Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 11/16/2015 1:33:55 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00316-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 11/16/2015 1:33:55 PM CHRISTOPHER PRINE CLERK
N O 01-15-00316-CR N T HE OURT O F A PPEALS F OR T HE F IRST D ISTRICT O F T EXAS H ERMAN W HITFIELD Appellant
v . HE S TATE OF T EXAS
Appellee On Appeal from Cause Number 1976709 Harris County Criminal Court at Law No. 14 Honorable Mike Fields, Presiding B RIEF FOR A PPELLANT O RAL RGUMENT R EQUESTED A LEXANDER B UNIN Chief Public Defender Harris County, Texas HERI D UNCAN Assistant Public Defender Texas Bar No. 06210500 1201 Franklin, 13 th Floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278 cheri.duncan@pdo.hctx.net Counsel for Appellant *2 DENTITY OF ARTIES AND OUNSEL APPELLANT: Herman Whitfield
SPN# 01150846871 Harris County Jail 701 N San Jacinto Houston, TX 77002 TRIAL PROSECUTOR: J Murphy
Assistant District Attorney Harris County, Texas 1201 Franklin St Ste 600 Houston, TX 77002 DEFENSE COUNSEL AT TRIAL: Charlie C. Williams
Attorney at Law 5326 W Bellfort St Ste 215 Houston, Texas 77035 PRESIDING JUDGE: Hon. Michael R. Fields
County Court at Law #14 Harris County, TX 1201 Franklin St 11 th Fl Houston, TX 77002 COUNSEL ON APPEAL FOR APPELLANT: Cheri Duncan
Assistant Public Defender Harris County, TX 1201 Franklin St 13 th Fl Houston, TX 77002 ii
T ABLE OF C ONTENTS I DENTITY OF P ARTIES AND C OUNSEL ................................................................................... ii
T ABLE OF C ONTENTS .............................................................................................................iii
I NDEX OF A UTHORITIES ....................................................................................................... iv
S TATEMENT OF THE C ASE ..................................................................................................... 1
I SSUES P RESENTED ................................................................................................................. 1
I SSUE O NE : T HE STATE ’ S EVIDENCE WAS LEGALLY AND FACTUALLY INSUFFICIENT TO PROVE THAT M R W HITFIELD CAUSED BODILY INJURY TO THE COMPLAINANT .
I SSUE T WO : T EXAS ’ DENIAL OF FACTUAL SUFFICIENCY REVIEW ON APPEAL OF CRIMINAL TRIALS VIOLATES THE C ONSTITUTIONAL GUARANTEES OF EQUAL PROTECTION AND DUE PROCESS .
S TATEMENT OF F ACTS ............................................................................................................ 1
S UMMARY OF THE A RGUMENT ............................................................................................. 2
A RGUMENT ............................................................................................................................. 3
I SSUE O NE ............................................................................................................................... 3
A. S TANDARD OF REVIEW ............................................................................................... 3 B. RGUMENT .................................................................................................................. 3 SSUE WO ............................................................................................................................... 5 RAYER .................................................................................................................................. 10
C ERTIFICATE OF S ERVICE .................................................................................................... 11 ERTIFICATE OF OMPLIANCE ........................................................................................... 11
iii *4 NDEX OF UTHORITIES
Cases
Barnett v. State , 2009 WL 3050831 *3 (Tex. App. – Houston [1 st Dist.] Sept. 24, 2009,
no pet.)(mem. op., not designated for publication) ........................................................ 4 Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010) ................................................ 6, 9
Brooks v. State , 967 S.W.2d 946 (Tex. App. – Austin 1998, no pet.) ................................. 3
Clewis v. State , 922 S.W.2d 126 (Tex. Crim. App. 1996) ..................................................... 9
Griffin v. Illinois , 351 U.S. 12 (1956) ....................................................................................... 5
In Re Winship , 397 U.S. 358 (1970) ....................................................................................... 7
Jackson v. Virginia , 443 U. S. 307 (1979) ............................................................................... 7
Lane v. State , 763 S.W.2d 785 (Tex. Crim. App. 1989) ....................................................... 5
M.L.B. v. S.L.J. , 519 U.S. 102 (1996) .................................................................................... 5
Matlock v. State , 392 S.W.3d 662 (Tex. Crim. App. 2013) .................................................. 3
Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014) ........................................................ 8
Price v. State , 456 S.W.3d 342 (Tex. App. – Houston [14 th Dist.] 2015, pet. ref’d) .......... 3
Shah v. State , 403 S.W.3d 29 (Tex. App. – Houston [1 st Dist.] 2013, pet. ref’d) .............. 4
Trevino v. Thaler , 133 S.Ct. 1911 (2013) ................................................................................. 6
Statutes
T EX P ENAL ODE § 1.07(8) ................................................................................................. 3 EX ENAL ODE § 22.01 .................................................................................................... 3
iv
Constitutional Provisions
T EX . C ONST . ART . 1 § 10 .................................................................................................... 8, 9 EX . C ONST . ART . 1 § 19 ........................................................................................................ 6
U.S. ONST A MEND . V ................................................................................................. 6, 8, 9
U.S. ONST MEND . XIV ............................................................................................. 6, 8, 9
v *6 S TATEMENT OF THE ASE Herman Whitfield was convicted of misdemeanor assault by a Harris County jury on March 30, 2015 (CR at 62). He waived sentencing by jury, and the trial judge assessed
punishment at 90 days in the Harris County Jail. Judgment was entered on March 30,
2015 (CR at 64), and notice of appeal was filed the same day (CR at 67). No motion for
new trial was filed.
