CASE NO CR CASE NO CR IN THE COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS AT DALLAS, TEXAS

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1 CASE NO CR CASE NO CR IN THE 5th Court of Appeals FILED: 03/09/ :00 Lisa Matz, Clerk COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS AT DALLAS, TEXAS ALFONSO MCKENZIE, Appellant v. THE STATE OF TEXAS, Appellee APPEAL IN CAUSE NO AND FROM THE 59TH 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 March 8, 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. Bobbie Cate, Trial Counsel Assistant District Attorney Grayson County Justice Center 120 South Crockett Street Sherman, Texas Ms. Karla Hackett, Appellate Counsel Assistant District Attorney Grayson County Justice Center 200 South Crockett Street Sherman, Texas ALFONSO MCKENZIE - Mr. Richard Dunn, Trial Counsel Appellant Attorney at Law 108 S. Crockett Street 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...4 STATEMENT OF FACTS...4 APPELLANT'S POINTS OF ERROR...5 STATEMENT OF PERTINENT FACTS, ARGUMENT AND AUTHORITIES POINT OF ERROR I. THERE WAS FACTUALLY AND LEGALLY INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED THE OFFENSE OF ROBBERY AS REQUIRED BY LAW AND ALLEGED IN THE INDICTMENT (C.R., P. 11; R.R. VOL. 3, P , 50-56, VOL. 4, SX 1-5) POINT OF ERROR II. THERE WAS FACTUALLY AND LEGALLY INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED THE OFFENSE OF BAIL JUMPING AND FAILURE TO APPEAR AS REQUIRED BY LAW AND ALLEGED IN THE INDICTMENT (C.R., P. 6; R.R. VOL. 3, P , VOL. 4, SX 7-9) Statement of Pertinent Facts...5 Argument and Authorities...7 CONCLUSION AND PRAYER...10 CERTIFICATE OF SERVICE...11 iii

5 INDEX OF AUTHORITIES STATUTES Page TEX. CODE CRIM. PROC. ANN. art (Vernon 1981) TEX. CODE CRIM. PROC. ANN. art (Vernon 1981) TEX. PENAL CODE ANN (Vernon 1974) TEX. PENAL CODE ANN (Vernon 1974) TEX. PENAL CODE ANN (1) (Vernon 2009) TEX. PENAL CODE ANN (a)(1)(b)(Vernon 1974) TEX. PENAL CODE ANN (Vernon 1994) TEX. R. APP. P TEX. R. APP. P. 38.1(f)...4 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)...9 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) , 10 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) iv

6 CASE NO CR CASE NO CR IN THE COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS AT DALLAS, TEXAS ALFONSO MCKENZIE, Appellant v. THE STATE OF TEXAS, Appellee APPEAL IN CAUSE NO AND FROM THE 59TH JUDICIAL DISTRICT COURT OF GRAYSON COUNTY, TEXAS APPELLANT S BRIEF TO THE HONORABLE JUDGES OF THE COURT OF APPEALS: COMES NOW, ALFONSO MCKENZIE, hereinafter referred to as Appellant, and submits this Brief pursuant to the provisions of Rule 38 of the Texas Rules of Appellate 1

7 Procedure, respectfully requesting that this Honorable Court reverse the jury's verdicts and the sentences in these causes before this Court, and herein render judgment acquitting Appellant and dismissing said causes. In support thereof, Appellant would respectfully show the Court as follows: PRELIMINARY STATEMENT OF THE CASE Appellant, Alfonso McKenzie, was charged herein by Indictment in Cause No with the second degree felony offense of Robbery, filed for record on September 15, 2010, with the District Clerk of Grayson County, Texas. The Indictment alleged that on or about December 14, 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 or recklessly cause bodily injury to Phillip Shaffer by struggling with him, against the peace and dignity of the State. (C.R., P. 2, 11; R.R. Vol. 3, P ). Thereafter, Appellant was also charged herein by Indictment in Cause No with the third degree felony offense of Bail Jumping and Failure to Appear on the Robbery charge in Cause No , filed for record on April 27, 2011, with the District Clerk of Grayson County, Texas. That Indictment alleged that on or about October 4, 2010, in Grayson County, Texas, Appellant did then and there after being lawfully released from custody on a pending felony charge on condition that he subsequently appear in court, intentionally or knowingly fail to appear in accordance with the terms of his release, to-wit: 2

