COURT OF APPEALS

13th SUPREME JUDICIAL DISTRICT OF TEXAS

CORPUS CHRISTI, TEXAS

CASE NO. 13-14-00709-CR 

Tr.Ct.No. 13-CR-2682-D(S1)

_______________________________________________________

JUAN MEDINA APPELLANT

VS.

THE STATE OF TEXAS APPELLEE

_______________________________________________________

Appealed from the 105th Judicial District Court

Nueces County, Texas

_______________________________________________________

APPELLANT'S BRIEF 

_______________________________________________________

RANDALL E. PRETZER, PLLC

State Bar No. 16279300

P.O. Box 18993

Corpus Christi, Texas 78480

BUS: (361) 883-0499

FAX: (361) 883-2290

E-Mail: RPretzer@Clearwire.net

ATTORNEY FOR APPELLANT

ACCEPTED

13-14-00709-CR

THIRTEENTH COURT OF APPEAL

CORPUS CHRISTI, TEXAS

4/14/2015 9:59:45 PM

DORIAN RAMIREZ

CLERK

 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 4/14/2015 9:59:45 PM DORIAN E. RAMIREZ Clerk
i

IDENTITY OF PARTIES AND COUNSEL

JUDGE PRESIDING

THE HONORABLE ANGELICA HERNANDEZ

105H JUDICIAL DISTRICT COURT 

901 LEOPARD STREET

CORPUS CHRISTI, TEXAS 78401

COUNSEL FOR THE STATE

MS. MICHELLE PUTMAN

ASSISTANT DISTRICT ATTORNEY

901 LEOPARD STREET

CORPUS CHRISTI, TEXAS 78401

APPELLANT

MR. JUAN MEDINA

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

APPELLANT'S COUNSEL

MR. RANDALL E. PRETZER, PLLC

ATTORNEY FOR APPELLANT

P.O. BOX 18993

CORPUS CHRISTI, TEXAS 78480
ii

TABLE OF CONTENTS

 

 Page

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . ii-iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . 1-3

STATEMENT OF FACTS . . . . . . . . . . . . . . . . 3-15

FIRST SUMMARY OF THE ARGUMENT . . . . . . . . . . 16

FIRST POINT OF ERROR . . . . . . . . . . . . . . . 16

FIRST POINT OF ERROR

THE EVIDENCE INTRODUCED AT TRIAL WAS FACTUALLY AND 

LEGALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION 

IN COUNT ONE (1) AGGRAVATED ASSAULT ON A PUBLIC 

SERVANT, IN COUNTS (2) AND (3) ASSAULT ON A PUBLIC 

SERVANT, ALL IN VIOLATION OF THE DUE PROCESS CLAUSE OF 

THE 5

TH AND 14TH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION.
iii

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . 16-22

SECOND SUMMARY OF THE ARGUMENT . . . . . . . . . 22

SECOND POINT OF ERROR . . . . . . . . . . . . . . 22-23

SECOND POINT OF ERROR

THE TRIAL COURT ERRED WHEN IT FAILED TO FIND, SUA

SPONTE, THAT THE POLICE OFFICERS UNLAWFULLY DISCHARGED 

THEIR OFFICIAL DUTIES AS PUBLIC SERVANTS, SUCH ERROR 

DEPRIVING APPELLANT OF BEING SENTENCED UNDER LESSER 

INCLUDED OFFENSES OF SIMPLE ASSAULT, ALL IN VIOLATION 

OF THE DUE PROCESS CLAUSE OF THE 5

TH AND 14TH AMENDMENTS 

TO THE UNITED STATES CONSTITUTION.

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . 23-27

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . 27-28

CERTIFICATE OF SERVICE . . . . . . . . . . . . . 28

CERTIFICATE OF COMPLIANCE, RULE 9.4(i), T.R.A.P. 28
iv

INDEX OF AUTHORITIES

Cases: Page

Hightower v. State, 389 S.W.2d 674 (Tex.Crim.

App.1965) . . . . . . . . . . . . . . . . . . . . 17 

Crocker v. State, 573 S.W.2d 190 (Tex.Crim.App.1978) 17

Moore v. State, 531 S.W.2d 140 (Tex.Crim.App.1978. 17

Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984) 17

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L. Ed.2d 560 (1979) . . . . . . . . . . . . . . . . 17

Girard v. State, 631 S.W.2d. 162, (Tex.Crim.App.