I SSUES RESENTED I SSUE O NE : The state’s evidence was legally and factually insufficient to prove that Mr. Whitfield caused bodily injury to the complainant. SSUE WO : Texas’ denial of factual sufficiency review on appeal of
criminal trials violates the Constitutional guarantees of equal protection and due process.
S TATEMENT OF F ACTS Herman Whitfield called Comcast to his home in August, 2014, to repair his telephone and Internet lines (RR at 57). Technician Michael Grant was dispatched to
respond to the call. After he completed the repairs listed on his work order and a few
additional services, Mr. Whitfield asked him to connect his television to his WiFi. Mr.
Grant testified that he tried, but the problem actually was with the television set, not
the WiFi network (RR at 60).
According to Mr. Grant, Mr. Whitfield became angry when he tried to leave the home, insisting that he could not leave until he fixed the connection. Mr. Grant said
that when it appeared that Mr. Whitfield would not let him leave, he asked Mr. Whitfield
if Mr. Grant needed “to make a phone call,” meaning, to call 911. Mr. Whitfield then
hit him in the left eye, Mr. Grant testified (RR at 62).
Mr. Grant was “surprised, taken aback,” he testified (RR at 62). He felt it, but the pain came later, when he got outside into the heat and began to sweat, causing a
scratch under his eye to burn (RR at 65). Mr. Grant cleaned the area using his first aid
kit and did not require medical treatment (RR at 69). The state offered three photos of
Mr. Grant’s eye into evidence (SX 2-4).
Houston police officer J.D. Newberry, who went to Mr. Whitfield’s home to investigate the incident, testified that Mr. Grant had some “small swelling” under his
eye, and what looked like a little cut (RR at 83). However, Mr. Whitfield’s 22-year-old
grandson, Tommy Winn, testified that when he pulled up into his grandfather’s
driveway, he met Mr. Grant and there were no scratches or bruises on him. Mr. Grant’s
face was clear (RR at 97).
S UMMARY OF THE RGUMENT The merging of legal and factual sufficiency review standards violates defendants’ U.S. and Texas Constitutional rights to meaningful review. This Court should review
Mr. Whitfield’s case using both standards of review. However, the evidence was
insufficient under either standard, because the state did not prove either that Mr.
Whitfield had the necessary mens rea for the offense of assault as alleged in the
complaint, nor that his conduct caused the required result, bodily injury. *8 RGUMENT SSUE O NE : The state’s evidence was legally and factually
insufficient to prove that Mr. Whitfield caused bodily injury to the complainant.
A. Standard of review
When this Court reviews the legal sufficiency of the evidence, it examines all the evidence in the light most favorable to the verdict and determines whether a rational
trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. See Price v. State , 456 S.W.3d 342, 346 (Tex. App. – Houston [14 th Dist.] 2015,
pet. ref’d). Factual sufficiency review examines the totality of the evidence in a neutral
light. See Matlock v. State , 392 S.W.3d 662, 671 (Tex. Crim. App. 2013).
B. Argument
Assault is a result-of-conduct offense. See Brooks v. State , 967 S.W.2d 946 (Tex.
App. – Austin 1998, no pet.). A person commits the offense if he intentionally,
knowingly, or recklessly causes bodily injury to another. T EX P ENAL ODE § 22.01.
“Bodily injury” means physical pain, illness or any impairment of physical condition. EX ENAL ODE § 1.07(8). The complaint in this case limits the mens rea to
intentionally and knowingly (CR at 6). Accordingly, the jury charge was properly
limited, and the jurors could only find Mr. Whitfield guilty if they agreed that he
intended to cause bodily injury, or knew that he was likely to cause bodily injury, to Mr.
Grant. There was insufficient evidence for the jury to find that the state proved this
element of assault, even assuming that the state proved that Mr. Whitfield actually hit
Mr. Grant.
