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No. 03-14-00702-CR

IN THE COURT OF APPEALS 

FOR THE THIRD JUDICIAL DISTRICT OF 

TEXAS AT AUSTIN, TEXAS 

********

ANTONIOUS DESMOND BRINSON 

VS. 

THE STATE OF TEXAS 

********

ON APPEAL FROM THE 264th DISTRICT COURT 

OF BELL COUNTY, TEXAS 

Cause No. 72150 

******

STATE’S BRIEF

******

 HENRY GARZA 

 DISTRICT ATTORNEY 

 BOB D. ODOM 

 ASSISTANT DISTRICT ATTORNEY 

 P.O. Box 540 

 Belton, Tx 76513 

 (254) 933-5215 

 FAX (254) 933-5704 

 DistrictAttorney@co.bell.tx.us 

 SBA No. 15200000 

Oral Argument Not Requested 

ACCEPTED

03-14-00702-CR

4934719

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/17/2015 1:43:27 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/17/2015 1:43:27 PM JEFFREY D. KYLE Clerk
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TABLE OF CONTENTS

ITEM PAGE

Index of Authorities .............................................................................. 3

Statement Regarding Oral Argument .................................................. 4

Statement of the Case ........................................................................... 4

Statement of Facts ................................................................................. 5

Summary of State’s Argument ............................................................. 11

Argument and Authorities ................................................................... 11

Issue on Appeal .......................................................................... 11

WAS EVIDENCE SUFFICIENT TO PROVE BEYOND 

A REASONABLE DOUBT THAT THE APPELLANT 

ASSAULTED VICTIM AS ALLEGED IN THE 

INDICTMENT?

Standard of Review ................................................................... 11

Application and Analysis .......................................................... 12

Prayer ................................................................................................... 17

Certificate of Compliance with Rule 9 ............................................... 18

Certificate of Service ........................................................................... 18
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INDEX OF AUTHORITIES

CASES PAGE

Brooks v. State, 323 S.W.3d 893 ....................................................... 12 

(Tx. Cr. App. 2010)

Hacker v. State, 389 S.W.3d 860 ........................................................ 16

(Tx. Cr. App. 2013)

Isassi v. State, 330 S.W.3d 633 .......................................................... 12, 17

(Tx. Cr. App. 2010)

Jackson v. Virginia, 443 U.S. 307 (1979) .......................................... 11, 12

Murray v. State, __S.W.3d__, No. PD-1230-14 ................................... 16

(Tx. Cr. App. April 15, 2015)

Williams v. State, 235 S.W.3d 742 ................................................... 12

(Tx. Cr. App. 2007)
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STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

STATEMENT OF THE CASE

The Appellant, Antonious Desmond Brinson, was charged by 

indictment with the offense of assault with bodily injury on family 

member, having a prior conviction for assault with bodily injury on a 

family member. The indictment also included allegations in the second 

paragraph that the Appellant had been previously convicted of a felony 

offense for purposes of enhancement of sentence. (CR-4).

The Appellant was tried before a jury in the 264th District Court of 

Bell County, Texas, Judge Martha J. Trudo presiding. The jury found the 

Appellant guilty as charged in the indictment. (CR-85, 87; RR7-144).

Upon the Appellant’s election (CR-64), the same jury considered 

the issue of punishment. The jury found the enhancement allegation in 

the indictment to be true and assessed punishment at 13 years in the 

Texas Department of Criminal Justice Institutional Division and a fine of 

$1,000.00. (CR-86, 87; RR8-41). 

The Appellant gave timely notice of appeal (CR-91) and the trial 

court certified his right to do so. (CR-78).
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STATEMENT OF FACTS

The Appellant and the State entered into a stipulation, approved 

by the trial court, that the Appellant had been previously convicted of 

assault with bodily injury upon a family member as alleged in the 

indictment. (RR6-5, 6).

On the evening of October 10, 2013, the victim, Javonda Johnson, 

was at home with her 8 children. (RR6-63, 65). There had been a 

birthday party that day for one of the children and a number of toys had 

been left outside in the front yard, including a metal baseball bat. (RR6-

64). The Appellant was the father of two of her children and lived with 

them on a come and go basis and all of the children considered him their 

stepfather. (RR6-98, 99; RR7-9). 

That day both the Appellant and the victim had been drinking 

heavily (RR6-69, 110, 111; RR7-12, 13), they had argued, and the 

Appellant left. At about 8:00 p.m., the victim’s 13 year old daughter, M.J., 

heard a knock on the door. She looked out and saw the Appellant and 

three other men. (RR6-65, 66, 100). She asked for, and received, 

permission from her mother to open the door. (RR6-66, 67). 
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Javonda Johnson went outside to talk with the Appellant. (RR6-67, 

68). M.J. claimed at trial that her mother then picked up the baseball bat 

and swung at the Appellant, who caught it in his hand. (RR6-68, 69, 72). 