[Panel Op] 1982) . . . . . . . . . . . . . . . . . 17

Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1985). 18

Hall v. State, 158 S.W.3d, 470, 471 (Tex.Crim.App.).

2005) . . . . . . . . . . . . . . . . . . . . . . . 23
1

COURT OF APPEALS

13th SUPREME JUDICIAL DISTRICT OF TEXAS

CORPUS CHRISTI, TEXAS

CASE NO. 13-14-00709-CR

Tr.Ct.No. 13-CR-2682-C(S1)

_______________________________________________________

JUAN MEDINA APPELLANT

VS.

THE STATE OF TEXAS APPELLEE

_______________________________________________________

Appealed from the 105th Judicial District Court

Nueces County, Texas

_______________________________________________________

APPELLANT'S BRIEF

_______________________________________________________

TO THE HONORABLE 13th COURT OF APPEALS:

STATEMENT OF THE CASE

On July 1, 2014, the Appellant waived his right to a 

jury trial and proceeded to try his case before the judge 

alone. (RR, Vol. 2, page 12). On July 1, 2014 the 

Appellant pled NOT guilty to one count of Aggravated 

Assault on a Public Servant, a first decree felony
2

(Repeat Felony Offender, enhanced and punishable to no 

less than fifteen years and up to 99 years or life), and 

NOT guilty to two counts of Assault on a Public Servant, 

each a third decree felony (Repeat Felony Offender, 

enhanced and punishable as a second degree felony), under 

Cause No. 13-CR-2682-D(S1), entitled The State of Texas

v. Juan Medina. (RR, Vol. 3, pp. 14-17). Subsequently,

the state presented to the judge its evidence through 

testimony and exhibits. Appellant presented to the judge

his evidence through testimony. Thereafter, the state 

and Appellant rested. On July 9, 2014, after 

deliberation, the judge found Appellant of guilty of all 

counts under the indictment. (RR, Vol. 4, pp. 5-12). On 

September 3, 2014, the court again convened to hear 

evidence during the punishment phase of this trial. The 

state submitted to the court documentation of Appellant’s 

previous felony and misdemeanor convictions. Thereafter, 

the state rested and closed, and presented argument to 

the court regarding sentencing. The Appellant presented 

his evidence through witnesses’ testimony. Thereafter, 
3

Appellant rested and closed, and presented argument 

regarding sentencing. The court then sentenced Appellant

as follows: to fifteen (15) years in prison, under count 

one, for the offense of Aggravated Assault on a Public 

Servant; and, to three (3) years in prison, for each the 

remaining counts, two and three, for the offenses of 

Assault on a Public Servant. All sentences for each count 

would run concurrently. (RR, Vol. 4, pp. 5-34).

On October 2, 2014, Appellant filed a Motion for New 

Trial and Arrest of Judgment. (CR, Vol. 1, page 121). 

Appellant perfected his appeal by filing with the 

District Clerk of Nueces County, Texas, in writing his

Notice of Appeal, on November 26, 2014. (CR, Vol. 1, page 

140).

STATEMENT OF FACTS

Again, On July 1, 2014, the Appellant waived his 

right to a jury trial and proceeded to try his case before 

the judge alone. (RR, Vol. 2, pp. 12). On July 1, 2014

the Appellant pled NOT guilty to one count of Aggravated 

Assault on a Public Servant, a first decree felony 
4

(Repeat Felony Offender, enhanced and punishable to no 

less than fifteen years and up to 99 years or life), and 

NOT guilty to two counts of Assault on a Public Servant, 

each a third decree felony (Repeat Felony Offender, 

enhanced and punishable as a second degree felony), under 

Cause No. 13-CR-2682-D(S1), entitled The State of Texas

v. Juan Medina. 

Subsequently, the state presented to the court its 

evidence through testimony and exhibits. 

