CASE NO CR IN THE COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS AT DALLAS, TEXAS. JAMES ALLEN BALL, JR.

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1 CASE NO CR IN THE COURT OF APPEALS 5th Court of Appeals FILED: 01/06/12 14:00 Lisa Matz, Clerk FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS AT DALLAS, TEXAS JAMES ALLEN BALL, JR., Appellant v. THE STATE OF TEXAS, Appellee APPEAL IN CAUSE NO FROM THE 15TH JUDICIAL DISTRICT COURT OF GRAYSON COUNTY, TEXAS APPELLANT S BRIEF GARLAND D. CARDWELL STATE BAR NO S. TRAVIS STREET SHERMAN, TEXAS (903) / (903) (FAX) COURT-APPOINTED ATTORNEY FOR APPELLANT ORAL ARGUMENT NOT REQUESTED January 5, 2012

2 IDENTITY OF PARTIES AND COUNSEL The following is a complete list of all parties to the Trial Court's Judgement and the names and addresses of all trial and appellate counsel: THE STATE OF TEXAS/Appellee - Mr. Joe Brown, District Attorney Grayson County Justice Center 200 South Crockett Street Sherman, Texas Ms. Laura Gibson, Trial Counsel Mr. Brett Smith, Trial Counsel Assistant District Attorneys Grayson County Justice Center 120 South Crockett Street Sherman, Texas Ms. Karla Baugh Hackett, Appellate Counsel Assistant District Attorney Grayson County Justice Center 200 South Crockett Street Sherman, Texas JAMES ALLEN BALL, JR. - Ms. Debbie Lopez-Carr, Trial Counsel Appellant Attorney at Law 200 N. Travis, Ste. 402 Sherman, Texas Mr. Jack McGowen, Trial Counsel Attorney at Law 711 N. Travis St. Sherman, Texas Mr. Garland D. Cardwell, Appellate Counsel Munson, Munson, Cardwell & Tillett 123 S. Travis Street Sherman, Texas i

3 STATEMENT REGARDING ORAL ARGUMENT Pursuant to Rule 39.7 and 39.8 of the Texas Rules of Appellate Procedure, Appellant waives oral argument in this case unless this Court determines that oral argument is necessary. Appellant submits that oral argument herein would not significantly aid the Court in determining the legal and factual issues being presented in this appeal. ii

4 TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL... i STATEMENT REGARDING ORAL ARGUMENT ii TABLE OF CONTENTS... INDEX OF AUTHORITIES... iii iv PRELIMINARY STATEMENT OF THE CASE...2 STATEMENT OF JURISDICTION...5 STATEMENT OF FACTS...5 APPELLANT'S POINTS OF ERROR...5 POINT OF ERROR I. THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT CAUSED BODILY INJURY TO JAMES AVERY AS REQUIRED BY LAW AND ALLEGED IN THE INDICTMENT. (C.R., P. 4, 11-17, 30-84; SX 10-13) Statement of Pertinent Facts...5 Argument and Authorities...7 STATEMENT OF PERTINENT FACTS, ARGUMENT AND AUTHORITIES CONCLUSION AND PRAYER...9 CERTIFICATE OF SERVICE...10 iii

5 INDEX OF AUTHORITIES Page STATUTES TEX. CODE CRIM. PROC. ANN. art (Vernon 1981) TEX. CODE CRIM. PROC. ANN. art (Vernon 1981) TEX. PENAL CODE ANN. 1.07(a)(8) (Vernon 2009) TEX. PENAL CODE ANN (Vernon 1974) TEX. PENAL CODE ANN (Vernon 1974) TEX. PENAL CODE ANN (a)(1)(b)(Vernon 1974) TEX. R. APP. P TEX. R. APP. P. 38.1(f)...5 TEX. R. APP. P ii TEX. R. APP. P ii CASES Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L. Ed.2d 153 (1985) Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App. 1989) Clewis v. State, 922 S.W. 2d 126 (Tex. Crim. App. 1996) Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App. 1984) Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) , 9 iv

6 CASE NO CR IN THE COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS AT DALLAS, TEXAS JAMES ALLEN BALL, JR., Appellant v. THE STATE OF TEXAS, Appellee APPEAL IN CAUSE NO FROM THE 15TH JUDICIAL DISTRICT COURT OF GRAYSON COUNTY, TEXAS APPELLANT S BRIEF TO THE HONORABLE JUDGES OF THE COURT OF APPEALS: COMES NOW, JAMES ALLEN BALL, JR., hereinafter referred to as Appellant, and submits this Brief pursuant to the provisions of Rule 38 of the Texas Rules of Appellate Procedure, respectfully requesting that this Honorable Court reverse the jury's verdict and the 1

7 sentence in this cause before this Court, and herein render judgment acquitting Appellant and dismissing said cause. In support thereof, Appellant would respectfully show the Court as follows: PRELIMINARY STATEMENT OF THE CASE Appellant, James Allen Ball, Jr., was charged herein by Indictment with the second degree felony offense of Robbery, filed for record on February 24, 2010, with the District Clerk of Grayson County, Texas. The Indictment alleged that on or about November 28, 2009, in Grayson County, Texas, Appellant did then and there while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally, knowingly and recklessly cause bodily injury to James Avery by striking him, against the peace and dignity of the State. (C.R., P. 4; R.R. Vol. 4, P. 6-7). Any reference in this Brief to the Clerk s Record hereinafter shall be cited C.R., P., and the Reporter s Record hereinafter shall be cited R.R. Vol., P.. To such charge, Appellant entered his plea of not guilty and the charge proceeded to trial before a jury on May 10, 2010, through May 11, (C.R., P. 2-3; R.R. Vol. 3-6). Prior to trial, on April 27, 2010, Appellee filed its Notice of Intent to Enhance Appellant s punishment range to a first degree felony based upon his prior final conviction for a felony offense as alleged in such Notice. (C.R., P ). At the close of the evidence and arguments of counsel during the guilt or innocence phase of the trial, the jury duly returned its verdict finding Appellant guilty of Robbery, as 2

8 charged in the Indictment. (C.R., P ; R.R. Vol. 5, P. 46). Thereafter, as elected by Appellant, his case proceeded to a punishment hearing before the same jury on May 11, 2010, and at the beginning of such hearing, Appellant entered a plea of True to the prior final felony conviction set forth in Appellee s Notice of Enhancement. (C.R., P ; R.R. Vol. 6, P. 5-6). After hearing the evidence and arguments, the jury assessed Appellant s punishment at ninety (90) years confinement in the Texas Department of Criminal Justice - Institutional Division, with no fine being imposed. ( C.R., P , 71-76; R.R. Vol. 6, P. 82). After discharging the jury, Appellant was immediately sentenced in open court based upon the jury s verdict and remanded to the custody of the Sheriff of Grayson County. (R.R. Vol. 6, P. 83). The Trial Court entered and filed written Judgment and Sentence on May 24, (C.R., P ). Trial counsel s Motion to Withdraw was granted by the Trial Court on May 26, 2010, and the undersigned was appointed to represent Appellant herein on May 27, (C.R., P ). However, Appellant s counsel failed to receive notice of such appointment from the Trial Court until June 23, 2010, but instead received written correspondence from the Appellant on June 16, Appellant thereafter immediately filed a Motion for New Trial on June 17, 2010, which Motion was overruled by operation of law without a hearing. (C.R., P ). Notice of Appeal to this Court was initially perfected and filed on August 16, (C.R., P. 96). 3

9 On December 9, 2010, this Court entered a Memorandum Opinion and Judgment dismissing the original appeal in Case No CR for want of jurisdiction due to appellate counsel s failure to timely file the Notice of Appeal. (C.R., P ). Appellant filed a Motion for Rehearing/Reconsideration for Out of Time Appeal on December 22, 2010, which Motion was denied by Order of this Court on January 25, Thereafter, Appellant filed with the Trial Court a post-conviction Application for Writ of Habeas Corpus on February 23, 2011, seeking an out-of-time appeal, but the Texas Court of Criminal Appeals rendered an Opinion on May 27, 2011, dismissing the Application for Writ of Habeas Corpus because it was filed with the Trial Court before the Mandate had been issued by this Court. Such Mandate was issued by this Court on April 7, (C.R., P. 99). Appellant then filed a subsequent post-conviction Application for Writ of Habeas Corpus with the Trial Court, which Writ was forwarded to the Texas Court of Criminal Appeals and filed on September 14, An Opinion was rendered by the Texas Court of Criminal Appeals on September14, 2011, finding that Appellant is entitled to the opportunity to file an out-of-time appeal of the judgment of conviction, with all time limits to be calculated as if the sentence had been imposed on the date on which the Mandate of the Texas Court of Criminal Appeals was issued, which date was October 11, (C.R., P ). As ordered in the Opinion of the Texas Court of Criminal Appeals, Appellant's subsequent Notice of Appeal was timely filed on October 25, (C.R., P. 103). 4

10 STATEMENT OF JURISDICTION This Honorable Court has jurisdiction to hear this appeal pursuant to Article 4.03 of the Texas Code of Criminal Procedure. STATEMENT OF FACTS A separate statement of pertinent facts will be set forth with each point of error along with appropriate argument and authorities to support each point of error as contemplated by Rule 38.1(f) of the Texas Rules of Appellate Procedure. APPELLANT'S POINTS OF ERROR POINT OF ERROR I. THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT CAUSED BODILY INJURY TO JAMES AVERY AS REQUIRED BY LAW AND ALLEGED IN THE INDICTMENT. (C.R., P. 4, 11-17, 30-84; SX 10-13). STATEMENT OF PERTINENT FACTS, ARGUMENT AND AUTHORITIES POINT OF ERROR I. THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT CAUSED BODILY INJURY TO JAMES AVERY AS REQUIRED BY LAW AND ALLEGED IN THE INDICTMENT. (C.R., P. 4, 11-17, 30-84; SX 10-13). Statement of Pertinent Facts: The evidence in this case showed that during the evening hours of November 28, 2009, officers of the Denison Police Department were dispatched to investigate an alleged robbery at the residence of James Avery located at 711 S. Armstrong, Denison, Grayson County, Texas. (R.R. Vol. 4, P ). When the officers arrived, they discovered that the front door to the residence had been forced open with the window portion broken out of the 5

