IN THE COURT OF APPEALS

THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

______________________________ 

NO. 03-14-00371-CR

______________________________ 

JIM JACK THOMPSON, Appellant

v.

THE STATE OF TEXAS, Appellee

______________________________ 

ON APPEAL FROM THE 26TH JUDICIAL DISTRICT COURT

OF WILLIAMSON COUNTY, TEXAS

CAUSE NUMBER 13-0520-K26

______________________________ 

BRIEF FOR APPELLANT

______________________________ 

ORAL ARGUMENT IS REQUESTED

RAY BASS, ATTORNEY

SBN 01884000

120 W. 8th Street

Georgetown, Texas 78626

Tel: 512-863-8788

Fax: 512-869-5090

Email:ray@raybass.com

 ATTORNEY FOR APPELLANT

ACCEPTED

03-14-00371-CR

4908209

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/15/2015 11:41:03 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/15/2015 11:41:03 PM JEFFREY D. KYLE Clerk
IDENTITY OF PARTIES AND COUNSEL

PARTIES TO THE TRIAL COURT’S JUDGMENT:

JIM JACK THOMPSON, III, Defendant

THE STATE OF TEXAS

TRIAL COUNSEL:

MS. LAUREN McLEOD SBN 24029584

MS. LYTZA ROJAS SBN 24046750

ASSISTANT DISTRICT ATTORNEYS

405 MARTIN LUTHER KING STREET

GEORGETOWN, TEXAS 78626

TEL. 512-943-1234

FAX: 512-943-1255

ATTORNEYS FOR THE STATE OF TEXAS

MR. WILLIAM HINES, III SBN 0969930

MR. R MARC RANC SBN 01786187

HINES, RANC,, & HOLUB, LLP

1112 ROCK STREET

GEORGETOWN, TEXAS 78626

TEL. 512-930-7500

FAX: 512-930-7537

ATTORNEYS FOR DEFENDANT

APPELLATE COUNSEL:

MR. RAY BASS, Attorney

SBN 01884000

120 W. 8TH STREET

GEORGETOWN, TEXAS 78626

TEL. 512-863-8788

FAX: 512-869-5090

ATTORNEY FOR DEFENDANT

MR. JOHN C. PREZAS, ASSISTANT DA

SBN 24041722

405 MARTIN LUTHER KING STREET

GEORGETOWN, TEXAS 78626

TEL. 512-943-1248

FAX: 512-943-1255

ATTORNEY FOR THE STATE OF TEXAS
TABLE OF CONTENTS

Page

INDEX OF AUTHORITIES i

STATEMENT OF THE CASE 1

STATEMENT OF FACTS 1

POINT OF ERROR 13

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT 

APPELLANT’S CONVICTION FOR BURGLARY OF A 

HABITATION (ROBBERY) AS ALLEGED IN PARAGRAPH 

TWO OF THE INDICTMENT. 

CONCLUSION AND PRAYER 23

CERTIFICATE OF COMPLIANCE 24

CERTIFICATE OF SERVICE 25
INDEX OF AUTHORITIES

PAGE

Case Law

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

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

(not designated for publication) 

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

(Tex. App. - Austin 2009)

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

(Tex. App.-Austin 2012) 

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

(Tex. App. – Dallas 1988)

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

(Tex. Crim. App. 1988)

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

(Tex. Crim. App. 2014)

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

(Tex. App. –Texarkana 2001)

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

(Tex. Crim. App. 2007)

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

(Tex. App. – Beaumont 2003)

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

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

(Tex. App.-Austin 2008)

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

(Tex. Crim. App. 1979)

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

(Tex.App.-Texarkana 2010).

