Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 3/19/2015 2:18:58 PM DEBBIE AUTREY Clerk *1 ACCEPTED 06-14-00147-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 3/19/2015 2:18:58 PM DEBBIE AUTREY CLERK
ORAL ARGUMENT WAIVED CAUSE NO. 06-14-00147-CR IN THE
COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ____________________________________________________________
AZIM SHAKUR RAHIM, Appellant V.
THE STATE OF TEXAS, Appellee ____________________________________________________________
ON APPEAL FROM THE COUNTY COURT AT LAW LAMAR COUNTY, TEXAS TRIAL COURT NO. 61685; HONORABLE BILL HARRIS, JUDGE ____________________________________________________________
APPELLEE’S (STATE’S) BRIEF ____________________________________________________________
Gary D. Young, County and District Attorney Lamar County and District Attorney’s Office Lamar County Courthouse 119 North Main
Paris, Texas 75460
(903) 737-2470
(903) 737-2455 (fax)
ATTORNEYS FOR THE STATE OF TEXAS *2
IDENTITY OF PARTIES AND COUNSEL Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and counsel is not required to supplement or correct the appellant’s list.
-i- *3 TABLE OF CONTENTS PAGE NO.: IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . vii
STATEMENT REGARDING ORAL ARGUMENT. . . . . . viii
ISSUE PRESENTED IN REPLY. . . . . . . . . . . . . . . . . . . . . ix
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . 15
ARGUMENT AND AUTHORITIES
ISSUE PRESENTED IN REPLY NO. 1: JURY CHARGE ERROR DID NOT EXIST; OR IN THE ALTERNATIVE, THE APPELLANT, RAHIM, COULD NOT PROVE EGREGIOUS HARM. . . . . . . . . . . 16 ISSUE PRESENTED IN REPLY NO. 2: THIS COURT SHOULD ORDER THE SUPPLEMENTATION OF THE CLERK’S RECORD TO INCLUDE A CERTIFIED BILL OF COSTS. . . . . . . . . . . . . . . . 21 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-ii-
PAGE NO.: CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 26
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . 26
-iii- *5 INDEX OF AUTHORITIES CASES: PAGE:
Albrecht v. State , 486 S.W.2d 97, 101 (Tex. Crim.
App. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Armstrong v. State , 340 S.W.3d 759, 766-67 (Tex. Crim.
App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22 Armstrong v. State , 850 S.W.2d 230, 236 (Tex. App.--
Texarkana 1993), aff’d , 897 S.W.2d 361 (Tex.
Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,19 Ballinger v. State , 405 S.W.3d 346,348, 349 (Tex. App.--Tyler
2013, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,24 Bluitt v. State , 137 S.W.3d 51, 53 (Tex. Crim.
App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Crank v. State , 761 S.W.2d 328, 341 (Tex. Crim.
App. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Graves v. State , 176 S.W.3d 422, 433 (Tex. App.--Houston
[1 st Dist.] 2004, pet. dism’d) . . . . . . . . . . . . . . . . . . . . 20 Halliburton v. State , 528 S.W.2d 216, 219 (Tex.
Crim. App. 1975) (op. on reh’g) . . . . . . . . . . . . . . . . 17 Hutch v. State , 922 S.W.2d 166, 172 (Tex. Crim.
App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Johnson v. State , 423 S.W.3d 385, 392 (Tex. Crim. App.
2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 -iv-
Johnson v. State , 963 S.W.2d 140, 144 (Tex. App.--
Texarkana 1998, pet. ref’d) . . . . . . . . . . . . . . . . . . . . 17-18,19 Jones v. State , 241 S.W.3d 666, 669 (Tex. App.--Texarkana
2007, no pet.) (Lamar County) . . . . . . . . . . . . . . . . . . 17,19 Mayer v. State , 309 S.W.3d 552, 557 (Tex. Crim.
App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Randyael Dontrell Tyson v. The State of Texas , No.
06-14-00114-CR, 2015 Tex. App. LEXIS 2506, at * 13-15 (Tex. App.--Texarkana March 18, 2015, n.p.h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,24 Robinson v. State , 844 S.W.2d 925, 929 (Tex. App.--
Houston [1 st Dist.] 1992, no pet.) . . . . . . . . . . . . . . . . 17,19 Shipp v. State , 331 S.W.3d 433, 443 (Tex. Crim.
App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,19 Tate v. State , 981 S.W.2d 189, 193 n. 5 (Tex. Crim.
App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Taylor v. State , 332 S.W.3d 483, 489, 490 (Tex.
Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,20,21 Whatley v. State , No. 06-12-00117-CR, 2014 WL 7399130,
at * 1, 2014 Tex. App. LEXIS 13839, at * 2, *3 (Tex. App.--Texarkana December 30, 2014, no pet.) (mem.
op., not designated for publication) . . . . . . . . . . . . . . 22,24 -v-
STATUTES: PAGE:
TEX. CODE CRIM. PROC. ANN. ART. 103.006
(WEST 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 TEX. CODE CRIM. PROC. ANN. ART. 103.001
(West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 TEX R. APP. P. 34.5(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 23,24
TEX. R. APP. P. 38.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . i
TEX. R. EVID. 404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
-vi- *8 STATEMENT OF THE CASE This is a criminal appeal from the trial court’s final judgment of conviction. CR, pgs. 62-64.
