Case Information

*1

699-15 ORIGINAL

In The
Carot of Cominul Appetits
Aestibs, Rese

RECEIVED IN COURT OF CRIMINAL APPEALS JUL 142015 Little Fink Rackets, Appetits, and Abel Acosta, Clerk v.

The Stit of Tien, Appetite FILED IN -URT OF CRIMINAL APPEALS JUL 142015 Alter for Desectioning Resew from the Carot of Appetits Both Appetits Detect of Rese at Resectione wac-14-00097-CR

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Cance Me

To the Hounable Office at Lord Court:

"Rettem the Dscestianay Ration" "pucssant to the pnclusion of the Tors Hutes of Appetite Rocolore in seppent of his tecant for the decision of the Eunt of Appieh in the Sith thart of Texachave, Tors, be Rence in cause no. 29015 06-14-0097-06 and acounttly as Rtions:

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Table DE. Cantants

Table of Custuts ..... 2 Justice of Authority ..... 3 Stilement regarding Dov Heorment ..... 5 Stilemest of Case ..... 6 Stilemest of Mocediesl Hokey ..... 7 Gomels the Rerivist ..... 8 Hayumest ..... 9 Haywe the Reler ..... 18 Immote Decaration ..... 19 CestAcest of Service ..... 19

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Index of Mathematics

Federal Cases

Down vs United States, 284 U.S. 390,393; 52 S.C. 189 (1932) 11 Illinois vs. Illinois, 397 U.S. 337,344; 90 S.C. 1057 (1974) 16 Redsaw vs. Virginia; 443 U.S. 307,317; 99 S.C. 2781 (1979) 9 Rere2 vs. United States, 50 U.S. 923,936 (1999) 16 United States vs. England, 470 U.S. 522,528 (1985) 16 United States vs. Powell, 469 U.S. 57; 105 S.C. 471 (1984) 11 Turke w/lnship, 397 U.S. 352,369; 90 S.C. 1068 (1970) 9 State Cases Berwicks vs. State, 62 S.w. 3d 288, 297 (Tev. App. - Austin 2001, pvt. ReEd) 10 Crow vs. State, 978 S.w. 2d 404 at 407 (Tev. Comm. App. 1997) 10 Chedonies vs. State, 30 S.w. 2d 384, 389-90 (Tev. Comm App. 2000) 9 Chadis vs. State, 922 S.w. 2d 126 (Tev. Comm. App. 1996) 10 Crower vs. State, 67 S.w. 3d 192, 197 (Tev. Comm. App. 2001) 10 Dersherley vs. State, 4 S.w. 2d 255, 790 (Tev. Comm. App. 1999) 10 Fisher vs. State, 875 S.w. 2d 298, 302 (Tev. Comm. App. 1993) 9 Cerecic vs. State, 978 S.w. 2d 370, 378 (Tev. Comm. App. 1994) 10 Gleescock vs. State, 06012 TXCAB, 06-11-00239-CR (mom. app. 1997) 17 Goodman vs. State, 66 S.w. 2d 283 (Tev. Comm. App. 2001) 12 Green vs. State, 840 S.w. 2d 394, 401 (Tev. Comm. App. 1992) 10 Guzuarea vs. State, 112 S.w. 2d 45, 49 (Tev. Comm. App. 2004) 10 Geburow vs. State, 871 S.w. 2d 183, 186 (Tev. Comm App. 1993) 10 King vs. State, 29 S.w. 2d 556, 562 (Tev. Comm. App. 2000) 12 King vs. State, 638 S.w. 2d 903 (Tev. Comm. App. 1982) 12 Long vs. State, 823 S.w. 2d 258, 282-83 (Tev. Comm. App. 1991) 17 Macedozz vs. State, 1 S.w. 2d 827, 830-31 (Tev. Comm. App. Corpus Chatt.1990 phact. 17 Mozzu vs. State, 851 S.w. 2d 275, 278-80 (Tev. Comm. App. 1993) 16 Mistow vs. State, 819 S.w. 2d 839, 846 (Tev. Comm. App. 1991) 10 Mukewo vs. State, 715 S.w. 2d 866, 867 (Tev. Comm. App. 1988) 9 Mackiniz vs. State, 840 S.w. 2d 495, 423 (Tev. Comm. App. 1992) 9

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Setrional Appering Dedlegumest

Drel sepwment alwild be helpith, if appeltant thot the assittance at an atticnugy at loul. Hneiu, the appeltant wases arer sepwment chn to his "hose" pececture and his limit hawldpe at hui, and burely do wices arer sepwment in peed both.

