Oral argument requested. No. 05 09 00261 CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS JOSE RAUL REYNA, Appellant v. THE STATE OF TEXAS, Appellee Appeal from the Criminal District Court No. 2 of Dallas County, Texas Cause No. F08 24048 NI APPELLANT S BRIEF Lynn Richardson Chief Public Defender Counsel of Record: Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office Katherine A. Drew State Bar Number: 24051202 Chief, Appellate Division 133 N. Industrial Blvd., LB 2 Dallas County Public Defender s Office Dallas, Texas 75207 (214) 653-3550 (telephone) (214) 653-3539 (fax) ATTORNEYS FOR APPELLANT
LIST OF PARTIES APPELLANT DEFENSE COUNSEL AT TRIAL APPELLANT S COUNSEL ON APPEAL STATE S COUNSEL AT TRIAL Jose Raul Reyna William A. Bratton, III Attorney at Law One Quadrangle Tower 2828 Routh St., Suite 850 LB 10 Dallas, Texas 75201 Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office 133 N. Industrial Blvd., LB 2 Dallas, Texas 75207 Herschel V. Woods Assistant District Attorney Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Industrial Blvd., LB-19 Dallas, Texas 75207-4399 STATE S COUNSEL ON APPEAL Craig Watkins (or his designated representative) Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Industrial Blvd., LB-19 Dallas, Texas 75207 ii
TABLE OF CONTENTS STATEMENT OF THE CASE... 1 ISSUE PRESENTED... 2 STATEMENT OF FACTS... 2 SUMMARY OF ARGUMENT... 4 ARGUMENT... 4 Point of Error... 4 The State failed to introduce sufficient evidence to support Appellant s plea of no contest so as to establish guilt. PRAYER... 9 CERTIFICATE OF SERVICE... 9 iii
INDEX OF AUTHORITIES CASES Amaya v. State, 733 S.W.2d 168 (Tex. Crim. App. 1986)... 7 Cates v. State, 102 S.W.3d 735 (Tex. Crim. App. 2003)... 8 Ex parte Williams, 703 S.W.2d 674 (Tex. Crim. App. 1986)... 5 Gray v. State, No. 2-08-164-CR, 2009 Tex. App. LEXIS 5168 (Tex. App. Fort Worth July 2, 2009, no pet. h.) (not designated for publication)... 6 Scott v. State, 946 S.W.2d 166 (Tex. App. Austin 1997, pet. ref d)... 7 Sierra v. State, 280 S.W.3d 250 (Tex. Crim. App. 2009)... 7 Stone v. State, 919 S.W.2d 424 (Tex. Crim. App. 1996)... 5 Wright v. State, 930 S.W.2d 131 (Tex. App. Dallas 1996, no pet.)... 5 STATUTES TEX. CODE CRIM. PROC. art. 1.15... 5 TEX. PENAL CODE 29.02... 5 TEX. PENAL CODE 29.03(a)(1)... 6 TEX. PENAL CODE 29.03(a)(2)... 5 TEX. PENAL CODE 7.02(a)(2)... 6 iv
TO THE HONORABLE COURT: Jose Raul Reyna, Appellant, submits this brief in support of his appeal of the judgment of Criminal District Court No. 2 of Dallas County, Texas, the Honorable Don Adams, Judge presiding, in trial cause number F08 24048 NI. STATEMENT OF THE CASE On May 6, 2008, a Grand Jury charged Appellant by indictment with aggravated robbery. (CR: 2). Specifically, the indictment alleged that Appellant: did unlawfully then and there while in the course of committing theft and with intent to obtain and maintain control of the property of Bhavna Kothari, hereinafter called complainant, the said property being beer, without the effective consent of the said complainant and with intent to deprive the said complainant of said property, did then and there intentionally and knowingly cause bodily injury to said complainant by striking complainant s leg with a motor vehicle, and said defendant did then and there use and exhibit a deadly weapon, to-wit: a motor vehicle.... (CR: 2). On February 12, 2009, Appellant waived his right to a jury and pled no contest to the charged offense. (CR: 15 16; RR2: 6). Appellant did not judicially confess to the offenses and did not stipulate to the State s evidence. The state offered evidence in accordance with Article 1.15 of the Texas Code of Criminal Procedure. On February 27, 2009, the court found that the evidence proved Appellant s guilt and sentenced him to five years imprisonment. (RR3: 14).