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

(Tex. Crim. App. 2007)
Yates v. State, 624 S.W.2d 816 22

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

Statutes

Tex. Penal Code Ann. § 1.07(8) 19

Tex. Penal Code Ann. § 6.03(c) 21

Tex. Penal Code Ann. § 6.03(d) 21

Tex. Penal Code Ann. § 29.01(1) 17

Tex. Penal Code Ann. § 29.02(a)(1) 14

Tex. Penal Code Ann. § 30.02(a)(3) 14

Tex. Penal Code Ann. § 31.01(2)(A) 18

Tex. Penal Code Ann. § 31.01(4)(B) 18

Tex. Penal Code Ann. § 31.03(a) 17

Tex. Penal Code Ann. § 31.03(b) 18
1

STATEMENT OF THE CASE

Appellant was convicted by a jury of burglary 

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

jury subsequently found that appellant had 

previously been convicted of the felony offense of 

burglary of a habitation and assessed his 

punishment at 60 years confinement. By this appeal 

appellant presents one point of error contending 

that the evidence is insufficient to support 

appellant’s conviction for burglary of a habitation 

(Robbery) as alleged in paragraph two of the 

indictment.

STATEMENT OF FACTS

The Indictment

The one count indictment alleged, in paragraph 

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

“without the effective consent of Shannon Francis, 

the owner, intentionally or knowingly entered a 

habitation and committed or attempted to commit the 

felony offense of robbery1”.

 

1

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

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

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

the state waived paragraph I (RR, Vol. 11, p. 119). 
2

The State’s Case

On March 15, 2013, Melinda Cortez, assistant 

manager at the Payless Shoe Store on Palm Valley 

street in Round Rock, noticed appellant walk into 

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

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

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

customer at the cash register when, shortly after 

appellant entered the store, she heard the uniquely 

distinct shutting sound of the door that opens to 

the office store room and employees area at the 

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

herself and walked to the middle aisle of the store 

from which she could see the door leading to the 

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

appellant walking up the aisle and asked if he had 

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

first said “no” but ultimately admitted he had 

walked back into that area to look for a bathroom 

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

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

the contents thereof scattered on the floor (RR. 

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

register and asked the customer waiting there if 

she knew where appellant had gone (RR. Vol. 9, p. 
3

57). The customer said that appellant had just 

jumped into a truck parked right in front of the 

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

she saw appellant in the passenger seat of the 

truck and an elderly woman at the wheel starting to 

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

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

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

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

truck bed and sat down with his back to the cab 

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

of the truck and started running down the sidewalk 

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

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

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

61). Cortez watched as appellant ran into a nearby 

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

determined that her wallet had been taken from her 

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

On March 15, 2013, Shannon Francis left her job 

as an Assistant Williamson County Attorney to have 

lunch at her home at 1475 Rainbow Parke, in Round 

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

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

entered her home through the garage and immediately 

noticed appellant, who was wearing shorts but no 
4

shirt, sleeping face up on the floor of her bedroom 

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

first walked into the bedroom appellant did not 

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

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

face towards her and started mumbling the names of

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

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

Francis noticed that one of her other purses was 

lying on the bed and that the contents of that 

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

At this point she realized that she was confined 

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

120). She started stepping backwards toward the 

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

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

120). Appellant, who was now following Francis, 

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

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

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

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

entered the garage and asked Francis for her keys. 

When she refused appellant grabbed her left arm2

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

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

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

 

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

it for several days”. (RR, Vol. 9, p. 125).
5

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

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

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

Francis responded “just through the force of the 

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

purse and dumped the contents onto the floor of the 

garage. He found the car keys, ran into the 

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

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

Francis to start the car and to give him the keys 

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

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

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

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

car, apparently trying to start it but he could not 

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

again screaming at Francis to start the car or give 

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

frightened by appellant’s escalating behavior, told 

him to push the button on the key housing to pop 

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

back to the car and Francis ran into the drive way 

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

Just as Francis ran into the driveway, Round 

Rock Police Officer Jerry Hallford was slowly 

driving his patrol car towards Francis’ house (RR. 
6

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

search of the suspect in the recent theft at the 

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

saw Francis in her driveway using both hands 

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

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

out of his vehicle, and started walking toward the 

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

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

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

173-174). Hallford commanded appellant to stop but 

he started running down the street. As the officer 

gave chase on foot, appellant crossed the street 

and ran between two houses into a fenced back yard 

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

appellant turned toward him and was taser dropped 

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

attempted to pull the taser prongs out of his body 

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

but he removed the taser prongs and took off 

running again, charging through a fence gate (RR. 

