Case Information

*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 2/27/2015 3:17:41 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-14-00618-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 2/27/2015 3:17:41 PM CHRISTOPHER PRINE CLERK

In The

Court of Appeals First District of Te;ras - Houston NOS. 01-14-00618-CR 01-14-00619-CR DENNIS STEELE, Appellant V.

THE STATE OF TEXAS, Appellee On Appeal from 56th Judicial District Court Galveston County, Texas Honorable Lonnie Cox, Judge Presiding Trial Court Cause Nos. 13CR3049 & 13CR3050 APPELLANT'S BRIEF DANIELLAZARINE

TBN:

THE LAIY OFFICE OF DANIEL LAZARINE Louisiana St., Suite 200

Houston, Texas77002

(7t3) 224-4000

(113) 224-2815 (Fax)

ATTORNEY FORAPPELLANT DENNIS STEELE ORAL ARGUMENT IS REQUESTED

1LDENTITY OF PARTIES AND COUNSEL Pursuant Tex. R. App. P 38.1(a) (2011), the parties to this suit are as follows:

FOR THE STATE.

At Trial: Elizabeth Cuchens Kayla Allen

OnAppeal: Rebecca Klaren Galveston County Assistant District Attorneys 600 59th Street, Suite 1001 Galveston, Texas 77551 FOR APPELLANT:

At Tfial: James Dennis Smith Southwest Freeway Houston, Texas OnAppeal: Daniel Lazarine TBN:24013197 Louisiana St., Suite 200 I{ouston, Texas77002 *3 TABLE OFCONTENTS IDENTITY OF PARTIES AND COUNSEL............. ............u

STATEMENT REGARDING ORAL ARGUMENT............................. ..1

ISSUES PRESENTED ............,...3

STATEMENT OF FACTS... .........4

SUMMARY OFTHEARGUMENT...... ..........9

ARGUMENTS AND AUTHORITIES .............11 .............11

POINT OF ERROR ONE.. Argument & Authorities ..............20 r

..................23 Argument & Authorities ..............25 *5 INDEX OFAUTHORITIES Cases

Almanzav.State,686S.W.2d157(Tex.Crim.App. 1984).................,......19,23

Bignallv.State,887SW.2d2l,23(Tex. Crim.App. 1994)...........................21

Burdenv. State.55 S.W.3d608 (Tex.Crim.App. 2001)... ............24

BuJkinv State,207 S.W.3d 779 (Tex. Crim. App.2006)..............................11

Ex parte Watson, 306 S.W.3d 259 (Tex. Cr'im. App. 2009) (op. on reh'g)..12, 13,17

Ferrel v. State,55 S.W3d 586 (Tex. Crim. App. 2001)...........................11, 20

Guzman v. State, ^[1] 88 S.W.3d ^[1] 85 (Tex. Crim. App. 2006)........................... ^[1] 3

Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007)....................... 12-1 5, ^[1]

Hayes v. State,728 S.W.2d 804 (Tex. Crim. App. 1987).............................20

Hooper v. State,214 S.W3d 9 (Tex. Clim. App. 2007).......... ..25,26

Jacks v. Virginia, 443 U.S. 307 (197 9). . ... . .

Luckv. State,588 S.W.2d 371 (Tex. CIim. App. 1976)........ ......22

McKinneyv.State,207S.W.3d366(Tex.Crim.App.2006)........................12

Millerv.State,ST5 S.W.2d582(Tex.Crirn.App. 1991)..............................21

Ortega v. State, ^[1] 71 S.W3d 895 (Tex. Crim. App. 2005)......................... 13, l4

Ovalle v. State, S.W.3d 774 (Tex. Crim. App. 2000).......... .....................23

Porteous v. State,259 S.W.3d 741 (Tex. App.-Houston [1st Dist.] 2007)...21,22

Reedv.State,703 S.W.2d380(Tex.App.-Dallas1986,pet.ref'd)...............18

Rice v. Stare,333 S.W.3d (Tex. Crim.App. 201i).......... .........21

Richardsonv. State,879 S.W.2d 874 (Tex. Crirn. App. 1993).................25,27

Segundo v. State,270 S.W.3d 79 (Tex. Clim. App. 2008)..........................13

Smith v. State,676 S.W.2d 584 (Tex. Crim. App. 1984).. ........21

Templev.State,390S.W.3d341(Tex.Crim.App.2013)... ........24

Tievino v. State,100 S.W.3d 233 (Tex. Crirn. App. 2003) (per curiurn)..........23

Vasquezv. State,389 S.W3d 36I (Tex. C[im. App. 2012).........,................11

Rules

TEX. CODE. CRIM. PROC. ANN.arl. 37.09 (West 2006).....................11, 15

TEX. PEN. CODEANN. Sec. 38.03 (Vernon 2003).......... ..15,

TEX. PEN. CODE ANN. 9.31(c) (Vernon 2003). . ..................21

STATEMENT REGARDING ORAL ARGI]MENT Pursuant Texas Rule ofAppellate Procedure 39.7, hereby requests oral argument. Counsei is opinion that olal argument would serve to

ernphasize clalify important legal points regarding this appeal.

STATEMENTOFTHD CASE This appeal is from two convictions for Assault on Public Servant, in which Appellant received fifty (50) years confinement in Texas Deparlment Crirninal Justice - Institutional Division. Appellant was indicted for Assault on a

Public Servant on December 3,2013. Trial was had in the 56th District Court, The

Honorable Lonnie Cox, Judge Presiding.

The jury found guilty of both counts of Assauit on Public Servant. Following punishment evidence, jury assessed Appellant's sentences fifty (50) years.

A Motion for New Trial was filed July 16, 2014 ovemuled by the Court on September 23,2014. Notice Appeal was filed June 18,2014, this

brief follows.

ISSUES PRESENTED POINT OF ERROR ONE: THE TRIAL COURTABUSED ITS DISCRETION BYDENYING COLTNSEL'S

REQUEST FOR A JURY CHARGE INSTRUCTION ON TI{E LESSER INCLUDED OFFENSE OF RESISTING ARREST POINT OF ERROR TWO: TFIE TRIAL COURT ABUSED ITS DISCRETION BY DENYING COUNSEL'S

REQUEST FOR A JURY CHARGE INSTRUCTION ON SELF DEFENSE POINT OF ERROR THREE: THE EVIDENCE IS INSUFFICIENT TO PROVE THATAPPELLANT ASSAUI]TED E. CISNEROS *10 STATEMENT OF FACTS On November 6, 2013 , at the 2200 block 13th Avenue, Texas City, Texas, a project supetintendent and his crew worked on a public street and

drainage system repair project. 3 RR 141. At around 5;15 p.m., Mr. Gonzalez, the

project lead, observed vehicle drive through balricade and crash into large

pile of dirt. 3 RR 142. Soon thereafter, Mr. Gonzalez watched this vehicle burst

into flames. 3 RR 144. He and several coworkers irnmediately rushed over to the

vehicle and rernoved the driver from the burning car. 3 RR 145. Residents from

across street called 9- 1- ^[1] . 3 RR 146. Officers with the Texas City Police

Deparlment and representatives Texas City Fire Department anived shortly

thereafter. 1d. Appellant was identified as driver of this vel.ricle. 3 RR 158

Appellant was unable to stand his own, smelled like alcohol and generally

appeared to be intoxicated. 3 RR 146-48. was taken into custody and

transported to Texas City Jail. 3 RR 159. Officer Berg testified that he detained

Appellant for driving while intoxicated (DWI) investigation. 1d.

Officer Berg elected conduct this DWI investigation at police station rather than scene ofthe crash. 3 RR 166-67. Upon arliving at police

station, jail staff noticed Appellant appeared be intoxicated. RR 236.

Officer Berg escorted Appellant directly room designated for DWI

investigations. RR 166-67. This room was purposed specifically for DWI

investigations, it contained relevant paperwork Intoxilyzer for breath

tests. /d. Officer Berg administered a battery of standardized field sobriety tests,

formaliy amested Appellant, then asked Appellant to give a specirnen his

breath. Id.;3 RR 177-83. agreed to do so, and the breath test result was

0.223/0.208 - nearly tll'ee time the legal lirnit. 3 RR 175.

At conclusion of the DWI investigation, Offlrcer Berg escorted Appellant one several booking cells. 3 RR 170; 3 RR 237. Testimony revealed that at Texas City Jail, there are numerous jail cells. 3 RR 237. Near booking area, there are two booking cells which are used temporarily hold inmates while they

are booked or out of jail, for transpolt to Galveston County Jail. 3 RR

237 -39. These empty cells are around 8 feet by 8 feet and contain no bed or toilet.

3 RR 164; 184. During "booking" process, jail staff members issue shoes the

inmates, receive their propefty for safekeeping, and review with inmate a list of

intake questions. 3 RR 196. There are also general jail cells which are used to hold

inmates after they have been "booked in." 3 RR 237.Finally, there is also a

sobriety room - affectionately referred to as "drunk tank" - which is large

room designed for inmates who law enforcement believe to be intoxicated. 3 RR

254; 218-19 . This room is suitable for such purpose because it devoid of all

potentially injurious objects, featuring only toilet. RR 85, 184; 218-19. Officer

Berg testified even after his DWI investigation revealed that Appellant was

nearly three time the legal limit, he did not place Appellant into drunk tank. 3

RR 170; 175. Rather, he placedAppellant into regular booking cell. RR 170.

Testimony trial detailed that intoxicated persons are generally placed into the

dlunk tank so that they can sober up before they are transported to a generai jail

cell. 3 RR 218-219. Still, Appellant was not transported to drunk tank. 3 RR

170. Appellant eventually laid down on ground, in fetal position, with his

arms and head inside his shirt, and fell asleep. 3 RR 203.

Appellant lay sleeping holdover celi for approximately thirty minutes before Jailer Stephania Jackson elected to tanspoft him another ceil. 3 RR

Jackson testified that her uniform consisted dark shirt - she did not wear a

police officer's uniform because she was not peace officer herjailer uniform

had not yet been delivered. 3 RR 216. Testimony was that Jailer Jackson elected to

transport Appellant because she needed use that particular holdover cell to

prepare for inmate transfer to the Gaiveston County Jail, located in Galveston,

Texas. 3 RR 239. Jailel Jackson testified that when preparing for transfer of

inmates to the county jail, they place male female inmates into separate

holdover cells. 3 RR 217. Jackson testified that the other holdover cell was dirty.

Id. There was also testimony Appellant had urinated himself at some point

after his arrest, leaving the sanitation in parlicular holdover cell in question as

well. RR 273.

When Jackson initially approached Appellant to awaken him, Appellant offered verbal response but did not comply. F...P.224. Appellant was asleep. Id.

I{aving made the decision that nevertheiess needed be transferred into

a different cell, Jackson called for another officer to assist her. 3 RR 195, 202-04.

Jailer (now Officer) Pierre Owens, Jr. and Officer Cisneros responded to this caii. 3

RR 202-04. Owens was also a jailer that time. 3 RR 234-35. Owens and

Cisneros testified that they approached Appellant and requested he voluntarily

get up and move to different cell. 3 RR 242. Appellant did not getup. Id. Owens

and Cisneros testified they inforrned Appellant that if he did not do as they

commanded. Appellant would be "escorted" to different cell. 3 RR 243.

Appellant did not get up. Id. Cisneros and Owens then approached Appellant and

each grabbed one his arms in order to life him up and transport him. .Id. At this

time, Appellant began resisting, and struggle broke out between officers and

Appellant. 3 RR262-64;4 RR 15, 18. Testimony revealed that the officers

employed various techniques subdue Appellant in order to transpofi him to a

different cell. Specifically, Owens and Cisneros took Appellant ground, then

piied top of him, using their combined body weight to pin Appellant the

corder ofthe holdover cell. 3 RR 251; 4 RR 41-44,51. Testimony revealed that

during this ruckus, Owens got scratched. 3 RR 246. Cisneros testified that in the

struggle, Appellant kicked, hit, bit, and scratched hirn. 4 RR 25.

Corporal Moreno responded to Jailer Jackson's call for additional help. RR 210. Moreno arrived at the jail, entered immediately, and elected use his taser,

dry stunning tasing numerous tirnes. 4 RR 18- 19. As result,

Appellant stopped resisting was left alone in the same holdover cell. RR 265. later cornplied with requested hansport to the drunk tank. 3 RR

172-73.

Cisneros and Owens were transpofted local hospital. 3 RR 248; 4 RR 19. Evidence showed Owens suffered several scratches to his ann. RR 272.

Evidence showed Cisneros suffered several scratches to his arm which drew

blood. RR 19-24.

o *15 SUMMARY OF THE ARGUMENT Appellant made timely objection to the court's charge at the close of evidence because the proposed july charge did not contain the lessel inciuded

offense of Resisting Affest, Search, or Transport. Appellant specifically requested

this instluction but the trial court denied his request, thereby abusing its discletion.

After analyzing the statutory elements of Assault on Public Servant and Resisting

Arrest, Search, or Transpoft, and examining the specific allegations of the

indictments, this court should find that Resisting Arrest, Search, or Transporl rs a

lesser included offense in this case. Because the evidence at trial revealed that

Appellant resisted transport while custody as an officer and jailer were

transporting him from one cell to anotheq State's witnesses described this

incident as resisting transpoft, and because injuries could have been incidental, rational jury could have concluded that Appellant was guilty of Resisting Arrest,

Search, Transporl only. Thus, the trial couft abused its discretion when it denied

Appeliant's request that jury be charged this lesser included offense.

Appellant also requested courl's charge close evidence include instruction on law self defense. Yet, the trial court denied this

request and submitted charge omitted this instruction. At tlial, there was

testimony that the officers attempted transport from one jail cell to

another cell by choice then, because Appellant did not wake up stand up

immediately, the ofhcers grabbed him by both arms and abruptly pulled him up off

o ground. Because Appellant didn't cooperate, officers slammed Appellant to

the ground piled on top him. One offrcer applied the pressure his body

weight Appellant while another officer held Appellant's head back by his chin.

Because there was some evidence that the police used excessive force in the

recold, trial court should have charged jury on self defense.

The evidence at trial insuffrcient sustain Appellant's conviction for Assault on Public Servant "E. Cisneros" because "Officer Cisneros" who

testified tlial never identified himself as "E." Cisneros or by any first name that

begins with the letter "E." Nor did Cisneros state that he was person named in

the indictment the complainant in case. Despite some evidence could

lead jury to speculate this person who testified was the same person named indictment, the evidence is legaliy insufficient do so.

ARGUMENTS AND AUTHORITIES *17 POINT OF ERROR ONE THE TRIAL COURTABUSED ITS DISCRETION IN DENYING COUNSEL'S

REQUEST FOR A JURY CHARGE INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF RESISTING ARREST Standard of Review

At conclusion of the evidence, it is courl's duty to charge jury with respect to applicable law, legal definitions, legal principles. Vasquez u

State,389 S.W.3d 361,367-68 (Tex. Crim. App. 2012). Intermediate courts should

not apply the usual rule appellate deference trial court rulings when reviewing trial court's decision deny requested defensive jury instruction. Buftin v

State,207 S.W.3d 779,782 (Tex. Crim. App. 2006). On the contrary, appellate

coufts must view the evidence in light most favorable to the defendant's

requested instruction. See Ferrelv. State,55 S.W.3d 586, 591 (Tex. Crim. App.

2001).

Argument & Authorities The Legislature has specified when offense is lesser-inciuded offense. SeeTEX. CODE CRIM. PROC. ANN. anr. 37.09 (West 2006). Specifrcally, an

offense is a lesser included offense if:

l) it established by proofofthe same or iess than all the facts required to establish the commission of the offense charged; 2) it differs fi'om the offense charged only respect less setious injury risk of injury same person, propefty, or public interest *18 suffices to establish its comrnission;

3) it diffbrs frorn the offense charged only in respect a less culpable mental state suffices establish its commission; or 4) it consists of an attempt to cornmit the offense charged an otherwise included offense.

1d. Expounding upon this statute, the Court of Criminal Appeals has announced

that intermediate courts should use a two-pronged test determine whether a

charge lesser- included should be given: (l) Is the requested charge lesser-

included offense ofthe charged offense?; and (2) Is there trial evidence that

suppofts giving the instruction to jury?. Rice v. State,333 S.W3d 140, 144

(Tex. Crim. App. 2011); McKinneyv. State,207 S.W.3d 366,370 (Tex. Crim. App.

2006)

\n Hall v. State, the Courl of Criminal Appeals announced that first step in this analysis is to detelmine whether lesser included offense is included

within proof necessary establish offense charged. Hall v. State.225 S.W.

3d 524, 53 1 (Tex. Crim. App. 2007). This step involves question of law. 1d. In

Hall, Courl of Criminal Appeals adopted the "cognate-pleadings approach" for first step of the analysis. Id. 535. This approach was reaffirmed Ex parte

Watson, where the couft wrote: offense is lesser included offense another offense . . . . if the

indictrnent for the greater inclusive offense either': 1) alleges all the elements of the lesser included offense or 2) alleges elements plus facts (including descliptive avements, such as non-statutory lnanner and means, are alleged for purposes ofproviding notice) from which all ofthe *19 elements of the lesser-inciuded offense may be deduced.

Watson,306 S.W.3d 259 (Tex. Crim. App. 2009) (op. on reh'g).

The second step of the analysis asks whether there is some evidence in the record which would permit a jury rationally find that, if the defendant is guilty,

he is guilty only the lesser-included offense. Guzman v. State, 188 S.W3d 185

(Tex. Crim. App. 2006); Hall,225 S.W.3d at 536. Courts should ask whether the

lesser-included offense is "a valid, rational alternative to the charged offense." Hall

at 536; See also Segundo v. State,270 S.W.3d 79,90-91 (Tex. Crim. App. 2008). made timely objection to court's charge and requested an

instruction on lesser included offense of Resisting Anest, Sealch, or Transport RR 63-66. Thus, error is properly preserved for review.

Standard Used Trial

In response to Appellant's objection the court's charge request for inclusion ofthe lesser included offense of Resisting Arrest, Search, ol Transport, trial court analyzed whether jury should be charged with the lesser-included

offense Resisting Arrest, Search, or Transport. Id. Here, to contradict Appellant's

request for lesser included inshuction on Resisting Arrest, Search, or Transport, State cited to Ortega v. State,171 S.W.3d 895 (Tex. Crim. App. 2005) and

argued that Resisting Arrest, Search, Transport not lesser-included offense

of Assault Public Servant because two charges did not meet the

Blockburger test for analyzingclairns of Double Jeopardy. 4 RR 64. The trial court

denied Appeliant's request. RR 66.

Although Ortega does stand for proposition Assault on a Public Servant and Resisting Arrest are separate offense for Double Jeopardy purposes, reviewing court in this case should determine whether the requested lesser

included offense should have been submitted to the.jury within framework of cases and statute cited above.

Elements of Assault a Publ ic Selvant and Resistins Arrest

The first step the analysis is decide whether Resisting Arrest is lesser included offense ofAssault Public Servant as charged. As specified above, this is a

question of law, court should consider the statutory elements ofAssault on Public Servant and factual allegations as laid out in the indictment then

compare them to the elements Resisting Arrest to determine whether the lesser

included offense within ptoof necessary establish the offense charged. ,See

Hall 531. In indictments, the State alleged following:

1) Appellant

2) Intentionally, knowingly, or recklessly

3) Caused bodily injury [E. Cisneros / P. Owens] 4) by hitting with his hand, kicking with his foot or leg, scratching or cutting with his fingernail, or biting with his teeth

5) Appeliant did know that [E,. Cisneros / P. Owens] was public servant, to- wit: [peace officer / employee]

6) [E. Cisneros / P. Owens] was lawfully discharging ofhcial duty, to- wit: attempting to restrain or control Appellant I CR 6; II CR 51. The elernents ResistingArrest, Seal'ch, Transport are as

follows:

l) Appellant

2) Intentionally

3) Prevents or obstructs

4) Someone he knows is a peace officer or a person acting in a peace officer's presence and at his direction

5) from effecting arrest, search, or transportation of the actor 6) by using force against the peace officel or another TEX. PENAL CoDE sEC. 38.03 (West 1994). Thus, the question is whether the

elements of Resisting Arrest, Search, or Transport are established by the proof of same or less than all the facts required establish the offense ofAssault on a

Public Servant as modihed by the indictments. See TEX. CoDE CRIM. PRoc. ART. .09(l) (West 1974); Hall,225 S.W3d at 524

The facts required to pl'ove lesser offense Resisting Arrest, Search, or Transport include several that match up perfectly and few that do not, but still, in end, the court should find that Resisting Arrest, Search, or Transpott is indeed a

lesser included offense ofAssault Public Servant in this case.

First, regarding those elements that match up perfectly, each offense requires proof that Appellant was the person involved, that aggrieved party someone knew to be peace officer another person that was in the

presence ofand acting direction ofa peace offrcer. These elements match up

vely easily are not source fi'iction in this analysis

t I CR refers Clerk's Record in 13CR3049 ll CR refers to the Clerk's Record in

13cR3050.

Second, regarding those elements do not, upon first glance, match up perfectly. To begin with, mental state alleged indictment includes

"intentionally, knowingly, or recklessly" whereas Resisting Arrest, Search, or

Transport requires an intentional act. I CR 6; II CR 5; Tex. PcNRL CooE sEc

38.03 (West 1994). Although Assault a Public Selvant allows for less culpable

mental states than the offense of Resisting Arrest, Search, or TranspoIt, there is

clear overlap in that the elements ofeach offense include an intentional act. Thus,

for this element, the analysis should proceed second step, where court

will find an abundance oftrial evidence supporting an intentional act from the

testimony exhibits.

Next, with regard degree of force used, indictrnent requires proof of bodily injury a peace officer where lesser offense of Resisting Arrest,

Search, or Transport requires proofthat the person accused used force to prevent or

obstruct the officer. Id. Here, each offense requiles degree of force used against

an officer or one acting in his presence and at his direction. It seems the

difference lies in the specific amount of force - with Resisting Arrest, Search, or

Transport requiring less force Assault; inquiry circles around the degree of

force that causes bodily injury (where mere claim of "pain" by the aggrieved

party is legally sufficient) versus the degree of force that, very least, prevents

or obstructs officer from effecting an arrest, search, or transpolt. Both offenses

clearly require physical force used against peace officer, with Resisting Arrest,

Search, or Transport requiring lesser degree folce than Assault, therefore,

this elernent Resisting Arrest, Search, Transporl within proof required

for Assault Public Servant.

Finally, regarding the specific actions taken by officer, the indictment requires proof that Appellant used folce (and caused "pain") against an officer

while he was lawfully discharging an official duty, specificaily, attempting to

restrain or control Appellant whereas lesser offense of Resisting Arrest, Search,

or Transporl requires proofthat Appellant used force to prevent or obstruct the

officer from effecting arrest, search, or transportation of Appellant. These two

legal concepts do not align perfectly. Thus, the question becomes whether this

element can be deduced from the factual allegations in the indictrnent. Watson,306

S.W3d 259. urges this element may be deduced from the specific

allegations in the indictment. The indictments include clairns that assault

occurred while officers were lawfully discharging offrcial duties, specifically,

attempts to restrain and control Appellant. It is certainly leasonable and rational to

deduce that when Cisneros and Owens were restraining controlling Appellant,

he was subject to either arrest, search, transport. Further, arrest, search, and

transport are official duties any peace officer, and go hand-in-hand with official

duties to restrain control any individual that is subject arrest, search, or

transport.

