1981) ....................................................................... 20

State v. Holcombe, 187 S.W.3d 496
      (Tex. Crim. App. 2006) ....................................................................... 15



                                                      -4-
Watson v. State, 369 S.W.3d 865
    (Tex. Crim. App. 2012)........................................................................ 15

Statutes

TEX. CIV. PRAC. & REM. CODE
      Section 74.151 ..................................................................................... 18

TEX. PENAL CODE
      Section 1.07 .........................................................................................21
      Section 6.04 .................................................................................. 17, 22

TEX. TRANS. CODE
      Section 550.021 ............................................................................. 16, 21
      Section 550.023 ...................................................................... 16, 18, 21




                                                     -5-
                          NO. 12-15-00237-CR

                      APRIL ALLISON POWERS,
                             Appellant,

                                    v.

                        THE STATE OF TEXAS,
                              Appellee.


                         APPELLANT’S BRIEF

     COMES NOW, Noel D. Cooper, court-appointed counsel for

Appellant, April Allison Powers, in the above numbered cause, and files this

Appellant’s Brief and would show this Honorable Court as follows:

                     STATEMENT OF THE CASE

     Nature of the Case. Appellant was charged by indictment with two

counts of Vehicle Involved in Accident under TEX. TRANS. CODE §550.021a

third degree felony. The range of punishment was raised to that of a

habitual offender under TEX. PENAL CODE §12.42(d). The case was filed in

the 145TH District Court under Cause Number F1421312.

     Course of Proceedings. On May 11, 2015, a jury was selected, and

evidence was opened and closed on May 12, 2015. Arguments were heard

on May 13, 2015. The punishment hearing was held on June 11, 2015.

     Trial Court Disposition. The jury found Appellant guilty of one count

of Vehicle Involved in Accident. Appellant pleaded not true to the


                                    -6-
enhancement paragraphs and the trial court assessed punishment at 25

years in the Institutional Division of the Texas Department of Criminal

Justice.

                            ISSUES PRESENTED

      Issue 1:   Is    the      Vehicle         Involved   in   Accident   statute

unconstitutional on its face?

      Issue 2:   Is    the      Vehicle         Involved   in   Accident   statute

unconstitutional as applied to Appellant?

      Issue 3:   Was the evidence is legally sufficient to support the jury’s

finding that Appellant committed one count of Vehicle Involved in

Accident?

                        STATEMENT OF FACTS

      Trial on the Merits

      Raymond Read

      Raymond Read was a police officer employed by the Nacogdoches

Police Department. RR 3:15. He was on duty on October 20, 2014, and he

responded to a one-car accident involving a pickup truck which had struck

a telephone pole. RR 3:17. Sitting behind the steering wheel of the truck

was a man who identified himself as Billy Pleasant and said that he had

been driving the vehicle. RR 3:18. However, through witnesses he



                                          -7-
determined that a black female had been driving the truck. RR 3:18. After

confronting Billy with the conflicting stories of the witnesses, Billy changed

his story and said that April Powers had been operating the truck. RR 3:18-

19. Mr. Read was unsure if Billy was injured, but another passenger, Willie

Pleasant who had left the accident scene, returned and had a cut on his chin

and appeared in need of medical attention. RR 3:19-20. Willie was

transported to the hospital via EMS. RR 3:20. April Powers was gone before

he arrived, and she never showed back up. RR 3:21. At the hospital, he

arrived and saw a physician sewing up Willie’s chin and lip. RR 3:21. Billy

arrived at the hospital later, and Mr. Read could see a goose egg on his

forehead. RR 3:22.

      Billy never requested medical attention. RR 3:27. Willie showed up

after EMS arrived, and he was seen by EMS. RR 3:29. Billy Pleasant was

not transported to the hospital by EMS, and he was not demanding medical

treatment at the accident scene. RR 3:32. According to the information

available, Willie Pleasant left the scene voluntarily under his own power.

