Case Information

*0 RECEIVED IN 12th COURT OF APPEALS TYLER, TEXAS 9/22/2015 1:27:36 PM PAM ESTES Clerk *1 ACCEPTED 12-15-00154-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 9/22/2015 1:27:36 PM Pam Estes CLERK

12-15-00154-CR IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS DANIEL LEE KNOD Appellant, v.

THE STATE OF TEXAS Appellee On Appeal from the Seventh District Court of Smith County, Texas Trial Cause No. 007 -0010-15 APPELLANT’S AMENDED BRIEF ORAL ARGUMENT NOT REQUESTED Austin Reeve Jackson Texas Bar No. 24046139 112 East Line, Suite 310 Tyler, TX 75702 Telephone: (903) 595-6070 Facsimile: (866) 387-0152 *2

IDENTITY OF PARTIES AND COUNSEL Attorney for Appellant

Appellate Counsel:

Austin Reeve Jackson

112 East Line, Suite 310

Tyler, TX 75702

Trial Counsel:

Kurt Noell

231 S. College Ave.

Tyler, TX 75702

Attorney for the State on Appeal

Michael J. West

Assistant District Attorney, Smith County

4th Floor, Courthouse

100 North Broadway

Tyler, TX 75702

ii *3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ................................................................. ii

TABLE OF CONTENTS ............................................................................................... iii

INDEX OF AUTHORITIES ......................................................................................... iv

STATEMENT OF THE CASE ....................................................................................... 2

ISSUE PRESENTED ...................................................................................................... 2

STATEMENT OF FACTS ............................................................................................. 2

SUMMARY OF THE ARGUMENT ............................................................................. 3

ARGUMENT .................................................................................................................. 4

I. THE TRIAL ERRED IN DENYING A TIMELY REQUESTED

JURY INSTRUCTION AS TO THE DEFENSE OF MISTAKE OF FACT ......................................................................................................... 4 Standard of Review ................................................................................................... 4

Applicable Statutes ................................................................................................... 5

Applying This Law to The Instant Case ................................................................... 6

Mr. Knod was Entitled to the Instruction ............................................................... 12

The Trial Court's Denial of the Instruction Harmed Mr. Knod .............................. 13

II. THE SENTENCE IMPOSED EXCEECED THE MAXIMUM

PERMISSIBLE SETNENCE AND, THEREFORE, IS VOID ................ 17 Standard of Review ................................................................................................. 17

The Sentence Imposed was Improperly Enhanced and is Void .............................. 17

CONCLUSION AND PRAYER .................................................................................. 20

CERTIFICATE OF SERVICE ..................................................................................... 21

CERTIFICATE OF COMPLIANCE ............................................................................ 21

APPENDIX A -- DEFENDANT'S REQUESTED MISTAKE OF FACT

INSTRUCTION ............................................................................................................ 22

APPENDIX B -- CHARGE OF THE COURT TO JURY ........................................... 24

iii *4 INDEX OF AUTHORITIES TEXAS SUPREME COURT AND COURT OF CRIMINAL APPEALS:

Almanza v. State ,

686 S.W.2d 157 (Tex.Crim.App. 1985) ........................................................ 4, 5, 13

Arline v. State ,

721 S.W.2d 348 (Tex.Crim.App. 1986) ........................................................ 14

Beggs v. State ,

597 S.W.2d 375 (Tex.Crim.App. 1980) ........................................................ 16

Celis v. State ,

416 S.W.3d 419 (Tex.Crim.App. 2013) ........................................................ 12

Granger v. State,

3 S.W.3d 36 (Tex.Crim.App. 1999) .............................................................. 6

Hamel v. State,

916 S.W.2d 491 (Tex.Crim.App. 1996) ........................................................ 5, 12

Jackson v. State,

646 S.W.2d 225 (Tex.Crim.App. 1983) ........................................................ 17

Jordan v. State,

107 Tex.Crim. 414, 296 S.W. 585 (1927) .................................................... 7

Levy v. State,

818 S.W.2d 801 (Tex.Crim.App. 1991) ........................................................ 17, 20

Mendoza v. State ,

88 S.W.3d 236 (Tex.Crim.App. 2002) .......................................................... 5, 6

Miller v. State,

815 S.W.2d 582 (Tex.Crim.App. 1991) ........................................................ 13

Mizell v. State,

119 S.W.3d 804 (Tex.Crim.App. 2003) ........................................................ 17

TEXAS SUPREME COURT AND COURT OF CRIMINAL APPEALS

(CON’T):