In the second step the analysis, we must ask whether there was evidence trial suppol'ts giving instluction jury. ln other words, Resisting Arrest, Search, or Transport "a valid, rational alternative to the charged offense."

Hall,225 S.W.3d 536.

There is abundance oftrial evidence that supports giving this instruction to jury. Jackson, Owens, and Cisneros all testified that Appellant's acts were

intentional, that Appellant used force against Cisneros and Owens, that they were

trying handcuff Appellant for the specific reason that they wanted to transpoft

him, and it is clear from State's Exhibit 2 and the testimony that Appellant's

efforts to resist transport prevented and/or obstructed the officers as they tried to

tanspoft him. Jackson testified that, when Cisnelos and Owens attempted to

transport Appellant within jail, he did not cooperate and resisting being

transported. 3 RR 225. Owens testified that Appellant refused cooperate as they

tried to move him, resisting their efforts to hanspoft him. 3 RR 259-60. Owens

further stated that he believed Appellant intentionally resisted transpoft. Id.Then

Cisneros specifically stated resisted transpofl his efforts to

handcuff Appellant. RR ^[1] 5, 4l , 44-47 . Cisnet'os further stated Appellant was

"struggling resisting" when Cisneros took him floor. RR 15, 42.

For all reasons mentioned above, this court should find that the offense Resisting Arrest, Search, Transport a lesser included offense of

Assault Public Servant within fi'amework olthe controlling caselaw and

statutes.

Harm Analysis *25 lf properly preserved, jury charge error requires reversal if "some harm" is shown. Alntanzav. State,686 S.W.2d 157,17l (Tex. Crim. App. 1984, op. on

reh' g). ln Almanza, the Court of Criminal Appeals held that "if the error in the

charge was the subject ofa timely objection in the trial court, then reversal is

required if the error is calculated to inj ure the rights of the defendant, which means

no more than that there must be some harm to the accused from the error. 686 S.W

2d 171.

Here, Appellant made timely, specific objection the inclusion of this erroneous instruction, and was overruled by trial couft. RR 63. Appeliant was

clearly harmed by trial courl's refusal to include an instruction on the lesser

included offense of Resisting Arrest, Search, or Transport. It was clear from all of testimony and exhibits that Appellant lesisted efforts to handcuff and

transport him different cell. It was also clear that Cisneros suffered an injury,

and Owens as well. However, rational jury may have concluded that Appellant

was guilty only of Resisting Arrest, Search, ol Transport, and that injulies were

merely incidental Appellant should not be found guilty those

unintentional injuries. But jury was denied opporlunity even consider the

offense Resisting Arrest, Search, Transport as option during their

deliberations. The State was very quick to remind jury they could not

consider "resisting aLrest." 4 RR 72. This certainly harmed Appellant. Because suffered sorne hann due to this error because Appellant objected to charge as presented and requested this instruction at charge conference,

reversal is required. For all ofthese reasons, this cause should be reversed and

remanded for new trial

POINT OF ERROR TWO THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING COLT\ISEL'S

REQUEST FOR A JURY CHARGE INSTRUCTION ON SELF DEFENSE Standard Review

As stated above, intermediate courts should not apply the usual rule of appellate defelence when considering trial courl's decision deny requested

defensive jury instruction. Buskin,207 S.W.3d 782. Instead, appellate courls

must view evidence in the light most favorable to the defendant's requested

instruction. See Ferrel,55 S.W.3d at 591.

Argument & Authorities When properly requested, trial court must instruct jury every defensive theory raised by the evidence, whether such evidence or testimony was

produced by prosecution or the defense. Hayes v. State,728 S.W.2d 804, 807

(Tex. Crim. App. 1987). This is true regardless of whether such evidence is strong

or weak, un-impeached or contradicted, and regardless of what trial court may

or may not think about the credibility of this evidence. Booth v. State,679 S.W.2d

498, 500 (Tex. Crim. App. 1984). The defendant not lequired to testifu larse issue self-defense . Reed v. State, 703 S.W.2d 80, 84 (Tex. App.-Dallas

1986, pet. ref'd). Self-defense rnay be raised by testimony of witnesses who

testi$ to the defendant's acts and words at time of the offense. Id. at384-85

(ciring Smirh v. Srate,676 S.W.2d 584 (Tex. Crim. App. 1984). To be entitled to an

instruction self defense when resisting an arrest or search defendant

knows is being made by peace officer, there rnust be some evidence in record

to raise the issue of whether the peace offrcer used or attempted to use greater force

than necessary attempting to arrest or search defendant. Porteous v. State,

259 S.W.3d 741,748 (Tex. App.-Houston [1st Dist.] 2007). Anything more than a

scintilla of evidence is sufficient to entitie defendant lesser charge. Bignall t.