When she gave her handwritten statement to the police that night, 

however, M. J. stated that the Appellant had grabbed the bat, charged at 

her mother, and hit her with it. (RR6-76, 77). 

M.J. testified that both the Appellant and the victim fell to the 

ground and that he hit her in the face with the bat while she was 

attempting to get it away from him. (RR6-72). She stated that the 

Appellant had hit her mother in the head with the bat and that she saw 

him strike the blow. (RR6-74, 78). She said that the first time he hit her 

with the bat it was “on purpose” and he simply grabbed the bat and 

swung it at her mother. (RR6-94).

M.J. conceded that she had spoken with her mother a lot about the 

case (RR6-92) and that the Appellant had moved back in with the victim 

and her family after the incident. (RR7-93). 

M.J.’s older sister, T. J., heard the knock on the door and looked out 

to see the Appellant and three of his friends. (RR6-100). She heard the 

Appellant tell her mother to come outside so that he could ask her some 

questions. She also heard her mother say that she was not going to walk 
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out there because there was “a bunch of them and only one of her.” 

(RR6-102). 

T.J. left the room for a short time and when she returned she saw 

M.J. standing in the doorway and heard her mother yelling. T.J. got her 

younger siblings to sit down and then went to the doorway. (RR6-102, 

103). She saw the Appellant and her mother on the ground wrestling 

with the bat between them. She said that the bat hit her mother in the 

face and that the Appellant had the bat in his hands and her mother 

pushed it away. She said the Appellant hit her mother in the face with 

the bat. (RR6-104, 105). 

T.J. called 911 because she could see a visible knot on her 

mother’s forehead and she was bleeding. (RR6-105). See State’s Exhibit 

4. (RR9).

For the first time at trial, T.J. claimed that she saw her mother 

grab the bat first and stated that she believed that the Appellant then 

took it out of her hand. She said both were punching the other after 

they fell to the ground. (RR6-107, 108). 

T.J. wrote out a handwritten statement for the police minutes 

after the incident. In that statement she said that the Appellant was 

angry with the victim and that he attacked her with the metal baseball 
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bat. She did not say anything about her mother picking up the bat first. 

(RR6-113, 114, 130, 131). Like her sister, she had talked about the case 

with her mother. She also confirmed that the Appellant was living with 

them again about two weeks after the incident. (RR6-114, 115). 

T. J. never saw any injuries on the Appellant but did see the knot 

on her mother’s head. (RR6-132). She called 911 because the Appellant 

had attacked her mother. (RR6-134). 

Javonda Johnson testified that two of her nine children had been 

fathered by the Appellant and that he had stayed with her the night 

before the incident. She said that they had been drinking a lot of beer 

and arguing. (RR7-6, 8, 11, 12). That evening the Appellant had come to 

the door with three other men. She and the Appellant went outside and 

started arguing. (RR7-12, 13). He was upset about her going to other 

people’s houses and talking to “somebody”. He was probably angry 

because he thought she was cheating on him. (RR7-15). Javonda is 5’4” 

tall and weighs 140 pounds. The Appellant is 6’2” tall and weighs 215 

pounds. (RR7-16). 

At trial Javonda said that she picked up the bat and they were 

struggling over it and fell to the ground. She said that when she 

managed to get back up she had a knot on her head. She claimed that 
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she did not remember the Appellant swinging at her and they both had 

their hands on it during the struggle. (RR7-1&). 

She stated that she obviously was hit because she had a softball 

sized knot on her forehead. (RR7-19). She was pregnant with the 

Appellant’s child at the time. (RR7-40). 

Javonda Johnson admitted that she had told the 911 operator that 

the Appellant had ordered her outside to confirm something he had 

heard about her and that he had picked up the bat and told her that if 

she was not truthful he would “kick her ass”. She told the operator that 

he then hit her on the head with the bat. (RR7-72). See 911 recording 

State’s Exhibit 7. (RR9). She also confirmed that she had told the first 

police officer on the scene that the Appellant had picked up the bat and 

hit her on the head with it. (RR7-24). In her handwritten statement she 

stated that the Appellant had accused her of something, put his hands 

on her and then hit her on the head with the bat. (RR7-24-26). 