Ovalle v. State,

13 S.W.3d 774 (Tex.Crim.App. 2000) .......................................................... 4

Rawlings v. State ,

602 S.W.2d 268 (Tex.Crim.App. 1980) ........................................................ 18

Willis v. State,

790 S.W.2d 307 (Tex.Crim.App. 1990) ....................................................... 5

Woodfox v. State,

742 S.W.2d 408 (Tex.Crim.App. 1987) ........................................................ 6

TEXAS COURTS OF APPEAL:

Bang v. State,

815 S.W.2d 838 (Tex.App.—Corpus Christi 1991) ...................................... 13

Brown v. State,

14 S.W.3d 832 (Tex.App.—Austin 2000) ..................................................... 19

Durden v. State ,

290 S.W.3d 413 (Tex.App.—Texarkana 2009) ............................................. 13,14,15

Egger v. State,

817 S.W.2d 183 (Tex.App.—El Paso 1991) ................................................. 5

Freeman v. State ,

970 S.W.2d 55 (Tex.App.—Tyler 1998) ....................................................... 18, 19

Green v. State ,

899 S.W.2d 245 (Tex.App.—San Antonio 1995) .......................................... 16

Ingram v. State ,

261 S.W.3d 749 (Tex.App.—Tyler, 2008) .................................................... 10, 11

TEXAS COURTS OF APPEAL (CON’T):

Murchison v. State,

93 S.W.3d 239 (Tex.App.—Houston [14th Dist.] 2002) ............................... 6

Ochoa v. State,

119 S.W.3d 825 (Tex.App.—San Antonio 2003) .......................................... 4

Sands v. State ,

64 S.W.3d 488 (Tex.App.—Texarkana 2001) ............................................... 13

STATUTES:

T EX . C ODE C RIM . P ROC . art. 36.19 .................................................................... 4, 13-14

T EX . C ODE C RIM . P ROC . art. 44.29 .................................................................... 20

T EX . P EN . C ODE § 8.02 ...................................................................................... passim

T EX . P EN . C ODE § 12.35 .................................................................................... 20

T EX . P EN . C ODE § 12.425 .................................................................................. 18, 19

T EX . P EN . C ODE § 31.03 .................................................................................... passim

vi *7 12-15-00154-CR IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS DANIEL LEE KNOD Appellant, v.

THE STATE OF TEXAS Appellee On Appeal from the Seventh District Court of Smith County, Texas Trial Cause No. 007 -0010-15 TO THE HONORABLE JUSTICES OF THE COURT:

Comes now, Daniel Knod, by and through his attorney of record, Austin Reeve Jackson, and files this his brief pursuant to the Texas Rules of Appellate

Procedure, and would show the Court as follows:

STATEMENT OF THE CASE Daniel Knod appeals his conviction and sentence for the offense of felony theft. (I CR 72). Mr. Knod was indicted for this offense in the Seventh District

Court of Smith County in January of 2015. (I CR 2). To this charge he entered a

plea of “not guilty” and proceeded to trial by jury. (I CR 72). Ultimately, Mr.

Knod was found guilty and sentence by the trial court to serve a term of eighteen

years’ confinement. ( Id .). Sentence was pronounced on 27 May and notice of ap-

peal then timely filed. (I CR 69, 72).

ISSUE PRESENTED I. THE TRIAL COURT ERRED IN DENYING A TIMELY REQUESTED JURY INSTRUCTION AS TO THE DE- FENSE OF MISTAKE OF FACT.

II. THE SENTENCE IMPOSED EXCEEDED THE MAXI- MUM PERMISSIBLE SENTENCE AND, THEREFORE, IS VOID.

STATEMENT OF THE FACTS In December of last year an employee at Hall GMC in Tyler noticed a vehi- cle drive out to some dumpsters located on Hall’s property. (VI RR 49). The

dumpsters included bins for recycling and scrap as well as trash. (VI RR 114-15).