ISSUE PRESENTED Point of Error The State failed to introduce sufficient evidence to support Appellant s plea of no contest so as to establish guilt. STATEMENT OF FACTS Appellant and his friend, Clayton Payne, got into some trouble at a Garland convenience store. (RR2: 33). On entering, Appellant went to the front of the store and spoke to the person behind the counter, and Payne went to the restroom at the rear of the store. (RR2: 34). The person behind the counter was the co-owner of the business and the complainant, Ms. Bhavna Kothari. (RR2: 31 32). Appellant testified that he was asking Ms. Kothari about buying some cigarettes. (RR2: 84). In her testimony, Ms. Kothari denied this. (RR2: 55 56). According to Ms. Kothari, while Appellant was speaking to her, Payne opened the beer cooler in the rear of the store and placed a beer inside his jacket. (RR2: 34). Payne left the store without paying for the beer, and Ms. Kothari, along with her employee, Mr. Farhadpour, pursued Payne outside of the store, insisting that Payne return the beer. (RR2: 37 39). Ms. Kothari testified that Appellant pushed her as she tried to chase after Payne. (RR2: 37). Appellant denied this when he testified. (RR2: 88). Ms. Kothari testified that she tried to reach into the car through the driver side window and that Payne pushed her away. (RR2: 40). On cross examination, Ms. Kothari testified that she didn t notice anything unusual about Payne as he pushed her out of the car presumably with his left hand (RR2: 58 59) but when Payne 2
testified, he showed his arm, on which he had no hand, (RR2: 74). 1 Mr. Farhadpour also tried to reach inside the driver side window, while Ms. Kothari stood nearby on the driver s side of the car, toward the front. (RR2: 12 13; 42 45). Appellant and Payne attempted to drive away. (RR2: 42 45). In the process, the car, in reverse, drove over Ms. Kothari s legs, injuring her. (RR2: 12 14; 44 45). Ms. Kothari testified that Appellant was the passenger. (RR2: 42). Farhadpour could not identify Appellant at all. (RR2: 16; 21). Appellant and Payne both testified that Payne was the driver. (RR2: 73; 86). In her testimony, Ms. Kothari accused Appellant and Payne of robbing her store of merchandise on other occasions (RR2: 34), but on cross examination, she could not explain why she had never contacted the police before, (RR2: 53 54). Payne testified that he had pled guilty to aggravated robbery stemming from the incident. (RR2: 70). Payne also testified that he and Appellant had no plan to rob the convenience store and that he didn t tell Appellant that he planned to steal a beer from the store. (RR2: 71 72). Payne said that Appellant was trying to buy cigarettes at the store but that Appellant was interrupted by Payne fleeing the store. (RR2: 78). Payne denied telling Appellant that he had stolen a beer, and he denied pushing Ms. Kothari. (RR2: 72 74). Appellant testified that he and Payne were on their way home and stopped so that Appellant could buy cigarettes. (RR2: 83). Appellant also testified that he and Payne walked into the store together but that he didn t know that Payne was going to steel a 1 The record does not reflect how Payne lost his hand. 3
beer. (RR2: 84). According to Appellant, Ms. Kothari was going to sell him cigarettes, but Appellant had forgotten to bring his identification. Id. At the same time, Payne walked up to the front of the store and bolted out the door, with Ms. Kothari following Payne. Id. Appellant testified that he didn t know that Payne had stolen anything he merely followed Payne out the door and back to the car and didn t have time to ask what had happened because Mr. Farhadpour rushed out to confront Payne. (RR2: 84 86). Appellant testified that no one was trying to hurt Ms. Kothari the car was in reverse, and he and Payne were just trying to leave. (RR2: 86). SUMMARY OF ARGUMENT The evidence was insufficient to hold Appellant responsible for the conduct of another under the law of parties. Additionally, the evidence was insufficient to sustain an essential element of the offense that the car which caused injury was a deadly weapon. ARGUMENT Point of Error The State failed to introduce sufficient evidence to support Appellant s plea of no contest so as to establish guilt. Standard of Review The usual appellate standards of review for legal or factual sufficiency of the evidence do not apply to felony cases where a defendant enters a plea of no contest. 4