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

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

to knock down the fence in a third backyard 

appellant again turned toward officer Hallford who 

unsuccessfully attempted to tase him a third 

time(RR. Vol. 9, p. 182). Appellant jumped the 
7

fence and started running toward Red Bud street. 

Hallford jumped the fence and continued to pursue 

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

p. 183). Appellant jumped into the passenger side 

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

stepped out appellant drove off in the van at a 

high rate of speed almost hitting a patrol car that 

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

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

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

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

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

Round Rock police officer Logan Harper-Hill had 

been dispatched to the theft at the Payless Shoe 

Store and was patrolling a nearby neighborhood 

looking for the suspect when he heard officer 

Hallford’s call for help in apprehending someone in 

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

activated his overhead lights and headed to Wal 

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

parking lot he saw a maroon van that was headed 

towards him, but the van hit a tree then headed 

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

officer followed as appellant ran through a red 

light, made a sharp left turn onto Woodlawn Street, 

drove across several yards, and drove into a ditch 
8

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

van and started running until he jumped a chain 

link fence and encountered two big dogs in the yard 

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

apprehended by officer Harper-Hill and handcuffed 

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

being apprehended appellant said he “made a 

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

Vol. 9, p. 230).

On March 22, 2013, Round Rock Detective Bernie 

Villegas obtained from Shannon Francis a black TShirt she had found on the floor of her closet. 

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

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

Vol. 10, p. 56).

A latent fingerprint lifted by officer Kerie 

Cress from a locker in the Payless Shoe Store 

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

33), was identified by DPS latent print examiner, 

Meghan Blackburn, as being matched to a known 

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

The Defense

Jeremy Charske is the project manager and 
9

estimator for All American Electrical, a company 

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

business is located at the father’s home on 

Evergreen Street, just off of Red Bud in Round Rock 

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

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

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

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

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

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

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

that something was obviously wrong, Charske opened 

the back door and asked appellant if everything was 

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

answer but simply looked at Charske “with a blank 

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

appellant’s father and told him that something was 

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

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

appellant was gone and no one knew where he had 

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

Sage Thompson is appellant’s sister. On March 

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

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

was supposed to take appellant to Bluebonnet, a 

mental health facility in Round Rock, to get his 
10

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

asked why he takes the anti-depressants Sage said 

that when he is not taking the medication “he cries 

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

that morning appellant walked into the bathroom 

while Sage was brushing her teeth. She asked if he 

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

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

front door open and when she came out of the 

bathroom appellant was gone and she never saw him 

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

Robert Cantu is a medical doctor specializing 

in psychiatry. He is board certified in both 

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

45). He first evaluated appellant, at the request 

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

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

been on Effexor, an anti-depressant medication, for 

approximately six years but had run out of the 

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

After evaluating appellant Dr. Cantu continued him 

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

month later Cantu received a telephone call 

informing him that because of the expense appellant 

had decided to continue his treatment with MH-MR in 

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

In February 2014, appellant’s family again 

contacted Dr. Cantu to do a psychiatric evaluation 

and assess his mental condition at the time of the 

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

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

psychiatric records spanning a number of years, 

interviewing appellant and members of his family, 

and after reviewing the police reports of the 

March 15, 2013 incident, Dr. Cantu formed the 

opinion that appellant was suffering from a 

psychosis that was triggered by withdrawal from 

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

withdrawal triggered “a kind of hypomanic or 

agitated state with a lot of disorganization” and 

“persecutory delusions that someone was out to get 

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

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

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

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

taking off his shirt, being unable to figure out 

how to start an automobile, jumping into the cab of 

a truck and then jumping into the bed of the truck 

and laying down as if he was then invisible, were 

consistent with the delusions and disorganization 

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

59, 62). At the conclusion of the direct 
12

examination of Dr. Cantu, the following exchange 

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

Q. (By defense counsel): And based on 

your review of all the materials, did it 

seem like it was his intent or purpose to 

get away but not to cause anyone 

particular harm?