The first witness called by the state was Sergeant 

Edward A. Soliz, Corpus Christi Police Department (CCPD), 

who being sworn, testified as follows: that on or about

August 13, 2013, he answered a call regarding a 

disturbance at 2621 Elgin Street, Corpus Christi, Texas; 

that his partner, Sergeant Gilbert Casas, had already 

arrived at the scene of this disturbance and was talking 

with the complainant, Juan Medina, the father of 

Appellant; that the father informed the officers that 

Appellant had just been released from a psychiatric 

TRIAGE, that Appellant was trying to sell to his father 
5

some of his medication, and that the father wanted 

Appellant out of his house since he was in fear for his 

life; that the father escorted the officers into the 

house where they found Appellant sitting in a chair

(which was against the wall) in a small room about 20 by 

20 feet in area; that the father preceded the officers 

and sat down on a bed to the immediate right of where 

Appellant was sitting; that Sergeant Soliz then initiated 

a conversation with Appellant and informed him that his 

father wanted him to leave his home; that Appellant 

responded with some profanity directed at the officers 

and then began to argue with his father regarding the 

ownership of the medication; that at that time Sergeant 

Soliz believed that the father might be in danger of his 

person, so he asked Appellant to accompany the officers 

outside the home; that Sergeant Soliz then moved in 

between Appellant and his father and again asked him to 

accompany the officers outside the home so that they 

could talk about the situation; that Appellant, according 

to Sergeant Soliz, then responded, ”Don’t touch me, if 
6

you touch me I am going to kick your fucking ass”; that 

Sergeant Soliz asked him several more times to leave with 

the officers so they could talk about the situation; that 

Appellant continued to curse at the officers and refused

to leave; that Sergeant Soliz then informed Appellant 

that one of the officers would use the TASER if he did 

not cooperate; that from Sergeant Soliz’s testimony it 

appeared that the TASER failed; that Sergeant Soliz then 

grabbed Appellant’s left arm in an effort to remove

Appellant from the home; that Appellant stiffened his 

position in the chair (wherein he continued to sit); that

according to Sergeant Soliz, Appellant’s actions forced 

him to attempt to pull Appellant’s left arm behind his 

back; that Appellant struggled loose from Sergeant 

Soliz’s grip and elbowed him several times; that such 

action by Appellant’s elbow was painful; that during this 

“elbowing” Sergeant Soliz heard his partner, Sergeant 

Casa, ejaculate that Appellant had kicked him in the 

testicular area; that Sergeant Soliz then grabbed 

Appellant around his neck in an effort to subdue him; 
7

that Appellant slipped out of the neck-hold; that

Sergeant Soliz again grabbed Appellant’s left arm with 

both of his hands; that again Sergeant Soliz then lost 

his grip on Appellant and that was when his arm was pulled 

out of joint; that Sergeant Soliz heard the popping sound 

regarding an injury to his right shoulder joint; that he 

and Sergeant Casas then held Appellant down until backup police personnel arrive to assist in detaining and 

transporting Appellant to the Nueces County jail; that 

Sergeant Soliz was in his police officer’s uniform with 

his badge displayed when this incident began; that 

Sergeant Soliz as a result of this struggle had to undergo 

surgery for his shoulder which had resulted in some 

limitation of the movement of his right arm; that during 

cross-examination by Appellant’s counsel, Sergeant Soliz 

informed the court that there was no protocol that he 

knew regarding interacting and, if necessary, arresting 

a person with mental issues; that Appellant, while 

sitting in the chair, never made any aggressive moves

toward anyone in the 20 by 20 foot room; that Appellant 
8

did indeed put his hands behind his back while sitting 

in the chair; that under cross-examination, Appellant was

deemed under arrest when he began to struggle with the 

officers as they grabbed Appellant and warned him about 

the possible use of the TASER; that until that time 

Appellant, from the evidence, was just venting his anger 

and frustration to all in this small room in his father’s 

home; that Sergeant Soliz denied several times that he 

ever pulled his service pistol on Appellant; that 

Sergeant Soliz related that any injury he sustained 

incurred after Appellant was deemed arrested; that 

Appellant did not kick or pull his right arm out of joint; 

and, that such injury occurred when the officers were 

trying to lift Appellant out of the chair and take him 

outside to talk. (RR, Vol. 2, pp. 23-73).

The next witness called by the state was Mrs. Rea 

Strowbridge, physical therapist for Sergeant Soliz, who

being sworn, testified as follows: that in her opinion 

Sergeant Soliz suffered serious bodily injury; that 

though he suffered such serious bodily injury he was 
9

still able to work as a policeman despite there being 

was some limitation as to how high he could raise his 

arm; and, that such limited mobility could be alleviated 

by minor surgery to remove some bone tissue that would 

press on muscle tissue when his arm was raised to a 

certain height. (RR, Vol. 2, pp. 74-81).