Wright v. State, 930 S.W.2d 131, 132 (Tex. App. Dallas 1996, no pet.). But when a criminal defendant waives a jury and pleads no contest, the State is required to introduce sufficient evidence to show the defendant s guilt. See TEX. CODE CRIM. PROC. art. 1.15; Wright, 930 S.W.2d at 132. Evidence is sufficient to show guilt if it embraces every essential element of the offense charged. Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996). A defendant may challenge the sufficiency of the evidence supporting the conviction under Article 1.15 on appeal. Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986). Aggravated Robbery A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, the person intentionally, knowingly, or recklessly causes bodily injury to another. TEX. PENAL CODE 29.02. A person commits aggravated robbery if the person uses or exhibits a deadly weapon in the course of a robbery. TEX. PENAL CODE 29.03(a)(2). The Grand Jury in this case alleged that Appellant committed theft (the beer), caused bodily injury (Ms. Kothari s legs), and used a deadly weapon (the car). As a result, these are the essential elements that the State had to prove. 5
Discussion Insufficient Evidence Under the Law of Parties The testimony was uniform that Payne stole the beer and that Payne drove the car that ran over Ms. Kothari s legs. So, under the law of parties, to be held criminally responsible for Payne s conduct, the State was required to submit evidence that Appellant, acting with intent to promote or assist in the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid Payne. TEX. PENAL CODE 7.02(a)(2). To hold Appellant responsible as a party to Payne s criminal acts, the State was required to present evidence that Appellant acted with intent to promote or assist Payne with every element including causing bodily injury and using a deadly weapon. 2 See Gray v. State, No. 2-08-164-CR, 2009 Tex. App. LEXIS 5168, *10 *11 (Tex. App. Fort Worth July 2, 2009, no pet. h.) (not designated for publication) (reversing conviction on legal sufficiency ground where State failed to prove that defendant acted with intent to promote or assist [principal] in committing aggravated robbery, that is, that he solicited, encouraged, directed, aided, or attempted to aid [principal] in placing [victims] in fear of imminent bodily injury or death and in using or displaying a deadly weapon. ) (emphasis in the original). But the evidence does not show that Appellant acted in any way to promote or assist Payne in backing over Ms. Kothari s legs or in using the car. It is not sufficient that Appellant was with Payne in the store or otherwise or that he left with Payne 2 If the indictment had alleged serious bodily injury, another aggravating element, see TEX. PENAL CODE 29.03(a)(1), the State would have been required to put on evidence of that element or evidence of the deadly weapon element. 6
after Payne stole the beer. See Scott v. State, 946 S.W.2d 166, 167 68 (Tex. App. Austin 1997, pet. ref d) ( If the evidence shows the mere presence of an accused at the scene of an offense, or even his flight from the scene, without more, then it is insufficient to sustain a conviction as a party to the offense. Standing alone, proof that an accused assisted the primary actor in making his getaway is likewise insufficient.... ) (internal citations omitted). It is likewise insufficient that Appellant s attempt to purchase cigarettes from Ms. Kothari might have inadvertently aided Payne in stealing the beer. See Amaya v. State, 733 S.W.2d 168, 174 (Tex. Crim. App. 1986) ( we cannot hold [the defendants] accountable as parties without some indication that they knew they were assisting in the commission of an offense. Otherwise, criminal complicity would extend to all those who perform acts that happen to assist in a criminal undertaking, even though there was no knowledge that a crime was being