8 see attached bail bond incorporated herein for all purposes, against the peace and dignity of the State. (C.R., P. 2, 6; R.R. Vol. 3, P ). 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 charges, Appellant entered his pleas of not guilty and the charges proceeded to trial before a jury on August 8, 2011, through August 9, (C.R., P. 2; R.R. Vol. 3-4). Additionally, both Indictments contained the same two Punishment Enhancement paragraphs seeking to enhance Appellant s range of punishment in each case if he was found guilty of the charges by the Jury. (C.R., P. 11; 6). At the close of the evidence and arguments of counsel during the guilt or innocence phase of the trial, the jury duly returned its verdicts finding Appellant guilty of Robbery and Bail Jumping/Failure to Appear, as charged in the Indictments. (C.R., P ; 12-18; R.R. Vol. 3, P ). Thereafter, as elected by Appellant, his cases proceeded to a punishment hearing before the Trial Court on August 9, 2011, and at the beginning of such hearing, Appellee offered into evidence, without objection from Appellant, certified copies of records in support of the Punishment Enhancement paragraphs contained in the Indictments. (C.R., P. 11, 6; R.R. Vol. 3, P ; SX 10, 11). After hearing the evidence and arguments, the Trial Court assessed Appellant s punishment at fifteen (15) years confinement in the Texas Department of Criminal Justice - Institutional Division on the Robbery case, with no fine being imposed, and ten (10) years confinement in the Texas Department of Criminal Justice - 3

9 Institutional Division on the Bail Jumping/Failure to Appear case, with no fine being assessed, to run concurrently, and remanded Appellant to the custody of the Sheriff of Grayson County. (R.R. Vol. 3, P ). The Trial Court entered and filed written Judgments and Sentences on August 17, (C.R., P ; 23-27). Trial counsel filed Notices of Appeal to this Court in each case on August 12, (C.R., P , 20-21). On September 8, 2011, the undersigned was appointed to represent Appellant on these appeals, and Motions for New Trial were immediately and timely filed on Appellant s behalf on September 8, (Supp. C.R., P. 3-9, 4-11). Such Motions for New Trial were overruled by operation of law without a hearing. Trial counsel s Motions to Withdraw were granted by the Trial Court on September 13, (Supp. C.R., P , 12-14). 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. 4

10 APPELLANT'S POINTS OF ERROR POINT OF ERROR I. THERE WAS FACTUALLY AND LEGALLY INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED THE OFFENSE OF ROBBERY AS REQUIRED BY LAW AND ALLEGED IN THE INDICTMENT (C.R., P. 11; R.R. VOL. 3, P , 50-56, VOL. 4, SX 1-5). POINT OF ERROR II. THERE WAS FACTUALLY AND LEGALLY INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED THE OFFENSE OF BAIL JUMPING AND FAILURE TO APPEAR AS REQUIRED BY LAW AND ALLEGED IN THE INDICTMENT (C.R., P. 6; R.R. VOL. 3, P , VOL. 4, SX 7-9). STATEMENT OF PERTINENT FACTS, ARGUMENT AND AUTHORITIES POINT OF ERROR I. THERE WAS FACTUALLY AND LEGALLY INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED THE OFFENSE OF ROBBERY AS REQUIRED BY LAW AND ALLEGED IN THE INDICTMENT (C.R., P. 11; R.R. VOL. 3, P , 50-56, VOL. 4, SX 1-5). POINT OF ERROR II. THERE WAS FACTUALLY AND LEGALLY INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED THE OFFENSE OF BAIL JUMPING AND FAILURE TO APPEAR AS REQUIRED BY LAW AND ALLEGED IN THE INDICTMENT (C.R., P. 6; R.R. VOL. 3, P , VOL. 4, SX 7-9). Statement of Pertinent Facts: The evidence in this case showed that around 2:00 p.m. on December 14, 2009, Appellant entered the Albertson s grocery store in Denison, Grayson County, Texas, proceeded to the northeast corner of the store, and selected a portable DVD player that was being offered for sale. (R.R. Vol. 3, P ). As a result of recent thefts occurring in that area of the store, Albertson s employees Phillip Shaffer and Gary Thurston began to watch 5