The vehicle stopped in that area and a man exited, picked up a large metal wheel

rim, placed the rim in the car, and reentered the vehicle just before it drove off of

Hall’s lot. (VI RR 50-52). The employee notified his manager and they deter-

mined that the rim had been taken. (VI RR 53-54). Minutes later, Appellant, Mr.

Daniel Knod, sold what was identified as the same rim to a scrap yard just down

from Hall. (VI RR 72-74). When law enforcement later learned of this, they pre-

pared a warrant and eventually arrested Mr. Knod for the offense of theft of the

rim. (VI RR 139).

To the charge for which he was ultimately indicted, felony theft, Mr. Knod entered a plea of “not guilty” and proceed to trial by jury. (I CR 2, 72). After the

jury found him to be guilty he asked the trial court to impose punishment. (I CR

72). Based on his criminal history the range of punishment was enhanced to that

of a second degree felony and the trial court imposed punishment at the high-end

of that range; eighteen years’ confinement. (I CR 72). Sentence was pronounced

on 27 May and notice of appeal then timely filed. (I CR 69, 72).

SUMMARY OF THE ARGUMENT A defendant in a criminal case has the right to have the jury instructed to the law applicable to the case including any defensive issues. Thus, where the evi-

dence before the court raises the possibility that a mistake of fact negates the cul-

pable mental state for the offense charged and the defendant timely requests such

an instruction, a trial court errs in refusing to include it in its charge to the jury.

Further, where that omission harms a defendant, an appellate court should reverse

the judgment of the trial court and remand the case for a new trial.

Under Section 31.03(e)(4)(D) of the Penal Code, a defendant who is charged with committing a state jail felony theft on the basis of having two or more prior

convictions for theft, cannot have the punishment range applicable to his offense

further enhanced on the basis of additional felony theft convictions. Where the

State has done so and the result has been the imposition of a sentence that exceeds

the statutory range of punishment for a state jail felony, the resulting sentence is

void and the case must be remanded for a new hearing on punishment.

ARGUMENT

I. THE TRIAL COURT ERRED IN DENYING A TIMELY REQUESTED JURY INSTRUCTION AS TO THE DEFENSE OF MISTAKE OF FACT.

Standard of Review

An appellate court’s review of alleged jury charge error is a two-step pro- cess. Ochoa v. State , 119 S.W.3d 825, 828-29 (Tex.App.—San Antonio 2003, no

pet.). Initially, a court must determine if the complained of error does, in fact, con-

stitute error. T EX . C ODE C RIM . P ROC . A NN . art. 36.19 (Vernon 2009); Ochoa , 119

S.W.3d at 828. If so, the court then determines whether the error resulted in harm

sufficient to warrant a reversal. Ochoa , 119 S.W.3d at 828. If the error in the

charge was brought to the trial court’s attention by way of a timely objection, re-

versal is required if the appellant can show the lesser standard of “some harm.”

Ovalle v. State , 13 S.W.3d 774, 786 (Tex.Crim.App. 2000); Almanza v. State , 686

S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh’g). Whether harm resulted is

determined by reviewing the record as a whole. Almanza , 686 S.W.2d at 171.

Applicable Statutes

In this case Mr. Knod was charged with the offense of theft. (I CR 2). Un- der Section 31.03 of the Texas Penal Code, a person commits the offense of theft if

they “unlawfully appropriate[] property with intent to deprive the owner of proper-

ty.” T EX . P EN . C ODE § 31.03(a). Appropriation is unlawful if it is done without

the owner’s consent. T EX . P EN . C ODE § 31.03(b). To this, and other offenses,

there exists a statutory defense of “mistake of fact” where such mistake affects the

actor’s “culpable mental state regarding commission of the offense charged.” T EX .

