Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/24/2015 3:10:10 PM JEFFREY D. KYLE Clerk 03-15-00246-CR THIRD COURT OF APPEALS 8/24/2015 3:10:10 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00246-CR *1 ACCEPTED [6625461] CLERK ______________________________________ IN THE COURT OF APPEALS FOR THE THIRD COURT OF APPEALS DISTRICT OF TEXAS AT AUSTIN _______________________________________ MARK MCMURPHY, Appellant,
VS. THE STATE OF TEXAS Appellee,
_________________________________________ From the 207th Judicial District Court of Comal County, Texas _________________________________________
APPELLANT’S BRIEF _________________________________________
Respectfully submitted, Law Offices of Gary F Churak Gary F. Churak State Bar No. 04245500 14310 Northbrook Ste. 210 San Antonio, Texas 78232 Tel: (210) 491-4443 Fax: (210) 491-4446 Appellant request Oral argument
CERTIFICATE OF PARTIES, INTERESTED PERSONS, AND COUNSEL In order that the members of this Court may determine disqualification and recusal under the Texas Rules of Appellate Procedure 15 and 15a, Appellee
certifies that the following is a complete list of all parties, attorneys, and other
persons who have an interest in the outcome of this proceeding:
Name of Party Designation (Appeal/Trial Court) Counsel
Mark McMurphy Appellant/Defendant Jodi Sawyer
111 Soledad, Ste. 300
San Antonio, Texas
Trial Counsel
James Todd Dunham
1140 S. Laredo
San Antonio, Texas
Trial Counsel
Gary F. Churak 14310 Northbrook,
Ste. 210
San Antonio, Texas
Appellate Counsel
State of Texas Appellee/State Daniel Palmitier
Ast. District Attorney
Comal County Texas
150 N. Seguin
New Braunfels, Texas
Trial Counsel
Jacqueline H. Doyer
Ast. District Attorney
Comal County Texas
150 N. Seguin
New Braunfels, Texas
Trial Counsel
REQUEST FOR ORAL ARGUMENT
Appellant requests oral argument.
NOTATIONS AS TO CITATION FORMS Appellant uses the following citation forms:
1. The Reporter record will be referred to as the volume number, then “R” and the page number. (E.g.: 3R12 refers to page 12 of the 3 rd volume of the reporter’s record.)
2. The clerk’s record will be referred to as “C”, followed by the bate stamped page number.
TABLE OF CONTENTS PAGE
CERTIFICATE OF PARTIES, INTERESTED
PERSONS, AND COUNSEL . . . . . . . . . . . . . . . . . . . 2
REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
NOTATIONS AS TO CITATION FORMS . . . . . . . . . . . . . . . . . . . . . . . . .. . 3
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . 4,5
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . 5,6
PRELIMINARY STATEMENT-NATURE OF THE CASE . . . . . . . . . . 8
POINTS OF ERROR . . . . . . . . . . . . . . . .. . . . . . . . 8
Point of Error No.1
Whether the evidence against Appellant was legally and factually insufficient to support the verdict
Point of Error No.2
The Trial Court erred in denying Defendant’s Motion to Suppress STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . 8
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . 9
POINT OF ERROR NO.1 . . . . . .. . . . . . . . . . . . . . . 9 POINT OF EROR NO.2 . . . . . . . . . . . . . . . . . . . . 14 PRAYER AND CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF COMPLIANCE……………………………………. 16
CERTIFICATE OF SERVICE . . . . .. . . . . . . . . . . . . . . . 16
INDEX OF AUTHORITIES CASES:
PAGE
Adelman v. State 828 S.W. 2d 418 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . 10
Barfield v. State 63 S.W.3d 446 (Tex. Crim. App. 2001. . . . . . . . . .. . . . . . . . 10
Cates v. State 120 S.W. 3 rd 352 (Tex. Crim. App. 2003)………………………… 10
Gardner v. State, 699 S.W. 2d 831, 835 Tex. App. 1985) . . . . . . . . . .. . . . . . . 10
Garza v. State, 215 S.W 2d 642 (Tex. Crim. App. 1986 . . . . . . . . . . . .. . . . . . . 10
Gearhart v. State, 122 S.W.3d 459 (Tex. App—Corpus Christi, pet ref’d) . . . . 10,13