After a jury trial, a jury in Lamar County found the appellant, Rahim, guilty of the misdemeanor offense of assault causing bodily injury (RR, Vol.
3, pg. 272; CR, pg. 57), as charged in the information. CR, pg. 5. The
jury assessed punishment at confinement for 365 days in the Lamar County
jail and assessed a fine of none. RR, Vol. 3, pg. 296; CR, pg. 61.
After pronouncing sentence (RR, Vol. 3, pgs. 298-299), the trial court signed its final judgment of conviction. CR, pgs. 62-64. Rahim timely
filed his notice of appeal. CR, pg. 65. By this appeal, Rahim raised two
(2) issues/points of error.
-vii- *9 STATEMENT REGARDING ORAL ARGUMENT The State will waive oral argument. Tex. R. App. P. 38.2. -viii-
ISSUES PRESENTED IN REPLY ISSUE PRESENTED IN REPLY NO. 1: JURY CHARGE ERROR
DID NOT EXIST; OR IN THE ALTERNATIVE, THE APPELLANT,
RAHIM, COULD NOT PROVE EGREGIOUS HARM.
ISSUE PRESENTED IN REPLY NO. 2: THIS COURT SHOULD
ORDER THE SUPPLEMENTATION OF THE CLERK’S RECORD
TO INCLUDE A CERTIFIED BILL OF COSTS.
-ix- *11 CAUSE NO. 06-14-00147-CR IN THE
COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ____________________________________________________________
AZIM SHAKUR RAHIM, Appellant V.
THE STATE OF TEXAS, Appellee ____________________________________________________________
ON APPEAL FROM THE COUNTY COURT AT LAW LAMAR COUNTY, TEXAS TRIAL COURT NO. 61685; HONORABLE BILL HARRIS, JUDGE
____________________________________________________________
APPELLEE’S (STATE’S) BRIEF
____________________________________________________________
TO THE HONORABLE SIXTH COURT OF APPEALS AT
TEXARKANA:
COMES NOW, the State of Texas, by and through the elected County and District Attorney of Lamar County, Gary D. Young, and the Lamar
County and District Attorney’s Office, respectfully submits its Appellee’s
(State’s) Brief under Rule 38.2 of the Texas Rules of Appellate Procedure.
Unless otherwise indicated, Azim Shakur Rahim will be referred to as *12 “the appellant” or “Rahim” and the State of Texas as “the State.”
STATEMENT OF FACTS Factual Background.
On November 20, 2013 (RR, Vol. 3, pgs. 30, 58, 157, 174, 177), Robert Milton, a licensed peace officer for twenty-three years and six
months and a patrol officer with the City of Paris Police Department,
(Officer Milton) responded to an incident a Quick Stop or a Speedy Stop at
2205 Clarksville in Lamar County, Texas. See RR, Vol. 3, pgs. 28-30, 60,
70-74, 157. See also State’s Exhibits 9-16. It was daylight; Officer Milton
was on the day shift. See RR, Vol. 3, pg. 30.
On November 20 th , Tapfuma Omega Thomas (Thomas) was the cook (RR, Vol. 3, pg. 92) at the Speedy Stop and was cooking burgers at the time. RR, Vol. 3, pgs. 110-111. According to Thomas, he was taking an order
for a hamburger that day from Larry Solomon (Mr. Solomon). RR, Vol.
3, pgs. 113, 115. Mr. Solomon, who called the cook “Tot” (RR, Vol. 3, pg.
179), was placing his order, and Rahim came around to the counter. RR,
Vol. 3, pg. 115. Mr. Solomon heard somebody say, “hey, Brother Larry.” RR, Vol. 3, pg. 179. also RR, Vol. 3, pg. 194. Mr. Soloman turned
around and it was Rahim, who said, “let me talk to you for a minute.” See
RR, Vol. 3, pg. 179. See also RR, Vol. 4, pg. 194-197.
Rahim told Mr. Solomon, “could you please talk to me out here, we need to have a conversation.” See RR, Vol. 3, pg. 115. Rahim was
“[t]alking calm, no raised voices, cuss word”s, nothing.” See RR, Vol. 3, pg.
115. “They went ahead and went outside.” See RR, Vol. 3, pg. 116.
About that time, Devin Washington (Washington) pulled up to the gas station to get something to eat, when he saw Rahim and Mr. Solomon come
out of the store. See RR, Vol. 3, pgs. 136-138. Washington saw them
talking “normally.” See RR, Vol. 3, pg. 139. Bobby Woyn Harrison
(Harrison) was also going into the store. RR, Vol. 3, pg. 170. As
Harrison entered the store, a conversation was going on. RR, Vol. 3, pg.
170. That’s when Harrison saw them exit the store. RR, Vol. 3, pg.
170.