RR 3:32. Witnesses reported that this was an accident in which the driver

door came open and the driver fell to the ground. RR 3:32-33. Mr. Read

believed that a driver of a vehicle involved in an accident was required to

stay at the scene until they could be seen by medical personnel or



                                     -8-
transported. RR 3:33. It appeared that Willie Pleasant was in need of

medical attention. RR 3:34.

      Tammatha Ruffin

      On October 20, 2014, Ms. Ruffin heard a truck crash into a pole. RR

3:43. She had seen Appellant driving that truck earlier in the day. RR 3:44.

When she got to the truck, it was occupied by Billy and Willie. RR 3:46. Ms.

Ruffin did not see Appellant when she arrived at the crash scene. RR 3:47.

Ms. Ruffin eventually clarified that Willie was not in the truck at the time of

the accident but was walking. RR 3:49. Appellant might have been yelling

to call 9-1-1. RR 3:49.

      Billy Gene Douglass

      On October 20, 2014, Mr. Douglass heard a vehicle coming down the

road and thought that it was going to have a wreck because it was going

fast. RR 3:53. He saw the truck approaching on Chandler, and when it

started to make a left hand turn the driver door flew open and the Appellant

fell out. RR 3:53-54. The truck hit a light pole by Mr. Douglass’s house, and

Appellant approached the remaining occupants in the truck and asked

them if they were okay. RR 3:54-55. Mr. Douglass heard Appellant tell the

men in the truck that she could not stay because she had an arrest warrant.

RR 3:55. Appellant ran away from the scene, and he never heard her call for



                                      -9-
9-1-1. RR 3:55-56. Billy and Willie were still in the truck when Appellant

left. RR 3:56.

      Lyndon Pleasant

      Lyndon was Billy’s son. RR 3:68-69. Lyndon was informed that his

father had been in an accident, and he found Billy’s truck at the corner of

Meizenheimer and Chandler Street, RR 3:69. Billy had a knot on his head,

and someone had bled in the truck. RR 3:70-71. Willie was Billy’s nephew.

RR 3:71. Willy was in the truck with Lyndon’s cousin Fay. RR 3:71. Fay said

that she was going to take Willie to the hospital. RR 3:71. Billy wanted to

have his truck towed, so Lyndon took Billy home. RR 3:72. Billy had some

groceries that he wanted put up. RR 3:72-73. Billy complained about his

head when he was put into the car. RR 3:73. Billy passed away three or six

months after the accident. RR 3:74. When Lyndon arrived at the accident

scene, Billy wanted to go to the hospital, but he also was trying to crank the

truck, too. RR 3:80. Lyndon could not remember if an ambulance was at

the scene before he arrived. RR 3:81.

      Willie D. Pleasant

      On October 20, 2014, Willie, a Houston resident, was in Nacogdoches

for a funeral. RR 3:84. On the date of the accident, he got into the truck

with Appellant and Billy because Billy was going to sell some scrap metal.



                                     -10-
RR 3:85. Appellant was driving Billy’s truck, she struck a pole and jumped

out just before. RR 3:87. Willie struck his mouth and chin, and at the time

of trial still had no feeling in his mouth. RR 3:87-88. The skin of his chin

was actually hanging down, and his lip had to be tied up. RR 3:88-89. After

the impact, he did not hear Appellant say anything. RR 3:89. Appellant left

the truck before Willie, and he exited the truck and walked to his sister’s

house who gave him a towel to put on his face. RR 3:91. He then walked

back to the accident so he could be put into the ambulance. RR 3:91. The

only thing he could remember for certain about the accident is that his chin

was injured. RR 3:99. Willie did not say anything to anyone while he was in

the truck because he could not talk. RR 3:102. There were many people

around the truck when he got out, and no one tried to help him. RR 3:103.

      Ryan Ball

      Ryan Ball was a detective with the Nacogdoches Police Department.

RR 3:108-09. Billy’s truck was a total loss. RR 3:114.

