i 

PD-0840-14

IN THE

COURT OF CRIMINAL APPEALS 

SITTING AT AUSTIN, TEXAS

_________________________________________________

KEIONA DASHELLE NOWLIN,

PETITIONER

V.

THE STATE OF TEXAS

___________________________________________

ON REVIEW FROM THE TENTH COURT OF APPEALS

No. 10-12-00239-CR

AN APPEAL OF A CONVICTION IN CAUSE NO. 2011-2523-C1

FROM THE 19TH JUDICIAL DISTRICT COURT OF

MCLENNAN COUNTY, TEXAS

____________________________________________

STATE'S BRIEF

____________________________________________

ABELINO "ABEL" REYNA GABRIEL C. PRICE

Criminal District Attorney Appellate Division

McLennan County, Texas State Bar No. 24068071

219 North 6th Street, Suite 200

Waco, Texas 76701

[Tel.] (254) 757-5084

[Fax] (254) 757-5021

[Email] 

gabe.price@co.mclennan.tx.us

PD-0840-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 1/29/2015 10:32:39 AM

Accepted 1/29/2015 11:12:10 AM

ABEL ACOSTA

CLERK
ii

Identity of Parties and Counsel

Petitioner Keiona Dashelle Nowlin

Petitioner’s Trial Attorney Mr. Robert Callahan

Mr. Cody Stapp

100 N. 6th St.,

Waco, Texas 76701

Petitioner’s Attorney on Appeal Mr. John Donahue

204 N. 6th. St.

Waco, Texas 76701

State’s Trial Attorney Mr. Robert Moody

Mr. Mark Parker

Assistant Criminal District 

Attorneys

219 North 6th Street, Suite 200

Waco, Texas 76701

State’s Attorney on Appeal Abelino ‘ Abel’ Reyna

Criminal District Attorney

Alex J. Bell

Assistant Criminal District 

Attorney

219 North 6th Street, Suite 200

Waco, Texas 76701
iii

Table of Contents

Contents

Identity of Parties and Counsel............................................................................ ii

Table of Contents ..................................................................................................iii

Table of Authorities ..............................................................................................iv

Statement of the Case ............................................................................................ v

Issues Presented ....................................................................................................vi

Statement of Facts ...................................................................................................1

Summary of Argument ..........................................................................................2

Argument .................................................................................................................3

Issue 1 The evidence was legally sufficient to support a conviction ...........3

LAW.......................................................................................................................4

Elements of Hindering Apprehension.................................................................4

Legal Sufficiency..................................................................................................5

ARGUMENT.........................................................................................................8

Relief ..................................................................................................................13

Prayer......................................................................................................................16

Certificate of Compliance ....................................................................................16

Certificate of Service .............................................................................................17
iv

Table of Authorities

Supreme Court Opinions

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ..... 5, 6

Texas State Opinions

Beardsley v. State, 738 S.W.2d 681 (Tex. Crim. App. 1987) ............................... 7

Canida v. State, 434 S.W.3d 163 (Tex. Crim. App. 2014) ................................. 14

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) ................................. 6

Dillon v. State, 574 S.W.2d 92 (Tex. Crim. App. 1978) ...................................... 7

Gardner v. State, 736 S.W.2d 179 (Tex. App.—Dallas 1987) ............................. 7

Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) ..................................... 7

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ................................... 6, 7

Menchaca v. State, 901 S.W.2d 640 (Tex. App.—El Paso 1995) ........................ 8

Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012) .................................. 7

Nowlin v. State, 2014 Tex. App. LEXIS 5309 (Tex. App. Waco May 15 2014) . 9

Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995) ................................... 6

Sharpe v. State, 881 S.W.2d 487 (Tex. App.—El Paso 1994) ............................. 8

Trejo v. State, 766 S.W.2d 381 (Tex. App.—Austin 1989) ................................. 8

Texas State Statutes

Tex. Penal Code Ann. § 38.05(a)(1) (West 2009) ............................................... 4

Tex. Penal Code Ann. § 38.05(d) (West 2009) ................................................... 5

Rules

Tex. R. App. P. 9.4(e) ........................................................................................... 14

Tex. R. App. P. 9.4(i) ........................................................................................... 14

Tex. R. App. P. 9.4(i)(1) ....................................................................................... 15
v

Statement of the Case

Petitioner, KEIONA DASHELLE NOWLIN, was charged by 

indictment with HINDERING APPREHENSION OF A FELON COUNT I 

and ESCAPE COUNT II as proscribed by Section 38.05 and 38.06 of the 

Texas Penal Code. This offense was alleged to have been committed on or 

about the 13th day of October, 2011, in McLennan County, Texas. 1 CR 6.