P EN . C ODE § 8.02; Egger v. State , 817 S.W.2d 183, 187 (Tex.App.—El Paso 1991,

pet. ref’d) ( citing Willis v. State , 790 S.W.2d 307, 314 (Tex.Crim.App. 1990). ^[1]

When evidence from any source raises a defensive issue and the defendant

properly requests a jury charge on that issue, the trial court must submit the issue

to the jury. Mendoza v. State , 88 S.W.3d 236, 239 (Tex.Crim.App. 2002). This is

true regardless of whether the evidence is weak or strong, unimpeached or contra-

dicted, and regardless of what the trial court may think about he credibility of the

defense. Hamel v. State , 916 S.W.2d 491, 493 (Tex.Crim.App. 1996).

*12 Thus, within the context of a mistake of fact defense, the only issue before the court at trial is whether there is some evidence, if believed, that raises the de-

fense by negating the defendant’s culpable mental state. Murchison v. State , 93

S.W.3d 239, 252 (Tex.App.—Houston [14th Dist.] 2002, pet. ref’d). Neither the

trial court nor an appellate court passes judgment on whether the defendant’s mis-

taken belief was reasonable. Granger v. State , 3 S.W.3d 36, 39 (Tex.Crim.App.

1999). Rather, if there is some evidence at all, the issue must be submitted to the

jury for them to resolve that question. Id .; Mendoza , 88 S.W.3d at 239; see also

Woodfox v. State , 742 S.W.2d 408, 410 (Tex.Crim.App. 1987) (“When a judge re-

fuses to give an instruction on a defensive issue because the evidence supporting it

is weak or unbelievable, he effectively substitutes his judgment on the weight of

the evidence for that of the jury.”).

Applying This Law to The Instant Case

Because Mr. Knod was charged with the offense of theft, the State was re- quired to prove that he took the allegedly stolen property, the rim, with the intent to

deprive the owner of that property. T EX . P EN . C ODE § 31.03. The intent to deprive

the owner of the property is the culpable mental state. Id . Thus, if Mr. Knod did

not intent to deprive the owner of the rim, there was no theft. Id .; Granger , 3

S.W.3d at 41; Murchison , 93 S.W.3d at 252.

In support of the idea that Mr. Knod was not acting with any intent to de- prive the owner of the rim of that property, important evidence was developed at

trial. For example, there was testimony from multiple witnesses that the rim was

located in a trash / recycling area near a dumpster where one could conclude that it

had been abandoned. See Jordan v. State , 107 Tex.Crim. 414, 296 S.W. 585

(1927) (abandoned property cannot be the subject of theft); (VI RR 67-68, 11).

Mr. Knod: Now … in Exhibit Number 8 there’s a fenced area. And inside that little fenced area there’s a dumpster?

Witness: Yes, sir

…

Mr. Knod: [A]ctually, [there are] two or three more dumpsters … correct?

Witness: Yes, sir.

…

Mr. Knod: Other than maybe the dumpster with – which designates it’s for cardboard – the blue one on the right side. There’s nothing saying to anyone, other than employees of Hall, that these materials are being held for recycling, is there?

Witness: There’s no bin there –

Mr. Knod: Well, there’s nothing that says any of these materials are being held for recycling by Hall GMC?

Witness: No, sir.

Mr. Knod: Not a sign that says “recycling area” or anything like that? Witness: No, sir.

Mr. Knod: In fact, the most common thing you put in dumpsters is trash, correct? Witness: Yes, sir.

(VI RR 67-68).

Mr. Knod went on to develop evidence that the rim was located near an ac- tual trash dumpster and piles of trash-like materials such as broken pallets. (VI RR

68, 114-15). Moreover, Mr. Knod established that the dumpster area from which

the rim was taken, while in a gated area, was not secured. (VI RR 116). In fact,

the gates were open and there was nothing indicating that the area was for employ-

ees only or subject to a “no trespassing” restriction. ( Id .). *15 As State’s Exhibits 8, 9, and 10 ^[2] make obvious to any viewer, the rim taken in this case was taken from an area one could reasonable assume contained aban-

doned and discarded rubbish; or, in the parlance of Section 31.03, property that

*16 could not be the subject of a theft offense. Ingram v. State , 261 S.W.3d 749, 753

(Tex.App.—Tyler 2008, no pet.) (“[I]t is possible to take possession of abandoned

property without committing a theft or intending to commit a theft.”).