The next witness called by the state was Sergeant 

Gilbert Casas (CCPD), who being sworn, testified as 

follows: that on the day of the incident he had arrived 

at the house where Appellant was living with his father; 

that Appellant’s father had informed him that Appellant 

had just left the psychiatric TRIAGE; that his partner, 

Sergeant Soliz also arrived at this residence about the 

same time; that Appellant’s father related to the 

officers that he and Appellant were in an argument about 

his not buying drugs from Appellant; that Sergeant Casa 

entered the home and went to the room where Appellant was 

sitting in a chair; that Appellant was angry, very 

agitated, and had made threats to beat on Sergeant Soliz; 

that he then decided that Appellant should be removed 
10

from the home and taken outside so that the officers

could talk to him; that since the threats continued, he 

and Sergeant Soliz decided to take Appellant into 

custody; that Sergeant Casas was on Appellant’s rightside and Sergeant Soliz was on his left-side; that 

Appellant then put his hands behind his back and crossed 

his legs; that a struggle ensued wherein Sergeant Soliz 

injured his right-shoulder and that he, Sergeant Casas,

was kicked in the groin; that both officers held him down 

until back-up police personnel arrived to assist them 

with the arrest and transport of Appellant to the Nueces 

County jail; that under cross-examination by Appellant’s 

counsel, Sergeant Casas related that it was after 

Appellant had kicked him in the groin that he attempted 

to deploy his TASER, but it failed; that his reason for

detaining Appellant in the first place was to deal with 

Appellant’s wanting to sell his medication and his 

father’s refusal to return Appellant’s medication to 

Appellant; and, that the detention devolved into an 
11

arrest when Appellant allegedly became combative and 

verbally abusive. (RR, Vol. 2, pp. 82-108).

Thereafter, the state called Senior Officer George 

Alvarez (CCPD), who being sworn, testified as follows: 

that on the day of the incident he came to the scene of 

the confrontation with Appellant as back-up for Sergeants 

Soliz and Casas; that during the struggle he managed to 

get Appellant in a head-lock so that he could be 

handcuffed; that he witnessed Appellant struggling with 

the other policemen, all of whom were yelling and 

struggling with each other; that Appellant did yell at 

Senior Officer Alvarez complaining that he was choking 

him; that Appellant was very strong; and, that shortly 

thereafter other officers arrived who placed Appellant 

in a police vehicle and transported him to the Nueces 

County jail. (RR, Vol. 2, pp. 109-123).

At that time the state rested.

Appellant called one witness, Robert Jonathan 

Medina, during the merits of the case, who being sworn,

testified as follows: that on that day, he was in the 
12

room where Appellant had the confrontation with the 

police officers; that he saw the two officers when they

first arrived and approached Appellant and his father, 

Juan Medina; that Appellant was sitting at all times in

the chair (which later evolved into a love seat); that 

he had left the room briefly and when he returned he 

noticed that the older policeman (Sergeant Edward Soliz) 

was very angry; that Appellant had not made any 

threatening movements towards the policemen; that 

suddenly the two policemen approached Appellant and began 

to struggle with him; that he saw Appellant put his arms 

behind his back and cross his legs; that he saw the same

older policeman (Sergeant Edward Soliz) pull his service

pistol and point it at Appellant’s abdomen; that the 

younger officer (Sergeant Gilbert Casas) then attempted 

to deploy his TASER, but it failed; that he then shouted 

at the police that the use of a gun was not necessary;

that the two officers then grabbed Appellant again and 

fell on him, all the while he was still on this love 

seat; that when the other officers arrived they subdued 
13

Appellant and removed him from the house; that when he 

was interviewed by the investigating officer for this 

case, he did indeed tell him about the older policeman 

(Sergeant Edward Soliz) pointing his service pistol at 

Appellant’s abdomen; that it was his opinion that there 

was no way that Appellant could have elbowed or kicked 

anyone due to his being pressed down onto this love seat; 

that furthermore there were too many policemen and there 

was too little wiggle room for Appellant to do much of 

anything; that during cross-examination by the state the 

witness was familiar with Appellant’s having just 

returned from the psychiatric TRIAGE; that it was his 

understanding that Appellant had problems with 

schizophrenia; that it appeared to him that Appellant was 

not feeling very well due to the medication which he had

received at the hospital; that he did recall Appellant 

using the “F-word” in the presence of the police; that 

he did not recall Appellant ever threatening to 

physically harm anyone; and, that even Appellant’s father 
14

became upset with the police for their overreacting to 

the Appellant’s demeanor. (RR, Vol. 2, pp. 142-177). 