Petitioner pled not guilty to both counts. 1 CR 54. Trial was before the 

court beginning and ending June 26th, 2012 with a verdict of guilty on 

Count I and not guilty on Count II. Punishment was assessed by the court 

at four years imprisonment on the Hindering Apprehension Count in the 

Texas Department of Criminal Justice – Institutional Division and no fine. 1 

CR 58. 

The Tenth Court of Appeals affirmed in a memorandum opinion on 

May 15, 2014. 
vi

Issues Presented

Petitioner’s Issues Presented and State’s Response to each:

1. The Tenth Court erred in holding that the evidence was sufficient to 

prove that Nowlin knew Degrate was being arrested for a felony offense.

State’s Response: The Tenth Court correctly held that the evidence was 

legally sufficient to prove that Nowlin knew that Degrated was charged, 

arrested for or convicted of a felony offense. The Tenth Court correctly 

gave deference to the Trial Court’s factfinding duty and the reasonable 

inferences the Trial Court relied on in finding Nowlin guilty.
1

Statement of Facts

On October 13, 2011, Deputy U.S. Marshals (The Marshals) were 

attempting to arrest Demarcus Degrate (Degrate) on a warrant for the 

offense of Felon in Possession of a Firearm. 4 RR 15. After receiving 

information on a potential location for Degrate, The Marshals started to 

watch that location. 4 RR 16-17. Eventually, The Marshals spotted Degrate 

and Petitioner (Nowlin) exiting the residence. 4 RR 17. The Marshals called 

for additional units and then went to execute the warrant on Degrate. 4 RR 

19. Nowlin warned Degrate, “Those are the Marshals” and “That’s the 

laws. Run.” 4 RR 52. Degrate then took off running from The Marshals. 4 

RR 19. Nowlin then began to run in a different direction. 4 RR 41. She was 

eventually stopped by Deputy Marshal Slavich. 4 RR 41. Nowlin was 

placed in handcuffs and detained in Deputy Slavich’s vehicle. 4 RR 42. 

Nowlin was then able to manipulate the seatbelt latch, unbuckle herself, 

open the door of the vehicle and again flee from the scene. 4 RR 43. While 

fleeing, Nowlin lost her balance and fell head first to the ground. 4 RR 43. 

She was then placed under arrest. 4 RR 44. Nowling admitted to Deputy 

Slavich, “she didn’t want her man to get arrested,” and “she knew he 

(Degrate) was supposed to come up and turn himself in on Wednesday.”4 

RR 52. Nowlin also told Deputy Slavich that she “knew he (Degrate) was 

out on bond and the bondsman was going off his bond.” 4 RR 53. Nowlin 

had the name “Demarcus Degrate” tattooed just below her clavicle notch. 4 
2

RR 54. Nowlin explicitly told Deputy Slavich that “she warned him 

(Degrate).” 4 RR 74.

Summary of Argument

The evidence is legally sufficient to prove that Petitioner knew 

Demarcus Degrate was charged, arrested for or convicted of a felony. The 

evidence of the close intimate relationship between Nowlin and Degrate, 

the actions of Nowlin at the scene, and the admissions that Nowlin made to 

Deputy Slavich provided a rational basis for the Trial Court’s verdict in this 

case.

In the alternative, Petitioner’s requested remedy is incorrect. The only 

element being challenged before This Court is the aggravating element of 

whether Nowlin knew Degrate was charged, being arrested for or 

convicted of a felony. Where a court finds that the evidence of the 

aggravating element of an offense is insufficient, the court may reform the 

verdict to a lesser included offense that was necessarily proven by the 

remaining evidence and an acquittal in not proper.
3

Argument

Issue 1 The evidence was legally sufficient to support a conviction 

Petitioner argued in the Tenth Court of Appeals that the evidence 

was legally insufficient to sustain a conviction on two grounds. First, that 

the evidence was insufficient to prove that Nowlin “warned” Degrate of 

impending discovery or apprehension; Second, that the evidence was 

insufficient to prove Nowlin knew that Degrate was charged with a felony 

offense. The Tenth Court of Appeals, in a memorandum opinion, rejected 

both arguments, holding the evidence was legally sufficient to uphold the 

conviction under both issues. Petitioner abandoned the first issue 

presented to the Tenth Court of Appeals and proceeded only on the second 

issue in the Petition for Discretionary Review. This Honorable Court 

granted Petitioner’s request on the single issue of “Whether the court of 

appeals was correct in holding that the evidence was legally sufficient to 

prove that Nowlin knew Degrate was charged with a felony offense.” The 

only question raised by Petitioner is whether evidence of the aggravating 
4

element, raising the level of offense from a Misdemeanor to a Felony, is 

legally sufficient. 