Right before Washington got out, he saw Rahim throw a punch. See
RR, Vol. 3, pgs. 137-139. According to Washington, “[i]t was more like
caught him off guard, like a jab to his face.” RR, Vol. 3, pg. 139.
According to Mr. Solomon said, “[h]e sucker punched me out of nowhere.” RR, Vol. 3, pg. 180; State’s Exhibit 8.
After that, Washington didn’t see more because a car had blocked his *14 view. See RR, Vol. 3, pgs. 140-141, 145. Washington opened his door to
go to investigate and see what was going on. See RR, Vol. 3, pg. 141. “I
seen them both on the ground.” See RR, Vol. 3, pg. 141. Washington heard
the word, “gun” but he didn’t see it. See RR, Vol. 3, pg. 141. “They said it
fell out.” See RR, Vol. 3, pg. 141. “A good five or six people” were around.
See RR, Vol. 3, pg. 142.
It wasn’t two minutes later when another patron came in the store and said to Thomas, “they’re fighting, they’re fighting, go help.” See RR, Vol.
3, pg. 116. Thomas came out that front door of the store. See RR, Vol. 3,
pgs. 117, 185. They were already on the ground. See RR, Vol. 3, pg. 117.
Washington saw Thomas come out, and “[h]e was trying to break up the fight.” See RR, Vol. 3, pg. 142. See also RR, Vol. 3, pgs. 164, 171, 183.
They were on the ground for “a few good minutes.” RR, Vol. 3, pg.
142. also RR, Vol. 3, pg. 166.
Mr. Solomon said, “Tot, just get the gun, I ain’t going to shoot nobody.” RR, Vol. 3, pg. 185. That’s when Tot come over and took the
gun out of Mr. Solomon’s hand. RR, Vol. 3, pg. 185.
Rahim had his knee in his back and was still punching him in the back of the head. RR, Vol. 3, pgs. 117, 121, 124. Rahim had one hand on the
pistol and Mr. Solomon had both hands on it. See RR, Vol. 3, pgs. 117, 134,
163. They were both fighting over the gun. See RR, Vol. 3, pgs. 184-185.
After they were separated, Washington didn’t see Thomas with the weapon, and he didn’t witness who took the weapon away. See RR, Vol. 3,
pgs. 153-154.
Thomas could see that Mr. Solomon was bleeding. See RR, Vol. 3,
pg. 118. Thomas grabbed Rahim, and was asking him to let him go. See
RR, Vol. 3, pg. 118. See also RR, Vol. 3, pg. 187. Thomas got him off of
Mr. Solomon. See RR, Vol. 3, pg. 187. Thomas made sure the police were
called. RR, Vol. 3, pg. 122.
Both relinquished the pistol to Thomas, who passed it to another witness, Harrison. RR, Vol. 3, pgs. 119, 121, 128, 155, 164-165.
Harrison had the gun, when the police came. RR, Vol. 3, pg. 164.
Arrival of Law Enforcement.
Dispatch advised there was disturbance at the Speedy Stop involving a gun. RR, Vol. 3, pgs. 31, 40, 58. Officer Milton answered the call,
along with Officer Bigler and Sergeant Brandenburg, who was the first
officer on the scene. RR, Vol. 3, pg. 31.
Sergeant Thomas Brandenburg, a certified peace officer and field *16 supervisor, (Sergeant Brandenburg) had primarily supervisory duties for the
past five years in the Paris Police Department. See RR, Vol. 3, pgs. 55-56.
Sergeant Brandenburg was the direct supervisor of Officer Milton. See RR,
Vol. 3, pg. 79.
Sergeant Brandenburg secured the gun from a gentleman named Harrison. See RR, Vol. 3, pg. 59. After securing the gun, Sergeant
Brandenburg initially made contact with Rahim, who was “somewhat
aggressive” and shouting at the victim, Larry Solomon (Mr. Solomon). See
RR, Vol. 3, pg. 60. Sergeant Brandenburg tried to separate the parties that
were involved, and he took Rahim to Mr. Bigler’s patrol car. See RR, Vol.
3, pgs. 60-61, 67. Rahim was still “very agitated.” See RR, Vol. 3, pg. 68. also RR, Vol. 3, pg. 75.
In the patrol car, Rahim told Sergeant Brandenburg that “he had indeed struck first but he claimed that Mr. Solomon had came at him in what
he describe[d] as an aggressive manner.” RR, Vol. 3, pg. 62. also
RR, Vol. 3, pg. 93. Rahim claimed the gun was never pointed at him. See
RR, Vol. 3, pgs. 62, 65. The gun wasn’t pulled while they were standing up. RR, Vol. 3, pg. 65. The gun got pulled out when they were on the
ground. RR, Vol. 3, pgs. 65-66.
When Officer Milton arrived, there was several people standing around, and Sergeant Brandenburg was talking to a gentlemen that was later
identified as Asim Rahim. See RR, Vol. 3, pg. 31. Officer Milton
recognized Mr. Bobby Harrison, “Paulia” Harrison and Thomas. See RR,
Vol. 3, pgs. 31-32, 158. Officer Milton spoke with Mr. Solomon, the victim,
to get his side of the story of what happened. See RR, Vol. 3, pgs. 32, 36.