Javonda also signed a release of obligation stating that she did not 

wish to pursue charges against the Appellant and included in that 

document that the Appellant had hit her on the head with the bat. (RR7-

27). State’s Exhibit 9 (RR9).
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She and the Appellant made up a couple of days later. (RR7-30). 

She then gave the Appellant’s attorney a non-prosecution statement

requesting that the case be dismissed. (RR7-34, 35, 43, 44). 

In her failure to cooperate with the prosecution of the Appellant, 

Javonda Johnson followed an established pattern. Her children had 

called 911 about ten days earlier when the Appellant had grabbed her 

around the neck during an argument. She declined to press charges. 

(RR7-20). Ms. Johnson was the victim in the case resulting in the 2012 

conviction for assault on a family member charged in the indictment 

and stipulated to by the Appellant. In that case, during an argument 

resulting from his accusations that she was cheating, he punched her 

and broke her nose. She attempted for decline to prosecute in that case 

as well. (RR7-61). In 2013 the Appellant had thrown a bowl, cutting her 

forehead, but again she declined to prosecute. (RR7-60).

Javonda said that she never wants to prosecute the Appellant. 

(RR7-64). She told Killeen Police Victim’s Assistance Officer Lisa 

Hatfield that they had children together and she did not want to see him 

go to prison. She testified during the punishment hearing in this case 

that she never wanted the trial and pled for leniency. (RR8-10, 13).
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SUMMARY OF STATE’S ARGUMENT

When all of the evidence is reviewed in the light most favorable to 

the verdict and deference is given to the jury’s rational inferences from 

that evidence and its exclusive right to determine the credibility and 

weight of the evidence and to resolve conflicts in the evidence, it cannot 

be said that a rational jury could not have found beyond a reasonable 

doubt that the Appellant committed the offense as alleged in the 

indictment.

ARGUMENT AND AUTHORITIES

Issue on Appeal

Was the evidence insufficient to prove beyond a reasonable doubt

that the Appellant assaulted the victim as alleged in the indictment?

Standard of Review

Due process of law requires that the State prove, beyond a 

reasonable doubt, every element of the offense charged in the 

indictment. Jackson v. Virginia, 443 U.S. 307, 313 (1979). In reviewing 

the sufficiency of the evidence to support the conviction the court must 

consider all of the evidence in the case in the light most favorable to the 

verdict in order to determine whether, based upon the evidence and 
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reasonable inferences therefrom, a rational trier of fact could have 

found the essential elements of the offense beyond a reasonable doubt. 

Brooks v. State, 323 S.W. 3d 893, 899 (Tx. Cr. App. 2010). 

In reviewing the evidence in the light most favorable to the 

verdict, the court must presume that the trier of fact resolved conflicts 

in the testimony, weighed the evidence, and drew reasonable inferences 

from that evidence in a manner that supports the verdict. Jackson at 

318. The court must consider only whether the fact finder reached a 

rational decision. Isassi v. State, 330 S.W.3d 633, 638 (Tx. Cr. App. 2010).

The weight and credibility of the evidence is solely for the fact 

finder and the court will not re-evaluate those matters nor substitute its 

judgment for that of the fact finder. Isassi at 638; Williams v. State, 235 

S.W.3d 742, 750 (Tx. Cr. App. 2007). 

Application and Analysis

In this case the pertinent part of the indictment alleged that the 

Appellant did “....intentionally, knowingly, or recklessly cause bodily 

injury to Javonda Johnson...by hitting and pushing and striking the said 

Javonda Johnson with the hands and fists of the defendant and by hitting 

and striking the said Javonda Johnson in the head and face with a metal 
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baseball bat....”. (CR-4). Those elements were set out in the trial court’s 

charge as well. (CR-69).

The Appellant contends that the evidence was insufficient to 

prove that he intentionally, knowingly, or recklessly caused bodily 

injury to Ms. Johnson by hitting her with his fists or a metal bat. 

(Appellant’s Brief at 3). In so arguing he relies upon one side of the 

conflicting testimony in the case, while totally ignoring the other side. 

This disregards the exclusive right of the jury to determine the 

credibility and weight of the evidence was well as the presumption that 

the jury resolved conflicts in the evidence in favor of its verdict of guilty.

Clearly, credibility became a major issue in the case. Javonda 

Johnson had a long history of covering for the Appellant after he had 

assaulted her and her testimony at trial was sometimes in conflict with 

what she had related to the 911 operator, the police officers, and the 

victim coordinator. She admittedly told these witnesses that the 

Appellant made accusations against her and had picked up the baseball 

bat and charged at her swinging it and striking her in the face. Her 

daughter, M.J., said that she saw the Appellant swing the bat and strike 

her mother in the face. Javonda Johnson had a knot on her head the size 

of a softball. 
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The victim’s statements at the time of the offense, as well as those 

of her daughters, were completely consistent with the Appellant having 

attacked her in anger with the baseball bat and having struck her in the 

face. 

