Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/6/2015 10:26:15 AM JEFFREY D. KYLE Clerk IN THE THIRD COURT OF APPEALS THIRD COURT OF APPEALS 4/6/2015 10:26:15 AM JEFFREY D. KYLE 03-14-00702-CR AUSTIN, TEXAS *1 ACCEPTED [4766235] CLERK AT AUSTIN, TEXAS ANTONIOUS DESMOND §
BRINSON, §
APPELLANT §
§ CAUSE NO. 03-14-00702-CR V. § TRIAL COURT NO. 72,150 §
THE STATE OF TEXAS, §
APPELLEE § BRIEF OF APPELLANT Appealed from the 264 th Judicial District Court, Bell County, Texas Hon. Martha J. Trudo, presiding COPELAND LAW FIRM P.O. Box 399 Cedar Park, TX 78613 Tel/Fax 512.215.8114 e-mail: ecopeland63@yahoo.com Tim Copeland State Bar No. 04801500 Attorney for Appellant APPELLANT HEREBY WAIVES ORAL ARGUMENT *2 TABLE OF CONTENTS Page Table of Contents i
Index of Authorities ii-iii
Identity of Parties and Counsel 1
Statement of the Case 2
Issue Presented 3
The evidence is legally insufficient to support Brinson‟s conviction. Specifically, the evidence was insufficient to permit the jury to conclude that Brinson intentionally, knowingly, or recklessly caused bodily injury to the complainant by hitting her with his fists or with a baseball bat.
Statement of Facts/Background 4
Summary of the Argument 5
Statement of Pertinent Evidence 6
Argument 10
Prayer 15
Certificate of Service and Compliance with Rule 9 16
i *3 INDEX OF AUTHORITIES Authorities Page
United States Supreme Court cases Jackson v. Virginia
443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979) 10,12,13 Texas Court of Criminal Appeals’ cases Bolton v. State
619 S.W.2d 166 (Tex. Crim. App. 1981) 13 Brooks v. State
323 S.W.3d 893 (Tex. Crim. App. 2010) 10 Cada v. State
334 S.W.3d 776 (Tex. Crim. App. 2011) 11 Geick v. State
349 S.W.3d 542 (Tex. Crim. App. 2011) 11 Hooper v. State
214 S.W.3d 9 (Tex. Crim. App. 2007) 11 Isassi v. State
330 S.W.3d 633 (Tex. Crim. App. 2010) 10 King v. State
29 S.W.3d 556 (Tex. Crim. App. 2000) 12 King v. State
95 S.W.2d 701 (Tex. Crim. App. 1995) 12 ii
INDEX OF AUTHORITIES, continued Authorities Page
Texas Court of Criminal Appeals’ cases, continued Lane v. State
763 S.W.2d 785 (Tex. Crim. App. 1989) 13 Laster v. State
275 S.W.3d 512 (Tex. Crim. App. 2007) 12 Malik v. State
953 S.W.2d 234 (Tex. Crim. App. 1997) 11 Texas Court of Appeals’ cases Arzaga v. State
86 S.W.3d 767 (Tex. App.- El Paso 2002, no pet.) 13 Statutes
TEX. PENAL CODE ANN. §§22.01(a)(1), (b)(2)(A),
(B) (West 2013) 2,12
TEX. PENAL CODE §1.07(a)(8) (West 2013)
TEX. FAM. CODE §71.0021. 71.003 and 71.005 (West 2014) 6
TEX. R. APP. PROC. 9.10(a)(3)(West 2014) 7
iii
IN THE THIRD COURT OF APPEALS AT AUSTIN, TEXAS ANTONIOUS DESMOND BRINSON, §
APPELLANT §
§ CAUSE NO. 03-14-00702-CR V. § TRIAL COURT NO. 72,150
§
THE STATE OF TEXAS, §
APPELLEE §
IDENTITY OF PARTIES AND COUNSEL TO THE HONORABLE COURT OF APPEALS:
NOW COMES Antonious Desmond Brinson, appellant, who would show the Court interested parties herein are as follows:
ANTONIOUS DESMOND BRINSON , appellant.
TIM COPELAND , appellate attorney for appellant, P.O. Box 399, Cedar Park, Texas 78613.
JOHN GALLIGAN , trial attorney for appellant, 315 South Main, Belton, Texas 76513.
MICHAEL WALDMAN , ANN JACKSON , and BOB ODOM , Assistant Bell County District Attorneys, trial and appellate attorneys, respectively, for the
State of Texas, appellee, P.O. Box 540, Belton, Texas 76513.
