NO. 03-15-00106-CR

 

IN THE COURT OF APPEALS

FOR THE

THIRD SUPREME JUDICIAL DISTRICT

AT AUSTIN, TEXAS

BRITTANY NICOLE WHITE,

Appellant

vs.

THE STATE OF TEXAS,

Appellee

Appeal from the County Court at Law

Cause No. M30224

Burnet County, Texas

The Honorable W.R. Savage, Judge Presiding

APPELLANT'S BRIEF

Gary E. Prust

State Bar No. 24056166

1607 Nueces Street

Austin, Texas 78701

(512) 469-0092

Fax: (512) 469-9102

ATTORNEY FOR APPELLANT

ACCEPTED

03-15-00106-CR

4798409

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/7/2015 5:47:14 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/7/2015 5:47:14 PM JEFFREY D. KYLE Clerk
ii

IDENTITY OF THE PARTIES

APPELLANT:

Brittany Nicole White

9108 Laguna Woods Dr.

Austin, TX 78717

TRIAL COUNSEL FOR APPELLANT:

Revis Kanak

Burnet County Public Defender’s Office

1008 N. Water St.

Burnet, Texas 78611

APPELLATE COUNSEL FOR APPELLANT:

Gary E. Prust

Law Office of Gary E. Prust

1607 Nueces St.

Austin, TX 78701

TRIAL COUNSEL FOR APPELLEE:

Colleen Davis

Burnet County Attorney’s Office

220 S. Pierce St.

Burnet, TX 78611

APPELLATE COUNSEL FOR APPELLEE:

Colleen Davis

Burnet County Attorney’s Office

220 S. Pierce St.

Burnet, TX 78611
iii

TABLE OF CONTENTS

Identity of the Parties................................................................................................ ii

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

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

Statement of the Case ............................................................................................... 1

Statement Regarding Oral Argument ....................................................................... 2

Issues Presented ........................................................................................................ 3

The trial court erred when it denied Appellant’s motion for a directed 

verdict because the State failed to introduce evidence of each essential 

element of the offense.

The trial court erred in assessing attorney’s fees because an affidavit 

of indigence was filed and no finding was made that Appellant’s 

financial circumstances have materially changed.

Statement of the Facts............................................................................................... 4

Summary of the Argument ....................................................................................... 7

Argument .................................................................................................................. 8

Prayer...................................................................................................................... 14

Certificate of Service .............................................................................................. 15

Certificate of Compliance....................................................................................... 15
iv

TABLE OF AUTHORITIES

CASES

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ................................. 9, 10

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)........................................ 9

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1971)................................... 9, 10

Key v. State, 800 S.W.2d 229 (Tex. App. – Tyler 1990, pet. ref’d) ............. 9, 10, 11

King v. State, 

76 S.W.3d 659 (Tex.App. – Houston [14th Dist.] 2002, no pet.) .................. 9

Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) ...................................... 13

Mims v. State, 

434 S.W.3d 265 (TexApp. – Houston [1st Dist.] 2014, no pet.)........ 8, 10, 12

Rollerson v. State, 227 S.W.3d 718 (Tex. Crim. App. 2007)................................... 9

State v. Zoch, 

846 S.W.2d 588 (Tex. App. – Houston [1st Dist.] 1993, no pet.)................ 10

Wiley v. State, 410 S.W.3d 313 (Tex. Crim. App. 2013) ....................................... 13

STATUTES

TEX. PEN. CODE § 38.05(a) ....................................................................................... 8

TEX. PEN. CODE § 38.05(a)(1)......................................................................... 1, 9, 10

TEXAS CODE CRIM. PROC. art. 26.05(g)............................................................ 12, 13

CONSTITUTIONAL PROVISIONS

UNITED STATES CONST. Amend. XIV....................................................................... 9
1

STATEMENT OF THE CASE

Nature of the case: This is an appeal from a criminal conviction for 

hindering arrest of another by harboring or 

concealing them, in violation of § 38.05(a)(1) of 

the Texas Penal Code.

Course of the proceedings: Appellant was arrested October 21, 2013. RR Vol. 

I 7. The complaint and information were filed 

March 14, 2014. CR 4-5. A one-witness bench 

trial was conducted November 13, 2014. See RR 

Vol. I. The trial court found Appellant guilty of 

hindering apprehension. CR 12-14.