In addition to this evidence, Mr. Knod also argued that his behavior in sell- ing the rim, during which transaction he was on camera and surrendered a copy of

his driver’s license complete with identifying information, further showed that he

believed he had a right to do what he was doing and was not acting in the deceitful

or secretive manner one might expect from a person in knowing possession of sto-

len property. (VI RR 79-80, 84-86, 94-97).

Based on the totality of this argument, Mr. Knod sought to argue to the jury that he should be acquitted because he did not intend to unlawfully deprive anyone

of the rim. (VI RR 162-65).

The Requested Instruction

Although we now know that the owner of the rim did not intend to abandon it, because there was some evidence indicating that the rim had been abandoned

and that Mr. Knod was acting in a manner consistent with someone who had found

property rather than stolen it, Mr. Knod sought a mistake of fact instruction. (VI

RR 173-74, 175-76). Specifically, the requested charge read:

It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

(I CR Supp.). ^[3] The trial court, however, denied the charge. (VII RR 10-11).

In part, the court denied the charge based on this Court’s holding in Ingram , 261 S.W.3d 749 (Tex.App.—Tyler 2008). The trial court understood Ingram to

say, in order for a defendant to be entitled to a mistake of fact defense in similar

circumstances, there must be some testimony that the property taken was actually

“abandoned or trash or otherwise.” (VII RR 8). This, however, is not what the

Court held in Ingram . Id . at 754. Rather, the Court in that case focused its analy-

sis on the fact that under Texas law one cannot abandon real property. Id . at 753-

54. Thus, because the defendant in Ingram had committed a burglary of a habita-

tion, even if the property owner had abandoned the personal property inside the

home, the person who held title to the real property in which the personal property

was located had a greater possessory interest in the personal property taken than

did the defendant. Id . at 754. “Consequently, even if Appellant believed the per-

sonal property to be abandoned, his mistake was a mistake of law, not a mistake of

fact – Appellant intended to take the personal property for himself from the real

property of another; he just did not know such a taking was illegal.” Id .

Nowhere does Ingram impose a requirement that there be some evidence that property was actually abandoned before a defendant is entitled to a mistake of

*18 fact instruction under circumstances like those currently before the Court. To have

such a requirement would, first, make mistake of fact in applicable for if the owner

of property were to testify that he had abandoned property allegedly stolen from

him there could be no offense. T EX . P EN . C ODE § 31.03. Second, such a require-

ment would ignore the rationale behind a mistake of fact defense that protects an

actor who commits an offense with no intent to do so but merely because he fails

to understand the facts of a situation as they actually are. See Celis v. State , 416

S.W.3d 419, 451-52 (Tex.Crim.App. 2013) (discussing purpose behind mistake of

fact defense and noting, “The law should not punish those who have made reason-

able mistakes about he facts or circumstances surrounding their acts.”).

Nonetheless, the trial court, which was the same court in which Ingram was initially tried, took Ingram as “probably the most persuasive authority that I was

able to find,” and largely on that basis denied Mr. Knod’s requested charge. (VII

RR 10-11).

Mr. Knod was Entitled to the Instruction

Because there was some evidence, the fact that the rim was located amidst a group of dumpsters with trash, scrap, and recycling, Mr. Knod’s innocent behavior

when selling the rim, for example, that if believed supported a mistake of fact de-

fense, the trial court should have given the requested instruction. Hamel , 916

S.W.2d at 493. Appellant will concede that, ultimately, the jury could have decid-

ed with the view taken by the State and the trial court that the evidence supporting

the defense was too weak or the conclusion too far-fetched to be resolved in Mr.