*7

Statement of the Case

This is an Rettitain for Discreetinary Rerum (the se) of the decision is the Court of Approb of the Sixth Distart of Trinklone, Texas. Approbust's apposil was atfformed on the judgment and suftice for the ssya Judicial Distart is that Cunfo, Texas. The Appobust was converted by jomy for Approvictal Rebbey.

*8 She must all beceived by

On the 18th day of May, 2015 the Sixth District Courts at Fipperts at Teasetone, Texas. Measured the judgment of the 359th District District Court, that Cady, Texas was 292954 or 11 - 14 - 0091 - 68. Because, legally sufficient evidence shows appellant's theft with an opinion.

No matter for exchange was that.

*9

Eeenwold toon Rwissul

(1) The Canet of Appents deision is in chrect custitit with Womenswis other approls eonets regreding the some issue. (2) The Canet of Approls chd not conduct a mentholmevical of the evidence. (3) The Canet of Approls ignored moxim standards and substituted it eow thong as to what approltut shuld be chogers. (4) The Canet of Appents used puys unsyppurated wadict for its biding that the evidence of appollant guilt to be fortally sufficient. (5) The Canet of Appents decision on a Stitits at Inw that only the Canet of Crimimed Appends con cannect. (c) The Canet of Approls finted to adbure to the constistiontionality of appollant chimm of bopl insultsienney of eviduee. (7) The Canet of approls have wouplidy decided in inportant Contistionel eaned this an important cussion of state and faleed low thit conflict with decision of the Canet of Cimmacl Approls and Apprence Canet of the chited states.

*10

Department

Legal Subtleivency, the instant cove peesents a difficult ewestion as to the legal sutbivioncy of the eudence to sustin the eausiction for suwered reasons.

The Due Process Cluwe of the Fustionth Ammebment to the United States Contribution exaures every state comined eausction to be supported by evidence that a Edward tive of fact could accept as suftient to pave all the elements of the affince chogged beyond a reasonable doubt. Tice ullunity, 381 us. 338, 369, 90501 wee (1920) Esbee W. Stetty, 851 suizd 208, 302 (Tea Cane App. 1893). see also Tea Buccade buce &; adlucut sues); whed W. Stetty, 183 Suizd 201, 274 (Tea App.-Waco 2004 put refd). Under the Fureteenth Amendment, the test of the appoilite canet is to cussidee all the eudence in the light must buiowable to the urechet and detremise 1000 y rethuled tive of fact could have found beyond a eeavable doubt all the eunted cements of the affince. Ecteow W. Wiegisiz, 493 us. 527, 89, 99501 272 (1929); Suictes W. Stetty, 117 suizd 807, 810 (Tea Cane App. 2002); Exeduee W. Stetty, 30 suizd 384, 389-90 (Tea Cane App. 2000). Revealing canets are not fact fudies one note is that at a due process subgued, eausiting only the retsuability of the tive of facte finding of the eunted Eements of the affince beyond a reasonable doubt. See mewreser W. Stetty, 755 suizd 805, 812 (Tea Cane App. 1892). "If, bived as all the seictence, a Rotiuniality wanted, yery must wasserely nitietion a reasonable dubt of the detudont; guilt, due process ecourees that are reunee and debe a judgment of excuited." Esbee, 875 suizd at 302 (custing Wecsive W. Stetty, 800 suizd 407, 925 (Tea. Cane App. 1892);