11 door. (RR. Vol. 4, P , 30-34). At the residence, police found the owner, James Avery, along with his friend, Scott Hamel, who appeared to have suffered some injuries. Mr. Avery and Mr. Hamel indicated that two white males had forcibly entered the residence, that they had engaged in a fight or struggle with one of these two men, and that the men had left the residence with Mr. Avery s wallet. (R.R. Vol. 4, P , 44-64, 70-84). No suspects or alleged perpetrators were located at that time, and no wallet was ever located or recovered by the police. Testimony revealed that no other property was taken from the residence during this alleged robbery. On December 10, 2009, Detective Tom Fair of the Denison Police Department interviewed Mr. Avery and Mr. Hamel, and showed them photo line-ups containing the photo of Appellant. Mr. Hamel was able to identify Appellant in the photo line-ups as one of the men who forcibly entered the residence and attacked him, but Mr. Avery was unable to identify Appellant as one of the alleged perpetrators from the line-ups or during his testimony at trial. (R.R. Vol. 4, P , 70-84; SX 10-13). In reviewing the testimony provided by the complaining witness, James Avery, concerning whether or not he had suffered any bodily injury during this incident, he could only state that It knocked me a little dingy. (R.R. Vol. 4, P. 73). The record is clear that Mr. Avery was not taken to the hospital and did not receive any outside medical attention or treatment. (R.R. Vol. 4, P ). 6

12 Argument and Authorities: Under Texas law, the criminal offense of Robbery is contained in Section of the Texas Penal Code, which provides in pertinent part as follows: ROBBERY (a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another, (b) An offense under this section is a felony of the second degree. TEX. PENAL CODE ANN (a)(1)(b)(Vernon 1974). The Indictment against Appellant herein charged that he did then and there while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally, knowingly, and recklessly cause bodily injury to James Avery by striking him,..... (C.R., P. 4). (Emphasis Added). Thus, bodily injury to James Avery was one of the essential elements of robbery which Appellee had to prove in this case. Bodily injury under Texas law is defined as physical pain, illness or any impairment of physical condition. TEX. PENAL CODE ANN. 1.07(a)(8) (Vernon 2009). The law in Texas requires that all accused persons are presumed innocent, and that the burden in any criminal prosecution is upon the State to prove each element of the offense charged beyond a reasonable doubt. TEX. CODE CRIM. PROC. ANN. art (Vernon 1981); TEX. PENAL CODE ANN (Vernon 1974). 7

13 In this case, this burden includes, but is not limited to, the element that Appellant caused bodily injury to James Avery as that term is defined under Texas law. If such an essential element cannot be established by the evidence beyond a reasonable doubt, the jury is duty-bound to find a defendant not guilty. Appellant would assert that there was a lack of legally sufficient evidence that Appellant caused bodily injury to James Avery as alleged in the Indictment. In this case, Mr. Avery never testified to any physical pain, illness or impairment of his physical condition as a result of the injury he allegedly received in this incident. He was not taken to the hospital, he did not request or receive any emergency paramedic treatment at the scene after the police arrived, and apparently did not receive any outside medical treatment for his alleged injury whatsoever. Although there may have been sufficient evidence to show that his home was burglarized and his wallet was stolen, there must be legally sufficient evidence that he suffered bodily injury to prove the alleged offense of robbery. Appellant admits that in reviewing the legal sufficiency of the evidence, the evidence is viewed in the light most favorable to the verdict, and after so viewing it, whether 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App. 1989); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L. Ed.2d 153 (1985); 8

14 Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App. 1984). Recently, the Texas Court of Criminal Appeals has held that this Jackson legal-sufficiency standard is now the only standard courts should apply to determine if the evidence in a case is sufficient to prove each element of an offense beyond a reasonable doubt, thereby overruling Clewis v. State, 922 S.W. 2d 126 (Tex. Crim. App. 1996), and all other cases to the contrary. Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). Appellant would submit that a close review of the record in this case shows that there was no evidence or clearly legally insufficient evidence to prove beyond a reasonable doubt that Appellant intentionally, knowingly or recklessly caused bodily injury to James Avery by striking him as alleged. Based upon the above, Appellant would assert that the ends of justice warrant a reversal and dismissal of this charge. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Honorable Court reverse the judgement and sentence of the Trial Court below and order the cause dismissed. 9

15 Respectfully submitted, MUNSON, MUNSON, CARDWELL & TILLETT Post Office Box South Travis Street Sherman, Texas Telephone: (903) Facsimile: (903) By: Garland D. Cardwell State Bar Number COURT APPOINTED ATTORNEY FOR JAMES ALLEN BALL, JR. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Appellant s Brief has been sent via hand delivery to the Honorable Karla Baugh Hackett, Assistant District Attorney, Grayson County Justice Center, 200 South Crockett Street, Sherman, Texas 75090, on the day of January, Garland D. Cardwell 10