Knod’s favor, but he nonetheless had the right to have that issue resolved not by

the judge but by the jury. Sands v. State , 64 S.W.3d 488, 494 (Tex.App.—

Texarkana 2001, no pet.); see also Durden v. State , 290 S.W.3d 413, 419

(Tex.App.—Texarkana 2009, no pet.) (That the evidence supporting mistake of

fact defense “might have been seen by the trial court or the jury as feeble, contra-

dicted, impeached, or incredible” does not undermine a defendant’s “entitlement to

a defensive instruction.”). Where the trial court deprived him of that right, and de-

prived the jury of that opportunity, the court erred and this Court should hold that

Mr. Knod was entitled to his requested mistake of fact instruction. See, e.g., Bang

v. State , 815 S.W.2d 838, 842 (Tex.App.—Corpus Christ 1991, no pet.) ( citing

Miller v. State , 815 S.W.2d 582, 585 (Tex.Crim.App. 1991) (“When an accused

creates an issue of mistaken belief as to the culpable mental element of the offense,

he is entitled to a defensive instruction on ‘mistake of fact.’”).

The Trial Court’s Denial of the Instruction Harmed Mr. Knod Because the trial court erred in failing to give the requested instruction, the Court must determine whether that error harmed Mr. Knod. Almanza , 686 S.W.2d

at 171. As there was a timely request for the instruction to be given, the standard is

whether there was “some harm,” that is, “any harm.” Id .; T EX . C ODE C RIM . P ROC .

art. 36.19; see also Arline v. State , 721 S.W.2d 348, 351 (Tex.Crim.App. 1986)

(“some” and “any” are synonyms when determining the amount of scrutiny to be

applied).

Here, the jury was instructed that Mr. Knod could only be found guilty if the jury concluded that he had appropriated property “with the intent to deprive the

owner of the property….” (I CR Supp. (Jury Charge at Paragraph 7)). ^[4] The Sixth

Court of Appeals has held that such an instruction mitigates against a finding of

harm:

While the trial court did err by denying the mistake-of-fact instruc- tion, the jury’s verdict inferentially resolved the issue that would have otherwise been required via the requested instruction.

Durden , 290 S.W.3d at 421.

However, Appellant would urge the Court to consider Justice Mosely’s in- formative dissent in that case. Id . Unlike the majority, which saw the thread of

mistake of fact as a defense running throughout the entire trial and concluded, for

that reason, that no harm resulted in the denial of the requested instruction, Justice

Mosely saw the opposite. Id . at 422-23.

The centrality of the question of the mistake-of-fact defense in the tri- al is undeniable. A jury is not nearly so precise about words as judges and lawyers; such things as “with the intent to deprive” might not be as concrete to a juror as to a trained legal specialist. An instruction in *21 the charge which would have explained the mistake-of-fact defense would have served to magnify its importance and the viability of the defense which had ben mounted. [The defendant] could have then correctly argued on closing that the jury must first have found that there was no mistake of fact before it went on to discuss whether the State had met its burden of proof on each of the elements of the charged offense. He could further have used the requested instruction to emphasize in closing argument that it was not just his opinion that the jury could not find guilt if there had been a mistake of fact, but that the court had instructed it precisely that mistake of fact was a val- id defense.

Id . at 423.

The harm about which Justice Mosely was concerned is also evident in the case before the Court. From the first witness through the last Mr. Knod attempted

to establish that there was a legitimate and reasonable basis from which one could

conclude that Hall GMC had abandoned and discarded the rim that was taken in

this case and, as such, that if Mr. Knod was guilty of anything it was only of hav-

ing made an honest mistake about the circumstances surrounding the rim being

placed among a group of dumpsters, bins, and trash piles. While we do not know

whether the jury would have we do know, as Justice Mosely writes, that having the

judge tell the jury that the argued defense has legal validity as a concept is far

weightier and more effective than the same argument coming from defense coun-

sel. Id . at 423 (the charge from the court would have added “additional emphasis

[on the defendant’s] sole defense to the charge). This is particularly true where, as

here, closing argument began with the State attempting to discredit not only any

defense raised by Mr. Knod, but also by explicitly attempting to discredit Mr.

Knod’s defense counsel:

[I]n a criminal case both sides are not seeking the same thing. And that’s why, while [defense counsel] and I practice both [sic] criminal law, his job and my job are startlingly different.