Due to confliction testimony regarding the alleged 

us of Sergeant Soliz’s service pistol, the court 

requested that the state bring forth for examination the 

police officer who prepared the written offense report. 

The state related to the court that the officer who 

prepared this written offense report was Detective Ramiro 

Torres. Thereafter, Detective Torres was summoned to 

appear before the court.

Detective Torres, who being sworn testified as 

follows: that he prepared the written offense report in 

this particular case involving Appellant; that he 

interviewed several witnesses, including Robert Medina; 

that he recalled that Robert Medina did relate to him 

that the older officer (Sergeant Edward Soliz) had 

allegedly pulled his service pistol and pointed it at 

Appellant’s abdomen; that Detective Torres however did 

NOT include this statement from Robert Medina because he 

did not think that he was a CREDIBLE witness; that he
15

contended that his reasoning for not including Robert 

Medina’s observations regarding Sergeant Soliz’s drawing 

his service pistol was that none of the other witnesses 

he interview mentioned this pistol; that though the 

“recorded statement” contained Robert Medina’s pistol 

observations, it was not included in the narrative 

statement since such statement was more of a summary and 

NOT a detailed account of the incident; that he felt 

Robert Medina was “. . . not believable, in my opinion”

[RR, Vol. 2, page 183]; that during cross-examination by 

Appellant’s counsel, Detective Torres had a difficult 

time determining the credibility of Sergeants Soliz and 

Casas due to their inconsistent statements regarding the 

attempted use of the TASER, the possible inability of 

Appellant kicking Sergeant Casas in the groin or 

precipitating the injury to Sergeant Soliz’s shoulder. 

(RR, Vol. 2, pp. 179-202). 

The state rested and closed.

The defense rested and closed.
16

SUMMARY OF THE ARGUMENT

The state failed to offer sufficient evidence to 

support the court’s finding that Appellant had, beyond a 

reasonable doubt, committed any of the offenses set forth 

in counts 1, 2 and 3 of the indictment, all in violation 

of the 5th and 14th Amendments to the United States 

Constitution.

FIRST POINT OF ERROR

THE EVIDENCE INTRODUCED AT TRIAL WAS FACTUALLY AND 

LEGALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION 

IN COUNT ONE (1) AGGRAVATED ASSAULT ON A PUBLIC

SERVANT, IN COUNTS (2) AND (3) ASSAULT ON A PUBLIC

SERVANT, ALL IN VIOLATION OF THE DUE PROCESS CLAUSE OF 

THE 5

TH AND 14TH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION.

ARGUMENT AND AUTHORITIES

Appellant contends that the evidence introduced 

during the trial was insufficient to support his 

conviction under any of the counts in the indictment.
17

The courts have held that the state always has the

burden to prove beyond a reasonable doubt that the 

accused committed the criminal acts charged in the 

indictment, Hightower v. State, 389 S.W.2d 674 

(Tex.Crim.App.1965). Furthermore, the state being bound 

by its allegations in the indictment must prove them 

beyond a reasonable doubt. Crocker v. State, 573 S.W.2d 

190 (Tex.Crim.App.1978); Moore v. State, 531 S.W.2d 140 

(Tex.Crim.App.1978). The courts have held that in all 

criminal cases regarding points of error for insufficient 

evidence, the courts must examine the evidence in the 

light most favorable to the verdict and determine whether 

any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt. Houston 

v. State, 663 S.W.2d 455 (Tex Crim.App.1984); Jackson v. 

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

(1979); Girard v. State, 631 S.W.2d. 162, (Tex.Crim.App. 

[Panel Op] 1982). In addition, the courts have held that 

this test for the sufficiency of the evidence would be 

applied equally to direct and circumstantial evidence 
18

cases. Wilson v. State, 654 S.W.2d 465 

(Tex.Crim.App.1985).