assisted. ) Because the State s evidence was insufficient to hold Appellant criminally responsible for these two elements, Appellant s conviction should be reversed. Insufficient Evidence of a Deadly Weapon Additionally, the State s evidence failed because it was insufficient to show that the car was a deadly weapon an essential element of aggravated robbery. The Court of Criminal Appeals has specified a two step analysis for determining whether a car is a deadly weapon. First, the court evaluates the manner in which the defendant used the motor vehicle and second, the court considers whether, during the felony, the motor vehicle was capable of causing death or serious bodily injury. Sierra v. State, 280 7
S.W.3d 250, 255 (Tex. Crim. App. 2009). Evidence is insufficient to support a deadly weapon finding when there is no evidence that a car was driven in a deadly or dangerous manner during the offense. Id. at 255 (citing Cates v. State, 102 S.W.3d 735, 738 39 (Tex. Crim. App. 2003) (reversing deadly weapon finding in a failure to stop and render aid conviction)). In Sierra, the court determined at step one that the manner in which the defendant used the motor vehicle was dangerous because the defendant did not attempt to brake before impact and because the defendant was intoxicated, so the court proceeded to step two and determined that the SUV was capable of causing serious bodily injury. Id. at 256. Here, by contrast, the evidence was uniform that Ms. Kothari was standing on the driver s side of the car, near the front, and Payne drove the car in reverse, away from Ms. Kothari, as he and Appellant left the convenience store. Merely backing away from someone is insufficient under step one of the Sierra analysis, because simply backing away from someone is not using a car in a manner that is deadly or dangerous. There is no evidence in the record that Payne peeled out, that he was intoxicated, or that he backed away in an otherwise reckless manner. Therefore, the evidence did not support the Court s finding that the deadly weapon element of the aggravated robbery charge was satisfied. Because the evidence presented was insufficient to impute criminal liability to Appellant, and because the evidence was insufficient to support the element of use of a deadly weapon, the evidence does not adequately support Appellant s plea. 8
PRAYER Appellant prays that the Court will reverse the trial court s judgment. Respectfully submitted, Lynn Richardson Chief Public Defender Dallas County Katherine A. Drew Chief, Appellate Division Dallas County Public Defender s Office Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office State Bar Number: 24051202 133 N. Industrial Blvd., LB 2 Dallas, Texas 75207 (214) 653-3550 telephone (214) 653-3539 fax Attorneys for Appellant CERTIFICATE OF SERVICE A copy of this brief has been hand-delivered to the Dallas County Criminal District Attorney s Office, Appellate Division, 133 N. Industrial Blvd., Dallas, Texas 75207 on October, 2009. Brian W. Portugal 9
CERTIFICATE OF COMPLIANCE I certify that this submitted CD or e-mail attachment of the brief complies with the following requirements of the Court: 1. The brief is submitted on a CD or by e-mail attachment; 2. The CD or e-mail attachment is labeled with the following information: A. Case Name: B. The Appellate Case Number: C. The Type of Brief: D: Party for whom the brief is being submitted: E. The Word Processing Software and Version Used to Prepare the Brief: 3. The CD or e-mail attachment contains only an electronic copy of the brief and the appendix. The documents in the appendix conform to the requirements of Texas Rules of Appellate Procedure 9.8 and 38.1(k). 4. The CD or e-mail attachment is free of viruses or any other files that would be disruptive to the Court=s computer system. The following software, if any, was used to ensure the brief is virus-free:. 5. I understand that a copy of this brief may be posted on the Court s website and that the electronically filed copy of the brief becomes part of the Court s record. 6. Copies have been sent to all parties associated with this case. (Signature of filing party and date) (Printed name) (Firm) 10