IN THE THIRD COURT OF APPEALS AT AUSTIN, TEXAS ANTONIOUS DESMOND BRINSON, §
APPELLANT §
§ CAUSE NO. 03-14-00702-CR V. § TRIAL COURT NO. 72,150
§
THE STATE OF TEXAS, §
APPELLEE §
STATEMENT OF THE CASE TO THE HONORABLE COURT OF APPEALS:
Antonious Desmond Brinson was convicted by jury of assault with bodily injury of a family member with prior family violence. See TEX. PENAL CODE
§22.01(a)(1), (b)(2) ; TEX. FAM. CODE §71.005 (West 2014) and R.R. 7, p. 144.
After the jury found him guilty of the charged offense, Brinson pleaded “true” to
an enhancement paragraph. (R.R. 8, p. 5). The jury heard evidence and argument
of counsel and assessed his punishment at confinement in the Texas Department of
Criminal Justice‟s Institutional Division for thirteen years and imposed a $1,000.00
fine. (R.R. 8, p. 41). Brinson gave due notice of appeal from the verdict and
sentence. (C.R. 1, p. 91).
ISSUE The evidence is legally insufficient to support Brinson‟s conviction.
Specifically, the evidence was insufficient to permit the jury to conclude that
Brinson intentionally, knowingly, or recklessly caused bodily injury to the
complainant by hitting her with his fists or with a baseball bat.
IN THE THIRD COURT OF APPEALS AT AUSTIN, TEXAS ANTONIOUS DESMOND BRINSON, §
APPELLANT §
§ CAUSE NO. 03-14-00702-CR V. § TRIAL COURT NO. 72,150
§
THE STATE OF TEXAS, §
APPELLEE §
STATEMENT OF FACTS/BACKGROUND Witnesses testified that Brinson arrived at Javanda Johnson‟s apartment one evening after both had been drinking and that he asked her to step outside to talk.
(R.R. 6, pp. 65, 97-99, 15) The two had a child together and were in a
dating/spousal relationship. They began to argue, and Johnson picked up a
baseball bat from the yard and swung it at Brinson. (R.R. 6, 7, pp. 66-69, 17
respectively). Johnson missed, but both fell to the ground struggling for control of
the bat. Whether Brinson hit Johnson intentionally with the bat as the two wrestled
for its control or whether Johnson was hit accidentally when she suddenly released
her hold on the bat was disputed. In any event, Johnson suffered a severe bump
on the side of her head, but she declined to file charges against Brinson that
evening, and she sought to have the charges that were filed against him later
dismissed. (R.R. 6, p. 23 and see R.R. 7, pp. 55, 57). Brinson, who had a prior
conviction for family assault, was convicted by a Bell County jury of assault
family violence with prior family violence. Brinson was ultimately assessed an
enhanced sentence of thirteen years‟ imprisonment and was fined $1,000.00 by the
jury. Brinson argues here that evidence of his guilt was legally insufficient.
SUMMARY OF THE ARGUMENT Very clearly, the State proved that Brinson had a previous conviction for family violence assault from 2009. However, the evidence that he committed a
new family violence assault as charged in this case, even when viewed in the light
most favorable to the verdict, is insufficient for a rational trier of fact to have found
the essential elements of the crime beyond a reasonable doubt. Neither the
evidence adduced nor the State‟s argument prove the allegations in Brinson‟s
indictment. Here, a rational jury must have concluded that Johnson was the
aggressor in the case; that she armed herself with a bat preparatory to attacking
Brinson and that her injury could not be attributed to an intentional or reckless
action on his part. Instead, the credible evidence amounted only to a modicum, and
in light of that, the verdict and sentence must be reversed.
ISSUE The evidence is legally insufficient to support Brinson‟s conviction.
Specifically, the evidence was insufficient to permit the jury to conclude that
Brinson intentionally, knowingly, or recklessly caused bodily injury to the
complainant by hitting her with his fists or with a baseball bat.
STATEMENT OF PERTINENT EVIDENCE Indictment
Brinson‟s indictment alleged in pertinent part that he did “on October 20, 2013, … intentionally, knowingly or recklessly cause bodily injury to Javonda Johnson, … a person with whom the defendant had a dating relationship, and who are the parents of the same child as described by §71.0021(b), 71.003 and 71.005, Texas Family Code , by hitting and pushing and striking the said Javonda Johnson with the hands and fists of Defendant and by hitting and striking the said Javonda Johnson in the head and face with a metal baseball bat.
--(C.R. 1, p. 4) His indictment also alleged a previous conviction on October 9, 2012 for assault/bodily injury on a family member for enhancement purposes.