I mention that, at this point, because you know, my oath as a prosecu- tor is to seek justice in any particular case, not necessarily just get a conviction at all costs. It’s to seek justice. [Defense counsel’s] obli- gation is to his client. So unlike [defense counsel], I’m not bound and I’m not influenced by the nonsensical whims of a criminal.

(VII RR 20).

The San Antonio Court of Appeals recognized just this type of harm in Green v. State where that Court reversed a theft conviction where trial counsel

failed to request a mistake of fact instruction where appropriate. Green v. State ,

899 S.W.2d 245 (Tex.App.—San Antonio 1995, no pet.). Relying on the Court of

Criminal Appeals’ holding in Beggs v. State , 597 S.W.2d 375 (Tex.Crim.App.

1980), the Court noted:

The failure of the charge to apply the law to the facts is calculated to injury the rights of the defendant to a trial by jury; it deprives him of a neutral and unbiased application of the law, leaving that function to the partisan advocacy of opposing counsel in argument.

Green , 899 S.W.2d at 245 ( quoting Beggs , 597 S.W.2d at 379 ) (internal citations

omitted).

Because as a result of the trial court’s denial of his requested mistake of fact instruction Mr. Knod was denied his right to have the correct law correctly applied

to the facts of his case and to have all issues of fact resolved by the jury, the Court

should hold, regardless of any other language in the charge, that Mr. Knod was

harmed by the trial court’s error. To hold otherwise “would be to strike Section

8.02 from the Penal Code.” Jackson v. State , 646 S.W.2d 225, 225

(Tex.Crim.App. 1983) (en banc). Consequently the Court should reverse the

judgment of the trial court and remand the case for a new trial.

II. THE SENTENCE IMPOSED EXCEEDED THE MAXIMUM PERMISSIBLE SENTENCE AND, THEREFORE, IS VOID.

Because Mr. Knod should be given a new trial on the basis of the first issue raised, the Court need not address his second issue. However, should the Court

hold against Appellant on that initial issue, a review of his sentencing reveals that

that the judgment on punishment should be reversed and the case remanded for a

new hearing on sentencing.

Standard of Review

A sentence that is outside the statutory range of punishment for the offense of conviction is void. Mizell v. State , 119 S.W.3d 804, 806 (Tex.Crim.App. 2003).

The allegation that a sentence is void may be raised for the first time on appeal.

Levy v. State , 818 S.W.2d 801, 802 (Tex.Crim.App. 1991).

The Sentence Imposed was Improperly Enhanced and is Void In this case Mr. Knod was charged with the offense of theft, a Class A mis- demeanor as alleged. (I CR 2); T EX . P EN . C ODE § 31.03(e)(3). Because he had at

least two prior convictions for theft the offense level was enhanced to that of a

State Jail Felony. T EX . P EN . C ODE § 31.03(e)(4)(D).

During the punishment phase of trial the State alleged that Mr. Knod had two prior felony convictions: one for theft and one for retaliation. (VIII RR 29-

30). The State offered the prior judgments from each case and unquestionably

proved they were true. (VIII RR 29; IX RR PI, P2). Thus, the State and the trial

court believed it had been proved that Mr. Knod was a habitual offender and

should have his punishment range enhanced to that of a second degree felony.

T EX . P EN . C ODE 12.425(b). As a result, Mr. Knod was sentenced to serve eighteen

years’ confinement. (I CR 72).

However, because one of the prior felony convictions alleged was a theft conviction, as this Court has previously held, it could not be used to enhance the

offense level beyond that of a state jail felony. See Freeman v. State , 970 S.W.2d

55, 58-60 (Tex.App.—Tyler 1998, no pet.). In Freeman , this Court noted that the

theft provision under which Mr. Knod was charged, Penal Code Section

31.03(e)(4)(D), “was a special enhancement provision hat prevented the applica-

tion of the general enhancement provision of section 12.42 [of the Penal Code] as

to any prior felony convection for theft.” Id . at 59 ( citing Rawlings v. State , 602

S.W.2d 268, 270-71 (Tex.Crim.App. 1980). Discussing the holding in Freeman ,

the Austin Court of Appeals has explained:

Section 31.03(e)(4)(D) provides that theft of property having a value of less than $1500 is a state jail felony if the defendant “has been pre- viously convicted two or more times of any grade of theft.” Under this subsection, a defendant’s history of theft convictions, regardless of their number or degree, cannot elevate a subsequent theft of proper- ty worth less than $1500 beyond the status of a state jail felony. For this reason, the punishment for [a] third offense [of] theft under sec- tion 31.03(e)(4)(D) cannot be enhanced pursuant to section 12.42(a) by proof of additional felony theft convictions.