In this particular case, this honorable Court of 

Appeals should note the following:

1. That Appellant, prior to his being contacted by 

the police officers, had just come home from a

hospital’s psychiatric TRIAGE;

2. That Appellant was on medication; 

3. That Appellant appeared to be very agitated;

4. That Appellant appeared to be very angry;

5. That Appellant, other than using bad language, had 

NOT made any aggressive moves toward the police or 

his father;

6. That Appellant was the VICTIM, to say the least,

of heavy-handed management/conduct by the police 

officers, who tried to use a TASER on Appellant and 

who according to Robert Medina, un-holstered and 

pointed a service pistol at Appellant’s abdomen;
19

7. That this pistol issue was FOR SOME REASON omitted 

from the detective’s investigation report, which 

could be seen as an effort by the authorities to 

cover-up unacceptable and unprofessional police 

conduct;

8. That Appellant appeared from the evidence to have 

been lodged in the chair (or love seat) during this 

confrontation with the police, with little ability 

to inflict any injury on anyone, until he was

finally removed from his father’s home and taken 

to the Nueces County jail;

9. That Appellant’s father had objected to the way 

the police dealt with Appellant;

10. That the police made little effort to diffuse this 

family argument, especially considering Appellant 

had just been released from a psychiatric TRIAGE;

11. That the police admitted that they had no protocol

or procedures to deal with Appellant who they knew 

had just returned from a psychiatric TRIAGE;
20

12. That the police never considered summoning EMS in 

an effort to deal with this Appellant who appeared 

still agitated, angry, on medication, and may not 

have been rational nor in control of his mental 

faculties;

13. That Sergeant Edward Soliz, as a senior police 

officer, clearly appeared to be unable to control

his own emotional response to Appellant’s bad 

language -- as if a seasoned officer had never 

heard such language before or experienced similar 

volatile incidents after over thirty-four years 

with CCPD; and,

14. That even the court expressed its reservations 

regarding the professionalism of the police 

officer’s conduct – using such language, or words 

to that effect, that the police officer’s conduct 

was heavy-handed, if not excessive. (RR, Vol. 4, 

pp. 57-62).
21

Accordingly, the state failed to meet its burden of 

proof and the court should have found at least that there 

was, as a matter of law and fact, insufficient evidence 

to prove the elements of the offense of aggravated 

assault on a public servant, and prove the elements of 

assault on a public servant, since Sergeant Soliz who 

appeared from the record to be ill-tempered, precipitated 

a simple detention of Appellant into a police officer’s

brawl with this Appellant who had just left a psychiatric 

TRIAGE. Furthermore, it is Appellant’s opinion that 

Sergeant Casas’ injuries did not constitute bodily 

injury, since he, according to the record, never sought 

medical attention for the alleged kick in his groin nor 

was there evidence that he was incapacitated from 

continuing duties a police officer; and, regarding 

Sergeant Soliz, his injury required minor surgery, and 

it was more likely that his age and extended service as 

policeman made an otherwise minor injury seem worse than 

it ever actually was. 
22

Your Honors, citizens should not be convicted by 

inconclusive and ambiguous evidence, which does not meet

the very high burden of proof as set forth by the time

tested phrases “beyond a reasonable doubt,” or “to a 

moral certainty.”

SUMARY OF THE SECOND ARGUMENT

The Appellant contends that the trial court should 

have found that Appellant was guilty of the lesser 

included offense of simple assault in each count, since 

the evidence at trial clearly demonstrated that the 

police had UNLAWFULLY discharged their official duties

as public officials

SECOND POINT OF ERROR

THE TRIAL COURT ERRED WHEN IT FAILED TO FIND, SUI 

SPONTE, THAT THE POLICE OFFICERS UNLAWFULLY DISCHARGED 

THEIR OFFICIAL DUTIES AS PUBLIC SERVANTS, SUCH ERROR 

DEPRIVING APPELLANT OF BEING SENTENCED UNDER LESSER 

INCLUDED OFFENSES OF SIMPLE ASSAULT, ALL IN VIOLATION 
23

OF THE DUE PROCESS CLAUSE OF THE 5

TH AND 14TH AMENDMENTS 

TO THE UNITED STATES CONSTITUTION.

ARGUMENT AND AUTHORITIES

Again, Appellant will repeat those factors 

previously set forth above, for this honorable Court of 

Appeals that would support the factual and legal

conclusion that the trial court could have and should 

have found, sui sponte, that the police officers

unlawfully discharged their duties as public officers 

[See, Hall v. State, 158 S.W. 3d 470, 471 (Tex.Crim.App. 

