Jim Jack Thompson, III v. State

ACCEPTED

03-14-00371-CR

4908209

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/15/2015 11:41:03 PM

JEFFREY D. KYLE

CLERK

IN THE COURT OF APPEALS

THIRD DISTRICT OF TEXAS FILED IN

AUSTIN, TEXAS 3rd COURT OF APPEALS

AUSTIN, TEXAS

4/15/2015 11:41:03 PM

JEFFREY D. KYLE

Clerk

______________________________

NO. 03-14-00371-CR

______________________________

JIM JACK THOMPSON, Appellant

v.

THE STATE OF TEXAS, Appellee

______________________________

ON APPEAL FROM THE 26TH JUDICIAL DISTRICT COURT

OF WILLIAMSON COUNTY, TEXAS

CAUSE NUMBER 13-0520-K26

______________________________

BRIEF FOR APPELLANT

______________________________

ORAL ARGUMENT IS REQUESTED

RAY BASS, ATTORNEY

SBN 01884000

120 W. 8th Street

Georgetown, Texas 78626

Tel: 512-863-8788

Fax: 512-869-5090

Email:ray@raybass.com

ATTORNEY FOR APPELLANT

IDENTITY OF PARTIES AND COUNSEL

PARTIES TO THE TRIAL COURT’S JUDGMENT:

JIM JACK THOMPSON, III, Defendant

THE STATE OF TEXAS

TRIAL COUNSEL:

MS. LAUREN McLEOD SBN 24029584

MS. LYTZA ROJAS SBN 24046750

ASSISTANT DISTRICT ATTORNEYS

405 MARTIN LUTHER KING STREET

GEORGETOWN, TEXAS 78626

TEL. 512-943-1234

FAX: 512-943-1255

ATTORNEYS FOR THE STATE OF TEXAS

MR. WILLIAM HINES, III SBN 0969930

MR. R MARC RANC SBN 01786187

HINES, RANC,, & HOLUB, LLP

1112 ROCK STREET

GEORGETOWN, TEXAS 78626

TEL. 512-930-7500

FAX: 512-930-7537

ATTORNEYS FOR DEFENDANT

APPELLATE COUNSEL:

MR. RAY BASS, Attorney

SBN 01884000

120 W. 8TH STREET

GEORGETOWN, TEXAS 78626

TEL. 512-863-8788

FAX: 512-869-5090

ATTORNEY FOR DEFENDANT

MR. JOHN C. PREZAS, ASSISTANT DA

SBN 24041722

405 MARTIN LUTHER KING STREET

GEORGETOWN, TEXAS 78626

TEL. 512-943-1248

FAX: 512-943-1255

ATTORNEY FOR THE STATE OF TEXAS

TABLE OF CONTENTS

Page

INDEX OF AUTHORITIES i

STATEMENT OF THE CASE 1

STATEMENT OF FACTS 1

POINT OF ERROR 13

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT

APPELLANT’S CONVICTION FOR BURGLARY OF A

HABITATION (ROBBERY) AS ALLEGED IN PARAGRAPH

TWO OF THE INDICTMENT.

CONCLUSION AND PRAYER 23

CERTIFICATE OF COMPLIANCE 24

CERTIFICATE OF SERVICE 25

INDEX OF AUTHORITIES

PAGE

Case Law

Byars v. State, # 14-07-00824 23

(Tex. App. – Houston [14th Dist.] 2008)

(not designated for publication)

Chadwick v. State, 277 S.W.3d 99 13

(Tex. App. - Austin 2009)

Cooper v. State, 373 S.W.3d 821 19

(Tex. App.-Austin 2012)

Davis v. State, 757 S.W.2d 386 22

(Tex. App. – Dallas 1988)

DeVaughn v. State, 749 S.W.2d 62 14

(Tex. Crim. App. 1988)

Garfias v. State, 424 S.W.3d 54 19

(Tex. Crim. App. 2014)

Gumpert v. State, 49 S.W. 3d 450 23

(Tex. App. –Texarkana 2001)

Hooper v. State, 214 S.W.3d 9 13

(Tex. Crim. App. 2007)

In Re The Matter Of E.U.M. 108 S.W..3d 368 22

(Tex. App. – Beaumont 2003)

Jackson v. Virginia, 443 U.S. 307(1979) 13

Martinez v. State, 269 S.W.3d 777 14

(Tex. App.-Austin 2008)

Mendez v. State, 575 S.W.2d 550 21

(Tex. Crim. App. 1979)

McCrary v. State, 327 S.W.3d 165 19

(Tex.App.-Texarkana 2010).