Trial court’s disposition: The trial court assessed punishment at five days’ 

confinement, $250 in fine, $247 in court costs, and 

$250 in court appointed attorney’s fees.
2

STATEMENT REGARDING ORAL ARGUMENT

Appellant does not request oral argument. Appellant submits the issue in this 

case is not complex, novel, or unique. Accordingly, Appellant believes the Court 

does not need oral argument of the parties to help guide the Court’s decision.
3

ISSUES PRESENTED

ISSUE I.

The trial court erred when it denied Appellant’s motion for a directed 

verdict because the State failed to introduce of each essential element of the 

offense.

ISSUE II.

The trial court erred in assessing attorney’s fees because an affidavit of 

indigence was filed and no finding was made that Appellant’s financial 

circumstances have materially changed.
4

STATEMENT OF FACTS

Appellant, Brittany Nicole White, was charged by information on March 14, 

2014 with the offense of harboring or concealing Cody Harper with the intent to 

hinder his arrest for the offense of “FTA-DWI”. CR 5. The criminal act is alleged 

to have occurred on October 21, 2013. Id. Appellant applied for court appointed 

counsel, which was granted. CR 7, 9; see also CR 10.1

The case proceeded to jury trial on November 14, 2014. See RR Vol. I. 

Officer James Cole with the Marble Falls Police Department was the only witness. 

Id. He testified that on October 21, 2013, he pulled over Appellant for an expired 

inspection sticker and an unconfirmed insurance when he did a license plate check. 

RR Vol. I 7-9. Counsel for Appellant objected to the stop and the introduction of 

any evidence obtained during the stop. Id. at 10-11. The court overruled the 

objection finding there was reasonable suspicion for the offense of driving with an 

invalid inspection sticker. Id. at 26. 

Officer Cole then testified Appellant pulled over quickly, without issue. Id. 

When the officer approached, Appellant was nervous, her hands and voice shaky. 

Id. The officer found this to be exaggerated nervousness. Id. at 27. She told the 

officer she had never been stopped before. Id. She then told the officer, in response 

 1 This form at page 10 of the clerk’s record is entitled “Waiver of Counsel” and contains a 

warning that the accused will not be responsible for attorney fees if the applicant prevails. But it 

also says the citizen accused will be obligated to repay costs for counsel in the event of a plea 

agreement or “verdict”. It does not specify whether it only applied to a guilty verdict or to both 

guilty and not guilty verdicts.
5

to questioning, the front passenger was a person named “Timothy Sanders”. Id. 

After that, the officer then began to speak with the passenger. 

The passenger asked the officer why he referred to him at “Mr. Sanders” and 

said his name was “Dallas Harper”. Id. at 27-28. The officer, however, knows a 

person with the name “Dallas Harper”, and the passenger did look like him. Id.

Officer Cole reasoned that because Appellant lied to him he asked to search 

her car, to which she consented. Id. at 29. He did not find anything illegal, but he 

did find an offender card belonging to “Cody Harper”. Id. This card had a picture 

which resembled the passenger. Id. Officer Cole then called dispatch to obtain a 

description of Cody Harper which matched the passenger at the scene. Id. Dispatch 

also added that Mr. Harper had a warrant in Burnet County. Id. 

Officer Cole then detained Mr. Harper who confessed to being Cody Harper. 

Id. at 30. He arrested the passenger then went back to arrest Appellant. Id. The 

officer further testified the “only” thing Appellant did was provide a false name for 

Mr. Harper.

Appellant requested a directed verdict after the close of the State’s case-inchief. Id. at 32-33. The State argued Appellant harbored or concealed Mr. Harper 

by lying. Id. at 33. Appellant argued Appellant did not conceal Mr. Harper because 

she did not physically hide him. Id. at 34-35. Specifically, Appellant argued the 

State charged the offense under subsection 1 of 38.05, Texas Penal Code and not 
6

under subsection 2. Id. at 34-36.

The trial court found the issue was whether Appellant’s actions constituted 

harboring Cody Harper. Id. at 36-37. The court went on to find Appellant 

concealed Mr. Harper by lying about his identity. Id. at 38. The trial court also 

found the “ .. commonsense definition of harboring someone is to have them in 

your control and then to misidentify him to a peace officer ...”. Id. at 39.

After finding guilt, the court assessed Appellant’s punishment at five days in 

the county jail, a $250 fine, and $247 in court costs. Id. at 41. The court also gave

Appellant five days credit for the time she served and appears to have run the fine 

and costs concurrent with the back time. Id. The court then assessed $250 in 

attorney’s fees.
7

SUMMARY OF THE ARGUMENT

ISSUE I.