      April Powers

      Appellant took the stand in her own defense. RR 3:123. Appellant was

acting as a caregiver for Billy. RR 3:125. Billy’s truck was a 1982 or 1983

model, and it had trouble with the carburetor sticking as well as the driver’s

side door not staying closed. RR 3:133-34. Appellant was thrown out of the



                                     -11-
truck approaching a turn. RR 3:134. After being thrown from the truck,

Appellant slid on the concrete and then ran for the truck. RR 3:134. Billy

had taken the driver’s place in the truck and was trying to crank it. RR

3:134-35. Billy told her that he was fine, but he was mad and upset. RR

3:135. While talking to Billy, Willie got out of the truck, and she saw a man

she believed to be Mr. Douglass and Tamatha Pleasant approaching and

she told them to call 9-1-1. RR 3:136. Billy did not have any obvious

injuries, and he did not seem confused. RR 3:136. Willie was already getting

out of the truck at the time she got back to the truck and started talking to

Billy. RR 3:137-38. She was still at the scene when Willie came back, and

Jessica was on the phone with 9-1-1. RR 3:138-39. Appellant could tell that

Willie needed medical attention when he was walking back to the wreck,

but not when she first got back to the truck. RR 3:139. She took towels to

Willie for his face, and she knew that 9-1-1 had been called. RR 3:140.

Appellant could hear sirens approaching when she left the scene. RR 3:141.

Neither Appellant, Billy, nor Willie had a cell phone on the day of the

accident, and she heard Jessica Lewis tell the 9-1-1 operator that there had

been an accident and there was a bleeding person. RR 3:155-56.

     Punishment Hearing

     Raymond Read



                                    -12-
      Mr. Read again testified during sentencing. RR 5:6. He testified that

Willie was not on the scene when Mr. Read arrived, and when Willie

returned to the scene EMS had already arrived and then started looking at

him. RR 5:7. If EMS had not been on the scene, he would have applied

pressure to Willie’s chin. RR 5:7. Mr. Read was on the accident scene for

approximately ten minutes before Willie returned. RR 5:9. He did not think

that Willie’s chin was a life-threatening situation. RR 5:11.

      Gary Brittain

      Gary Brittain, an investigator for the Nacogdoches County Attorney’s

Office, had had training in fingerprint identification. RR 5:16-17. Mr.

Brittain testified that Appellant had a final conviction for burglary of a

habitation in cause number 5325-93-3. RR 5:20-21. He also testified that

Appellant had a final conviction in cause number F10431-2002. RR 5:21-

22. Mr. Brittain also testified that Appellant had a final conviction for credit

card abuse. RR 5:22-23.

                   SUMMARY OF THE ARGUMENT

      Appellant’s first and second issues are that the statute under which

she was convicted is unconstitutional. The statute is unconstitutionally

vague, and Appellant was not under any notice as to what conduct was

prohibited or what conduct was required.



                                      -13-
     Appellant’s third issue is that the evidence was not legally sufficient to

support a finding that Appellant was guilty of Vehicle Involved in Accident.

Based on the evidence introduced at trial, the jury could not have concluded

that Appellant failed to comply with the requirements of Sections 550.021

and 550.023 of the Texas Transportation Code, and specifically that

Appellant failed to provide reasonable assistance to Willie Pleasant. More

than 50 years ago, the Court of Criminal Appeals determined that a person

could not be convicted for failure to stop and render aid for not giving

assistance to an injured person who was aided by others. There was no

assistance that Appellant could have provided, no actions required under

the code, which were not provided or done by others.

                  ARGUMENT AND AUTHORITIES

    Issue 1:   Is the Vehicle Involved in Accident statute
unconstitutional on its face?
    Issue 2:   Is the Vehicle Involved in Accident statute
unconstitutional as applied to Appellant?
                          Argument & Authorities

     Standard of Review

      “When the constitutionality of a statute is attacked, we usually begin

with the presumption that the statute is valid and that the legislature has

not acted unreasonably or arbitrarily. The burden normally rests upon the

person challenging the statute to establish its unconstitutionality.” Ex parte

                                     -14-
Lo, 424 S.W.3d 10, 14-15 (Tex. Crim. App. 2014). “Terms not defined in a

statute are to be given their plain and ordinary meaning, and words defined

in dictionaries and with meanings so well known as to be understood by a

person of ordinary intelligence are not to be considered vague and

indefinite.” Watson v. State, 369 S.W.3d 865, 870 (Tex. Crim. App. 2012).

     It is a basic principle of due process that a statute is void for
     vagueness if its prohibitions are not clearly defined. The void-
     for-vagueness doctrine requires that a penal statute define the
     criminal offense with sufficient definiteness that ordinary
     people can understand what conduct is prohibited and in a
     manner that does not permit arbitrary and discriminatory
     enforcement. Although a statute is not impermissibly vague
     because it fails to define words or phrases, it is invalid if it fails
     to give a person of ordinary intelligence a reasonable
     opportunity to know what conduct is prohibited. Moreover,
     where, as here, a statute does not substantially implicate
     constitutionally protected conduct or speech, it is valid unless it
     is impermissibly vague in all applications.
State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006).

     Section 550.023 is unconstitutionally vague as it applies to
     Appellant.
     Appellant was prosecuted under a statute titled “Accident Involving

Personal Injury or Death” which provides the following:

     The operator of a vehicle involved in an accident that results or
     is reasonably likely to result in injury to or death of a person
     shall:
            (1) immediately stop the vehicle at the scene of the
            accident or as close to the scene as possible;
            (2) immediately return to the scene of the accident if the
            vehicle is not stopped at the scene of the accident;



                                      -15-
           (3) immediately determine whether a person is involved
           in the accident, and if a person is involved in the accident,
           whether that person requires aid; and
           (4) remain at the scene of the accident until the operator
           complies with the requirements of Section 550.023.

TEX. TRANS. CODE §550.021(a). Section 550.023 which is referenced

provides the following:

     The operator of a vehicle involved in an accident resulting in the
     injury or death of a person or damage to a vehicle that is driven
     or attended by a person shall:
           (1) give the operator's name and address, the registration
           number of the vehicle the operator was driving, and the
           name of the operator's motor vehicle liability insurer to
           any person injured or the operator or occupant of or
           person attending a vehicle involved in the collision;
           (2) if requested and available, show the operator's
           driver's license to a person described by Subdivision (1);
           and
           (3) provide any person injured in the accident
           reasonable assistance, including transporting or
           making arrangements for transporting the person
           to a physician or hospital for medical treatment if it is
           apparent that treatment is necessary, or if the injured
           person requests the transportation.

TEX. TRANS. CODE §550.023 (emphasis added). “Reasonable assistance” is

not defined by the statute or by Chapter 550. TEX. TRANS. CODE §550.023

passim; TEX. TRANS. CODE Chapter 550 passim.

     “A plaintiff who engages in some conduct that is clearly proscribed

cannot complain of the vagueness of the law as applied to the conduct of

others. A court should therefore examine the complainant's conduct before



                                    -16-
analyzing other hypothetical applications of the law.” Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71

L.Ed.2d 362 (1982). As discussed above in her statement of facts, the truck

driven by Appellant would not start and had to be towed, RR 3:72, and

another person had already called an ambulance. RR 3:151. Using the

examples provided in Section 550.023, Appellant would have been unable

to transport Willie to the hospital because the truck she had been driving

was inoperable, and an ambulance had already been called by another

person. There is no way that Appellant could have been on notice that there

were additional steps necessary after the accident.

     Further, what harm could have occurred after the accident based on

Appellant’s actions or inactions? Assuming that Willie was injured in the

accident, none of Appellant’s actions or inactions led to any additional

harm after the accident. “A person is criminally responsible if the result

would not have occurred but for his conduct, operating either alone or

concurrently with another cause, unless the concurrent cause was clearly

sufficient to produce the result and the conduct of the actor clearly

insufficient.” TEX. PENAL CODE §6.04(a). There was no evidence that any of

Appellant’s actions after the accident did anything to harm or exacerbate

existing harm to Willie. RR 3:passim, 4:passim.