*11 see also Gwever in Note, 172 and 175, 177 (The cam App 2020). The legal sufficiency of the evidence is a question of but, Metinut in Note, 277 soled by, see ( The Cam App 17201); Rebrever in Note, in and 175, 187 (The App - North 2020, p. 187). In assaying of the evidence under the Federal standard of ecency, a revisiting event must consider all evidence, slightly or are only admittly, which the same of fact as permitted the causative. See Gower in Note, 67 and 122, 127 (The Cam App 2027); Reuburny in Note, 279 and 285, 288 (The Cam App 1727); Reuburny in Note, 281 Saoed 125, 128 (The Cam App 1725). The standard of ecision is the some the both direct and circumstantial evidence. See see, 122 Saoed at 125; Gever in Note, 272 and 275, 127 (The Cam App 1727). The Note may prove its case by circumstantial evidence, since it is proves all the elements of the charged athide beyond a reasonable chain. See see in Note, 67 and 122, 277 (The App - North 122, 128). In Gever in Note, 272 Saoed 128 (The Cam App 1726). We skilled that a event of approval is "wisted with the authority to extend the exantowis in conmined cases." We also determined that the Federal in the 2020, 122 (122, 277, 278) (see, legal-sufficiency study and of ecision, where the evidence is issued is the light must favorable to the prosecutive, was not prope for a federal-sufficiency minimal. Gever, 272 Saoed at 122. Butand, neither the evidence is the light must favorable to the prosecutive, the cause of agreeely, pervade a mortal mental. Reference is given to the jigs ve- chet, as as 11 as to determinstous, including the candidity and dem- ernal of witnesses. Case in Note, 272 Saoed 122 at 127 (The Cam App 1727). We skilled that the verdict will be set aside only if the evide- ce supporting the verdict is so weak as to envehe the verdict clearly areing and manifestly unjust. A clearly as 122 and explicitly unjust verdict occurs where the jigs stadiag "shuic the causative."

*12 or "clively chomastorates bies." Appellant contiod, that the cant of Apporib did not conduct a nearted rewial of the endiree; giving all the endinestall of stots exidiree is stown (cali (the wibm) elire). Apporind con- tiod, that the jugs siveliet was unsepeated by peet of all the essential elements of the ature choyed. Relying an Reedy in Sete, 814 swial 512, (Tin Ego. Auitor (sed Bati 1206). Each eximint of e cerminol ature must be prewn beyond e exumteble chint for the exidore to be salficint. The stecting of an intrance epon an intrance is not conidired exidiree. The byol sati ntingy of the exidure is boed an due prews. In final analysis, cerminol sub- staitial due prews pretects the excused against conurtion except ap- on, peet beyond a reasonable chint of cungy but necessary to courthite the exime with which he is choyed. ${}^{\circ }$ Eact: Somitting know to have occurred or to be there; And Exidure: The means of prewsy or disprewsy as eliped for, tortimony, exibit,.... at tined as poct. Appollant contiods that cuntimity with weaselies clare definition of the two above words "facts" and "evidure". It is chance to see that the appollate counts did not conduct e nearted rewial of the exidure; either it ignored exidure syppatiay the ways wechet and premated its own assumption. See them opinion Eact) "The fact remun, bawwer, that carkson rided through the causale betore he beff the pocting let that day-betore exybody else could have possibly dwe so, including Carks found. "Appor- Dant contiods that the appollate counts is in direct contlict with fiddy in bow w cwited stots, 294 U.S. 390, 593, s R SCh 189 (1922), stotly that consis tiony in the wechet is not necessary and that cents of apporib should not percibite about the riew he the jugs siveliet. Appollat abo cttis cwited stots w. Bwelf, 949 U.S. 57, 105 SCh 47 (1989), ypohdity the caww rule.

*13 Apprtant tell to apese with appo ilite court, yowvited aprival. Morfol cufurbility is of such a wetoce that if pruically must be infored form circunstances andhe which the purtibited act occurred. Here presince of the sone or in the wervity of a crime, or even fight from the sone, either stand by alone or combined, is insufficient to sustain a conviction. Every wortity, are soad and the Crom. Epp. 2878). There we Juporating evidence that was presuided that appoilant was wive sone, wox any Juporating evidence presen- ted of tual to substantiate the yoculating opinion of Jackson be- ing the only presw "could have tstion the peperty." Cash tistind he told his friends to go see what was masiny. Every presw in the pres- sivce or wervity of Cents thack, is patristal experts...sharly have a d waswhetle doubt. Mrm. Spaw is incorporated by prect of any guilt of tlefts or appreated Reubrey. Plotal commission of of those of thist is not precessivite to commission of of those of Rebbiey in the preswment of Rebbiey is the assuitive conduct, and not the thist appoilant contiods the appoilate court a gownd hittly in the Jackson stundred, and see Jackson wortity, is suad and the Crom Epp. 287d), by substituting its own theory as to the cause of the approw- vited Rebbiey. In Geadman, stated that "it is a jusy, not a ervical- ing court, that accepts an exacts rawnsely found com- pting theories of result. id. of 287. Rebecow wortity, is suad or Crom. Epp. Bustor exce peet edid). To inceiving a challenge to the legal sifficiency of the evidence, a reatsivity cannt do not realspise disppare or wigh the evidence. Redigipce wortity, 2875 suad 2011/2017 in Epp.-Bustor 1877, we pat 3. Also, leug wortity, 20 suad 2011/2017 in Crom. Epp. 2000). Appoilant contiods that the court of apporib eered in hitt- ing the evidence was legally sufficient to establish appoilant had com- mitted approsvated Rebbiey becouse, the single essential ckment (thitt) was sufficient evidence alone, to support jusy's wrechet.