Brown v. State , 14 S.W.3d 832, 832-33 (Tex.App.—Austin 2000, pet. ref’d) ( citing

Freeman , 970 S.W.2d at 59-60).

The prior holding of this Court makes clear that the previous felony theft al- leged by the State to enhance Mr. Knod’s punishment in the instant theft case

should not have been used for that purpose. Freeman , 970 S.W.2d at 60. Remov-

ing it from consideration, the State alleged and proved on the one prior felony con-

viction for retaliation. (VIII RR 29). A conviction for a sate jail felony cannot

have its punishment range enhanced on the basis of a single prior felony conviction

absent specific circumstances not applicable in this case. See T EX . P EN . C ODE §

12.425. ^[5] Consequently, the applicable punishment range in this case was that of

only a state jail felony. T EX . P EN . C ODE § 31.03(e)(4)(D); Brown , 14 S.W.3d at

833; see also T EX . P EN . C ODE § 12.425(a) (a defendant convicted of a state jail fel-

ony shall be punished for a second degree felony if he has two prior felonies).

*26 The punishment range for a state jail felony is confinement for a period of six months to two years. T EX . P EN . C ODE § 12.35. Thus, Mr. Knod’s eighteen

year sentence is well-outside that range. (I CR 72). A sentence that exceeds the

maximum possible sentence authorized by law is void. Levy , 818 S.W.2d at 802.

Therefore, the Court must reverse that portion of the judgment imposing sentence

and remand the case for a new punishment hearing. See T EX . C ODE C RIM . P ROC .

art. 44.29(b).

CONCLUSION AND PRAYER Given that Mr. Knod suffered some harm as the result of the trial court’s re- fusal to include the requested jury instruction regarding mistake of fact, a request

to which he was entitled, it is respectfully prayed that the Court reverse the judg-

ment below and remand the case for a new trial.

Alternatively, because the sentence in this case was improperly enhanced and the resulting punishment imposed void, the Court should reverse the punish-

ment portion of the judgment and remand the case for a reassessment of sentence.

Respectfully submitted, /s/ Austin Reeve Jackson Texas Bar No. 24046139 112 East Line, Suite 310 Tyler, TX 75702 Telephone: (903) 595-6070 Facsimile: (866) 387-0152 *27 CERTIFICATE OF SERVICE I certify that a true and correct copy of this brief was delivered to counsel for the State by efile / facsimile concurrently with its filing in the Court.

/s/Austin Reeve Jackson CERTIFICATE OF COMPLIANCE I certify that this document complies with the requirements of Rule 9.4 and consists of 4,662 words.

/s/ Austin Reeve Jackson *28 Appendix A

Defendant’s Requested Mistake of Fact Instruction 22

Appendix B

Charge of the Court to Jury 24

Notes

[1] Section 8.02 provides: “It is a defense to prosecution that the actor thorough mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability re- quired for commission of the offense.” T EX . P EN . C ODE § 8.02(a).

[2] (IX RR 26-31).

[3] Although the order denying the requested charge was included in the initial Clerk’s Record, the requested charge itself was not. (I CR gen .). Counsel has today filed a request with the Smith County District Clerk to create a supplemental record that includes the document filed by Mr. Knod in which the request for this language was made. A copy of the requested charge is at- tached to this brief as “Appendix A.”

[4] As part of the aforementioned supplemental record request, Mr. Knod has also asked the Dis- trict Clerk to forward to the Court the missing jury charge. A copy of the same is attached as “Appendix B.”

[5] For example, a state jail felony with one prior felony conviction for an offense that included an affirmative finding of a deadly weapon could be enhanced to a second degree felony. See T EX . P EN . C ODE § 12.425(c).