Trial Evidence
Killeen police officer Caleb Williams responded to a 9-1-1 domestic violence call in Killeen on October 20, 2013. On arrival, he saw that Javonda
Johnson had a large swelling on her forehead. (R.R. 6, p. 23). Johnson was angry
and described Brinson, who left the scene before Williams‟ arrival, as her assailant.
Williams eventually took Johnson‟s statement and those of her two daughters, ages
12 and 13. (R.R. 6, p. 28). Williams testified that while Johnson said Brinson was
her assailant, she did not tell him that she had picked up a bat and swung it at
Brinson to begin their confrontation. Neither did she tell him that her head injury
occurred as she struggled with Brinson over control of the bat or that she
accidently hit herself with the bat during their scuffle. (R.R. 6, pp. 40, 56). Before
Williams left, Johnson told him that she did not want to file criminal charges
against Brinson, and she signed a “release of obligation” to that effect. (R.R. 6, p.
29 and, see State‟s Exhibit 9). Williams left Johnson‟s house having completed his
investigation of the incident.
M.J. [1] , Johnson‟s daughter, testified that she answered Johnson‟s door on
October 20, 2013, to Brinson‟s knock. Johnson, she said, went out to talk to
Brinson, and M.J. saw Johnson pick up a bat from the yard. (R.R. 6, pp. 65-68).
M.J. said that she saw Johnson miss Brinson when she swung at him with the bat
before they both fell to the ground. (R.R. 6, pp. 69-70). M.J. opined that both
Johnson and Brinson were drunk during their encounter. (R.R. 6, p. 69). M.J. also
testified that when the two adults fell to the ground, Brinson “was hitting [Johnson]
in the face with [the bat]” and Johnson “was trying to stop it.” (R.R. 6, p. 72). The
state refreshed M.J.‟s memory with the statement she had given Williams on the
20 th , and M.J. admitted that she had not said anything to that officer about Johnson
arming herself with a bat or about Johnson swinging the bat at Brinson before they
fell to the ground. (R.R. 6, pp. 76-77). Nevertheless, M.J. emphatically reiterated
that her mother had, in fact, first tried to hit Brinson with the bat. In fact, M.J.
testified, as Johnson had approached Brinson with the bat, M.J. Johnson told
Brinson, “(i)f you‟re going to hit me, hit me”, whereupon Johnson had banged the
bat upon the ground. (R.R. 6, p. 84). M.J. testified that she thought her mother
was hit twice with the bat while she and Brinson struggled on the ground, at least
once clearly accidentally. (R.R. 6, pp. 86, 40). She said that after Johnson was hit
in the head, “they both let go of the bat, and [Brinson] walked off, but [Johnson]
got up and slapped him.” (R.R. 6, p. 86). M.J. testified that she never heard
Brinson threaten Johnson. Neither did she see him stand up and swing the bat at
Johnson once he had control of it. (R.R. 6, p. 87). On re-direct by the state,
however, M. J. confirmed that in the original statement she had given Officer
Williams, she had told him that she thought Brinson hit Johnson “on purpose.”
(R.R. 6, p. 94).
T.Q., described as another of Brinson‟s step-daughters, testified that she was taking care of the other children in the home when Johnson walked out the front
door to talk to Brinson. (R.R. 6, pp. 103-104). T.Q. confirmed that she saw her
mother pick the bat off the ground as she approached Brinson. (R.R. 6, p. 108).
She testified that she turned back into the house to check on the other kids, and
when she turned back around, Brinson and Johnson were “fighting” on the ground,
wrestling for control over the bat, screaming and cursing each other. (R.R. 6, p.
108). T.Q. said that she saw the bat hit her mother when Johnson was “pushing it
away… she let go, and it hit her in the face.” (R.R. 6, p. 105). T.Q. testified that
she called 9-1-1. (R.R. 6, p. 109). T.Q.‟s trial testimony was also somewhat
different from the statement she gave Officer Williams on the 20 th . In her
statement to Williams, T.Q. said that Brinson “attacked [Johnson] with a metal
baseball bat and punched and drug her.” (R.R. 6, p. 113). She admitted that she
had not told Williams that her mother had armed herself with a bat. Neither had
she told him that Johnson had swung the bat at Brinson to start their confrontation.
(R.R. 6, p. 114).
Javonda Johnson testified that she lived with her eight children, only one of whom was Brinson‟s, in Killeen on Poage St. on October 20, 2013, and that
Brinson occasionally stayed with her at that address. (R.R. 7, p. 9). She also
testified that she had been drinking and arguing with Brinson most of the day on
the 20 th ; that he had left the apartment that afternoon to drink with friends, and that
he returned about 8:15 that evening. She opined that on his return Brinson was
intoxicated…, and she admitted that she was. (R.R. 7, p. 13). She testified that she
went outside to talk to Brinson when he drove up with his friends and a cousin.