                                    -17-
      Section 550.023 is unconstitutionally vague on its face.
      The Texas Legislature could have defined “reasonable assistance” but

chose not to do so. Instead, it gave two examples which both dealt with

transportation.    TEX.   TRANS.   CODE     §550.023(3).   Does   “reasonable

assistance” mean giving treatment to an injured person after an accident?

The Texas Legislature has chosen to insulate “good Samaritans” from

negligence claims, TEX. CIV. PRAC. & REM. CODE §74.151(a), but the person

whose negligence was the alleged cause of the accident is not shielded. TEX.

CIV. PRAC. & REM. CODE §74.151(e). Does the Texas Legislature truly intend

drivers to provide emergency care on the side of the road? What is a

person’s duty once emergency care is in route? If 9-1-1 has been called, does

a person have criminal liability for not calling 9-1-1 again herself? None of

these questions can be answered based on the working of the statute.

      In conclusion, the statute does not define “reasonable assistance,”

and neither Appellant nor any person is in any position to understand

exactly what her duties are. Consequently, there arises a prosecution such

as this where Appellant’s actions, while possibly deplorable, nevertheless

could not have resulted in any harm to anyone. Thus, this Court should find

that the Statute is unconstitutional, reverse the jury’s verdict, and render a

verdict of acquittal.



                                     -18-
     Issue 3: Was the evidence is legally sufficient to support
the jury’s finding that Appellant committed Vehicle Involved in
Accident?
                          Argument & Authorities

     Standard of Review

     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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),

overruled on other grounds by Schlup v. Delo, 513 U.S. 298, 115 S.Ct 851;

130 L.Ed 2d 808 (1995). 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.

Id. at 319; King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). This

standard is the only standard that a reviewing court will apply in

determining whether the evidence is sufficient to support each element of

the offense which the State is required to prove beyond a reasonable doubt.

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). The appellate

court will consider all evidence admitted, whether proper or improper.



                                    -19-
“Every fact need not point directly or independently to the defendant’s guilt

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

cumulative for 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 that

testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994);

Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).

      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, 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.




                                     -20-
      The evidence was not legally sufficient to support a conviction for
      Vehicle Involved in Accident.
      An "omission" is defined in the Penal Code as a failure to act. TEX.

PENAL CODE § 1.07(a)(34). Appellant was charged with Vehicle Involved in

Accident. CR 6. A person commits Vehicle Involved in Accident if she drives

a vehicle involved in an accident which results in an injury to a person and,

knowing that an accident occurred, intentionally or knowingly failed to

render reasonable assistance to a person who was involved in an accident

when it was apparent that the injured person was in need of medical

treatment. TEX. TRANS. CODE §§ 550.021, 550.023. As discussed above, the

vehicle Appellant had been driving was inoperable, and 9-1-1 had been

called and an ambulance arrived at the scene and transported Willie to the

hospital. There was no evidence that Appellant had another vehicle at the

scene of the accident available to take Willie to the hospital.

      Moreover, this issue has already been resolved by the Texas Court of

Criminal Appeals. Bowden v. State, 172 Tex. Crim. 578, 361 S.W.2d 207

(Tex. Cr. App. 1962)(analyzing former TEX. REV. CIV. STAT. ANN. art. 6701d,

§§ 38, 40 (West 1977), repealed by Acts 1995, 74th Leg., ch. 165, sec. 24(a),

eff. Sept. 1, 1995). In Bowden, the Court of Criminal Appeals analyzed a

conviction under the predecessor statutes to Sections 550.021 and 550.023

under remarkably similar facts. Id. at 207-08. The Bowden court


                                      -21-
determined that failing to do for an injured party what was done for others

would not be criminal. Id. at 208. There is no evidence that Appellant could

have rendered any additional assistance to Willie at the scene of the

accident that was not done by others. In other words, there was no

causation. Applying Section 6.04 of the Texas Penal Code to the facts act

hand, no jury could have decided that but for Appellant’s failure to

personally call 9-1-1, that her duties under Section 550.023 had not been

satisfied. See TEX. PENAL CODE §6.04(a). The officer who responded to the

scene testified that Willie was applying pressure to his chin, and that the

witness would have done the same thing to Willie if Willie had not been

doing do. RR 5: 12-13. There was no evidence that Willie needed any

additional care that Appellant could have provided. The Texas Legislature

could have required a party to provide medical care, but it did not. Thus,

the evidence is not legally sufficient to support a conviction for this offense,

and the decision of the trial court should be reversed.

                               CONCLUSION

      This appeal arose out of an accident. This is important, because the

Appellant and the victims all knew one another. Appellant did not set out to

injure Willie or anyone else, and she was not a medical professional. Billy’s

truck stopped working, 9-1-1 was called, and an ambulance sent to the



                                      -22-
scene. So far, this is a typical auto accident stemming from a person’s

negligence.

      This is a really simple case. The State alleged that Appellant violated

Section 550.021 of the Texas Transportation Code not because the duties of

Section 550.023 of the Texas Transportation Code were not satisfied, but

because they were not satisfied by Appellant. “Reasonable assistance”

insofar as could be provided was provided. That the result in this matter

could have hinged on Appellant’s calling 9-1-1 again is a perverse result.

The authorities were contacted, and Appellant could not have done

anything else for Willie Pleasant. Appellant was in no position to personally

transport Willie anywhere, and he was ultimately transported by an

Ambulance. There was no testimony that, by not calling 9-1-1 a second

time, Willie suffered any other harm beyond his injuries in the accident.

                                  PRAYER

      Appellant prays that the Court reverse the judgment of the trial court

convicting her of vehicle involved in accident and render a verdict of

acquittal. Appellant prays for any further relief to which she is entitled.




                                      -23-
                                       Respectfully submitted,


                                       /s/Noel D. Cooper
                                       Noel D. Cooper
                                       Texas Bar No. 00796397
                                       LAW OFFICES OF NOEL D. COOPER
                                       117 North St., Suite 2
                                       Nacogdoches, Texas 75961
                                       Telephone: (936) 564-9000
                                       Telecopier: (936) 715-6022
                                       ATTORNEY FOR APPELLANT,
                                       APRIL ALLISON POWERS




                  CERTIFICATE OF COMPLIANCE

     Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this document is

computer generated and contains 3,797 words based on a computer word

count.


                                       /s/Noel D. Cooper
                                       NOEL D. COOPER




                                     -24-
                     CERTIFICATE OF SERVICE

     I certify that I delivered a copy of this Appellant’s Brief to each

attorney of record or party in accordance with the Texas Rules of Appellate

Procedure on December 9, 2015, at the addresses and manners below.

Carolyn Ann Gilcrease
State Bar No. 24053934
Nacogdoches County District Attorney
101 W. Main, Suite 250
Nacogdoches, Texas 75961
Telephone: (936) 560-7766
Fax: (936) 560-6036
Email: cgilcrease@co.nacogdoches.tx.us
Via Electronic Service




                                  /s/Noel D. Cooper
                                  Noel D. Cooper
                                  Attorney for April Allison Powers




                                   -25-
                             NO. 12-15-00237-CR

                        APRIL ALLISON POWERS,
                               Appellant,

                                          v.

                           THE STATE OF TEXAS,
                                 Appellee.


                         APPELLANT’S APPENDIX

                           LIST OF DOCUMENTS

1.   Former TEX. REV. CIV. STAT. ANN. art. 6701d,
     §§ 38, 40 (West 1977), repealed by Acts 1995,
     74th Leg., ch. 165, sec. 24(a), eff. Sept. 1, 1995 ........................ Exhibit 1




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