2005)]. This case contended that trial courts could

permit an instruction to the jury permitting those same 

jurors to find a defendant guilty of a lesser included 

offense if there was “some evidence” that the same 

defendant was guilty of such lesser included offense. In 

Hall the Court of Criminal Appeals found that the 

defendant had not offered evidence that the prison 

officer’s conduct was unlawful during his effort to 

restrain and subdue the Appellant in that case. However, 
24

in this particular case, it is Appellant’s position that 

the police officer’s conduct was excessive, heavy-handed 

and without justification, again considering all the 

following factors:

1. That Appellant, prior to his being contacted by 

the police officers, had just come home from a 

hospital’s psychiatric TRIAGE; 

2. That Appellant was on medication; 

3. That Appellant appeared to be very agitated;

4. That Appellant appeared to be very angry;

5. That Appellant, other than using bad language, 

had NOT made any aggressive moves toward the 

police or his father;

6. That Appellant was the VICTIM, to say the least, 

of heavy-handed management/conduct by the police 

officers, who tried to use a TASER on Appellant 

and who according to Robert Medina, un-holstered 

and pointed a service pistol at Appellant’s 

abdomen;
25

7. That this pistol issue was FOR SOME REASON omitted 

from the detective’s investigative report, which 

could be seen as an effort by the authorities to 

cover-up unacceptable and unprofessional police 

conduct;

8. That Appellant appeared from the evidence to have 

been lodged in the chair (or love seat) during 

this confrontation with the police with little 

ability to inflict any injury on anyone, until he 

was finally removed from his father’s home and 

taken to the Nueces County jail;

9. That Appellant’s father had objected to the way 

the police dealt with Appellant;

10. That the police made little effort to diffuse 

this family argument, especially considering 

Appellant had just been released from a 

psychiatric TRIAGE;

11. That the police admitted that they had no 

protocol or procedures to deal with Appellant who 
26

they knew had just returned from a psychiatric 

TRIAGE;

12. That the police never considered summoning EMS 

to attempt to deal with this Appellant who 

appeared still agitated, angry, on medication,

and may not have been rational nor in control of 

his mental faculties;

13. That Sergeant Edward Soliz, as a senior police 

officer, clearly appeared to be unable to control 

his own emotional response to Appellant’s bad 

language -- as if a seasoned officer had never 

heard such language before or experienced similar 

volatile incidents after over thirty-four years 

with CCPD; and,

14. That even the court expressed its reservations 

regarding the professionalism of the police 

officer’s conduct – using such language, or words 

to that effect, that the police officer’s conduct 

was heavy-handed, if not excessive. (RR, Vol. 4, 

pp. 57-62).
27

The Appellant did indeed at trial present evidence 

that clearly indicated that this simple detention turned 

into an unnecessary police brawl with Appellant who 

apparently had just been released from a psychiatric 

TRIAGE, who was not stable, who was under medication, and 

who should have been attended by EMS personnel and 

returned to the hospital for further treatment. 

PRAYER FOR RELIEF

For ALL the reasons stated above, Appellant 

respectfully requests that the honorable Court of Appeals 

reverse the trial court’s judgment, and render a finding 

that Appellant is NOT guilty of all counts as set forth

in the indictment; or, in the alternative, reverse the 

trial court’s judgment and render a judgment wherein 

Appellant is found guilty of the lesser included offense 

of simple assault in each count.

RESPECTFULLY SUBMITTED:

 /S/ Randall E. Pretzer 

 Randall E. Pretzer, PLLC 

 Attorney for Appellant
28

 State Bar No. 16279300

 P.O. Box 18993

 Corpus Christi, Texas 78480

 BUS: (361) 883-0499

 FAX: (361) 883-2290

 E-Mail: RPretzer@Clearwire.net

CERTIFICATE OF SERVICE

I certify that a true and correct copy of Appellant’s 

Brief was hand-delivered to the Nueces County District 

Attorney’s Office, ATTN: Appellant Division, 901 Leopard

Street, Corpus Christi, Texas 78401, on April 6, 2015.

 /S/ Randall E. Pretzer

Randall E. Pretzer, PLLC 

Attorney for Appellant

CERTIFICATE OF COMPLIANCE

UNDER RULE 9.4 (i), TRAP

Please be advised that in compliance with Texas Rule 

of Appellate Procedure 9.4(i)(3), as amended, I certify 

that the number of words in this brief, excluding those 

matters listed in Rule 94 (i)(1), is 4,202 as per the 

computer count.

/S/ Randall E. Pretzer

Randall E. Pretzer, PLLC 

Attorney for Appellant