Because she was angry with Brinson, on her way into the yard she said that she
armed herself with a metal baseball bat. (R.R. 7, p. 17). Asked what happened
after she picked up the bat, Johnson testified that she did not recall. “All that I
remember,” she said, “is that we were struggling over the bat. I fell to the ground,
and when I came back up. I had a knot.” (R.R. 7, p. 17). She did not remember
Brinson swinging the bat at her; she just remembered they both had their hands on
the bat on the ground. (R.R. 7, p. 17). Johnson‟s testimony at trial was
inconsistent with both a 9-1-1 tape (State‟s Exhibit 7) and her statement to Officer
Williams. On the 9-1-1 tape, she can be heard to say that Brinson had grabbed the
bat, “threatened to kick her ass” and then “pretty much” had done just that. ( See,
State‟s Exhibit 7 and R.R. 7, p. 24). She made the same accusation in her original
statement to Officer Williams. (R.R. 7, p. 24). Finally, in her release of obligation
where she declined to press charges, she mentions that she was “assaulted by a
bat.” (R.R. 7, p. 28). At trial, however, Johnson explained that she had been
“intoxicated and angry” when she talked to Williams that evening. (R.R. 7, p. 49).
She emphatically denied that Brinson had intentionally attacked her with the bat or
that she had been the victim of his assault. (R.R. 7, pp. 55, 57). Instead, she
reiterated that she believed that Brinson had not intended to harm her. (R.R. 7, p.
45).
ARGUMENT
Standard of Review
In an appellate court‟s due-process review of the sufficiency of the evidence to support a conviction, a reviewing court views all of the evidence in the light
most favorable to the verdict to determine 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, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560
(1979); Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The
essential elements of the crime are those defined by the hypothetically correct jury
charge. Geick v. State , 349 S.W.3d 542, 545 (Tex. Crim. App. 2011) (citing Malik
v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). A reviewing court thus
measures the sufficiency of the evidence by the essential elements as defined by
the hypothetically correct charge. Cada v. State , 334 S.W.3d 776, 773 (Tex. Crim.
App. 2011). A hypothetically correct jury charge “accurately sets out the law, is
authorized by the indictment, does not unnecessarily 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 , 953
S.W.2d at 240. [B]efore something may be an element of the offense in the
hypothetically correct jury charge, it must be „authorized by the indictment.‟”
Cada , 334 S.W.3d at 773 (footnotes omitted). The jury is the sole judge of the
weight and credibility of the witnesses. Brooks v. State , 323 S.W.3d 893, 899
(Tex. Crim. App. 2010). It is the role of the jury to resolve any conflicts of
testimony and to draw rational inferences from the facts. Hooper v. State , 214
S.W.3d 9, 13 (Tex. Crim. App. 2007). If the record contains conflicting
inferences, a reviewing court is required to presume the jury resolved such facts in
favor of the verdict and defer to that resolution. Brooks , 323 S.W.3d at 984-95.
On appeal, the reviewing court‟s role is only to ensure the jury reached a rational
verdict. It does not reevaluate the weight and credibility of the evidence produced
at trial and does not substitute its judgment for that of the fact finder. King v.
State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). This standard is the same for
both direct and circumstantial evidence. King v. State , 95 S.W.2d 701, 703 (Tex.
Crim. App. 1995). Reviewing courts have held the evidence to be insufficient
under the Jackson standard in two circumstances: (1) the record contained no
evidence, or merely a “modicum” of evidence, probative of an element of the
offense, or (2) the evidence conclusively established a reasonable doubt. See
Jackson , 443 U.S. at 314, 318 n. 11,320, 99 S. Ct. at 2786, 2789 n. 11, 789; see
also Laster v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2007).
Application
To prove that Brinson committed assault-family the State had to establish beyond a reasonable doubt that Brinson intentionally, knowingly, or recklessly
caused bodily injury to Johnson, a member of Brinson‟s family or household by
hitting or striking Johnson with his fists or a baseball bat. See TEX. PENAL
CODE §22.01(b)(2)(B) (West 2013) . To prove that Brinson committed assault-
family violence subject to enhancement, the State was required to establish beyond
a reasonable doubt that he intentionally, knowingly, or recklessly caused bodily
injury to Johnson, a member of his family or household and that he had a previous
conviction for assault-family violence. See TEX. PENAL CODE §22.01(b)
(2)(A) (West 2013) . Bodily injury is defined as “physical pain, illness, or any
impairment of physical condition.” See TEX. PENAL CODE §1.07(a) (8) (West
2013) . The definition is broad and encompasses even relatively minor physical
contacts as long as they consist of more than mere offensive touching. Lane v.