Mr. Solomon was “about 5’ 8” (RR, Vol. 3, pgs. 68, 120) or “5’ 6” because
he was “the smallest one growing up in Booker T when he was growing up
back in the day.” See RR, Vol. 3, pg. 187.
Mr. Solomon said he walked in the store, and Rahim said to him, “we need to talk.” See RR, Vol. 3, pg. 32. Rahim admitted that he confronted
the victim. See RR, Vol. 3, pg. 68. So, they went outside. See RR, Vol. 3,
pgs. 32, 38, 44, 66. Mr. Solomon said that Rahim started accusing him of
having an affair with his wife. RR, Vol. 3, pg. 32. also RR, Vol. 3,
pg. 77 (Rahim was upset and felt like Mr. Solomon was seeing his wife).
Mr. Solomon said that Bobby Bostic, Jr. (Bostic), a friend of theirs, had been
spreading those rumors. RR, Vol. 3, pg. 32. Mr. Solomon met Rahim
through Bostic, a veteran friend. RR, Vol. 3, pg. 176. Mr. Solomon
denied an affair (RR, Vol. 3, pg. 32) by saying, “No, I did not.” RR,
Vol. 3, pg. 175. See also RR, Vol. 3. Pg. 186.
At that time, Mr. Solomon said that Rahim started punching him and picked him up to slam him on the concrete. See RR, Vol. 3, pgs. 32, 44-45.
“That’s when he picked me up and he slammed me down on the concrete.”
See RR, Vol. 3, pg. 181. Harrison witnessed “him up in the air” (RR, Vol.
3, pgs. 159, 161), and “he dropped down . . . on the side of the concrete.”
See RR, Vol. 3, pg. 159. See also RR, Vol. 3, pgs. 168, 181-182, 191;
State’s Exhibit 10.
It appeared to Officer Milton that the defendant, Rahim, was a large and strong enough individual to have picked up and thrown down Mr.
Solomon. See RR, Vol. 3, pg. 46. Officer Milton also talked to Rahim. See
RR, Vol. 3, pgs. 37, 41-42. also State’s Exhibit 18. Officer Milton
talked to Rahim in the “right backseat” of Officer Bigler’s patrol car. See
RR, Vol. 3, pg. 42.
During that conversation, Rahim said that he struck Mr. Solomon. RR, Vol. 3, pg. 38. “There was gun mentioned but [Rahim] said that
Mr. Solomon did not pull the gun on him.” RR, Vol. 3, pg. 38.
Mr. Solomon “was bent over holding his side.” RR, Vol. 3, pg. 44. also RR, Vol. 3, pgs. 122, 188. Mr. Solomon “was wincing in pain
and appeared to be in a great deal of pain.” See RR, Vol. 3, pg. 45. See also
RR, Vol. 3, pg. 64 (“could tell by his facial expressions he was wincing in
pain; he was holding his side.”), pg. 167. According to Mr. Solomon, he
was feeling “a lot of pain” (RR, Vol. 3, pg. 186), and he “could barely
breathe.” See RR, Vol. 3, pg. 189.
On two or three times, Officer Milton asked if Mr. Solomon need an ambulance. See RR, Vol. 3, pg. 45. “Each time he said no.” See RR, Vol.
3, pg. 45. See also RR, Vol. 3, pg. 189.
Later, Mr. Solomon did get in the ambulance and go to the hospital.
See RR, Vol. 3, pgs. 41, 44-45, 58, 132, 167, 189. Mr. Solomon went to
Paris Regional Medical Center emergency room, where he was in the ICU at
the hospital for at least four (4) days from November 20 th to November 23,
2013. RR, Vol. 3, pg. 94; State’s Exhibit 17 (medical records). also
RR, Vol. 3, pgs. 94-99, 190.
Officer Milton went to see Mr. Solomon in the hospital to check his injuries. RR, Vol. 3, pg. 45. Other than being upset, Officer Milton did
notice some spots of blood and a cut on one hand. RR, Vol. 3, pg. 45. also RR, Vol. 3, pgs. 47-50; State’s Exhibits 1-8. Officer Milton spoke
with Mr. Solomon’s doctor, who said he had fractured ribs and a collapsed
lung and would need to see a surgeon. See RR, Vol. 3, pg. 50. See also RR,
Vol. 3, pg. 169.
After Mr. Solomon left the hospital, he was still in pain. See RR, Vol.
3, pg. 191. Mr. Solomon carried a cane for at least five months. See RR,
Vol. 3, pg. 191.
Sergeant Brandenburg did not arrest the defendant, Rahim, that day. RR, Vol. 3, pg. 57. Sergeant Brandenburg sent the case off to the
Criminal Investigation Division (or “CID”) because there were more
witnesses that needed to be interviewed by CID. RR, Vol. 3, pgs. 57,
75.
Further Investigation by CID.