11 Appellant in the store after he had selected the DVD player. (R.R. Vol. 3, P ). Mr. Shaffer and Mr. Thurston testified that they saw Appellant remove the DVD play from its box and put the player under his coat and proceed back toward the check-out area at the front of the store. (R.R. Vol. 3, P ). After Appellant went past the registers and into the foyer area of the store, Mr. Shaffer and Mr. Thurston confronted Appellant about the DVD player, a struggle began between the parties, and Mr. Shaffer and Mr. Thurston both received minor injuries to their hands and arms. (R.R. Vol. 3, P , 50-66; Vol. 4, SX 1-5). Thereafter, Appellant was apprehended and arrested by an officer of the Denison Police Department, and the DVD player was found and recovered on the floor inside the store before you leave the store going into the foyer. (R.R. Vol. 3, P ). After Appellant was indicted for Robbery based upon the above referenced incident on September 15, 2010, (some nine (9) months after the alleged incident had occurred), Appellant s Robbery case was scheduled by the Court for arraignment on October 14, 2010, th at 9:00 a.m., in the 59 District Court of Grayson County, Texas. (R.R. Vol. 3, P , rd Vol. 4, SX 7). Notice of such arraignment was sent to Appellant at 1211 W. 3, Alice, Texas 78332, and to Mike Brown as surety on Appellant s bond. Prior to such Notice being sent out, Appellant had posted bond on the Robbery charge on January 1, 2010, through Spanky s Bail Bonds, showing Appellant s address at that time to be 4836 Timberview, # G, Sherman, rd Texas 75090, not 1211 W. 3, Alice, Texas (R.R. Vol. 3, P , Vol. 4, SX 8) (Emphasis Added). When Appellant failed to appear for his arraignment on October 14, 6

12 2010, at 9:00 a.m., his name was called by the bailiff, a warrant was issued for his arrest, and he was eventually indicted herein for Bail Jumping and Failure to Appear on April 27, (C.R., P. 6; R.R. Vol. 3, P , Vol. 4, SX 9). 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 Phillip Shaffer by struggling with him,..... (C.R., P. 11). Thus, in the course of committing theft of property of another was one of the essential elements of the robbery charge against Appellant which Appellee had to prove in this case beyond a reasonable doubt. In the course of committing theft under Texas law is defined as conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or 7

13 commission of theft. TEX. PENAL CODE ANN (1) (Vernon 2009). Additionally, under Texas law, the criminal offense of Bail Jumping and Failure to Appear is set forth in Section of the Texas Penal Code, which provides as follows: PEN BAIL JUMPING & FAILURE TO APPEAR (a) A person lawfully released from custody, with or without bail, on condition that he subsequently appear commits an offense if he intentionally or knowingly fails to appear in accordance with the terms of his release.... (c) It is a defense to prosecution under this section that the actor had a reasonable excuse for his failure to appear in accordance with the terms of his release. (d) Except as provided in Subsections (e) and (f), an offense under this section is a Class A misdemeanor (f) An offense under this section is a felony of the third degree if the offense for which the actor s appearance was required is classified as a felony. TEX. PENAL CODE ANN (Vernon 1994). 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 offenses charged beyond a reasonable doubt. TEX. CODE CRIM. PROC. ANN. art (Vernon 1981); TEX. PENAL CODE ANN (Vernon 1974). In the Robbery charge herein, this burden includes, but is not limited to, the element that Appellant caused bodily injury to Phillip Shaffer as that term is defined under Texas law while he was in the course of committing theft as that term is defined above. 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 8

14 lack of factually and legally sufficient evidence that Appellant was in the course of committing theft of property as alleged in the Indictment. The evidence against Appellant clearly showed that he was still inside the Albertson s store at the time he was confronted by the employees, and the DVD player he was allegedly stealing was found on the floor inside the store after the struggle occurred in the foyer. Furthermore, in relation to the Bail Jumping and Failure to Appear charge against Appellant, the evidence clearly shows that the notice of arraignment on the Robbery charge (almost ten (10) months after the alleged offense) was sent to the wrong address for Appellant as shown on the bond he posted on January 1, 2010, and was never sent to his bonding company, Spanky s Bail Bonds. 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); 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 9

15 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 Phillip Shaffer by struggling with him as alleged, while Appellant was in the course of committing theft of property of another. Additionally, Appellant would submit that there was no evidence or clearly legally insufficient evidence to prove beyond a reasonable doubt that Appellant intentionally or knowingly failed to appear for arraignment on the Robbery charge since the Notice was sent to the wrong address, and was never sent to his bonding company. Based upon the above, Appellant would assert that the ends of justice warrant a reversal and dismissal of these charges. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Honorable Court reverse the judgements and sentences of the Trial Court below and order the causes dismissed. 10

16 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 ALFONSO MCKENZIE 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 Hackett, Assistant District Attorney, Grayson County Justice Center, 200 South Crockett Street, Sherman, Texas 75090, on the day of March, Garland D. Cardwell 11