*14 Here, as will be shown, the evidence was factually and legally insufficient to support a quidy of other government or the Appraised cobby of steven Cark, as alleged in the indestment. The evidence was unapp- pected, once listed and in conflict with the required lists to be present. Already eochies the state presented was the victim Bithway. No government, exist day uncertion, new presence of appoient, no financing units, no medical evidence, no déged duallywayed, there was no material evidence presented at that to con- strate point of appoilants quilt beyond a reasonable doubt of gay assuited elements of the office of appraised kobby, as charged, U.S.C. B. Reade 89292(2) (1) 29.29(2)(2). Elements of appraised kobby (2929): (1) in the course of committity with, (2) with which to address an conviction omitted of property, (2) knowingly and intentionally, (2) the other are places another in force of immanent bady injury or death, and (3) does as exhibits dually wayed (Appoilant assuited charge under this section). Elements of kobby (2929): (1) in the course of committity with, (2) with which to address an conviction omitted of property, (2) intentionally, knowingly or not, to dually injury to another. (which the appoient stand charge under a zeeecal) and 29292(2)(2). The assuited element of appraised kobby is theist we expursed force of immanent bady injury or death presented by presence of duallywayed, with one or another of wayed being meagely included to its presence (see 92929(2)(2). The assuited act was implied in the office of appraised kobby: "at least" and "a account." The legislators indishing the office expressly pe- ded into recourse would not into the language of the section: the eftude must act with which to address and conviction omitted of property, and his functioning on playing the victim in force must be individually or knowingly. In the instant case, the state was recounted by power, as charged in the indestment, and law, as in the pay charge.

*15 To: Rev. Cade Ruse 88 2902 (2)(1), 2903 (2)(2) (U.S.A. for Cade &;s (2)(2) (Wexner 2012). "(1) On May 21, 2013, (2) in Hunt County, Texas; (3) the Appollaut; (4) did thew and theref while in the course of committing thelt and allts wittit to obtain an mernition control of property, (5) wittitively, meaningly, as Recklessly Cause badly wyway to Stow Cash by studying him in the by an body: (Easily, a deadly was you now used during the comminional of the atthesg number: 2 Earcen).

However, the appellate counts has applied in improper studies on incorrect recissu standard, by actually substituting its own stititity language for that of the crendy way, the stity praiecutive and the trial count, very cheque; substititity its specififed theory for that of the iny's conduct (See: "Mem. Qua. 10.5"). "IIn this case, Tichow committed apprected Rekney if (1) Tichow committed thit of property with wittit to obtain an minition control of the property, and (2) in the course of this thirty Tichow wittitianally, meaningly, as Recklessly caused scriew badly ypway to cash by sharing cash in the by. (Hawvice, this is so entirely different stititity byyage how what Tichow is chequed) See: Tachuctal buct at exassial (2) (2)(2)(2). Tichow is Usequivig, the appellate counts is to coundreast the evidence in the light must bounable to the product and determine if any rirtual there of fact could have bined beyond a a cxcounable dult all the exsicted elements of the atthes. Appollaut controls that appellate counts is in direct contlict with biding in Case Specs, where we stifed that assets of apprecls should examine atcessive implicitly and give difference to the iny's conduct. See Also Recessive to lured at 184. In studying a challenge to the sufficiency of the evidence, a Reckivisy count does not reacipul, disegred, or expit the evidence. This appellate counts have failed to atthes its witted authority and substituted its own assumption of appellant's guilt of its own thesy.