The evidence in the case is not disputed. The directed verdict was denied in 

error. The State’s information charged Appellant intentionally or knowingly 

hindered the apprehension of Cody Harper “for the offense of FTA-DWI”. At no 

point did the State introduce evidence of the “FTA” or “DWI”. At no point did the 

State introduce evidence the warrant for Mr. Harper was for “an offense”. Because 

the State alleged Appellant intentionally or knowingly hindered Mr. Harper’s arrest 

for an offense, of which no evidence was introduced, the denial of the directed 

verdict was error.

ISSUE II

Finally, the court assessed attorney’s fees against Appellant for her court 

appointed counsel. Appellant completed an application for appointed counsel. 

There was no finding of any material change in her financial condition. 

Accordingly, it was error to assess attorney’s fees against her.
8

ARGUMENT

ISSUE I.

The trial court erred when it denied Appellant’s motion for a directed 

verdict because the State failed to introduce of each essential element of the 

offense.

Standard of Review

When reviewing the sufficiency of the evidence, the reviewing court will 

view all of the evidence in the light most favorable to the verdict to determine 

whether any rational trier of fact could have found the essential elements of the 

offense beyond a reasonable doubt. Mims v. State, 434 S.W.3d 265, 273 (Tex. App. 

– Houston [1st Dist.] 2014, no pet.).

Law Applicable

A person commits the offense of hindering apprehension if the person “with 

intent to hinder the arrest, prosecution, conviction, or punishment of another for an 

offense ...

(1) harbors of 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. Pen. Code § 38.05(a)(1)-(3). Whether the accused possessed the requisite 
9

intent must be established by circumstantial evidence. King v. State, 76 S.W.3d 

659, 661 (Tex.App. – Houston [14th Dist.] 2002, no pet.).

“ .. [L]ying to the police does not, ipso facto, satisfy the elements of Section 

38.05.” King v. State, 76 S.W.3d at 661. Under Tex. Pen. Code § 38.05(a)(1), the 

State is required to allege and prove a person was sought for an offense. Key v. 

State, 800 S.W.2d 229, 231 (Tex. App. – Tyler 1990, pet. ref’d); King, 76 S.W.3d 

at 662.

A criminal defendant turned appellant is permitted to raise an issue on 

appeal that a verdict is against the great weight of the evidence, as a constitutional 

due process complaint. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 

(1971); UNITED STATES CONST. Amend. XIV. For years, under Texas law, this type 

of appellant could raise both legal sufficiency and factual sufficiency complaints. 

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). Texas Appellate courts, 

however, recognized the Clewis factual sufficiency was barely distinguishable 

from the Jackson legal sufficiency. See, e.g., Rollerson v. State, 227 S.W.3d 718, 

724 (Tex. Crim. App. 2007). The Texas Court of Criminal Appeals, declared 

“there is ... no meaningful distinction between the Jackson v. Virginia legalsufficiency standard and the Clewis factual-sufficiency standard, and these two 

standards have become indistinguishable.” Brooks v. State, 323 S.W.3d 893, 902 

(Tex. Crim. App. 2010). The Court stated, “We ... decide that the Jackson v. 
10

Virginia legal-sufficiency standard is the only standard that a reviewing court 

should apply in determining whether the evidence is sufficient to support each 

element of a criminal offense that the State is required to prove beyond a 

reasonable doubt.” Id. at 895. That standard is characterized as, “Considering all of 

the evidence in the light most favorable to the verdict, was a jury rationally 

justified in finding guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 

at 319. 

A challenge to the trial court’s ruling on a request for a directed verdict is a 

challenge to the sufficiency of the evidence to support the conviction. Mims v. 

State, 424 S.W.3d 265, 273 (Tex. App. – Houston [1st Dist.] 2014, no pet.).

Argument

The State failed to introduce any testimony or evidence of an offense for 

which Cody Harper was avoiding detection. Because “an offense” is an essential 

element of § 38.05(a)(1), and no evidence was introduced, the verdict cannot be 

sustained by the evidence. See Key, 880 S.W.2d at 231; see also State v. Zoch, 846 

S.W.2d 588, 589 (Tex. App. – Houston [1st Dist.] 1993, no pet.).

The State failed in its burden because it only elicited testimony that a 

warrant was issued for Mr. Harper, and he had an “offender card”. When 

questioned, the sole witness testified that the description from dispatch of Cody 

Harper matched the individual at the scene, and they added a warrant was out for 
11

Mr. Harper. RR Vol. I 29. The officer then told both that Cody Harper had a 

warrant and if they lied to him, he would charge both. Id. at 30. No other evidence 

was introduced to establish the warrant was for an offense.