Williams v. State, 235 S.W.. 3d 742 21

(Tex. Crim. App. 2007)

Yates v. State, 624 S.W.2d 816 22

(Tex. Ap. – Houston [14th Dist.] 1981, no pet)

Statutes

Tex. Penal Code Ann. § 1.07(8) 19

Tex. Penal Code Ann. § 6.03(c) 21

Tex. Penal Code Ann. § 6.03(d) 21

Tex. Penal Code Ann. § 29.01(1) 17

Tex. Penal Code Ann. § 29.02(a)(1) 14

Tex. Penal Code Ann. § 30.02(a)(3) 14

Tex. Penal Code Ann. § 31.01(2)(A) 18

Tex. Penal Code Ann. § 31.01(4)(B) 18

Tex. Penal Code Ann. § 31.03(a) 17

Tex. Penal Code Ann. § 31.03(b) 18

STATEMENT OF THE CASE

Appellant was convicted by a jury of burglary

of a habitation, a felony of the first degree. The

jury subsequently found that appellant had

previously been convicted of the felony offense of

burglary of a habitation and assessed his

punishment at 60 years confinement. By this appeal

appellant presents one point of error contending

that the evidence is insufficient to support

appellant’s conviction for burglary of a habitation

(Robbery) as alleged in paragraph two of the

indictment.

STATEMENT OF FACTS

The Indictment

The one count indictment alleged, in paragraph

II, that on or about March 15, 2013, the defendant,

“without the effective consent of Shannon Francis,

the owner, intentionally or knowingly entered a

habitation and committed or attempted to commit the

felony offense of robbery1”.

1

Paragraph I of the indictment alleged that appellant, “without the

effective consent of Shannon Francis, the owner, entered a habitation

with intent to commit the offense of robbery”. After both sides rested

the state waived paragraph I (RR, Vol. 11, p. 119).

1

The State’s Case

On March 15, 2013, Melinda Cortez, assistant

manager at the Payless Shoe Store on Palm Valley

street in Round Rock, noticed appellant walk into

the store (RR. Vol. 9, p. 38). He was wearing a

black T-Shirt with the word “Staff” written on the

back (RR. Vol. 9, p. 53). Cortez was waiting on a

customer at the cash register when, shortly after

appellant entered the store, she heard the uniquely

distinct shutting sound of the door that opens to

the office store room and employees area at the

back of the store (RR. Vol. 9, p. 54). She excused

herself and walked to the middle aisle of the store

from which she could see the door leading to the

office area (RR. Vol. 9, p. 55). She saw

appellant walking up the aisle and asked if he had

just left the back room (RR. Vol. 9, p. 55). He

first said “no” but ultimately admitted he had

walked back into that area to look for a bathroom

(RR. Vol. 9, p. 56). Cortez walked to the back of

the store, opened the door, and saw her purse and

the contents thereof scattered on the floor (RR.

Vol. 9, p. 56). She ran back to the front cash

register and asked the customer waiting there if

she knew where appellant had gone (RR. Vol. 9, p.

2

57). The customer said that appellant had just

jumped into a truck parked right in front of the

store (RR. Vol. 9, p. 56). Cortez ran outside where

she saw appellant in the passenger seat of the

truck and an elderly woman at the wheel starting to

back out of the handicap parking slot (RR. Vol. 9,

p. 58). Cortez hollered “don’t give him a ride, he

just robbed us” (RR. Vol. 9, p. 58). Appellant then

jumped out of the cab of the truck, jumped into the

truck bed and sat down with his back to the cab

(RR. Vol. 9, p. 59). He then jumped out of the bed

of the truck and started running down the sidewalk

past Cortez (RR. Vol. 9, p. 60). As appellant ran

by, Cortez told him that she is “on the phone

giving the police a description” (RR. Vol. 9, p.

61). Cortez watched as appellant ran into a nearby

subdivision (RR. Vol. 9, p. 62). She later

determined that her wallet had been taken from her

purse (RR. Vol. 9, p. 56).

On March 15, 2013, Shannon Francis left her job

as an Assistant Williamson County Attorney to have

lunch at her home at 1475 Rainbow Parke, in Round

Rock (RR. Vol. 9, pp, 106, 108). Holding her Louie

Vitton purse on the “crook” of her left arm she

entered her home through the garage and immediately

noticed appellant, who was wearing shorts but no

3

shirt, sleeping face up on the floor of her bedroom

(RR. Vol. 9, pp. 111, 117, 118, 147). When Francis

first walked into the bedroom appellant did not

respond to her (RR. Vol. 9, p. 118), but when she

said “Hello” and “Who are you” appellant turned his

face towards her and started mumbling the names of

some people who said he could “crash” in the house

during South By Southwest (RR. Vol. 9, p. 119).

Francis noticed that one of her other purses was

lying on the bed and that the contents of that

purse had been “dumped out” (RR. Vol. 9, p. 119).

At this point she realized that she was confined

inside her home with a “criminal” (RR. Vol. 9, p.

120). She started stepping backwards toward the

garage, hit the button to open the garage door, and

began reaching for her cell phone (RR. Vol. 9, p.

120). Appellant, who was now following Francis,

asked if he could borrow her phone (RR. Vol. 9,

p.151). She said “no” and called 911 (RR. Vol. 9,

p. 122), telling the man who answered that she

needed the police (RR. Vol. 9, p. 123). Appellant

entered the garage and asked Francis for her keys.

When she refused appellant grabbed her left arm2

and attempted to take her purse (RR. Vol. 9, p.

123). In a brief struggle, Francis and her purse

quickly ended up on the garage floor (RR. Vol. 9,

2

Francis testified that where appellant grabbed her left arm she “felt

it for several days”. (RR, Vol. 9, p. 125).

4

p. 123), causing “some very minor scraping” to her

knee “that became bruises later” (RR. Vol. 9, p.

140). When asked how she ended up on the floor,

Francis responded “just through the force of the

struggle” (RR. Vol. 9, p. 123). Appellant got the

purse and dumped the contents onto the floor of the

garage. He found the car keys, ran into the

driveway, and entered Francis’ vehicle (RR. Vol. 9,

p. 126), but ran back into the garage screaming at

Francis to start the car and to give him the keys

(RR. Vol. 9, p. 127). Francis hollered “You have

the keys”, but appellant got down on the ground and

started going through her purse again (RR. Vol. 9,

p. 128). He found her house key and ran back to the

car, apparently trying to start it but he could not

(RR. Vol. 9, p. 128). He ran back to the garage

again screaming at Francis to start the car or give

him the keys (RR. Vol. 9, p. 129). Francis,

frightened by appellant’s escalating behavior, told

him to push the button on the key housing to pop

the key out (RR. Vol. 9, p. 129). Appellant ran

back to the car and Francis ran into the drive way

screaming “help me” (RR. Vol. 9, p. 130).

Just as Francis ran into the driveway, Round

Rock Police Officer Jerry Hallford was slowly

driving his patrol car towards Francis’ house (RR.

5

Vol. 9, p. 166). He was patrolling the area in

search of the suspect in the recent theft at the

nearby Payless Shoe Store (RR. Vol. 9, p. 163). He

saw Francis in her driveway using both hands

frantically trying to waive him down (RR. Vol. 9,

p. 170). He stopped in front of the house, stepped

out of his vehicle, and started walking toward the

driveway (RR. Vol. 9, p. 171). He asked Francis:

“does he belong here”, and when she said “no”,

appellant started walking away. (RR. Vol. 9, p.

173-174). Hallford commanded appellant to stop but

he started running down the street. As the officer

gave chase on foot, appellant crossed the street

and ran between two houses into a fenced back yard

(RR. Vol. 9, pp. 174-176). When Hallford approached

appellant turned toward him and was taser dropped

to the ground (RR. Vol. 9, pp. 177-179). Appellant

attempted to pull the taser prongs out of his body

and was tasered a second time (RR. Vol. 9, p. 180),

but he removed the taser prongs and took off

running again, charging through a fence gate (RR.

Vol. 9, p. 181) and breaking through fences in two

additional backyards (RR. Vol. 9, p. 182). Unable

to knock down the fence in a third backyard

appellant again turned toward officer Hallford who

unsuccessfully attempted to tase him a third

time(RR. Vol. 9, p. 182). Appellant jumped the

6

fence and started running toward Red Bud street.

Hallford jumped the fence and continued to pursue

appellant into a Wal Mart parking lot (RR. Vol. 9,

p. 183). Appellant jumped into the passenger side

of a van in the parking lot, and when the driver

stepped out appellant drove off in the van at a

high rate of speed almost hitting a patrol car that

had just entered the parking lot (RR. Vol. 9, p.

188-189). He jumped a median into a grassy area,

hit a tree, jumped a curb and headed south on Red

Bud street (RR. Vol. 9, p. 190-193). Two police

vehicles gave chase (RR. Vol. 9, pp. 188 – 200).

Round Rock police officer Logan Harper-Hill had

been dispatched to the theft at the Payless Shoe

Store and was patrolling a nearby neighborhood

looking for the suspect when he heard officer

Hallford’s call for help in apprehending someone in

the Wal Mart parking lot (RR. Vol. 9, p. 224). He

activated his overhead lights and headed to Wal

Mart (RR. Vol. 9, p. 225). As he entered the

parking lot he saw a maroon van that was headed

towards him, but the van hit a tree then headed

south on Red Bud Street (RR. Vol. 9, p. 226). The

officer followed as appellant ran through a red

light, made a sharp left turn onto Woodlawn Street,

drove across several yards, and drove into a ditch

7

(RR. Vol. 9, p. 227). Appellant jumped out of the

van and started running until he jumped a chain

link fence and encountered two big dogs in the yard

(RR. Vol. 9, p. 227-228), at which point he was

apprehended by officer Harper-Hill and handcuffed

by officer Brandes (RR. Vol. 9, p. 229). After

being apprehended appellant said he “made a

mistake” and knew he was “going to pay for it” (RR.

Vol. 9, p. 230).

On March 22, 2013, Round Rock Detective Bernie

Villegas obtained from Shannon Francis a black T-

Shirt she had found on the floor of her closet.

Printed on the front of the T-Shirt were the words

“Hard Rock” and on the back the word “Staff” (RR.

Vol. 10, p. 56).

A latent fingerprint lifted by officer Kerie

Cress from a locker in the Payless Shoe Store

employee room on March 15, 2013 (RR. Vol. 10, p.

33), was identified by DPS latent print examiner,

Meghan Blackburn, as being matched to a known

fingerprint of appellant (RR. Vol. 10, p. 47).

The Defense

Jeremy Charske is the project manager and

8

estimator for All American Electrical, a company

owned by appellant’s father (RR. Vol.10, p.67). The

business is located at the father’s home on

Evergreen Street, just off of Red Bud in Round Rock

(RR. Vol.10, pp. 68 & 78). At approximately 9:30 AM

on March 15, 2013, Charske saw appellant, who at

the time was living in the house on Evergreen (RR.

Vol.10, p.79), on the back porch of the house (RR.

Vol.10, p.70). Appellant was rapidly pacing back

and forth like a “caged animal”, rubbing his hands

then rubbing his head (RR. Vol.10, p.70). Sensing

that something was obviously wrong, Charske opened

the back door and asked appellant if everything was

all right (RR. Vol.10, p.71). Appellant did not

answer but simply looked at Charske “with a blank

stare” (RR. Vol.10, p.71). Charske called

appellant’s father and told him that something was

“seriously wrong” with appellant (RR. Vol.10,

p.71). By the time appellant’s father arrived

appellant was gone and no one knew where he had

gone (RR. Vol.10, p.72).

Sage Thompson is appellant’s sister. On March

15, 2013, she was also living at her father’s house

on Evergreen (RR. Vol.10, p.78). That morning she

was supposed to take appellant to Bluebonnet, a

mental health facility in Round Rock, to get his

9

anti-depressant medication (RR. Vol.10, p.79). When

asked why he takes the anti-depressants Sage said

that when he is not taking the medication “he cries

about everything” (RR. Vol.10, p.80). At some point

that morning appellant walked into the bathroom

while Sage was brushing her teeth. She asked if he

was ready to go and he said yes and walked out of

the bathroom (RR. Vol.10, p.80). Sage heard the

front door open and when she came out of the

bathroom appellant was gone and she never saw him

again that day (RR. Vol.10, p.81).

Robert Cantu is a medical doctor specializing

in psychiatry. He is board certified in both

general and forensic psychiatry (RR. Vol.11, p.

45). He first evaluated appellant, at the request

of appellant’s family, in October 2012 (RR. Vol.11,

p. 46). Dr. Cantu determined that appellant had

been on Effexor, an anti-depressant medication, for

approximately six years but had run out of the

medication and was doing badly (RR. Vol.11, p. 46).

After evaluating appellant Dr. Cantu continued him

on the medication (RR. Vol.11, p. 46). About a

month later Cantu received a telephone call

informing him that because of the expense appellant

had decided to continue his treatment with MH-MR in

Round Rock (RR. Vol.11, p. 46).

10

In February 2014, appellant’s family again

contacted Dr. Cantu to do a psychiatric evaluation

and assess his mental condition at the time of the

alleged offense on March 15, 2013 (RR. Vol.11, pp.

68 & 70). After reviewing appellant’s medical and

psychiatric records spanning a number of years,

interviewing appellant and members of his family,

and after reviewing the police reports of the

March 15, 2013 incident, Dr. Cantu formed the

opinion that appellant was suffering from a

psychosis that was triggered by withdrawal from

Effexor (RR. Vol.11, pp. 50-52). Specifically, the

withdrawal triggered “a kind of hypomanic or

agitated state with a lot of disorganization” and

“persecutory delusions that someone was out to get

him; that people or an entity, evil, were trying to

kill him” (RR. Vol.11, p. 54). Dr. Cantu explained

that appellant’s odd behaviors on March 15, 2013,

as described by witnesses, i.e: laying on the floor

taking off his shirt, being unable to figure out

how to start an automobile, jumping into the cab of

a truck and then jumping into the bed of the truck

and laying down as if he was then invisible, were

consistent with the delusions and disorganization

that accompany Effexor withdrawal (RR. Vol.11, p.

59, 62). At the conclusion of the direct

11

examination of Dr. Cantu, the following exchange

occurred (RR. Vol.11, p. 62-63):

Q. (By defense counsel): And based on

your review of all the materials, did it

seem like it was his intent or purpose to

get away but not to cause anyone

particular harm?

A: I think getting away was it. I

mean, it was all about getting away.

Q: Okay. You talk at the end of your

report, about that the cognitive initial

capacity as a result of mental illness was

impaired. Can you explain a little bit

more just about exactly what that meant?

A; It’s a fancy way of saying he

wasn’t thinking right and, because he

wasn’t thinking right, he likely wasn’t

able to make decisions or conform behavior

in a way that we would normally think,

that anybody would normally think that he

would normally think because of – because

of that sort of – that thought

disorganization.

12

Dr. Cantu also testified that in his opinion

appellant did not intentionally, knowingly, or

recklessly cause bodily injury to Shannon Francis

(RR. Vol.11, pp. 98 & 102).

POINT OF ERROR

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT

APPELLANT’S CONVICTION FOR BURGLARY OF A HABITATION

(ROBBERY) AS ALLEGED IN PARAGRAPH TWO OF THE

INDICTMENT.

Argument & Authorities

The standard of review for determining

whether evidence presented at a criminal trial is

legally sufficient to prove the offense charged is

whether, considering all of the evidence in the

light most favorable to the finding of guilt, a

rationale fact finder could have found that every

element of the offense was proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S.

307(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007); Chadwick v. State, 277 S.W.3d 99

(Tex. App. - Austin 2009).

13

Elements: Burglary of a Habitation (Robbery)

The offense of Burglary of a Habitation

(Robbery) is committed when the actor intentionally

or knowingly enters a habitation without the

effective consent of the owner and commits or

attempts to commit the offense of robbery. See,

Tex. Penal Code Ann. § 30.02(a)(3); DeVaughn v.

State, 749 S.W.2d 62 (Tex.Crim.App. 1988); Martinez

v. State, 269 S.W.3d 777 (Tex.App.-Austin 2008).

A person commits robbery if, in the course of

committing theft as defined in Chapter 31 of the

penal code, and with intent to obtain or maintain

control of the property, the person intentionally,

knowingly, or recklessly causes bodily injury to

another. Tex. Penal Code Ann. § 29.02(a)(1).

Thus, to find the evidence legally sufficient

to support the appellant’s conviction for Burglary

of a Habitation (Robbery), this Court, after

considering all of the evidence in the light most

favorable to the verdict, must conclude that a

rationale jury could have found beyond a reasonable

doubt that appellant (1) intentionally or knowingly

made a non-consensual entry into the home of

Shannon Francis, and (2) thereafter while in the

14

course of committing theft (3) intentionally,

knowingly, or recklessly caused bodily injury to

Shannon Francis, (4) with intent to obtain or

maintain control of the property.

No Rationale Jury Could Have Found Beyond A

Reasonable Doubt That Appellant Intentionally Or

Knowingly Made a Non-Consensual Entry Into The Home

Of Shannon Francis.

The issue here is not whether appellant had

permission to enter Shannon Francis’ home. Clearly,

she gave no such permission, and no rational person

would believe that anyone else gave appellant

permission to enter the home. The issue is whether,

considering all the evidence in thie case,

including the uncontradicted testimony of Dr.

Robert Cantu, a rational jury could have found,

beyond a reasonable doubt, that appellant knew he

did not have permission to enter the home.

Dr. Robert Cantu, a board certified

psychiatrist, had treated appellant in the past and

was intimately familiar with appellant’s medical

and psychiatric history. He testified that

appellant had been on Effexor, an anti-depressant

medication, for at least 6 years. After reviewing

the police reports, appellant’s extensive medical

15

and psychiatric history, and after interviewing

appellant and members of his family, Dr Cantu

opined that on March 15, 2013, appellant was

suffering from a psychosis triggered by withdrawal

from Effexor. According to Dr. Cantu, appellant’s

odd behaviors, as characterized by witnesses to the

incidents of March 15, and as outline in the

statement of facts above, were consistent with the

delusions and disorganization that accompany

Effexor withdrawal. The state presented no expert

testimony to contradict Dr. Cantu’s

characterization of appellant’s mental condition on

March 15, 2013.

Appellant told Francis that someone had

allowed him to “crash” in the house during South By

Southwest. Although no rational person would

believe that anyone gave appellant permission to

enter in the house, it is not unreasonable to

believe that appellant who, according to the

uncontradicted testimony of Dr. Cantu, was

suffering a psychosis characterized by delusions

and disorganization, believed he had permission to

enter the home. No one testified about the

circumstances surrounding appellant’s entry into

Ms. Francis’ home. And, it is important that there

was no testimony or evidence of a forced entry by

16

appellant, which would tend to suggest that he

would have known he did not have permission to

enter the house. Appellant was laying on the floor

of Ms. Francis’ bedroom, asleep, when she first saw

him, and, he did not act as she would have expected

a guilty person to act (RR, Vol. 9, p. 149).

In light of all the facts and circumstances

shown by the evidence in this case, no rationale

jury could have found beyond a reasonable doubt

that appellant knew he did not have permission to

enter the habitation owned by Shannon Francis.

No Rational Jury Could Have Found Beyond A

Reasonable Doubt That Shannon Francis Was Injured

While Appellant Was In The Course Of Committing

Theft.

"In the course of committing theft" means

conduct that occurs in an attempt to commit theft,

or during the commission of a theft, or in

immediate flight after the commission of or attempt

to commit theft. Tex. Penal Code Ann. § 29.01(1).

The offense of theft is committed when a

person unlawfully appropriates property with intent

to deprive the owner of the property. Tex. Penal

Code Ann. § 31.03(a). “Appropriate" means to

17

acquire or otherwise exercise control over property

other than real property. Tex. Penal Code Ann. §

31.01(4)(B). Appropriation of property is unlawful

if it is without the owner's effective consent.

Tex. Penal Code Ann. § 31.03(b). "Deprive" means to

withhold property from the owner permanently or for

so extended a period of time that a major portion

of the value or enjoyment of the property is lost

to the owner. Tex. Penal Code Ann. § 31.01(2)(A).

Bodily injury to Shannon Francis occurred

while appellant was apparently attempting to

exercise non consensual control over her purse. But

no theft occurred unless it was appellant’s intent

to withhold the purse from Francis permanently or

for long enough to significantly destroy the value

or Francis’ enjoyment of the property. The evidence

simply will not justify a finding of such an intent

beyond a reasonable doubt. Indeed, appellant left

the purse on the garage floor next to Francis.

No Rational Jury Could Have Found Beyond A

Reasonable Doubt That Appellant Intentionally,

Knowingly, or Recklessly Caused Bodily Injury to

Shannon Francis

"Bodily injury" means physical pain, illness,

or any impairment of physical condition. Tex. Penal

18

Code Ann. § 1.07(8). Bodily injury robbery is a

result oriented offense. Garfias v. State, 424

S.W.3d 54 (Tex. Crim. App. 2014); Cooper v. State,

373 S.W.3d 821 (Tex. App.-Austin 2012); McCrary v.

State, 327 S.W.3d 165 (Tex.App.-Texarkana 2010).

The culpable mental state focuses on the result of,

and not the nature of the defendant’s conduct.

Thus, to find that appellant intentionally,

knowingly, or recklessly caused bodily injury to

Shannon Francis, the jury had to find beyond a

reasonable doubt that it was his conscious

objective or desire to cause physical pain to

Francis, or that he knew his conduct was reasonably

certain to cause physical pain to Shannon Francis,

or that he was aware of but consciously disregarded

a substantial and unjustifiable risk that his

conduct would cause physical pain to Shannon

Francis.

Bodily injury to Shannon Francis occurred

while appellant was attempting to exercise control

over her purse. After appellant grabbed her left

arm and attempted to grab the purse, a brief

struggle ensued and Francis ended up on the garage

floor with “some very minor scraping” to her knee.

She testified that she also had some pain to her

left arm. There is no evidence that it was

19

appellant’s conscious objective or desire to cause

physical pain to Francis, or that he knew his

spontaneous action was reasonably certain to cause

her physical pain. Appellant made no verbal threats

and no admissions of having such a culpable mental

state. Merely grabbing Francis’ arm and reaching

for her purse is not conduct that is likely to

cause bodily injury. Although a struggle ensued,

Francis offered no testimony or demonstration of

the details of the struggle, which almost instantly

resulted in Francis and her purse being on the

garage floor.

The issue is whether or not the evidence

supports a finding that appellant recklessly caused

physical pain to Francis. In this regard it is

important to understand the difference between

criminal recklessness and criminal negligence.

A person acts recklessly, or is reckless with

respect to the result of his conduct when he is

aware of but consciously disregards a substantial

and unjustifiable risk that the result will occur.

The risk must be of such a nature and degree that

its disregard constitutes a gross deviation from

the standard of care that an ordinary person would

exercise under all the circumstances as viewed from

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the actor's standpoint. Tex. Penal Code Ann. §

6.03(c). A person acts with criminal negligence, or

is criminally negligent, with respect to the result

of his conduct when he ought to be aware of a

substantial and unjustifiable risk that the result

will occur. The risk must be of such a nature and

degree that the failure to perceive it constitutes

a gross deviation from the standard of care that an

ordinary person would exercise under all the

circumstances as viewed from the actor's standpoint

Tex. Penal Code Ann. § 6.03(d).

Unlike criminal negligence, criminal

recklessness requires the defendant to actually

foresee the risk involved and to consciously decide

to ignore it. Mere lack of foresight,

irresponsibility, thoughtlessness, stupidity, or

ordinary carelessness, however serious the

consequences may happen to be, does not rise to the

level of criminal recklessness. Williams v. State,

235 S.W.. 3d 742 (Tex. Crim. App. 2007).

Cases involving the discharge of a firearm

provide, perhaps, the best example of what is

required to prove a criminally reckless state of

mind. See, Mendez v. State, 575 S.W.2d 550 (Tex.

Crim. App. 1979)(shooting randomly at houses in one

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of which an occupant was killed); Yates v. State,

624 S.W.2d 816 (Tex. Ap. – Houston [14th Dist.]

1981, no pet) (pointing a loaded gun at another who

was killed when the gun accidentally discharged);

In Re The Matter Of E.U.M. 108 S.W..3d 368 (Tex.

App. – Beaumont 2003)(E.U.M. a juvenile, for

amusement only and without intent to kill, pointed

a sawed off shotgun at her friend and, forgetting

that it was loaded, pulled the trigger, shooting

and killing her friend); Davis v. State, 757 S.W.2d

386 (Tex. App. – Dallas 1988)(defendant picked up a

pistol that he kept in his truck, and while he and

his girlfriend were sitting in the truck he started

playing with the pistol by spinning it on his index

finger. The pistol discharged and killed his

girlfriend). In these kinds of cases “It defies

reason to question that any person would not be

cognizant of a substantial and unjustifiable risk

of harm in such a situation.” In Re The Matter Of

E.U.M., supra at 371.

Because Shannon Francis received minor

injuries as a result of a very brief “struggle”

precipitated by appellant’s attempt to take her

purse, It might be argued that this case is

analogous to cases where injuries to a police

officer resulted from a struggle with a person

22

resisting arrest. See, Byars v. State, # 14-07-

00824 (Tex. App. – Houston [14th Dist.] 2008)(not

designated for publication); Gumpert v. State, 49

S.W. 3d 450 (Tex. App. –Texarkana 2001). But, in

those cases the defendants’ conduct amounted to

more than precipitating the struggle. During the

course of the struggle the defendant, while

resisting police efforts to detain or arrest him,

started intentionally “flailing his arms” around,

or kicking, in a manner that unquestionably created

a substantial and unjustifiable risk of causing

bodily injury, and in circumstances that any

person would be cognizant of such a risk.

Although the evidence is sufficient to prove

that appellant negligently caused bodily injury to

Shannon Francis, it is legally insufficient to

prove that he intentionally, knowingly, or

recklessly caused bodily injury to Shannon Francis.

CONCLUSION AND PRAYER

Because the evidence is legally insufficient to

prove that appellant intentionally or knowingly

entered a habitation owned by Shannon Francis and

committed or attempted to commit the felony offense

23

of robbery, appellant prays that his conviction for

that offense be set aside and the case remanded to

the trial court with instructions to enter a

judgment of acquittal for that offense.

RESPECTFULLY SUBMITTED

/S/ Ray Bass

________________________

RAY BASS, ATTORNEY

SBN 01884000

120 WEST 8TH STREET

GEORGETOWN, TEXAS 78626

TEL: 512-863-8788

FAX: 512-869-5090

Email: ray@raybass.com

CERTIFICATE OF COMPLIANCE

Pursuant to RULE 9.4(i)(3), TEXAS RULES OF APPELLATE

PROCEDURE, the undersigned attorney of record for appellant

certifies that Appellant’s Brief, with the exception of

those parts excluded by RULE 9.4(i)(1), contains LESS THAN

15,000 words.

/S/ Ray Bass

_____________________

RAY BASS, ATTORNEY

24

CERTIFICATE OF SERVICE

I hereby certify that a copy of Appellant’s Brief was

delivered to JOHN C. PREZAS, ASSISTANT DISTRICT ATTORNEY

for Williamson County, Texas, 404 S. Martin Luther King

Street, Georgetown, Texas, 78626, by email to

jprezas@wilco.org on April 15, 2015, and by also depositing

a copy of same in the United States Mail.

/S/ Ray Bass

_____________________

RAY BASS, ATTORNEY

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