*16 Aggorilant cantritiods that the apposilate counts fecuracble in- terest in the presecution, thew caused it &; attempt to a reaipow the of- touse, ignoree its ede bing that of a due process ofepow, and feunebly weigh the evictivise, against apporilant the lloyge &; the fopoly wortificency of the evictivise. Hereiv, the appollate conto have ignored evictivise be- tog so week as to munder the verdict choyf weng and manitity unjot, if Shicks the conserince* and "dromistrots bals." The evictivices is so weak that it munder the nays wretist beyond a fecuracble doubt to munder the fesce wotuddel eftivise, a thistirad its cuswoporated by prast of the exent- tal efeement. Appollants cuswition for apporvited Robbry have not braw cunclided from all the evictivice. In stow, apporilant have braw cuswrited for an attivise other thow what he stand thow. Apporilant cantrivise to custard the evictivise in this cause 27275 Wambin for the albyed appor- vited Robbry (V.TC.A. Pw. Code 88 29.02(a)(1) and 29.03(a)(2) (c) is factuelly and fopoly in sufficient to sustain an exurction beyond a fecuracble doubt, as charged in incictement wocice, pervision as clapped. Chadra Caskow standard, asould the evictivice be weak, biching and unsuppositive, when it cause an Retined Niok of forts &; mubik a wretist on unsuppuritel perat of essential efeant for any other buse included attivise, other that the attivise clapped apporvst apporilant...'or, would it be closely weng and manitity unjust that it actually "shocks the cons- tivice" and "dromistrots bals", that canstitutes couel and unsoucl ponish- ment, and ctrestly violates the due process clowe of the foretient Anmuf- ment of the cluited Sittis Cantibetion?" The foretient Anmufment per- aufe of due process Reduxes that this Cust reavee and order an exentitel. see Gowere u. 160 , is 2 Swind 4544 (Tov. Comm App. 2004). Revealing counts are not forts fiedces. Thive rule is that of a due presses of eppored, revealing only the Retiently of the tease of forts' finding of the exurtted efeanents of the attivise beyond a fecuracble doubt. Beret'sow- tly of the evictivice, Re Vincts a fecuracble doubt. is.

*17 (2) Appellant contends his folture to pressone atemplal Edetune Reitainst

Appelleat was ordered to exmune his shatley the coust So that the jusy and tastinging witness could proveal his to thej eew after the Coust was wattled that appellant was wavering a 'obetune im- mubibization system" (Womly: Thow Bell, when the order was moked by the coust Appellant contends that thel coust exram is foiling to have effective measure to prevent the jusy from seeing the appet- lants restrainly, at the being wattled by detune Cunsel, Iro ext- duce in the thel record but the Appellant was actually seen by the jusy is restrainly, at the the coust's arder the record reflects that the thel judge order appellant to exmue his shist is tewt of the jusy.

Hereas, evart of appeste speculated or substituted its opinion with ReEZ U. United States, sal U. 923, Pg (1992) (cobing United States to Eapuum, 470 U.S. S2R, S2P (1985) (absence of aqjection cusst- tities wavere of Reptt to be present at all stages of criminal thel). The appellant contends that appellate coust is in direct conthetuish holding is Reveal state-ted suid 277,279-80 (To, Com (1993) (appositable exros foll ius three categories: 1) visibitio of fadoti- ble Reptt, which must be presened for apped by timely and specific objective; 2) visitation of Reptt that must be appessly waived, which may be conducted as apped in the absence of such as uisivicy and 3) visibition of a systemic prohibition or reconvenust not optimal with the pretes at thel, which may always be remeded as appesli, re- predies at a civa or foatititied. This and the E apply to appellant is the case. The cusstititical exrork was the isterage must of his cusstititical presumption of invocence. Cobing Illinois U. Ailbo 387 U.S. S27, 544; ReS Ch 1057 (1990), when the jusy ses tion restrainld is the inieragement of his cosstititical presumption of invocence, and all of Rept should be maitrined to prevent the jusy from seeing the detueduct's restrainly. 'except where there has been a showing of exceptional excoms sance or amowist used her such

*18 Rostreint." Sump U. stote: 823 Jwled 277, 282-83 (Sov. Cenn. 1901991). Maudaza U. Stote: I Swisd 827-83a-31 (Tex. 9992 Congens Chest: 1999 per. N9d). "cui appetl the rule of Lur appellate 7 cont s. E. dotremise whither the trial canet abmed its discretion in actio- rising the Restraint." Appellant contuuly, that the appellate events pavered the constitutional Eerter, and substituted its own decision stating "Eerder whent perserd for mivin." See Meese typea.