A: I think getting away was it. I 

mean, it was all about getting away.

Q: Okay. You talk at the end of your 

report, about that the cognitive initial 

capacity as a result of mental illness was 

impaired. Can you explain a little bit 

more just about exactly what that meant?

A; It’s a fancy way of saying he 

wasn’t thinking right and, because he 

wasn’t thinking right, he likely wasn’t 

able to make decisions or conform behavior 

in a way that we would normally think, 

that anybody would normally think that he 

would normally think because of – because 

of that sort of – that thought 

disorganization.
13

Dr. Cantu also testified that in his opinion 

appellant did not intentionally, knowingly, or 

recklessly cause bodily injury to Shannon Francis 

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

POINT OF ERROR

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT 

APPELLANT’S CONVICTION FOR BURGLARY OF A HABITATION 

(ROBBERY) AS ALLEGED IN PARAGRAPH TWO OF THE 

INDICTMENT. 

Argument & Authorities

The standard of review for determining 

whether evidence presented at a criminal trial is 

legally sufficient to prove the offense charged is 

whether, considering all of the evidence in the 

light most favorable to the finding of guilt, a 

rationale fact finder could have found that every 

element of the offense was proven beyond a 

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

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

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

(Tex. App. - Austin 2009).
14

Elements: Burglary of a Habitation (Robbery)

The offense of Burglary of a Habitation 

(Robbery) is committed when the actor intentionally 

or knowingly enters a habitation without the 

effective consent of the owner and commits or 

attempts to commit the offense of robbery. See, 

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

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

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

A person commits robbery if, in the course of 

committing theft as defined in Chapter 31 of the 

penal code, and with intent to obtain or maintain 

control of the property, the person intentionally, 

knowingly, or recklessly causes bodily injury to 

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

Thus, to find the evidence legally sufficient 

to support the appellant’s conviction for Burglary 

of a Habitation (Robbery), this Court, after 

considering all of the evidence in the light most 

favorable to the verdict, must conclude that a 

rationale jury could have found beyond a reasonable 

doubt that appellant (1) intentionally or knowingly 

made a non-consensual entry into the home of 

Shannon Francis, and (2) thereafter while in the 
15

course of committing theft (3) intentionally, 

knowingly, or recklessly caused bodily injury to 

Shannon Francis, (4) with intent to obtain or 

maintain control of the property.

No Rationale Jury Could Have Found Beyond A 

Reasonable Doubt That Appellant Intentionally Or 

Knowingly Made a Non-Consensual Entry Into The Home 

Of Shannon Francis.

The issue here is not whether appellant had 

permission to enter Shannon Francis’ home. Clearly, 

she gave no such permission, and no rational person 

would believe that anyone else gave appellant 

permission to enter the home. The issue is whether, 

considering all the evidence in thie case, 

including the uncontradicted testimony of Dr. 

Robert Cantu, a rational jury could have found, 

beyond a reasonable doubt, that appellant knew he 

did not have permission to enter the home. 

Dr. Robert Cantu, a board certified 

psychiatrist, had treated appellant in the past and 

was intimately familiar with appellant’s medical 

and psychiatric history. He testified that 

appellant had been on Effexor, an anti-depressant 

medication, for at least 6 years. After reviewing 

the police reports, appellant’s extensive medical 
16

and psychiatric history, and after interviewing 

appellant and members of his family, Dr Cantu 

opined that on March 15, 2013, appellant was 

suffering from a psychosis triggered by withdrawal 

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

odd behaviors, as characterized by witnesses to the 

incidents of March 15, and as outline in the 

statement of facts above, were consistent with the 

delusions and disorganization that accompany 

Effexor withdrawal. The state presented no expert 

testimony to contradict Dr. Cantu’s 

characterization of appellant’s mental condition on 

March 15, 2013.