LAW

Elements of Hindering Apprehension

A person is guilty of the offense of hindering apprehension or 

prosecution if it is shown that "with intent to hinder the arrest, prosecution, 

conviction, or punishment of another for an offense...or with intent to 

hinder the arrest of another under the authority of a warrant or capias, he: 

(1) harbors or conceals the other; (2) provides or aids in providing the other 

with any means of avoiding arrest or effecting escape; or (3) warns the 

other of impending discovery or apprehension." Tex. Penal Code Ann. 

§ 38.05(a)(1) (West 2009). The offense of hindering apprehension is a class 

A misdemeanor except an offense is a felony of the third degree if the 

person who is harbored, concealed, provided with a means of avoiding 

arrest or effecting escape, or warned of discovery or apprehension is under 

arrest for, charged with, or convicted of a felony, including an offense 

under Section 62.102, Code of Criminal Procedure, or is in custody or 
5

detention for, is alleged in a petition to have engaged in, or has been 

adjudicated as having engaged in delinquent conduct that violates a penal 

law of the grade of felony, including an offense under Section 62.102, Code

of Criminal Procedure, and the person charged under this section knew 

that the person they harbored, concealed, provided with a means of 

avoiding arrest or effecting escape, or warned of discovery or 

apprehension is under arrest for, charged with, or convicted of a felony, or 

is in custody or detention for, is alleged in a petition to have engaged in, or 

has been adjudicated as having engaged in delinquent conduct that 

violates a penal law of the grade of felony. Id. § 38.05(d).

Legal Sufficiency

Evidence is legally sufficient to support a conviction if, after assessing 

all the evidence in the light most favorable to the verdict, any rational trier 

of fact could find the essential elements of the crime beyond a reasonable 

doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 

(1979). An appellate court reviews all of the evidence, whether it was 

properly or improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. 
6

Crim. App. 2007). Direct and circumstantial evidence are equally probative, 

and circumstantial evidence alone can be sufficient to establish guilt. Id.; 

Patrick v. State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995).

It is the factfinder's duty "to resolve conflicts in the testimony, to 

weigh the evidence, and to draw reasonable inferences from basic facts to 

ultimate facts." Jackson, 443 U.S. at 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560. The 

appellate court is to "determine whether the necessary inferences are 

reasonable based upon the combined and cumulative force of all the 

evidence when viewed in the light most favorable to the verdict." Hooper v. 

State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). When the record supports 

conflicting inferences, the appellate court presumes that the factfinder 

resolved the conflicts in favor of the prosecution and therefore defer to that 

determination. Jackson, 443 U.S. at 326, 99 S. Ct. 2781, 61 L. Ed. 2d 560. 

Direct and circumstantial evidence are treated equally: 

"Circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor, and circumstantial evidence alone can be sufficient to 

establish guilt." Hooper, 214 S.W.3d at 13. “It is the State's burden to prove 
7

each element of the offense beyond a reasonable doubt, not to exclude 

every conceivable alternative to a defendant's guilt.” Merritt v. State, 368 

S.W.3d 516, 526 (Tex. Crim. App. 2012) (citing State v. Turro, 867 S.W.2d 43, 

47 (Tex. Crim. App. 1993) (explaining that “the evidence is not rendered 

insufficient simply because appellant presented a different version of the 

events”)). In a circumstantial evidence case, it is not necessary that each 

fact, by itself, directly and independently prove the guilt of the accused. 

The cumulative force of all the incriminating circumstances may be 

sufficient to warrant a conclusion of guilt. Beardsley v. State, 738 S.W.2d 681, 

685 (Tex. Crim. App. 1987). Circumstantial evidence cases have no different 

standard of review than those cases supported by direct evidence. Geesa v. 

State, 820 S.W.2d 154, 158 (Tex. Crim. App. 1991).