Goodman v. State, 66 S.W. 3d 283 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . .10
Gold v. State, 736 S.W.2d 685 (Tex. Civ. App. 1992) ; . . . . . . . . . . . . . . . . . . 10
Franks v. Delaware 438 U.S. 154 (1978)………………….………………………… 16
Holloway v. State, 695 S.W.2d 112 (Tex. App.—Fort Worth, 1985, no pet) . . . . . 10
Houston v. State, 63 S.W.2d 455 (Tex. Crim.App. 1984) . . . . . . . . . . . . . . . . . . 10
Jackson v Virginia, 443 U.S. 307 (1979 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Johnson v. State, 23 S.W. 3d 1 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . 11,12
Jones v. State 338 S.W. 3 rd 725 (Tex. App.-Houston [1 st dist] 2011…………..… 16
Ramsey v. State 579 S.W. 2 nd 920 (Tex. Crim. App. 1979)……………………….. 16
Richardson v. State,973 S.W.2d 384 (Tex. App.--Dallas 1998, no pet).. . . . . . . . 13
Rojas v. State, 986 S.W. 2d 241 (Tex. Crim. App. 1998) . . . . . . . . . . . .. . . . . . 12
Scneider v State 943 S.W.2d 194 (Tex. App--Beaumont 1997, no pet); ................. 13
Smith v. State. 961 S.W.2d 501 (Tex.App--San Antonio 1997. reh. den.) . . . 11,13
Swearington v. State, 101 S.W. 3d 89 (Tex. Crim. App. 2003) . . . . . . . . . . . . . 12
Wallace v. State. 955S.W. 2d 148 (Tex. App--Beaumont 1997. no pet) . . .. . . . 13
Zulicani v. State, 97 S.W. 2d 589 (Tex. Crim App. 2003) ………………………. 12
03-15-00246-CR ______________________________________ IN THE COURT OF APPEALS FOR THE THIRD COURT OF APPEALS DISTRICT OF TEXAS AT AUSTIN _______________________________________ MARK MCMURPHY, Appellant,
VS. THE STATE OF TEXAS Appellee,
_________________________________________ From the 207th Judicial District Court of Comal County, Texas _________________________________________
APPELLANT’S BRIEF _________________________________________
TO THE HONORABLE COURT OF APPEALS:
PRELIMINARY STATEMENT OF THE NATURE OF THE CASE Appellant was indicted on February 12, 2014 for DWI with two or more prior convictions (C-6-8). After a jury trial, the Appellant was found guilty of the offense
of assault on a public servant on January 15, 2015 (4R116) and sentenced by the jury
to sixty years TDC. (5R74)
STATEMENT OF POINTS OF ERROR POINT OF ERROR NO.1
Whether the evidence against Appellant was legally and factually insufficient to support the verdict
POINT OF ERROR NO.2
The Trial Court erred in denying Defendant’s Motion to Suppress STATEMENT OF THE FACTS Appellant was accused of DWI two or more previous convictions on or about October 3, 2013. (C-6-8) (3R187). Officer Pelata of the Garden Ridge
Police Department was dispatched to the EZ Mart located at 19501 FM 3009,
Garden Ridge, Texas for an alleges intoxicated person. (3R-146). Officer Pelata
pulled into the EZ Mart parking lot and saw Defendant McMurphy talking to
Porter an employee of EZ mart. (3R147). Officer Pelata administered field
sobriety tests to McMurphy. (3R-194-195). Officer Pelata advised another officer
on the scene that he could not put McMurphy behind the wheel so he could arrest
him for PI. (3R35) Officer Pelata arrested McMurphy for DWI without evidence
that he was behind the wheel. (3R187). Officer Pelata did not talk to any other
witnesses before administering Field Sobriety test to McMurphy. (3R192-193)
Officer Pelata arrested McMurphy for DWI without talking to any other witnesses
beside McMurphy. (3R47) McMurphy refused a blood test and Officer Pelata
drew up a search warrant for a blood draw and faxed it to the Judge. (3R189)
Officer Pelata in his affidavit for search warrant that he spoke to Porter and another
young lady before he arrested McMurphy for DWI. (3R192) Officer Pelata further
swore under oath in his Affidavit for Search Warrant that he qualified McMurphy
for the field sobriety test when he did not. (3R194-195)
SUMMARY OF THE ARGUMENT 1. The evidence against Appellant was legally and factually insufficient to support the verdict.
2. The Court erred in failing to grant Defendant’s Motion to Suppress.
ARGUMENT
ISSUE NO. 1 (RESTATED ) Whether the evidence against Appellant was legally and factually insufficient to support the verdict.
A. Legal insufficiency
In Jackson v Virginia, 443 U.S. 307 (1979 ) the United States Supreme Court established the test of legal sufficiency as to whether any rational trier of fact could find guilt beyond a reasonable doubt. Moreover, the sufficiency issue must always be addressed by the appellate court even though the case is reversed on other grounds because an insufficiency ruling by the appellate court would prevent retrial of the case. Garza v. State, 215 S.W 2d 642 (Tex. Crim. App. 1986;
In reviewing a legal insufficiency of evidence claim, the court looks at the evidence in the light most favorable to the verdict of judgment. Houston v. State,
63 S.W.2d 455 (Tex. Crim.App. 1984) The legal sufficiency of evidence review is
limited by certain evidentiary consideration. The evidence introduced at trial and
penalty phases may be considered in resolving the legal sufficiency issue but only
the trial evidence may be considered in this review. Barfield v. State 63 S.W.3d 446
(Tex. Crim. App. 2001) ; Also, the evidence is sufficient if the state has
affirmatively proven each of the essential elements of the offense beyond a
reasonable doubt. Adelman v. State 828 S.W. 2d 418 (Tex. Crim. App. 1992) ; This
means that the State cannot prove its case merely by disbelieving the defendant’s
contrary assertions . Gold v. State, 736 S.W.2d 685 (Tex. Civ. App. 1992) ; Nor,
does the sufficiency determination involve a credibility determination or a
“balancing” of competing quantitative items of evidence . Holloway v. State, 695
S.W.2d 112 (Tex. App.—Fort Worth, 1985, no pet); Smith v. State, 789 S.W.2d 419
(Tex. App—Houston [1 st Dist.], 1990, pet ref’d) ; Furthermore, although the
appellate court can generally consider inadmissible evidence introduced at trial in
considering the legal sufficiency issue, inadmissible hearsay may not be considered
in this review if it was objected to at trial. Gardner v. State, 699 S.W. 2d 831, 835
Tex. App. 1985)
If a judgment is reversed for legal insufficiency following a jury trial, the appellate court reforms the conviction to reflect conviction of a lesser included
offense if: (1) the evidence is sufficient to convict for that lesser offense, and (2) a
jury charge on the lesser offense was either submitted or requested but denied.
Gearhart v. State, 122 S.W.3d 459 (Tex. App—Corpus Christi, pet ref’d) ;
Otherwise, the judgment of conviction is vacated for legal insufficiency and a
judgment of acquittal is ordered. Id at 466 ;
B. Factual Insufficiency
Appellate courts are constitutionally empowered to review the judgment of a trial
court to determine the factual sufficiency of the evidence used to establish the
elements of the charged offense. Johnson v. State, 23 S.W. 3d 1 (Tex. Crim. App.
2000) ; This factual review requires the court to assess the evidence neutrally, not
through the prism of the “light most favorable to the prosecution.” The judgment
of the trial court is reversed only if it is so contrary to the overwhelming weight of
the evidence as to be clearly wrong and unjust. A clearly wrong and unjust finding
of guilt is one that is ‘manifestly unjust” or “shocks the conscience” or “clearly
demonstrates bias”. Rojas v. State, 986 S.W. 2d 241 (Tex. Crim. App. 1998) The
factual sufficiency review determines the correctness of the fact finder’s weighing
of the evidence. Clevis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) The court
reviews that evidence that tend to prove a disputed material fact and compare it
with the evidence that tends to disprove it. There is no doubt that the appellate
court must give deference to the judgment of the trial court; however, the appellate
court is authorized to disagree with the fact finder’s determination in order to stop
“manifest injustice.” Johnson v. State, 23 S.W.3d 9 (Tex. Crime. App. 2002). The
judgment of the trial court is reversed only if the proof of guilt is so obviously
weak as to undermine confidence in the fact finder’s determination, or proof of
guilt, although adequate if taken alone, is greatly outweighed by contrary proof.
Swearington v. State, 101 S.W. 3d 89 (Tex. Crim. App. 2003) In resolving this issue
the “manifestly unjust” standard of proof applies if the accused did not have the
burden of proof at trial. Otherwise, the “against the great weight and
preponderance” standard applies.” Zulicani v. State, 97 S.W. 2d 589 (Tex. Crim
App. 2003)
In addition, the reviewing court may consider an alternative reasonable hypothesis when reviewing factual sufficiency of the evidence to support a
conviction based on circumstantial evidence. Several courts of appeals have held
that a reviewing court may consider the existence of all alternative reasonable
hypotheses in conducting such review. Stone v State. 823 S.W.2d 375 (Tex App.--
Austin 1992. pet. ref d); Scneider v State 943 S.W.2d 194 (Tex. App--Beaumont
1997, no pet); Wallace v. State. 955S.W. 2d 148 (Tex. App--Beaumont 1997. no
pet); Smith v. State. 961 S.W.2d 501 (Tex.App--San Antonio 1997. reh. den.)
Richardson v. State, 973 S.W.2d 384 (Tex. App.--Dallas 1998, no pet).
In Goodman v. State, 66 S.W. 3d 283 (Tex. Crim. App. 2001) the Court of Criminal Appeals remanded a lower court’s reversal of a child abuse conviction on
factual sufficiency grounds even though the Court recognized that the lower court
listed five alternative reasons for causation or explanation for the child’s injuries.
The Goodman court ruled that listing the reasons without explaining the nature and
extent of those theories in regards to the standard of proof was not enough to
support the lower court to make that analysis. When a case is reversed for factual
sufficiency, the judgment of the trial court is vacated and the case remanded to that
trial court for retrial. Gearhart v. State 122 S.W.3d 459 (Tex. APP.--Corpus Christ
2003).
In the present case the charge of the court instructed the jury as follows: *14 “Now, if you find from the evidence beyond a
reasonable doubt that on or about the 3rd day of October
2013 in Comal County, Texas, the defendant, Mark Gordon
McMurphy, operated a motor vehicle in a public place, to
wit, on a public road or highway while intoxicated”
As to the legal sufficiency and as a result of the foregoing no rational trier of fact could find guilt beyond a reasonable doubt that the Appellate operated a motor
vehicle in a public place as defined in the charge when the only evidence submitted
was that McMurphy was arrested in the EZ Mart parking lot while outside of his
vehicle. There was no evidence that McMurphy operated a motor vehicle on a
public road or highway.
This Court must undertake to review the sufficiency issue despite the existence of other grounds for reversal because an insufficiency ruling by this
Court would require retrial of the case. In reviewing this legal insufficiency of
evidence claim, this court must look at the evidence in the light most favorable to
the verdict of judgment. The evidence is sufficient if the state has affirmatively
proven each of the essential elements of the offense beyond a reasonable doubt.
The evidence is not sufficient merely because the State merely disbelieves the
Appellant’s assertions. This Court cannot resolve the legal sufficiency issue by a
determination of credibility or by “balancing” the competing quantitative items of
evidence.
As to the factual sufficiency, this court must assess the evidence neutrally, *15 not through the prism of the “light most favorable to the prosecution. The State’s
evidence the State relied upon is contradicted and refuted. The Appellant’s
evidence disproved the State’s case.
The evidence used to convict the Appellant is so obviously weak as to undermine confidence in the fact finder’s determination. Also, the evidence used to
convict the Appellant, if taken alone, is greatly outweighed by contrary proof. The
judgment of the trial court is “against the great weight and preponderance.”
There are no alternative reasonable hypotheses that this Court can rely upon in reviewing the factual sufficiency. Instead, the proper remedy in the present case
is to reverse and vacate the judgment of the trial court and remand the case for
retrial.
ISSUE NO. 2 (RESTATED) The Trial Court erred in denying Defendant’s Motion to Suppress Appellant’s Trial Counsel filed a Motion to suppress evidence including the blood test and field sobriety tests. (C42-46) After a hearing the court denied the
Motion. (3R58) during the trial Officer Pelata proffered testimony that he obtained
the blood draw search warrant through the submission of a fraudulent Affidavit.
Specifically, Officer Pelata testified that he spoke to witnesses in the Affidavit which
he did not. (3R192-193) Further Officer Pelata stated in the blood draw search
warrant affidavit that he qualified McMurphy for the field sobriety test when in fact
he had not. (3R194-195). Trial Counsel for McMurphy reasserted the Motion to
Suppress after that testimony was on the record and the court once again denied the
Motion. (4R49-50) Trial Counsel had no knowledge that the Affidavit contained
false facts until trial and could not assert that at the pre-trial hearing on the Motion to
Suppress. The United States Supreme Court in Franks v. Delaware, 438 U.S. 154
(1978) set forth the review standard for suppressing a search warrant on the basis of a
fraudulent affidavit. In Franks v. Delaware the court held that the Defendant must
allege deliberate falsehood or reckless disregard for the truth by the affiant. Id at 171.
In the case at hand it was established through the testimony of Officer Pelata that he
did not have evidence to place McMurphy behind the wheel. (3R35). Officer Pelata
further testified that he fraudulently stated in his affidavit that he had spoken to
witnesses who placed McMurphy behind the wheel as a basis for his blood draw
warrant. (3R186) Further Officer Pelata in his affidavit stated that he qualified
McMurphy for the field sobriety tests when in fact he did not. (3R194-195) When the
fraudulent facts are removed from Officer Pelata’s Affidavit the remaining content is
insufficient to support the issuance of the blood draw warrant. Cates v. State, 120
S.W, 3 rd 352, 356 (Tex. Crim. App. 2003); Ramsey v. State, 579 S. W. 2 nd 920, 922
(Tex. Crim. App. 1979); Jones v. State, 338 S.W.3 rd 725, Tex. App.-Houston [1 st
Dist.], 2011. As a result of the above the court erred in denying McMurphy’s Motion
to Suppress the blood draw.
PRAYER AND CONCLUSION The evidence against Appellant was legally and factually insufficient to support the verdict.
The Trial Court erred in denying Defendant’s Motion to Suppress WHEREFORE, PREMISES CONSIDERED, Appellant respectfully requests
that this Court reverse the judgments of the trial court and render a judgment in the
Appellants favor. Alternatively, Appellant prays that this court reverse and remand
the case in its entirety to the trial court for a new trial on the guilt and innocence and
sentencing phases of the case.
Respectfully submitted, Law Offices of Gary F. Churak P.C. 14310 Northbrook, Ste. 210 San Antonio, Texas 78232 (210) 491-4443 Fax (210) 491-4446 By: /s/ Gary F. Churak Gary F. Churak State Bar No. 04245500 Attorney for Appellant *18 CERTIFICATE OF COMPLAINCE This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with
the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it
contains 1910 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was sent this 21st day of August, 2015 to Daniel Palmitier, Comal County District
Attorney, 150 N. Seguin, New Braunfels, Texas 78130pursuant to the Texas Rules
of Appellate Procedure.
/s/ Gary F. Churak
Gary F. Churak