Appellant told Francis that someone had 

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

Southwest. Although no rational person would 

believe that anyone gave appellant permission to 

enter in the house, it is not unreasonable to 

believe that appellant who, according to the 

uncontradicted testimony of Dr. Cantu, was 

suffering a psychosis characterized by delusions 

and disorganization, believed he had permission to 

enter the home. No one testified about the 

circumstances surrounding appellant’s entry into 

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

was no testimony or evidence of a forced entry by 
17

appellant, which would tend to suggest that he 

would have known he did not have permission to 

enter the house. Appellant was laying on the floor 

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

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

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

In light of all the facts and circumstances 

shown by the evidence in this case, no rationale 

jury could have found beyond a reasonable doubt 

that appellant knew he did not have permission to 

enter the habitation owned by Shannon Francis.

No Rational Jury Could Have Found Beyond A 

Reasonable Doubt That Shannon Francis Was Injured 

While Appellant Was In The Course Of Committing 

Theft. 

"In the course of committing theft" means 

conduct that occurs in an attempt to commit theft, 

or during the commission of a theft, or in 

immediate flight after the commission of or attempt 

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

The offense of theft is committed when a 

person unlawfully appropriates property with intent 

to deprive the owner of the property. Tex. Penal 

Code Ann. § 31.03(a). “Appropriate" means to 
18

acquire or otherwise exercise control over property 

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

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

if it is without the owner's effective consent.

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

withhold property from the owner permanently or for 

so extended a period of time that a major portion 

of the value or enjoyment of the property is lost 

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

Bodily injury to Shannon Francis occurred 

while appellant was apparently attempting to 

exercise non consensual control over her purse. But 

no theft occurred unless it was appellant’s intent 

to withhold the purse from Francis permanently or 

for long enough to significantly destroy the value 

or Francis’ enjoyment of the property. The evidence 

simply will not justify a finding of such an intent 

beyond a reasonable doubt. Indeed, appellant left 

the purse on the garage floor next to Francis.

No Rational Jury Could Have Found Beyond A 

Reasonable Doubt That Appellant Intentionally, 

Knowingly, or Recklessly Caused Bodily Injury to 

Shannon Francis

"Bodily injury" means physical pain, illness, 

or any impairment of physical condition. Tex. Penal 
19

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

result oriented offense. Garfias v. State, 424 

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

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

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

The culpable mental state focuses on the result of, 

and not the nature of the defendant’s conduct. 

Thus, to find that appellant intentionally, 

knowingly, or recklessly caused bodily injury to 

Shannon Francis, the jury had to find beyond a 

reasonable doubt that it was his conscious 

objective or desire to cause physical pain to 

Francis, or that he knew his conduct was reasonably 

certain to cause physical pain to Shannon Francis, 

or that he was aware of but consciously disregarded 

a substantial and unjustifiable risk that his 

conduct would cause physical pain to Shannon 

Francis.

Bodily injury to Shannon Francis occurred

while appellant was attempting to exercise control 

over her purse. After appellant grabbed her left 

arm and attempted to grab the purse, a brief 

struggle ensued and Francis ended up on the garage 

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

She testified that she also had some pain to her 

left arm. There is no evidence that it was 
20

appellant’s conscious objective or desire to cause 

physical pain to Francis, or that he knew his 

spontaneous action was reasonably certain to cause 

her physical pain. Appellant made no verbal threats 

and no admissions of having such a culpable mental 

state. Merely grabbing Francis’ arm and reaching 

for her purse is not conduct that is likely to 

cause bodily injury. Although a struggle ensued, 

Francis offered no testimony or demonstration of 

the details of the struggle, which almost instantly 

resulted in Francis and her purse being on the 

garage floor. 

The issue is whether or not the evidence 

supports a finding that appellant recklessly caused 

physical pain to Francis. In this regard it is 

important to understand the difference between 

criminal recklessness and criminal negligence.