Proof of a culpable mental state generally exists in circumstantial 

evidence. Gardner v. State, 736 S.W.2d 179, 182 (Tex. App.—Dallas 1987), 

aff'd, 780 S.W.2d 259 (Tex. Crim. App. 1989). Thus, proof of knowledge is 

an inference drawn by the trier of fact from all the circumstances. Dillon v. 

State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978); Trejo v. State, 766 S.W.2d 
8

381, 385-86 (Tex. App.—Austin 1989). A jury can infer knowledge or intent 

from the acts, conduct, and remarks of the accused and from the 

surrounding circumstances. Menchaca v. State, 901 S.W.2d 640, 652 (Tex. 

App.—El Paso 1995); Sharpe v. State, 881 S.W.2d 487, 490 (Tex. App.—El 

Paso 1994).

ARGUMENT

The Tenth Court of Appeals did not err in holding that the evidence 

was legally sufficient as to the aggravating factor that Nowlin knew 

Degrate was charged, arrested for or convicted of a felony offense. 

The U.S. Marshals were out to arrest Degrate for the offense of Felon 

in Possession of a firearm. 4 RR 40. Petitioner “did not want her man to get 

arrested.” 4 RR 52. Petitioner knew Degrate had been arrested, was on a 

State bond, that he had a problem with his bond, and that he was supposed 

to turn himself in. 4 RR 52-53. She was Degrate’s companion and had his 

name tattooed on her chest. State’s Ex. 3. She knew something that caused 

her to yell at Degrate to run as soon as she recognized the U.S. Marshals’ 

vehicles. 4 RR 27, 28, 52-53. Petitioner attempted to flee from the area but 
9

was placed into custody herself. 4 RR 53. Additionally, she made efforts to 

escape her detention by opening the door and running away while still 

handcuffed. 4 RR 43. She admitted to warning Degrate that he was going to 

be apprehended. 4 RR 52-53.

The Tenth Court of Appeals relied on the relevant circumstances 

around the relationship between Nowlin and Degrate, the actions of 

Nowlin on the date of the offense and the admissions by Nowlin to Deputy 

Slavich in affirming the Trial Court’s decision to find Petitioner guilty of 

felony hindering apprehension. Nowlin v. State, 2014 Tex. App. LEXIS 5309, 

at 11 (Tex. App. Waco May 15 2014). Petitioner’s argument would have 

This Court ignore basic common sense. 

First, in order to find the evidence insufficient that Nowlin knew 

Degrate was charged with a felony, This Court would have to ignore the 

close intimate relationship between Nowlin and Degrate. The relationship 

between the individuals is a circumstance that is intertwined with the 

crime that Nowlin committed. The fact that she was in an intimate 

relationship with Degrate is evidence that she has knowledge of important 
10

or intimate details of Degrate’s life, including what crimes he has 

committed and what he is wanted for. Nowlin warned Degrate because she 

“didn’t want her man to get arrested.” 4 RR 52. This shows Nowlin’s 

knowledge of Degrate’s criminal activity and his status as being wanted for 

that criminal activity.

Second, This Court would have to ignore the fact that Nowlin knew 

Degrate was wanted on an outstanding bond issue and needed to turn 

himself in. The fact that she admitted to knowing about Degrate’s criminal 

charges that were pending and that she knew Degrate was going to be 

arrested is evidence that she was aware of his criminal conduct and was 

aware that he was wanted. Being that Nowlin was aware of Degrate’s 

criminal conduct; it was not unreasonable for the Trial Court to infer that 

she knew why he was wanted. These two facts alone are sufficient evidence 

for the Trial Court to reasonably infer that Nowlin knew of Degrate’s 

criminal exploits and knew he was wanted on a felony charge. 

In addition to the above facts, this court would also have to ignore 

Nowlin’s actions at the scene of the offense. As soon as she recognized the 
11

U.S. Marshal’s vehicles she warned Degrate and told him to run. 4 RR 52. 

She then fled herself before being apprehended. 4 RR 41. Once 

apprehended, she then fled the custody of Deputy Slavich while in 

handcuffs. 4 RR 43. Nowlin’s actions at the scene provide additional 

evidence for the Trial Court’s finding Petitioner guilty of a felony offense. 

The actions taken by Nowlin are evidence of her knowledge of the serious 

nature of the criminal conduct of Degrate. Opening herself up to criminal 

charges is a large risk. The Trial Court was reasonable to conclude that 

Nowlin took this risk because she knew the serious nature of the reason 

Degrate was wanted.