James Mazy was a lieutenant and peace officer in the criminal investigation division with the City of Paris Police Department (Lieutenant
Mazy). RR, Vol. 3, pgs. 84-85. Lieutenant Mazy had a chance to
investigate an incident that happened on November 20, 2013. RR, Vol.
3, pg. 86.
Before Lieutenant Mazy could actually contact anyone, Rahim came to the police department. RR, Vol. 3, pgs. 86-87; State’s Exhibit 19.
Rahim was not in custody, and he contacted Lieutenant Mazy voluntarily.
See RR, Vol. 3, pgs. 88-89.
On November 26, 2013, Lieutenant Mazy interviewed Rahim. See
RR, Vol. 3, pg. 99. Lieutenant Mazy also interviewed Mr. Harrison and his
wife at the same time. See RR, Vol. 3, pg. 103. Upon the conclusion of his
investigation, Lieutenant Mazy concluded that Mr. Solomon was assaulted
by Rahim. See RR, Vol. 3, pg. 99.
Jury Trial.
On August 5, 2014, the trial court presided over the voir dire proceedings. RR, Vol. 2, pgs. 1-66. After challenges for cause and
peremptory strikes, the trial court impaneled a petit jury of six regular jurors
and one alternate. RR, Vol. 2, pg. 69.
On August 13, 2014, the trial court proceeded with the jury trial in cause number 61685 by pre-admitting State’s Exhibits 1-8, which were
pictures, along with State’s Exhibit 17, the medical records. RR, Vol. 3,
pgs. 7-8. The trial court then administered the oath to the jurors. RR,
Vol. 3, pg. 10.
After the trial court gave additional instructions to the jury (RR, Vol.
3, pgs. 10-16) and to the witnesses after the Rule was invoked, the State
presented the charging instrument. RR, Vol. 3, pgs. 18-19. Rahim
entered a plea of “not guilty.” See RR, Vol. 3, pg. 19.
Following opening statements (RR, Vol. 3, pgs. 20-27), the State called Officer Milton as its first witness. See RR, Vol. 3, pg. 28. During his
testimony, Officer Milton identified Rahim as the defendant in open court.
See RR, Vol. 3, pg. 37. As its next witness, the State called Sergeant
Brandenburg, who also identified Rahim as the defendant in open court. See
RR, Vol. 3, pg. 63. The State’s third witness, Lieutenant Mazy, also
identified Rahim as the defendant in open court. See RR, Vol. 3, pg. 90.
The State called several additional witnesses and concluded with Mr.
Solomon as its last witness. See RR, Vol. 3, pg. 199. Upon the conclusion
of Mr. Solomon’s testimony, the State rested. See RR, Vol. 3, pgs. 200-201.
As Rahim began his case-in-chief, defense counsel called Kameel McWilliams (McWilliams). RR, Vol. 3, pg. 201. Following the
testimony of McWilliams (RR, Vol. 3, pgs. 201-212), Rahim testified on his
own behalf. RR, Vol. 3, pg. 212-248. At the conclusion of his
testimony, Rahim rested. RR, Vol. 3, pg. 249. Subsequently, both
parties rested and closed. RR, Vol. 3, pg. 254.
Following a charge conference, the trial court inquired, “any objections, concerns, comments on the jury charge?” RR, Vol. 3, pg.
255. The State voiced “[n]o objections or concerns regarding the jury
charge, Your Honor.” See RR, Vol. 3, pg. 255. Through defense counsel,
Rahim voiced, “No objections, no concerns, Your Honor.” See RR, Vol. 3,
pg. 256. The trial court then read the court’s charge to the jury. See RR,
Vol. 3, pg. 257; CR, pgs. 54-56.
After closing arguments (RR, Vol. 3, pgs. 258-270), the jury retired to begin its deliberations. See RR, Vol. 3, pg. 270. Upon the conclusion of its
deliberations, the jury reached a verdict. See RR, Vol. 3, pgs. 271-272. By
its verdict, the jury found Rahim guilty of the offense of assault causing
bodily injury, as charged in the information. See RR, Vol. 3, pg. 272; CR,
pg. 57.
The trial court then proceeded with the punishment phase of the jury trial. See RR, Vol. 3, pg. 274. Upon the conclusion of the punishment
phase, the State rested. RR, Vol. 3, pg. 287. Rahim elected not to take
the stand, and the defense rested. RR, Vol. 3, pg. 287. Both sides rested
and closed. RR, Vol. 3, pg. 288.
The trial court then read its punishment charge to the jury. RR,
Vol. 3, pg. 289; CR, pgs. 58-60. After closing arguments (RR, Vol. 3, pgs.
290-293), the jury retired to begin its deliberations. RR, Vol. 3, pg. 293-
294. Upon the conclusion of its deliberations, the jury reached a verdict. RR, Vol. 3, pgs. 295-296. By its verdict, the jury assessed punishment
at confinement for 365 days in the Lamar County jail and assessed a fine of
none. RR, Vol. 3, pg. 296; CR, pg. 61. Later, the trial court set an
appeal bond and pronounced sentence. RR, Vol. 3, pgs. 298-299.