State , 763 S.W.2d 785, 786 (Tex. Crim. App. 1989) (evidence of bodily injury
sufficient when complainant suffered pain and bruise from appellant grabbing her
wallet and twisting it away); see also Bolton v. State , 619 S.W.2d 166, 167 (Tex.
Crim. App. 1981) (evidence of cut sufficient to show bodily injury); Arzaga v.
State , 86 S.W.3d 767, 778-79 (Tex. App.- El Paso 2002, no pet.) (evidence of
swelling and bruising of lips sufficient to show bodily injury).
Analysis
The evidence adduced at Brinson‟s trial does not conclusively establish a reasonable doubt that Brinson committed family violence assault, one of the
circumstances which provides relief under the Jackson standard, but neither does
the evidence establish beyond a reasonable doubt that he did commit the offense.
In fact, there is only a modicum of evidence at trial suggesting an intentional,
knowing or reckless act on Brinson‟s part and thus only a modicum of evidence of
his guilt, the other circumstance under Jackson to justify relief.
The consensus among the various witnesses during trial was that: Brinson arrived at Johnson‟s home on the 20 th when both were angry and ●
drunk;
● Johnson armed herself with a bat and, after arguing and cursing at each
other, swung it at Brinson at the start of their confrontation; ● both Brinson and Johnson fell to the ground holding the bat;
● Johnson sustained a “knot” on her head while both were on the ground
grappling for control of the bat;
● after Johnson sustained a blow to her head from the bat, she and Brinson
separated, stood up from the ground, and Brinson left the scene without further incident.
Those points were made by the state‟s primary witnesses, M.J. and T.Q., who were unequivocal in their testimony that Johnson armed herself with the bat as
she approached Brinson in the front yard. (R.R. 6, pp. 89, 107 and 122,
respectively). M.J. testified that Johnson banged the bat on the ground before she
took a swing at Brinson, and they both fell to the ground. (R.R. 6, p. 84). Further,
Johnson herself admitted in trial that she approached Brinson that evening with the
bat in hand. Finally, she said that she did not remember much about her encounter
with Brinson, but she did believed Brinson had not meant to hit her with the bat as
they struggled on the ground before he left. (R.R. 7, p. 55). If the so-called
inconsistent statements all three made on the night in question, including their
conversations with a 9-1-1 operator, are viewed as having been made in the heat of
anger, confusion, and, with regard to the children in particular, to paint a picture
that Johnson was a victim, it is understandable why their trial testimony differed
somewhat, although not really that significantly, from their earlier statements.
Thus, a review of all the evidence here that finds the evidence of guilt to be
insufficient does not necessarily mean that the reviewing court has re-evaluated the
weight and credibility of the evidence produced at trial, and it does not mean that
the reviewing court has substituted its judgment for that of the fact finder. Rather,
in reaching that decision, the court has only reconciled all the evidence in the light
most favorable to the verdict and found it lacking; in effect found that there is only
a modicum of evidence of guilt which is insufficient to sustain the jury‟s finding.
PRAYER WHEREFORE , Mr. Brinson prays that this Court of Appeals reverse the judgment of the trial court and order an acquittal, or, in the alternative, enter such
other orders as may be appropriate with its decision herein.
COPELAND LAW FIRM P.O. Box 399 Cedar Park, TX 78613 Phone: 512.897.8126 Fax: 512.215.8114
e-mail: tcopeland14@yahoo.com By: /s/ Tim Copeland Tim Copeland State Bar No. 04801500 Attorney for Appellant CERTIFICATE OF SERVICE AND OF COMPLIANCE WITH RULE 9 This is to certify that on April 6, 2015, a true and correct copy of the above and foregoing document was served on Bob Odom, Assistant District Attorney of Bell
County, P.O. Box 540, Belton, Texas 76513, in accordance with the Texas Rules of
Appellate Procedure, and that the Brief of Appellant is in compliance with Rule 9 of the
Texas Rules of Appellate Procedure and that portion which must be included under
Rule 9.4(i)(1) contains 3408 words.
/s/ Tim Copeland Tim Copeland
[1] All witnesses who were minors at the time the alleged offense was committed are referred here by initials to protect their identity. See TEX. R. APP. PROC. 9.10(a)(3) .