State,,887 SW.2d 21, (Tex. Crim. App. 1994).

The Penal Code provides that the use of force to resist arrest, search or transport justified

1) if, before the actor offers any resistance, the peace officer (or person acting his direction) uses or attempts use greater force than necessary to make an'est or search; and

2) when degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use attempted use greater force than necessary.

TEX. PENAL ConE sEc. 9.31(c) (West 2007)

At charge conference, Appellant very clearly objected to the courl's charge and requested additional instruction self-defense. Specifically, requested thejury charge include law ofselfdefense the

court overruled his request. RR 63-68. Thus, the error was properly preserved for

appellate review

At trial, there was more than a scintilla or "some evidence" to raise the issue of whether the officers used "greater force than necessary" in their handling of

Appellant. See Porteous,259 S.W.3d at748; See also Bignall,887 S.W.2d 23.

From the video in State's Exhibit 2, a rational juror could conclude that before

Appellant oflered any actual resistance with force, the offrcer used greater force

than was necessary and Appellant merely reacted to said excessive force in self

defense. Further, testimony clearly showed that Appellant was lying on the ground,

asleep, when officers suddenly grabbed each of his arms yanked him up from ground, then when he didn't cooperate and reacted to them, they slammed him glound piled top of him. RR 25 1;4 RR 41-44, 51. Owens even held

Appellant's head back by gripping Appellant's chin with his hands. P.P.271-72.

Once a defendant meets initial burden of producing some evidence to justify submission of self-defense instruction, the State must persuade jury

beyond reasonable doubt the delendant did not act self-defense. Luck v

State,588 S.W.2d 371,375 (Tex. Crirn. App. 1976). Because presented

nore than scintilla "some evidence" justify the submission self defense

instruction, that instruction should have been submitted to jury. At the charge

conference, State argued weight of this evidence. Yet, the perceived

strength or weakness the evidence is not the proper focus; because there was

some evidence ofexcessive force in record, some evidence suggest acted self defense, instruction should have been subrnitted to the

Jury.

Harm Analysis Reversal is required ifAppellant suffered "some harm" because of the denial his requested jury instruction. Ovalle v. State,l3 S.W.3d 774,786 (Tex. Crrm. App. 2000) (quoting Almanza v. State,686 S.W.2d 157,777 (Tex. Crim. App.

1985)). Ifthe charge contains eror, enor has been properly preserved by objection or requested instruction, reversal is required if the error "calculated

to injure the rights the defendant," meaning there must be some harm. Tsx.

CRIM. PRoc. AP.T. 36.19; Trevino v. State, 100 S.W.3d 233,242 (Tex. Crim. App

2003) (per curium); Almanza,686 S.W.2d at 171. "Unless all harm was abated,

appellant suffered 'some'harm." Miller, Sl5 S.W.2d 586 n.5.

The .july charge gave july option of finding appellant guilty or not guilty ofAssault Public Servant but denied thejury fair option to consider

our law on self defense, despite there being some evidence than officers used

greater force than was necessary in their handling ofAppellant. That the State or

trial court believed this evidence to be unpersuasive is irrelevant. Just as State

trial court believed this evidence be unpersuasive is irrelevant. Just as State

intentionally pointed out jury that Resisting Arrest, Search, or Transpot't was

not included in jury charge, it was surely understood that the plinciples of self

defense were not be considered by jury, leading them to convict Appellant of

the charged offense. See 4P.R72.

Because b'ial courl denied Appellant's request for instruction on self- defense, counsel was not able to present this defensive theory to jury for its

consideration and, therefore, suffered "some harm" from the courl's denial ofan

instruction on self-defense.

POINT OF ERROR THREE THE EVIDENCE IS INSUFFICIENT TO PROVE THAIAPPELLANT ASSATILIED E. CISNEROS Standard ofReview

When reviewing the legal sufficiency of the evidence to suppoft a conviction, the appellate court should review the evidence in light most favorable verdict to determine ifany rational jury could have found beyond a

reasonable doubt essential elements of the offense. Jackson v. Virginia,443

U.S. 307, (1979); Temple v. State,390 S.W.3d 341,360 (Tex. Crim. App.

2013). This standard applies both direct and circumstantial evidence cases.

Burden v. State.55 S.w.3d 608, 613 (Tex. Crim. App. 2001).

Argument & Authorities A guilty verdict based legally insufficient evidence violates the due process clauses Fifth Fourteenth Amendrnents to the United States

Constitution. Richardson v. State,879 S.W.2d 874 (Tex. Crim. App. 1993). The

jury sole judge credibility weight be attached testirnony witnesses, and the jury permitted to draw reasonable inferences from facts as

long as the evidence presented supports the jury's inferences. Jackson,443 U.S. at

319. Furlhermore, juries have the ability to draw their own conclusions supported

by the evidence presented at trial, howeveq juries cannot reach their own

conclusions based on speculation factually unsupporled inferences or

presunrptions. Hooper v. State,214 S.W.3d 9, (Tex. Crim. App. 2007)

In this case, prior to trial, the State moved to amend the indictment in 13CR3049 change the complainant listed fi'om "W. Cisneros" to "E. Cisneros."

I CR 6-7. The trial court granted State's motion amended face of ^See indictment consistent with State's motion. 1d. Thus, State was required present sufficient evidence such that rational jury could find beyond a

reasonable doubt that assaulted peace officer by the name E.

Cisneros.

However, at trial, person who testified identified himself as "Ofhcer Cisneros" with Texas City Police Department never actually identified himself as

"Officer E. Cisneros" or "Officer Eric Cisneros," or anything else other than

Officer Cisneros. See RR 6-59. Indeed, Cisneros testified that he was present at jail day, and Appellant bit, scratched, and struck hin, , causing bodily

injury hlm. Id. But he never identified himself as complaining witness, nor

did anyone else trial. Nor was this witness ever identified as the person named in

the indictment 13CR3049. Id

It is true that Jailer Jackson testified that Officer Eric Cisneros was present at the scene and assisted her when Appellant did not respond to her

commands initially, but her testimony alone is insufficient to meet the elements of

the indictment. See 3 RR225-29. For example, Jackson testified that she observed

Cisneros Owens reach for Appellant's arms and at that time she saw Appellant

grab Cisneros's arm. 3 RR 205. But that's all that Jackson observed at that tirne

because, after Appellant began resisting, she immediately left area to call for

backup. 3 RR 209-10. In fact, at this point, Jackson testified that "after they hit the

floor" she "walked back to booking area, which is a secured area" to cali for

additional officers. 3 RR 210. Jackson next observes Corporal Moreno enter the

cell watches Cisneros exit. RR 201- I I .

Thejury is not permitted to draw conclusions based on speculation because doing so is not sufficiently based on facts or evidence suppod finding beyond reasonable doubt. Hooper, S.W.3d 16. As such, this july was not permitted speculate that Officer Cisneros who testified is same Officer E. Cisneros

named in the indictment he is same person who Jackson referred to

during her testimony. While it is true certain bits of testimony may support the

verdict, the State failed to present sufficient evidence sustain conviction fbr

Assault Public Servant Cause number 13CR3049. Given this deficiency of

proof, only way that jury could have concluded that was guilty in

13CR3049 if they irrationally overlooked the details complainant's name speculated person who testified must be the person named in the

indictment and lury charge. For all these reasons, there is insufficient evidence sustain this conviction, guilty verdict contrary to our laws.

Harm Analysis A guilty verdict based on legaliy insufficient evidence violates the due process clauses Fifth Fourteenth Amendrnents to the United States

Constitution. Richatdson,8Tg S.W.2d 874. As argued above, the guilty verdict in

cause 13CR3049 is based insufficient evidence. As such, this court must reverse conviction this cause and render acquittal.

PRAYER WHEREFORE, PREMISES CONSIDERED. prays that this Coufi reverse Appellant's conviction, and grant any other relief that may be

appropriate.

Respectfully submitted, /s/ Daniel Lazarrne DANIELLAZARINE TBN: 24073197 Louisiana Street, Suite 200 Houston, Texas77002 7t3-224-4000 713-224-2815 (Fax) dlazarine@icloud.com Attorney for Appellant CERTIFICATE OF SERVICE This certify that onthe2Tth day of February,2015, true and correct copy of the above foregoing Appellant's Brief was served on Galveston

County DistlictAttorney's Office, 59th Street, Suite 1001, Galveston, Texas,

by certified mail

/s/ Daniel Lazarine DANIELLAZARINE CERTIFICATE OF COMPLIANCE Pursuant to TEX.R.APP.P. 9.4(1XiX1), I certify this document complies with type-volurne limitations TEX.R.APP.P. 9.a(iX2XD):

1. Exclusive of the exen.rpted portions set out in TEX.R.APP.P. 9.a(i)(1), this document contains 4,257 words.

2. This document was prepared proportionally spaced typeface using Times New Roman for text.

/s/ Daniel Lazarine DANIELLAZARINE