Mr. Grant’s own testimony was that he was surprised and taken aback, not physically hurt, by Mr. Whitfield’s action (RR at 63). The state’s photographs do not
show any physical impairment, and there was no evidence that Mr. Grant became ill as
a result of this incident. The prosecutor tried to establish that Mr. Grant felt pain at the
time he was hit, but Mr. Grant would say only that he “definitely felt it” and that the
pain came later from the scratch itself, “once I got outside in the sun and sweat started
beading down and burning” (RR at 65).
This Court has said that a jury may infer pain from the facts of an altercation, but that broad language was qualified by the Court’s review of the particular evidence
from which the jury could have drawn its inference. See Barnett v. State , 2009 WL
3050831 *3 (Tex. App. – Houston [1 st Dist.] Sept. 24, 2009, no pet.)(mem. op., not
designated for publication). In Barnett , the complainant was cut by shattered glass and
bled from the cuts. Additionally, neighbors saw the defendant attacking her and heard
her scream that he was hurting her. Id . The state had additional evidence to support a
reasonable inference that the complainant suffered pain. Similarly, in Shah v. State , the
evidence showed that the defendant head-butted the complainant and caused bleeding
from the bridge of his nose to bleed. See Shah v. State , 403 S.W.3d 29, 34-5 (Tex. App.
– Houston [1 st Dist.] 2013, pet. ref’d).
In this case, there is no evidence about how Mr. Whitfield hit Mr. Grant, or with *10 how much force. The state did not prove that the alleged blow was more than a mere
“offensive touch,” which is not sufficient to establish bodily injury. See Lane v. State , 763
S.W.2d 785, 786 (Tex. Crim. App. 1989)(Definition of bodily injury “seems to
encompass even relatively minor physical contacts so long as they constitute more than
mere offensive touching.”). There was no blood, no broken glass, no sutures; just some
stinging when Mr. Grant began to sweat later, when he got outside the home.
Further, the rest of Mr. Whitfield’s alleged conduct does not support an inference that he intended or knew that he might cause pain to Mr. Grant. The most the evidence
shows is that he intended to get Mr. Grant to stop and repair his television (RR at 61).
While the evidence might have shown recklessness, it fell far short of showing any
intent or knowledge. Because the state did not charge Mr. Whitfield with recklessness,
he could not be convicted on that basis. The evidence was legally and factually
insufficient to prove: 1) mens rea; and 2) result, i.e., bodily injury. SSUE WO : Texas’ denial of factual sufficiency review on appeal of
criminal trials violates the Constitutional guarantees of equal protection and due process.
If a state gives criminal defendants a right to appeal, the process of appellate review must be consistent with the requirements of due process, due course of law, and
equal protection. See Griffin v. Illinois , 351 U.S. 12, 18 (1956). The Supreme Court's
decisions concerning access to judicial processes reflect both equal protection and due
process concerns. “(I)n the Court's Griffin -line cases, ‘[d]ue process and equal protection
principles converge.’ … The due process concern homes in on the essential fairness of
the state-ordered proceedings anterior to adverse state action.” M.L.B. v. S.L.J. , 519
U.S. 102, 120 (1996) (citations omitted). See, also , U.S. ONSTIT AMEND . V, XIV; T EX . ONSTIT ART . 1 § 19.
In a 2013 criminal case from Texas, the Supreme Court said: “[F]or present purposes, a distinction between (1) a State that denies permission to raise [a] claim on
direct appeal and (2) a State that in theory grants permission but, as a matter of
procedural design and systemic operation, denies a meaningful opportunity to do so is
a distinction without a difference.” Trevino v. Thaler , 133 S.Ct. 1911, 1921 (2013). In
Trevino , the Supreme Court concluded that Texas law did not offer a meaningful
opportunity for defendants to present a claim of ineffective assistance of trial counsel
on direct appeal. Because of this problem, which the Court considered to be structural
constitutional error, the Court decided that the defendant was not procedurally barred
from raising a federal habeas claim of ineffective assistance. Trevino , 133 S.Ct. at 1921.
Besides the problem identified in Trevino , Texas jurisprudence has created another barrier to meaningful review of criminal convictions – specifically, review of
whether the state has proved its case beyond a reasonable doubt. This problem arose
after Brooks “merged” legal and factual sufficiency reviews. See Brooks v. State , 323
S.W.3d 893, 894-5 (Tex. Crim. App. 2010).
The reasonable doubt standard
is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves *12 people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.
In re Winship , 397 U.S. 358, 364 (1970). Similarly, the “moral force of the criminal law”
should not be diluted by a standard of review that leaves people in doubt whether
innocent people are being condemned. Yet the current standard of review, legal
sufficiency as defined in Jackson v. Virginia , 443 U. S. 307 (1979), creates the very
problem described in Winship .
When reviewing courts limit their analysis to the evidence supporting the verdict, as appellate courts now must do, they can never reach the real question in every criminal
case: did the state prove beyond a reasonable doubt that the defendant was guilty? If all
evidence contrary to the verdict must be ignored, no matter how overwhelming it was,
a reviewing court has no way to evaluate whether a rational juror would have a
reasonable doubt. A juror’s doubt arises from consideration of all the evidence, not just
the state’s evidence. Factual sufficiency review, too, considers all the evidence; legal
sufficiency review does not.
The “merging” of the legal and factual sufficiency standards of review is not facially problematic, but, as in Trevino , the systemic operation of the Brooks rule makes
it highly unlikely that a defendant will have a meaningful review of evidentiary
sufficiency issues. Also troubling, from both Constitutional law and public policy
standpoints, is the fact that Texas still gives factual sufficiency review to civil cases, but
not to most criminal cases. This disparate treatment of citizens in the courts violates
the equal protection guarantees in the U.S. and Texas Constitutions. See U.S. ONST . MEND . XIV; T EX ONSTIT ART . 1 § 10. Further, no legitimate public policy reason
justifies giving greater appellate review to civil litigants than to persons facing the loss
of life or liberty.
On the criminal side of the docket, factual sufficiency review still lives in certain cases, as the Court of Criminal Appeals last year affirmed. See Moon v. State, 451 S.W.3d
28, 45-6 (Tex. Crim. App. 2014): “Facts which must be proven by a preponderance of
the evidence are ordinarily susceptible to appellate review for factual sufficiency. …
Indeed, even in criminal cases, we have said that the courts of appeals may conduct
factual-sufficiency reviews when confronted with fact issues for which the burden of
proof is by a preponderance of the evidence.” This raises additional equal protection
and due process concerns. Some felony defendants (certified juveniles; defendants in
revocation of probation and motion to adjudicate proceedings) get both factual and
legal sufficiency reviews on appeal, but others (adults after trials or after guilty pleas
with sentencing hearings) get only legal sufficiency review. In addition to the equal
protection problem, the different treatment of different criminal defendants raises
significant questions about what possible policy interests could justify such disparate
treatment of similarly-situated people.
The problem can be illustrated with a simple and not-unlikely hypothetical: two co-defendants are equally culpable as parties for aggravated robbery (both are armed
with guns, and both threaten the complainant from the same distance, at the same time).
Defendant 1 is already on community supervision for an unrelated aggravated robbery.
The state moves to revoke his probation based on his commission of the second
aggravated robbery. The judge grants the motion, finding by a preponderance of the
evidence that he committed the second robbery, and sentences him to 50 years in
prison. Defendant 2 is convicted of the second aggravated robbery after a jury finds
him guilty beyond a reasonable doubt. He, too, is sentenced to 50 years in prison. On
appeal, Defendant 1 will be able to argue both the legal and factual sufficiency of the
evidence supporting the trial court’s finding that he committed the second aggravated
robbery, because the state’s burden of proof in a probation revocation hearing is by a
preponderance of the evidence. However, Defendant 2 will only be able to argue the
legal sufficiency of the evidence to support his conviction for that same offense. This
surely violates traditional due process notions of fair play and substantial justice, as well
as the right to equal protection of the law. U.S. ONSTIT MENDS . V, XIV; T EXAS ONSTIT ART . 1 § 10.
Even if the evidence were legally sufficient to convict Ms. Whitfield of misdemeanor assault, it was not factually sufficient under the pre- Brooks standard, which
required the appellate courts to view the evidence in a neutral light, not in the light most
favorable to the verdict. See Clewis v. State , 922 S.W.2d 126, 129 (Tex. Crim. App. 1996),
overruled by Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010). If this Court finds
the evidence was legally sufficient on each element of the offense, it still should overturn
Mr. Whitfield’s conviction due to the factual insufficiency of the evidence that he caused
serious bodily injury to the complainant. RAYER
Mr. Whitfield respectfully requests the Court to reverse his conviction and render a judgment of acquittal due to the legal or factual insufficiency of the evidence.
Respectfully submitted, LEXANDER B UNIN Chief Public Defender Harris County Texas /s/ Cheri Duncan ______________________________ HERI D UNCAN Assistant Public Defender Texas Bar No. 06210500 1201 Franklin, 13 th floor Houston Texas 77002 (713) 368-0016 telephone (713) 437-4318 e-fax cheri.duncan@pdo.hctx.net *16 C ERTIFICATE OF S ERVICE I certify that a copy of this brief was served electronically on the Harris County District Attorney’s Office on November 16, 2015
/s/ Cheri Duncan ______________________________ C HERI D UNCAN ERTIFICATE OF C OMPLIANCE I certify that this brief complies with Rule 9.2, T EX R. PP ROC . It was prepared on
a computer using 14-point Garamond type. It contains 2,443 words.
/s/ Cheri Duncan _____________________________ HERI D UNCAN