A person acts recklessly, or is reckless with 

respect to the result of his conduct when he is 

aware of but consciously disregards a substantial 

and unjustifiable risk that the result will occur.

The risk must be of such a nature and degree that 

its disregard constitutes a gross deviation from 

the standard of care that an ordinary person would 

exercise under all the circumstances as viewed from 
21

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

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

is criminally negligent, with respect to the result 

of his conduct when he ought to be aware of a 

substantial and unjustifiable risk that the result 

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

degree that the failure to perceive it constitutes 

a gross deviation from the standard of care that an 

ordinary person would exercise under all the 

circumstances as viewed from the actor's standpoint

Tex. Penal Code Ann. § 6.03(d).

Unlike criminal negligence, criminal 

recklessness requires the defendant to actually 

foresee the risk involved and to consciously decide 

to ignore it. Mere lack of foresight,

irresponsibility, thoughtlessness, stupidity, or

ordinary carelessness, however serious the 

consequences may happen to be, does not rise to the 

level of criminal recklessness. Williams v. State, 

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

Cases involving the discharge of a firearm 

provide, perhaps, the best example of what is 

required to prove a criminally reckless state of 

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

Crim. App. 1979)(shooting randomly at houses in one 
22

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

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

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

was killed when the gun accidentally discharged);

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

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

amusement only and without intent to kill, pointed 

a sawed off shotgun at her friend and, forgetting

that it was loaded, pulled the trigger, shooting 

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

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

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

his girlfriend were sitting in the truck he started

playing with the pistol by spinning it on his index 

finger. The pistol discharged and killed his 

girlfriend). In these kinds of cases “It defies 

reason to question that any person would not be 

cognizant of a substantial and unjustifiable risk 

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

E.U.M., supra at 371.

Because Shannon Francis received minor 

injuries as a result of a very brief “struggle” 

precipitated by appellant’s attempt to take her 

purse, It might be argued that this case is 

analogous to cases where injuries to a police 

officer resulted from a struggle with a person 
23

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

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

designated for publication); Gumpert v. State, 49 

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

those cases the defendants’ conduct amounted to 

more than precipitating the struggle. During the 

course of the struggle the defendant, while 

resisting police efforts to detain or arrest him, 

started intentionally “flailing his arms” around, 

or kicking, in a manner that unquestionably created 

a substantial and unjustifiable risk of causing 

bodily injury, and in circumstances that any 

person would be cognizant of such a risk. 

Although the evidence is sufficient to prove 

that appellant negligently caused bodily injury to 

Shannon Francis, it is legally insufficient to 

prove that he intentionally, knowingly, or 

recklessly caused bodily injury to Shannon Francis.

CONCLUSION AND PRAYER

Because the evidence is legally insufficient to 

prove that appellant intentionally or knowingly 

entered a habitation owned by Shannon Francis and 

committed or attempted to commit the felony offense 
24

of robbery, appellant prays that his conviction for 

that offense be set aside and the case remanded to 

the trial court with instructions to enter a 

judgment of acquittal for that offense.

RESPECTFULLY SUBMITTED

/S/ Ray Bass

________________________

RAY BASS, ATTORNEY

SBN 01884000

120 WEST 8TH STREET

GEORGETOWN, TEXAS 78626

TEL: 512-863-8788

FAX: 512-869-5090

Email: ray@raybass.com

CERTIFICATE OF COMPLIANCE

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

PROCEDURE, the undersigned attorney of record for appellant 

certifies that Appellant’s Brief, with the exception of 

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

15,000 words.

/S/ Ray Bass

_____________________

RAY BASS, ATTORNEY
25

CERTIFICATE OF SERVICE

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

delivered to JOHN C. PREZAS, ASSISTANT DISTRICT ATTORNEY 

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

Street, Georgetown, Texas, 78626, by email to

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

a copy of same in the United States Mail.

/S/ Ray Bass

_____________________

RAY BASS, ATTORNEY