On August 13, 2014, the trial court signed its final judgment of conviction. CR, pgs. 62-64. Rahim timely filed his notice of appeal. CR, pg. 65.
Proceedings in this Court.
On or about August 18 th , Rahim filed his notice of appeal in this Court. The County Clerk of Lamar County filed the Clerk’s Record on or
about September 18, 2014. The official court reporter filed the Reporter’s
Record on or about December 1, 2014.
The appellant, Rahim, filed the first (of two) motions for extension of time to file his brief, which this Court granted initially until January 21,
2015. After this deadline, Rahim filed his brief on or about January 25,
2015 along with a second motion for extension of time, which this Court
granted on January 27, 2015.
The State filed a motion for extension of time, which this Court granted on March 3, 2015. The State filed its brief on March 19, 2015.
SUMMARY OF THE ARGUMENT By this appeal, Rahim brings two (2) issues/points of error. This Court should overrule each of these issues/points of error for these reasons:
(1) Jury charge error did not exist in the present case because the extraneous-offense-evidence was admissible to rebut Rahim’s defensive
theory of self-defense and/or to show Rahim’s intent. Because jury charge
error did not exist, the present case should not involve an analysis for
egregious harm; but even it did, Rahim could not prove egregious harm.
(2) This Court should order the trial court clerk (i.e. the County Clerk of Lamar County, Texas) to supplement this appellate record with a
certified bill of costs. Once this Court has ordered and received this
supplemental bill of costs, the evidence will be legally-sufficient to support
the trial court’s final judgment of conviction, which required the appellant
(Rahim) to pay court costs.
In summary, this Court should overrule the appellant’s, Rahim’s, two (2) issues/points of error on appeal, and affirm the trial court’s final
judgment of conviction in all respects.
ARGUMENT AND AUTHORITIES ISSUE PRESENTED IN REPLY NO. 1: JURY CHARGE ERROR
DID NOT EXIST; OR IN THE ALTERNATIVE, THE APPELLANT,
RAHIM, COULD NOT PROVE EGREGIOUS HARM.
A. Standard of Review: Egregious Harm.
“[A]n affirmative denial of objection, as in this case, shall be deemed equivalent to a failure to object.” Bluitt v. State , 137 S.W.3d 51, 53
(Tex. Crim. App. 2004). “An appellant may raise such unobjected-to charge
error on appeal, but may not obtain a reversal for such error unless it resulted
in egregious harm.” id .
In the present case, as in Bluitt , Rahim stated through his counsel, “No objections, no concerns, Your Honor.” RR, Vol. 3, pg. 256. Such an
affirmative denial of objection should be deemed equivalent to a failure to
object. Bluitt , 137 S.W.3d at 53. Under Bluitt , Rahim may raise such
unobjected-to charge error on appeal, but may not obtain a reversal for such
error unless it resulted in egregious harm. id .
B. Jury Charge Error Did Not Exist: The Trial Court Did Not Abuse its Discretion in Instructing the Jury That It Could Consider
Evidence of the 2007 Assault.
With his first issue/point of error, Rahim contended that the trial court erred when it instructed the jury in its charge that it could consider evidence
of the appellant’s prior bad acts as evidence of his character because
character was not an essential element of a charge or defense. See
Appellant’s Brief, pgs. 10, 14 (citing Tate v. State , 981 S.W.2d 189, 193 n. 5
(Tex. Crim. App. 1998)). In assessing jury charge errors, however, this
Court must first determine whether error exists. Shipp v. State , 331
S.W.3d 433, 443 (Tex. Crim. App. 2011).
In the present case, jury charge error did not exist because an extraneous offense may be used to rebut a defensive theory, such as self-
defense, even though the purpose is not mentioned in Tex. R. Evid. 404(b). , e . g ., Robinson v. State , 844 S.W.2d 925, 929 (Tex. App.--Houston [1 st
Dist.] 1992, no pet.) (citing Crank v. State , 761 S.W.2d 328, 341 (Tex. Crim.
App. 1988); Halliburton v. State , 528 S.W.2d 216, 219 (Tex. Crim. App.
1975) (op. on reh’g); Albrecht v. State , 486 S.W.2d 97, 101 (Tex. Crim.
App. 1972)). Citing Halliburton , it is well settled, according to this Court,
that when an accused claims self-defense, the State, in order to show the
accused’s intent, may introduce rebuttal evidence of prior violent acts by the
accused in order to show the intent of the person claiming self-defense. See
Jones v. State , 241 S.W.3d 666, 669 (Tex. App.--Texarkana 2007, no pet.)
(Lamar County); Johnson v. State , 963 S.W.2d 140, 144 (Tex. App.--
Texarkana 1998, pet. ref’d); Armstrong v. State , 850 S.W.2d 230, 236 (Tex.
App.--Texarkana 1993), aff’d , 897 S.W.2d 361 (Tex. Crim. App. 1995).