In Key v. State, Key was tried for harboring or concealing with the intent of 

hindering the arrest or prosecution of Mr. Collingsworth. 800 S.W.2d at 230. The 

facts in the case showed Collingsworth pleaded guilty and was placed on probation 

for an offense. Id. Further, the evidence showed a warrant issued for his arrest on a 

motion to revoke probation. Id. Because there was no “offense” for which 

Collingsworth was sought, the evidence to convict Key was insufficient, and the 

court ordered an acquittal. Id. at 231.

The reasoning in Key is similar to the case at bar. An “offense” is a 

necessary element. A warrant may be issued for any number of reasons, and are 

not exclusive to criminal offenses. Further, the State did not elicit testimony about 

what an offender card is. Some are for parolees, some for probation. The warrant 

referred to in evidence could have easily been for a parole or probation violation. 

But no such evidence is in the record. The State’s failure to introduce any scintilla 

of evidence the warrant was for “an offense” is a fatal flaw in its case-in-chief.

The trial court erred when it denied Appellant’s request for directed verdict. 

RR Vol. I 33. The complete absence of an essential elements from evidence after 

the State rests entitled Appellant to relief. In the alternative, the verdict is not 
12

supported by the evidence adduced at trial because of the complete failure by the 

State to introduce evidence Mr. Harper was sought for “an offense”. For no 

rational juror could find guilt where there is no evidence of an essential element.

Accordingly, Appellant requests this Honorable Court to render a judgment 

of acquittal.

ISSUE II.

The trial court erred in assessing attorney’s fees because an affidavit of 

indigence was filed and no finding was made that Appellant’s financial 

circumstances have materially changed.

Standard of Review

When reviewing the sufficiency of the evidence, the reviewing court will 

view all of the evidence in the light most favorable to the finding to determine 

whether any rational trier of fact could have found the essential elements. Mims v. 

State, 434 S.W.3d at 273.

Law Applicable

The Texas Code of Criminal Procedure art. 26.05(g) provides the trial court 

may order an indigent defendant to pay part or all of the costs of appointed counsel 

if the court determines the defendant has the financial resources to do so.

No objection need be raised at trial to an insufficiency argument on appeal 

and such error is not waived by the failure to do so. Mayer v. State, 309 S.W.3d 
13

552, 556 (Tex. Crim. App. 2010). Claims of financial resources and ability to pay 

in the context of Tex. Code. Crim. Proc. art. 26.05(g) following a judgment are 

claims of insufficient evidence. Id. 

Where an appellant does not complain about court appointed attorney’s fees 

in the direct appeal, she is procedurally defaulted from raising the claim in a later 

action. Wiley v. State, 410 S.W.3d 313, 321 (Tex. Crim. App. 2013).

Argument

Appellant was found indigent and received appointed counsel. CR 7-9. The 

record does not reflect any challenge to her indigent status. Additionally, there is 

no showing Appellant has the financial resources to offset in part or in whole the 

costs of legal service provided. Absent such finding, the trial court’s order 

directing Appellant to pay $250 in appointed attorney’s fees is in error. See Mayer 

v. State, 309 S.W.3d at 556. 

Accordingly, if the Court does not render acquittal as prayed for in Issue I, 

Appellant requests this Honorable Court remand this case to the trial court with an 

order directing the clerk of the court to delete the portion of the judgment and/or 

bill of costs ordering Appellant to pay $250 in attorney fees.
14

PRAYER

Appellant respectfully prays that this Honorable Court grant the relief 

requested in Issue I and find the verdict is not supported by the evidence adduced 

at trial. In the alternative, Appellant prays this Honorable Court order the omission 

of the ordered attorney’s fees for the reasons stated above. Appellant prays for any 

other relief to which she may be entitled in equity or at law.

Respectfully submitted,

/s/ Gary E. Prust

Gary E. Prust

State Bar No. 24056166

1607 Nueces St.

Austin, Texas 78701

(512)469-0092

Fax (512)469-9102

gary@prustlaw.com

Attorney for Brittany Nicole White
15

CERTIFICATE OF SERVICE

In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure, 

the undersigned attorney certifies that a true and correct copy of the foregoing 

Brief was served upon Ms. Colleen Davis Assistant Burnet County Attorney office 

via electronic transmission through efiletexas.gov on this 7th day of April, 2015.

 /s/ Gary Prust 

Gary E. Prust

CERTIFICATE OF COMPLIANCE

I hereby certify Appellant’s Brief contains 2195 words and is in compliance 

with TEX. R. APP. PROC. 9.4(2)(B).

/s/ Gary Prust

Gary E. Prust