Appollant caper this court to find that the teal canet ab- used its discretion to allow appellant to be seen in shek bett Restraint becase, it did not make specific fudug on the record to justify the Restraints. This cantitutional Eerter was examined on some issue out of that Canity in EeEscect U.Stote, O6Us12 TXC46.06-11-00239-C8 (meaer opinion). the ditudat was made to usen shekles and passu attire cheny the pussiment phase of his teal. To that issue a shek bett was visible and seen by jiney in this what case, and teal canvel attempted to stop these activities. Executed on the 90 day of Tady $\to$ DUS. N.D.

*19

Answer La Relief

*20

I wills Frank Dubus $$ pase, and the appo that and being presently incarcerated in The Ties Department at Channel Gutter-TD; Rebotow Glute 1271 Ft 3522. Mibing Ties. 1961, deubie under pucstly of pexy by this according to my belief, the facts sbted in the above Rottentur Hiexertonsay. Refical are Ties and Coment. Exerited on this the 92 chyat July 2015. A.D.

Certificate of Sales

I brawly certify that a tive and cewent copy of the above and forgoing instrument (FUK) was ferwered at E. Ties. Canity Ties Cunt of Channel Appetits, P.O. Box 12508. Mibing Ties 1971. as this the 92 day of help 2015, and by dUs Motteye Sceive.

*21

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-14-00097-CR

WILLIE FRANK JACKSON, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 354th District Court Hunt County, Texas Trial Court No. 29,295

Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Chief Justice Morriss

*22

MEMORANDUM OPINION

Near some Greenville apartments, Willie Frank Jackson stood over Steven Ray Cook-as Cook lay on the ground after having been shot in the leg by Jackson-pointed his gun at Cook, and demanded that Cook tell him the location of Cook's wallet. After being told that the wallet was in the console of Cook's nearby truck, Jackson was seen rummaging through Cook's truck. The wallet was later found, less the forty dollars previously in it, along the path of Jackson's departure from the scene.

Jackson was convicted of aggravated robbery and, after enhancement of the charges to habitual offender status, was sentenced to ninety years' incarceration. We affirm the trial court's judgment, because (1) legally sufficient evidence shows Jackson's theft and (2) Jackson failed to preserve his complaint of wrongful electronic restraint.

(1) Legally Sufficient Evidence Shows Jackson's Theft

Pointing to a perceived lack of evidence of theft, Jackson claims the evidence is insufficient to support his aggravated robbery conviction. We disagree.

In evaluating legal sufficiency of the evidence, we review all evidence in the light most favorable to the verdict to determine whether any rational fact-finder could have found guilt beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Brown v. State, 333 S.W.3d 606, 608 (Tex. App.Dallas 2009, no pet.). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to

*23 weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19).

Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge "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." Id. In this case, Jackson committed aggravated robbery if (1) Jackson committed theft of property with the intent to obtain or maintain control of that property and (2) in the course of this theft, Jackson intentionally, knowingly, or recklessly caused serious bodily injury to Cook by shooting Cook in the leg. See Tex. Penal Code Ann. § 29.03 (West 2011). Jackson disputes only the theft element of aggravated robbery. Theft is the unlawful appropriation of property, without the effective consent of the owner, with the intent to deprive the owner of the property. See Tex. Penal Code Ann. § 31.03 (West Supp. 2014).

The record indicates that Cook was visiting a friend at an apartment complex in Greenville on the evening of the robbery. Cook left the apartment complex around 7:00 p.m. to go to a convenience store. Cook returned to the apartment complex a short time later, parked his truck, and noticed that Jackson was walking toward him. Jackson was wearing an oven mitt which concealed a gun. After striking Cook in the face, Jackson pointed the gun directly at Cook's head and pulled the trigger. The gun merely clicked. Jackson told Cook, who was seated in the driver's seat of his truck with the door open, "[T]hat one's free. . . .You better move." Cook did not

*24 understand what Jackson wanted. At that point, Jackson shot Cook in the lower leg. Jackson again demanded that Cook move. Cook got out of the truck and began to trot off, falling after about thirty feet. After Cook fell, he saw Jackson standing over him with the gun pointed at his face. When Jackson asked Cook where his wallet was, Cook told him it was in the console of his truck. Cook then saw Jackson rummaging through his truck, after which Jackson began to walk away from the truck. Cook was able to make his way back to his friend's apartment, where he told the friend of his encounter with Jackson and cleaned his leg wounds. Cook, believing his wounds were not serious, bandaged his leg and then asked his friend to find out what was missing from his truck.

The following day, Cook returned to the apartments to check on his truck and discovered that the truck keys were missing. Cook's wallet was not in the truck, nor was a .22 caliber Stinger hand gun he kept in the console. After walking in the general direction of Jackson's route of departure on the previous day, Cook found his wallet lying on the ground. He discovered, though, that forty dollars was missing from the wallet. After reporting the crime to the police, Cook went to the hospital.

Jackson claims this evidence fails to show that he actually deprived Cook of his money and gun. He claims that, because Cook was bleeding after the blow to his face, he was unable to clearly see whether Jackson took the missing items from Cook's truck. He further claims that, because Cook's friend looked in the truck after Jackson left to determine if anything was missing and because the truck might have been left unlocked in the parking lot overnight, it is mere speculation

*25 to conclude Jackson took money from Cook's wallet as well as the small gun that was stored in the truck's console.

As described above, after Cook told Jackson that his wallet was in the console of his truck, he witnessed Jackson rifling through the contents of the truck and then leaving the apartment parking lot on foot. The following day, Cook found his wallet in Jackson's path of travel away from the parking lot. The wallet was missing the forty dollars, and Cook's gun was missing from the truck's console. That Cook's vision might have been impaired due to bleeding from a wound is a factor for the jury to consider and resolve. The jury also heard testimony that Cook's friend had access to the truck and that the truck could have been left unlocked overnight. These were likewise factors for the jury to consider and resolve. The fact remains, however, that Jackson rifled through the console before he left the parking lot that day-before anybody else could have possibly done so, including Cook's friend. Considered in the light most favorable to the jury's verdict, a rational jury could have found, beyond a reasonable doubt, the elements of aggravated robbery. The evidence was sufficient to support the jury's verdict. (2) . Jackson Failed to Preserve His Complaint of Wrongful Electronic Restraint

During the punishment phase of trial, Jackson was asked to remove his shirt so that the testifying witness could view his tattoos. Evidently, under his shirt, Jackson was wearing a shock belt restraint ^[1] when the request was made. Jackson complains of trial court error in failing to make

*26 specific findings on the record to justify imposition of the restraint at trial. Jackson further contends that, because the jury was able to see that he was wearing an electronic restraint, he is entitled to a new punishment trial.

The issue arose in connection with Jackson's tattoos, which the State sought to prove were evidence of Jackson's membership in a prison gang known as the Mandingo Warriors. The State questioned David Johnson, with the Texas Department of Criminal Justice, about tattoos indicative of Mandingo Warrior membership. Although Johnson had viewed photographs of Jackson's tattoos, he had never met Jackson. When the State sought to elicit testimony from Johnson authenticating photographs of Jackson's tattoos, Jackson objected, stating that, because Johnson did not take the photographs, he was not the proper person to authenticate them. In response, the State asked "that the defendant remove his shirt and show the jury so that they can all properly authenticate it . . ." The following colloquy ensued: [DEFENSE COUNSEL]: You want to take your shirt off -- [THE STATE]: We can do that in private or in front of the jury. THE COURT: All right. [DEFENSE COUNSEL]: So do you want to do it in front of the jury or do you want to do it in just a little bit? [DEFENDANT]: I'll do it right there in front of the jury. It don't matter. State v. Belcher, 183 S.W.3d 443, 445 n. 1 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (citation omitted); see Taylor v. State, 279 S.W.3d 818, 820 n. 1 (Tex. App.-Eastland 2008, pet. ref'd).

*27 THE COURT: All right. If you'll step over here and raise your shirt and show them your tattoos. DEFENSE COUNSEL : Hold on, Your Honor, just a second. Can we approach?

Just a second, Mr. Jackson. They put a shock belt -- [THE STATE]: If he's willing to take his shirt off, then let him take his shirt off. DEFENSE COUNSEL : No. No. No. No. No. What I'm saying is -- THE COURT: He's already taken his shirt off.

THE COURT: His shirt's off. DEFENSE COUNSEL : Oh, nevermind. Nevermind. THE COURT: All right. If you'd step over in front of the jury, sir. [THE STATE]: And since this is the witness that's testifying, if we could show the witness? That's really the only person I need to see them.

That's far enough. THE COURT: All right. Let the record reflect the defendant has removed his shirt and has marched in front of the jury so they could see any tattoos that he might have.

As is clear from the foregoing colloquy, defense counsel did not object to the use of an electronic restraint or to the removal of Jackson's shirt in front of the jury. While counsel seemed to indicate that Jackson was wearing a shock belt, no objection was stated on that or on any other basis. Further, when counsel learned that Jackson had removed his shirt, any objection-to the

*28 extent one was articulated-was abandoned when counsel told the court "nevermind [sic]." No previous or subsequent mention of a shock belt appears in the record.

The Fifth and Fourteenth Amendments to the United States Constitution prohibit the use of physical restraints visible to the jury unless the trial court determines that such restraints are justified to ensure physical security, escape prevention, or courtroom decorum. Deck v. Missouri, 544 U.S. 622, 628 (2005), abrogated on other grounds by Fry v. Pliler, 551 U.S. 112 (2007). However, even the most basic rights of criminal defendants are subject to waiver. Perez v. United States, 501 U.S. 923, 936 (1991) (citing United States v. Gagnon, 470 U.S. 522, 528 (1985) (absence of objection constitutes waiver of right to be present at all stages of criminal trial); Levine v. United States, 362 U.S. 610, 619 (1960) (failure to object to closing of courtroom is waiver of right to public trial); Segurola v. United States, 275 U.S. 106, 111 (1927) (failure to object constitutes waiver of Fourth Amendment right to be free from unlawful search and seizure)). Here, Jackson did not object to the use of the electronic restraint at any point during the trial. "For a party to preserve a complaint for appellate review, the complaining party must make a specific objection and obtain a ruling on the objection." Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014); see Tex. R. App. P. 33.1. "Almost all error-even constitutional errormay be forfeited if the appellant failed to object." Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); see also Taylor v. State, 279 S.W.3d 818, 821 (Tex. App.—Eastland 2008, pet. ref'd) (issue of whether defendant properly restrained by use of stun belt at punishment phase not preserved for appellate review where defendant failed to object); Cedillos v. State, 250 S.W.3d 145, 150 (Tex. App.—Eastland 2008, no pet.) (appellant waived constitutional due process

*29 complaint regarding shackling during trial because he failed to object on record); see also Kelley v. State, No. 05-09-01438-CR, 2012 WL 2628074, at 5-6 (Tex. App.—Dallas July 6, 2012, pet. ref'd) (mem. op., not designated for publication) (complaint of shackling at trial not preserved for appellate review when defendant failed to object at trial); Pereida v. State, No. 13-09-00354-CR, 2010 WL 2783743, at 6 (Tex. App.—Corpus Christi July 15, 2010, pet. ref'd) (mem. op., not designated for publication).

The record here does not contain an explicit description of the reasons for the electronic restraint. The record likewise does not indicate-assuming the restraint was visible to the jury when Jackson removed his shirt-that the jury perceived the device as an electronic restraint. These particulars are missing because Jackson did not object. Consequently, the issue has not been preserved for our review ^[2] and is therefore overruled.

*30 We affirm the trial court's judgment.

Josh R. Morriss, III Chief Justice

Date Submitted: May 14, 2015 Date Decided: May 15, 2015 Do Not Publish

NOTES

'A shock belt or stun belt is a device placed around a defendant's midsection that uses an electric shock to temporarily disable the defendant if his actions pose a security threat. The belt is controlled by a remote device held by a security official in the courtroom. If the belt is activated, the defendant will receive a powerful electric shock sufficient to temporarily incapacitate him.

${}^2$ Even if Jackson had preserved this complaint for our review and error was determined to have occurred, it is unlikely Jackson was prejudiced. The event occurred during the trial's punishment phase. After conviction, the defendant no longer enjoys the presumption of innocence. See Deck, 544 U.S. at 632. Texas cases have also held that the presumption of innocence does not apply at the trial's punishment phase. Marquez v. State, 725 S.W.2d 217, 227 (Tex. Crim. App. 1987), overruled on other grounds by Moody v. State, 827 S.W.2d 875, 892 (Tex. Crim. App. 1992); see, e.g., Lewis v. State, 866 S.W.2d 272, 277 (Tex. App.—Houston [1st Dist.] 1993, pet. ref'd). The punishment phase here involved four prior felony convictions alleged by the State. Jackson pled "true" to three of these prior conviction allegations, and the trial court instructed the jury to find each such conviction allegation to be true. Jackson pled "not true" to the fourth alleged prior conviction, involving the possession of a deadly weapon in a penal institution. The three prior conviction allegations to which Jackson pled true were sufficient to enhance his punishment range to that of a habitual felony offender. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2014).