As applied here, the trial judge initially recalled the testimony from a defense witness, who testified during Rahim’s case-in-chief, along with the
testimony from Rahim himself, and then ruled the following:
I also recall that the young man who testified -- he was wearing the black shorts and the green shirt with the black glasses. He was, I think, the first Defense witness. I can’t think of his name.
MS. HAIRSTON: The little boy, Devon Washington?
THE COURT: No. No.
MR. BRANNAN: Kameel McWilliams.
THE COURT: I believe that he testified that the Defendant was -- and I’m paraphrasing his words -- a peaceful, law-abiding citizen. I think that was the impression he left with the jury, that Defendant would not be the aggressor in this kind of a situation. So, I think we have had evidence -- and I believe the Defendant himself when he testified a while ago -- again, testified that he was a peaceful and law-abiding citizen. And I’m paraphrasing the testimony.
So, I believe the Defendant’ character for being a peaceful and law-abiding citizen is in issue and considering the self-defense claim, the State offering this evidence under 404 and 405, I believe that it is in fact relevant. RR, Vol. 3, pgs. 242-243.
As set forth above, the trial court did not abuse its discretion in “allow[ing] the State to ask questions regarding the 2007 assault” (RR, Vol.
3, pg. 243) because (1) the extraneous offense could be used to rebut
Rahim’s defensive theory of self-defense, see Robinson , 844 S.W.2d at 929;
and/or (2) the State, in order to show Rahim’s intent, could introduce
rebuttal evidence of prior violent acts by the accused (Rahim) in order to
show the intent of the person claiming self-defense. Jones , 241 S.W.3d
at 669; Johnson , 963 S.W.2d at 144; Armstrong , 850 S.W.2d at 236. For
these reasons, the extraneous-offense-evidence was admissible, and the trial
court did not err in instructing the jury that it could consider evidence of the
2007 assault. id . Thus, jury charge error did not exist. Shipp , 331
S.W.3d at 443. In conclusion, Rahim’s first issue/point of error should be
overruled, and this Court should not address his claim of egregious harm. Appellant’s Brief, pgs. 15-16.
C. Alternatively, Rahim Could Not Prove Egregious Harm. “[E]gregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis.” Taylor v. State ,
332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (citing Hutch v. State , 922
S.W.2d 166, 172 (Tex. Crim. App. 1996)). “[T]he actual degree of harm
must be assayed in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the
argument of counsel and any other relevant information revealed by the
record of the trial as a whole.” Almanza v. State , 686 S.W.2d 157, 171
(Tex. Crim. App. 1985). This Court should examine any “part of the record
as a whole which may illuminate the actual, not just theoretical, harm to the
accused.” Taylor , 332 S.W.3d at 490. “Errors which result in egregious
harm are those that affect the very basis of the case, deprive the defendant of
a valuable right, vitally affect the defensive theory, or make a case for
conviction clearly and significantly more persuasive.” id .
In applying the law to this appellate record as a whole, Rahim could still not prove egregious harm because first, the entire jury charge correctly
included a limiting instruction. CR, pg. 55; Graves v. State , 176 S.W.3d
422, 433 (Tex. App.--Houston [1 st Dist.] 2004, pet. dism’d) (extraneous
offenses thus get a limiting instruction under article 38.37 during the guilt
innocence phase). Second, the state of the evidence, including the contested
issues and weight of probative evidence, was still strong even without the
extraneous evidence of the 2007 assault because a number of eyewitnesses
(Thomas, Washington, Harrison) still testified against Rahim and his version
of the November 20 th events. Third and finally, the argument of counsel for
the State did not even mention the 2007 assault during the opening argument
(RR, Vol. 3, pgs. 258-262), and the final closing argument had only a brief
reference. RR, Vol. 3, pg. 268 (“You heard he had assaultive behavior
in the past.”).
Viewing this record as a whole, Rahim could not establish any actual harm. Taylor , 332 S.W.3d at 490. Accordingly, the appellant’s,
Rahim’s, first issue/point of error should be overruled.
ISSUE PRESENTED IN REPLY NO. 2: THIS COURT SHOULD
ORDER THE SUPPLEMENTATION OF THE CLERK’S RECORD
TO INCLUDE A CERTIFIED BILL OF COSTS.
A. Introduction.
With his final issue, Rahim contended that the record did not contain a certified bill of costs; therefore, the appellant cannot be made to pay costs of
court. Appellant’s Brief, pg. 17. In this regard, Rahim argued that since
the record did not contain a certified bill of costs, a judgment against him for
costs cannot be supported. Appellant’s Brief, pg. 17.
B. Standard of Review: Sufficiency of Evidence for Costs Assessment.
An appellant in a criminal case may challenge the sufficiency of the evidence supporting court costs on direct appeal. Armstrong v. State ,
340 S.W.3d 759, 766-67 (Tex. Crim. App. 2011). To measure the
sufficiency of the evanesce supporting an award of court costs, this Court
must view the record in the light most favorable to the award. Whatley
v. State , No. 06-12-00117-CR, 2014 WL 7399130, at * 1, 2014 Tex. App.
LEXIS 13839, at * 2 (Tex. App.--Texarkana December 30, 2014, no pet.)
(mem. op., not designated for publication) (citing Mayer v. State , 309
S.W.3d 552, 557 (Tex. Crim. App. 2010)). If a criminal action is appealed,
the Texas Code of Criminal Procedure required that “an officer of the court
shall certify and sign a bill of costs stating the costs that have accrued and
send the bill of costs to the court to which the action or proceeding is
transferred or appealed.” Tex. Code Crim. Proc. Ann. art. 103.006
(West 2006). Further, “[a] cost is not payable by the person charged with
the cost until a written bill is produced or is ready to be produced, containing
the items of cost, signed by the officer who charged the cost or the officer
who is entitled to receive payment for the cost.” Tex. Code Crim. Proc.
Ann. art. 103.001 (West 2006); Ballinger v. State , 405 S.W.3d 346, 348
(Tex. App.--Tyler 2013, no pet.). In addition, there is no requirement that a
certified bill of costs be filed, either at the time the judgment is signed or
before the case is appealed. Whatley , 2014 WL 7399130, at * 1, 2014
Tex. App. LEXIS 13839, at * 2-3 (citing Ballinger , 405 S.W.3d at 348).
When a cost assessment is challenged on appeal, and the bill of costs has been omitted from the appellate record, then the clerk’s record may be
supplemented with the bill of costs. Tex. R. App. P. 34.5(c)(1); Johnson
v. State , 423 S.W.3d 385, 392 (Tex. Crim. App. 2014); Whatley , 2014 WL
7399130, at * 1, 2014 Tex. App. LEXIS 13839, at * 3; Ballinger , 405
S.W.3d at 348. In this situation, “supplementing the record to include the
bill of costs is appropriate and does not violate due process.” Ballinger ,
405 S.W.3d at 349.
C. Application of Law to the Present Case.
In Randyael Dontrell Tyson v. The State of Texas , No. 06-14-00114- CR, 2015 Tex. App. LEXIS 2506, at * 13-15 (Tex. App.--Texarkana March
18, 2015, n.p.h.), a recent appeal from Lamar County which raised a similar
complaint to the one in the present case, this Court asked the County Clerk
of Lamar County to prepare and file an itemized bill of costs. id , 2015
Tex. App. LEXIS 2506, at * 15. In response, this Court received a
supplemental clerk’s record containing a certified bill of costs. id . In
Tyson , the itemized bill of costs showed that, excluding the fine that was
also included as court costs, the total amount of court costs was $302.00. *34 id . Because the supplemental record contained a bill of costs supporting
the amount of court costs assessed, this Court in Tyson found that there was
sufficient evidence to support the trial court’s judgment for costs. id .
As in Tyson , the same outcome and/or result should occur here. If not already requested, this Court should, again, ask the County Clerk of Lamar
County, Kathy Marlowe, to prepare and file an itemized bill of costs. id ;
Tex. R. App. P. 34.5(c)(1); Johnson v. State , 423 S.W.3d 385, 392 (Tex.
Crim. App. 2014); Whatley , 2014 WL 7399130, at * 1, 2014 Tex. App.
LEXIS 13839, at * 3; Ballinger , 405 S.W.3d at 348. In this situation,
“supplementing the record to include the bill of costs is appropriate and does
not violate due process.” Ballinger , 405 S.W.3d at 349. The State prays
for such relief.
Once the supplemental record containing a bill of costs is received from the County Clerk of Lamar County, there should be sufficient evidence
to support the trial court’s judgment for costs in the amount of $302.00. See
Tyson , 2015 Tex. App. LEXIS 2506, at * 15. Accordingly, the appellant’s,
Rahim’s, second issue/point of error should be overruled.
PRAYER
WHEREFORE PREMISES CONSIDERED, the State of Texas prays that upon final submission without oral argument, this Court order the trial
court clerk to supplement the appellate record to include a certified bill of
costs; and then affirm the trial court’s final judgment of conviction, adjudge
court costs against the appellant, and for such other and further relief, both at
law and in equity, to which it may be justly and legally entitled.
Respectfully submitted, Gary D. Young
Lamar County & District Attorney Lamar County Courthouse 119 North Main
Paris, Texas 75460 (903) 737-2470
(903) 737-2455 (fax) By:________________________________ Gary D. Young, County Attorney SBN# 00785298 ATTORNEYS FOR STATE OF TEXAS *36 CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the “Appellee’s (State’s) Brief” was a computer-generated document and
contained 6275 words--not including the Appendix, if any. The undersigned
attorney certified that he relied on the word count of the computer program,
which was used to prepare this document.
______________________________ GARY D. YOUNG gyoung@co.lamar.tx.us CERTIFICATE OF SERVICE This is to certify that in accordance with Tex. R. App. P. 9.5, a true copy of the “Appellee’s (State’s) Brief” has been served on the 19 TH day of
March, 2015 upon the following:
Don Biard
McLaughlin Hutchison & Biard LLP
38 First Northwest
Paris, TX 75460
______________________________ GARY D. YOUNG