Lastly, this court would have to ignore the admissions made by 

Nowlin. Deputy Slavich testified that Nowlin stated, “she knew the 

Marshal’s vehicles by sight” and stated that “she didn’t want her man to 

get arrested.” 4 RR 52. The fact that Nowlin knew the Marshal’s vehicles by 

sight shows that she was familiar with law enforcement and actively 

learned what the vehicles from a specific law enforcement agency looked 

like in order to protect her intimate partner, Degrate, from getting arrested. 
12

The fact that she learned about The Marshals’ vehicles specifically is 

another fact that the Trial Court relied on in finding that Nowlin knew 

about Degrate’s criminal activity. The facts that she knew The Marshals 

were there and that they were going to arrest Degrate shows her familiarity

with the charges and criminal activity of Degrate. There was no evidence 

that Nowlin was wanted for any offense or on any warrant at the time of 

the offense. The only evidence was that she knew the vehicles on sight and 

she warned Degrate because “she didn’t want her man to get arrested.” It 

stands to reason that, first, she knew he was wanted because she knew the 

Marshals were there to arrest him and second, because of their relationship 

she knew why he was wanted. 

Petitioner also relies on the fact of the federal indictment as the only 

evidence of Degrate being sought for a felony. Pet. Br. 3. Petitioner’s sole 

reliance on the sealed indictment is misplaced. Petitioner fails to take into 

consideration the additional evidence discussed above that the trial court 

relied on in finding Petitioner guilty. Whether the indictment was sealed or 
13

not does not affect Nowlin’s relationship with and knowledge of Degrate’s

criminal activity, her actions or her admissions to The Marshals.

Because the evidence was legally sufficient for a rational factfinder to 

infer Petitioner’s knowledge of Degrate’s criminal offenses, the Tenth 

Court of Appeal’s decision should be affirmed.

Relief

Petitioner’s requested relief is incorrect under the facts of this case. If 

This Court finds that the evidence of Petitioner’s knowledge of Degrate 

being charged, arrested for or convicted of a felony is insufficient, This 

Court should reform the judgment to reflect a conviction for the lesser 

included offense of misdemeanor hindering apprehension. 

“After a court of appeals has found the evidence insufficient to 

support an appellant's conviction for a greater-inclusive 

offense, in deciding whether to reform the judgment to reflect a 

conviction for a lesser-included offense, that court must answer 

two questions: 1) in the course of convicting the appellant of the 

greater offense, must the jury have necessarily found every 
14

element necessary to convict the appellant for the lesserincluded offense; and 2) conducting an evidentiary sufficiency 

analysis as though the appellant had been convicted of the 

lesser-included offense at trial, is there sufficient evidence to 

support a conviction for that offense? If the answer to either of 

these questions is no, the court of appeals is not authorized to 

reform the judgment. But if the answers to both are yes, the 

court is authorized—indeed required—to avoid the "unjust" 

result of an outright acquittal by reforming the judgment to 

reflect a conviction for the lesser-included offense.”

Canida v. State, 434 S.W.3d 163, 166 (Tex. Crim. App. 2014) citing Thornton 

v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014).

The underlying elements of hindering apprehension were found to 

be sufficient by The Tenth Court of Appeals. Because only the aggravating 

factor of whether Petitioner knew Degrate was charged, arrested for or 

convicted of a felony is being challenged, all of the essential elements of 
15

misdemeanor hindering apprehension have necessarily been found by the 

factfinder.
16

Prayer

For the foregoing reasons, the State of Texas prays that this 

Honorable Court affirm the conviction and punishment of KEIONA 

DASHELLE NOWLIN and prays for such other and further relief as may 

be provided by law.

Respectfully Submitted:

ABELINO ‘ABEL’ REYNA

Criminal District Attorney

McLennan County, Texas

/s/Gabriel C. Price_____________

GABRIEL C. PRICE

Appellate Division

219 North 6th Street, Suite 200

Waco, Texas 76701

[Tel.] (254) 757-5084

[Fax] (254) 757-5021

[Email] 

gabe.price@co.mclennan.tx.us

State Bar No. 24068071

Certificate of Compliance

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 
17

applicable, because it contains 2,721 words, excluding any parts exempted 

by Tex. R. App. P. 9.4(i)(1).

Certificate of Service

I certify that I caused to be served a true and correct copy of this 

State’s Brief by eservice or email on Petitioner’s attorney of record and the 

State Prosecuting Attorney.

DATE: 1/29/2015 /s/Gabriel C. Price________________

GABRIEL C. PRICE