It was only at trial that Ms. Johnson and her daughters suddenly 

claimed that she had picked up the bat and that she had been hit is some 

undefined way after she and the Appellant had fallen to the ground to 

struggle over the bat. Even then, however, M.J. still stated that the 

Appellant clearly hit her mother with the bat “on purpose” and that he 

had grabbed the bat and swung it at her. (RR6-94). 

The jury heard that Javonda Johnson was completely opposed to 

prosecuting the Appellant and signed a request to that effect even while 

stating that he had attacked her with the bat. It also heard the she had 

offered a non-prosecution statement to try to persuade the State not to 

pursue the case. She and the Appellant had reconciled a couple of days 

after the assault and moved back in together. M.J. and T.J. had lived in 

the house with both their mother and the Appellant. Their mother had 

talked to them about the case. Their testimony had changed by the time 

of trial. 
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Furthermore, the Appellant had physically assaulted Javonda 

Johnson three times before and each time she had attempted to drop the 

charges to protect the father of two of her nine children and had been 

successful twice. 

The new version of the offense by the time of trial obviously

created a conflict in the evidence, as to who first picked up the bat and 

whether or not the victim was attacked directly by the Appellant with

the bat or was injured by the Appellant with the bat during a struggle. 

Nevertheless, there was evidence before the jury that the Appellant had 

started an argument with the victim, ordered her to come outside, 

picked up a metal baseball bat, and hit her in the face with it. 

It must be presumed that the jury weighed the credibility of all of 

this evidence and then resolved the conflicts in the way that support the 

verdict of guilty. It also must be presumed that the jury drew all of the 

rational inferences from that evidence necessary to support its verdict. 

When all of the evidence is considered there was sufficient evidence for 

a rational jury to find beyond a reasonable doubt that the Appellant 

intentionally, knowingly, or recklessly caused bodily injury to Javonda 

Johnson by striking her with his hands or a metal baseball bat. 
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The Appellant simply relies upon that part of the evidence in 

which the victim and her daughters sought to protect him, while 

ignoring all of the rest of the evidence supporting the verdict. However, 

the appellate courts are not permitted to use such a “divide and 

conquer” strategy in evaluating the sufficiency of evidence. Instead the 

court must consider the cumulative force of all of the evidence and 

where the record supports conflicting inferences, must presume that 

the jury resolved those conflicts in favor of the verdict, and then must 

defer to that determination. Murray v. State, __S.W.3d__. No. PD-1230-14 

(Tx. Cr. App. April 15, 2015), citing Hacker v. State, 389 S.W.3d 860, 873 

(Tx. Cr. App. 2013). 

In this case there was evidence that the Appellant picked up the 

baseball bat and struck Ms. Johnson in the face “on purpose” from which 

the jury could reasonably find that he struck her with the bat 

intentionally, knowingly, or recklessly. The Appellant does not contend

that she did not suffer bodily injury from that blow or challenge the 

proof of the relationship between them as alleged in the indictment. 

The fact that there is conflicting testimony that the blow may have been 

somehow struck during the course of a struggle for the bat and that the 

victim first picked it up does not mean that the jury could not have 
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rationally and reasonably inferred that the blow was struck with the 

requisite culpable mental state. The jury weighed the credibility of the 

evidence and reconciled the conflicts in the evidence and presumably 

did so in favor of the verdict it rendered. That determination must be 

given great deference. The role of the appellate court is restricted to 

guarding against the rare occurrence when a fact finder does not act 

rationally in its determination. Isassi at 638. This is not such an 

occurrence. 

PRAYER

The State of Texas respectfully prays that the judgment of 

conviction herein be, in all things, be affirmed.

Respectfully Submitted,

HENRY GARZA

District Attorney

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney

P.O. Box 540

Belton, Tx 76513

(254) 933-5215

FAX (254) 933-5704

DistrictAttorney@co.bell.tx.us

SBA No. 15200000
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CERTIFICATE OF COMPLIANCE WITH RULE 9

This is to certify that the State’s Brief is in compliance with Rule 9 

of the Texas Rules of Appellate Procedure and that portion which must be 

included under Rule 9.4(i)(1) contains 2,736 words.

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this brief has been 

served upon, Tim Copeland, Counsel for Appellant, by electronic 

transfer via Email, addressed to him at ecopeland63@yahoo.com on this 

17th day of April, 2015.

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney