PD-1350-15

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

DUSTIN RYAN RHOADES

V.

THE STATE OF TEXAS

An Appeal from Cause No. 07-13-00319-CR in the Court of Appeals for the Seventh 

District of Texas at Amarillo and Cause No. 65,540-D in the 320TH Judicial District 

Court in and for Potter County, Texas, Honorable Don Emerson

PETITION FOR DISCRETIONARY REVIEW

BY APPELLANT DUSTIN RYAN RHOADES

JAMES E. WOOLDRIDGE

ATTORNEY & COUNSELOR AT LAW

STATE BAR #24010492

600 S. Tyler Street

LB 12051

Amarillo, Texas 79101

(806) 418 8575

(806) 418 8576 FAX

j.e.wooldridge@att.net

ATTORNEY FOR APPELLANT 

Appellant Requests Oral Argument
IDENTITY OF PARTIES AND COUNSEL

APPELLANT: DUSTIN RYAN RHOADES

APPELLEE: STATE OF TEXAS

TRIAL JUDGE: HONORABLE DON R. EMERSON

 320TH JUDICIAL DISTRICT

 Potter County Courts Building

501 S. Fillmore Street

Suite 4B

 Amarillo, Texas 79101 

ATTORNEY FOR APPELLANT

TRIAL & APPELLATE COUNSEL: JAMES E. WOOLDRIDGE

 ATTORNEY & COUNSELOR AT LAW

 600 S. Tyler Street

Suite 1704

 LB 12051

Amarillo, Texas 79101

ATTORNEY FOR APPELLEE

TRIAL COUNSEL: THOMAS MCMILLIAN

 ASSISTANT DISTRICT ATTORNEY

 47TH Judicial District Attorney’s Office

 Potter County Courts Building

 501 S. Fillmore Street

 Suite 5A

Amarillo, Texas 79101

APPELLATE COUNSEL: JOHN L. OWEN

 ASSISTANT DISTRICT ATTORNEY

 47TH Judicial District Attorney’s Office

 Potter County Courts Building

 501 S. Fillmore Street

 Suite 5A

Amarillo, Texas 79101

i
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL i

TABLE OF CONTENTS ii

INDEX OF AUTHORITIES v

PETITION FOR REVIEW 1

STATEMENT OF THE CASE 2

STATEMENT OF PROCEDURAL HISTORY 3

STATEMENT OF JURISDICTION 4

ISSUES PRESENTED 5

STATEMENT OF FACTS 6

SUMMARY OF THE ARGUMENT 11

ARGUMENT 13

ISSUE NUMBER ONE: 13

The Court of Appeals for the Seventh District of Texas erred by its 

disregard of precedent in favor of reversion to an overruled precedent, 

so as to deny Appellant standing to assert his right to Due Process or 

his right to be free from unreasonable seizure as a result of the 

commission of a crime by law enforcement officers seeking to 

ascertain his identity. 

ARGUMENT AND AUTHORITIES 13 

FACTS RELEVANT TO APPELLANT’S ISSUE #1 13 

RELEVANT STATUTES 15 

STANDARD OF REVIEW 16

 FOURTH AMENDMENT & ARTICLE I, § 9 16 

 FIFTH AMENDMENT & ARTICLE I, § 19 17

APPLICATION 18

 Code of Criminal Procedure Article 38.23. 18

ii
STARE DECISIS 21

ISSUE NUMBER TWO: 24

The Court of Appeals for the Seventh District of Texas erred by its 

holding that an allegation of Murder based on Deadly Conduct 

committed while committing Deadly Conduct, or alternatively that 

Deadly Conduct standing alone, or alternatively that Deadly Conduct 

without a specified further dangerous act, is sufficient to deny 

quashment of an indictment paragraph so alleging. 

ARGUMENT AND AUTHORITIES 24 

THE OFFENDING PARAGRAPH 24 

ELEMENTS OF THE OFFENSE CHARGED 24 

STANDARD OF REVIEW 25 

APPLICATION 26

ISSUE NUMBER THREE: 29

The Court of Appeals for the Seventh District of Texas erred by its 

holding that any voluntary act shall suffice to imply voluntariness to 

the ultimate act alleged, such that an instruction on voluntariness shall 

not lie, no matter that evidence was adduced as to the involuntariness 

of shooting an individual from multiple sources of testimony. 

ARGUMENT AND AUTHORITIES 29

STANDARD OF REVIEW 29 

APPLICATION 30

ISSUE NUMBER FOUR: 34

The Court of Appeals for the Seventh District of Texas erred by its 

holding that the evidence in this matter was sufficient to sustain a 

conviction for Murder.

ARGUMENT AND AUTHORITIES 34 

iii
ELEMENTS OF THE OFFENSE CHARGED 34 

STANDARD OF REVIEW 35 

APPLICATION 37

PRAYER 41

CERTIFICATE OF SERVICE 42 

CERTIFICATE OF COMPLIANCE 42

APPENDIX A 43

 Opinion delivered by the Court of Appeals for the Seventh District 44

 of Texas

iv
INDEX OF AUTHORITIES

BOOKS

George E. Dix and Robert O. Dawson, Texas Practice: Criminal Practice 20

and Procedure §§ 4.11-4.35 (2d ed. 2001)

CASES

Adanandus v. State, 866 S.W.2d 210 (Tex.Crim.App.1993) 30,31,37,38

Alford v. State, 866 S.W.2d 619 (Tex.Crim.App.1993) 30,31,37,38

Baird v. State, 379 S.W.3d 353 (Tex.App.-Waco 2012) 22 

aff'd, 398 S.W.3d 220 (Tex.Crim.App. 2013)

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 36

Brown v. State, 605 S.W.2d 572 (Tex.Crim.App. 1980) 21 

Brown v. State, 955 S.W.2d 276, 280 (Tex.Crim.App.1997) 31,38

Brown v. State, 122 S.W.3d 794 (Tex.Crim.App.2003) 37

Charles v. State, 424 S.W.2d 909 (Tex.Crim.App.1968) 16,25,29,35

Durio v. State, 807 S.W.2d 876 (Tex.App.-Corpus Cristi 1991) 16

Ex parte McIver, 586 S.W.2d 851 (Tex.Crim.App.1979) 19

Farmer v. State, 411 S.W.3d 901 (Tex.Crim.App 2013) 32 

Garrett v. State, 573 S.W.2d 543 (Tex.Crim.App.1978) 26

Gearheart v. State, 197 S.W. 187 (Tex.Crim.App.1917) 22 

George v. State, 681 S.W.2d 43 (Tex.Crim.App.1984) 30

Hardy v. State, 963 S.W.2d 516 (Tex.Crim.App. 1997) 22 

Hartsfield v. State, 305 S.W.3d 859 (Tex.App.-Texarkana 2010, pet. ref'd) 36

Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995) 36

v
Higbie v. State, 780 S.W.2d 228 (Tex.Crim.App.1989) 16

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) 36,37

In re S.B., 117 S.W.3d 443 (Tex.App.-Fort Worth 2003, no pet.) 37

In re Winship 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) 17,26,30

Jackson v. Virginia, 443 U.S. 307 (1979) 36

Johnson v. State, 673 S.W.2d 190 (Tex.Crim.App.1984) 37

Laster v. State, 275 S.W.3d 512 (Tex.Crim.App. 2009) 37

Lawson v. State, 64 S.W.3d 396 (Tex.Crim.App.2001) 26

Lay v. State, 359 S.W.3d 291 (Tex.App.-Texarkana 2012, no pet.) 37

Lowry v. State, 692 S.W.2d 86 (Tex.Crim.App. 1985) 17,26,30

Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997) 36

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961) 15

Marin v. State, 891 S.W.2d 267 (Tex. Crim. App. 1994) 22 

Mattias v. State, 731 S.W.2d 936 (Tex.Crim.App.1982) 20

McGlothlin v. State, 896 S.W.2d 183 (Tex.Crim.App.1995) 21 

Miles v. State, 241 S.W.3d 28 (Tex.Crim.App.2007) 20

Payne v. State, 33 S.W.3d 374 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d) 32

Polk v. State, 738 S.W.2d 274 (Tex.Crim.App.1987) 16

Proctor v. State, 967 S.W.2d 840 (Tex.Crim.App.1998) 22 

Rogers v. State, 105 S.W.3d 630 (Tex.Crim.App.2003) 30,37

Shaw v. State, 243 S.W.3d 647 (Tex.Crim.App.2007) 31

Smith v. State, 542 S.W.2d 420 (Tex.Crim.App.1976) 16

State v. Aguirre, 5 S.W.3d 911 (Tex.App.-Houston [14th Dist.] 1999, no pet.) 21 

vi
Tippitt v. State, 41 S.W.3d 316 (Tex.App.-Fort Worth 2001, no pet.) 37

Trujillo v. State, 227 S.W.3d 164 (Tex.App.-Houston [1st Dist.] 2006, pet. ref’d) 30,37

Washington v. State, 417 S.W.3d 713 (Tex.Crim.App.2010) 28

Wilson v. State, 311 S.W.3d 452 (Tex.Crim.App.2010) 19,20,21

Wolfe v. State, 178 S.W.2d 274 (Tex.Crim.App.1944) 21 

Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407 (1963). 15

Woodfox v. State, 742 S.W.2d 408 (Tex.Crim.App.1987) 31

CONSTITUTIONS

U.S. CONST. amend. IV 15

U.S. CONST. amend. V 16,25,29,35

U.S. CONST. amend. XIV 16,25,29,35

TEX. CONST. art. I, § 9 15

TEX. CONST. art. I, § 19 16,25,29,35

RULES

TEX. R. APP. P. 44.2 (a) 16,17,26,36

STATUTES

TEX. ALCOHOL & BEV. CODE ANN. § 106.02(a) 19

TEX. ALCOHOL & BEV. CODE ANN. § 106.05(b)(3) 19

TEX. CODE CRIM. PROC. ANN. art. 1.04 17,26,29,35

TEX.CODE CRIM. PROC. ANN. art. 2.13(a) 19

TEX.CODE CRIM. PROC. ANN. art. 37.09 27

TEX.CODE CRIM. PROC. ANN. art. 38.23(a) 15,17

TEX.CODE CRIM. PROC. ANN. art. 38.23(b) 17

vii
TEX. HEALTH & SAFETY CODE ANN. § 481.062 18

TEX. HEALTH & SAFETY CODE ANN. § 482.002(b)(1) 18

TEX. HEALTH & SAFETY CODE ANN. § 483.041(c)(5) 18

TEX. HEALTH & SAFETY CODE ANN. §§ 463.011 18

TEX. HEALTH & SAFETY CODE ANN. §§ 463.013 18

TEX. PENAL CODE ANN. § 2.01 36

TEX. PENAL CODE ANN. § 2.03(c) 31

TEX. PENAL CODE ANN. § 2.03(d) 31

TEX. PENAL CODE ANN. § 2.03(e) 31

TEX. PENAL CODE ANN. § 6.01(a) 34

TEX. PENAL CODE ANN. § 6.02(a) 34

TEX. PENAL CODE ANN. § 6.03(a) 34

TEX. PENAL CODE ANN. § 6.03(b) 25,34

TEX. PENAL CODE ANN. § 6.03(c) 25,35

TEX. PENAL CODE ANN. § 6.03(d) 35

TEX. PENAL CODE ANN. § 7.02(a)(2) 19

TEX. PENAL CODE ANN. § 7.02(a)(3) 19

TEX. PEN. CODE ANN. § 12.32 2

TEX. PEN. CODE ANN. § 12.42 2

TEX. PENAL CODE ANN. §§ 16.02(c)(2) 18

TEX. PENAL CODE ANN. §§ 16.02(c)(8)(C) 18

TEX. PENAL CODE ANN. § 16.03 (c)(3) 18

TEX. PENAL CODE ANN. § 16.04(e)(4) 18

viii
TEX. PENAL CODE ANN. § 16.05(c)(3) 18

TEX. PENAL CODE ANN. § 16.06(d)(2) 18

TEX. PENAL CODE ANN. § 19.02(b)(1) 2,34

TEX. PENAL CODE ANN. § 19.02(b)(3) 2,25,34

TEX. PENAL CODE ANN. § 19.04(a) 26,34

TEX. PENAL CODE ANN. § 19.05(a) 34

TEX. PENAL CODE ANN. § 22.05(a) 27

TEX. PENAL CODE ANN. § 22.05(c) 27

TEX. PENAL CODE ANN. § 30.05(c) 18

TEX. PENAL CODE ANN. § 31.11(b)(2) 18

TEX. PENAL CODE ANN. § 34.02(c) 18

TEX. PENAL CODE ANN. § 36.05(c) 18

TEX. PENAL CODE ANN. § 38.11(e) 18

TEX. PENAL CODE ANN. § 42.03(a) 18

TEX. PENAL CODE ANN. § 42.08(a) 18

TEX. PENAL CODE ANN. § 42.08(e) 18

TEX. PENAL CODE ANN. § 42.09(f) 18

TEX. PENAL CODE ANN. § 42.09(h)(B) 18 

TEX. PENAL CODE ANN. §43.01(3) 15

TEX. PENAL CODE ANN. §43.01(4) 15

TEX. PENAL CODE ANN. §43.01(5) 15

TEX. PENAL CODE ANN. §43.02(a)(1) 15

TEX. PENAL CODE ANN. §43.02(b) 15

ix
TEX. PENAL CODE ANN. §43.02(d) 19

TEX. PENAL CODE ANN. § 46.15(a) 18

TEX. PENAL CODE ANN. § 46.02 18

TEX. PENAL CODE ANN. § 46.03 18

TEX. PENAL CODE ANN. § 46.035(h-1) 18

TEX. PENAL CODE ANN. § 46.04(c) 18

TEX. PENAL CODE ANN. § 46.05(b) 18

TEX. PENAL CODE ANN. § 47.09(a)(3) 18

x
PD-1350-15

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

DUSTIN RYAN RHOADES

V.

THE STATE OF TEXAS

An Appeal from Cause No. 07-13-00319-CR in the Court of Appeals for the Seventh 

District of Texas at Amarillo and Cause No. 65,540-D in the 320TH Judicial District 

Court in and for Potter County, Texas, Honorable Don Emerson

PETITION FOR DISCRETIONARY REVIEW

BY APPELLANT DUSTIN RYAN RHOADES

TO THE COURT OF CRIMINAL APPEALS OF TEXAS, AND TO THE 

HONORABLE JUSTICES OF SAID COURT:

COMES NOW Appellant,Dustin Ryan Rhoades, and files this, his Petition for 

Discretionary Review, and requests that the Court of Criminal Appeals of Texas take the 

matters presented herein under review, and after deliberation reverse the judgment of 

the Court of Appeals for the Seventh District of Texas at Amarillo, and refer this cause 

back to the trial court in all things.

 Appellant believes that oral argument would assist this Court in explication and 

disposition of the issues presented in this petition. Therefore, Appellant requests oral 

argument.

1
STATEMENT OF THE CASE

 This is a Petition For Discretionary Review from a criminal appeal styled: Dustin 

Ryan Rhoades v. State of Texas, Cause Number 07-13-00319-CR in the Court of Appeals, 

Seventh District of Texas, which was itself a direct appeal of a criminal matter styled: 

State of Texas v. Dustin Ryan Rhoades, Cause Number 65,540-D, in the District Court of 

Potter County, Texas, 320TH Judicial District, the Honorable Don R. Emerson, presiding.

 A pre-trial hearing on Defendant’s Motion To Quash And Exception To The 

Substance Of The Indictment was held on the 3RD day of September, 2013. The Court 

denied said Motion To Suppress on the day of hearing and proceeded immediately to 

trial. A trial by jury was held on the 3RD and 4TH days of September, 2013, whereupon 

Appellant was found guilty of the First Degree Felony offense of Murder. TEX. PENAL

CODE ANN. 19.02(b)(1); TEX PENAL CODE ANN. 19.02(b)(3). The jury then assessed 

Appellant’s punishment at confinement for forty (40) years in the Texas Department of 

Criminal Justice, Institutional Division, on the 4TH day of September, 2012. TEX. PENAL

CODE ANN. 12.32; TEX. PENAL CODE ANN. 12.42 (Vernon 2010).

2
STATEMENT OF PROCEDURAL HISTORY

 The Court of Appeals for the Seventh Supreme Judicial District of Texas sitting at 

Amarillo affirmed the trial proceedings on the 15TH day of September, 2015, in a 

Memorandum Opinion from Chief Justice Brian Quinn and Justices James T. Campbell 

and Patrick Pirtle, authored by Justice James T. Campbell. No motion for rehearing was 

filed by the Appellant with the Court of Appeals.

 The Court of Criminal Appeals granted an extension to the filing of a Petition for 

Discretionary Review until the 16TH day of November, 2015.

3
STATEMENT OF JURISDICTION

 Jurisdiction resides with this Court in that a state appellate court, to wit, the 

Seventh Court of Appeals, has decided an important question in a way that holds 

differently from a prior decision of another court of appeals or of the Court of Criminal 

Appeals on a question of law material to a decision of the case, and in which it appears 

that an error of law has been committed by the Seventh Court of Appeals, and that error 

is of such importance to the jurisprudence of the State of Texas that it requires 

correction.

4
ISSUES PRESENTED

ISSUE NUMBER ONE

Are an appellant’s rights to Due Process and to be free from an unreasonable seizure 

violated by a court of appeals deliberate disregard of precedent of the Court of 

Criminal Appeals in favor of reversion to an earlier precedent overruled by the later 

precedent, such that law enforcement officers may be permitted with impunity to 

commit crimes in order to ascertain the identity of a suspect and then utilize 

information gained therefrom to secure a warrant for arrest and deny liberty thereby?

ISSUE NUMBER TWO 

Can an allegation that the commission of Deadly Conduct while in the course of 

committing Deadly Conduct raise an act beyond Manslaughter, to Murder, or 

alternatively, that Deadly Conduct standing alone, or alternatively, that an allegation 

of Deadly Conduct, without specification of a further act clearly dangerous to human 

life, is sufficient to maintain a charge of Murder? 

ISSUE NUMBER THREE 

May a single preliminary voluntary act that does not comprise the ultimate act 

criminalized, conflate into the culpable mental state and the ultimate criminalized 

act, such that an instruction on voluntariness should not be given even though the 

issue of voluntariness is raised by multiple accounts?

ISSUE NUMBER FOUR 

May a finder of fact infer absent evidence concerning mental culpability when all 

evidence adduced at trial is to the contrary?

5
STATEMENT OF FACTS

 On June 7TH, 2012, police responded to a report of a shooting at the Westminster 

Apartments in Amarillo, Texas, whereupon they discovered one Deans Anderson lying 

on the floor of his apartment with a fatal gunshot wound to the face. 

 Sergeant Jason Riddlespurger, a detective with the Amarillo Police Department 

Special Crimes Unit testified that he was assigned as the lead investigator on this 

suspected homicide. R.R. 3:44-45. From information taken from the decedent’s phone, 

Sergeant Riddlespurger identified a “Chocolate Cherry” as a person running an escorttype service that had been in contact with decedent shortly before decedent’s demise. 

R.R. 3:46-47. In order to determine the identity of “Chocolate Cherry,” an undercover 

operation was initiated that involved an undercover narcotics officer contacting 

“Chocolate Cherry” and setting up a pretend date, whereupon actually meeting, the 

subject was to be pulled aside and identified. The operation identified “Chocolate 

Cherry” as being in reality, Cree-Anna Shamell Dawn. R.R. 3:47-48. The operation, a 

prostitution sting, was under the planning of Lieutenant Bohannon, head of Special 

Crimes, in coordination with Lieutenant Leidtke, commander of the Narcotics Task 

Force. Pursuant thereto, Officer Morgan of the Task Force set up a date and met with 

Ms. Dawn. R.R. 3:49-50. The “sting” occurred at a now-defunct Amarillo restaurant 

called TGIF (Thank God It’s Friday) on June 11TH, 2012. R.R. 3:83. As part of the sting, 

Officer Morgan and a Sergeant Clay were to make a recording of the interaction with 

Ms. Dawn, with Sergeant Clay listening to determine when an offer and acceptance for 

sex had been made. R.R. 3:50. Sergeant Riddlespurger testified that his operational 

partner Clay Rolan was informed by Sergeant Clay that an offer of sex for money had 

been made and Ms. Dawn was then arrested without warrant. R.R. 3:50-51. The offer 

for sex for money was made by Cree-Anna Dawn and Officer Morgan. R.R. 3:51. 

Sergeant Riddlespurger testified that he had personally reviewed the audiotape of the 

offer and acceptance for sex and confirmed that it involved Officer Morgan making an 

offer to the effect of taking Ms. Dawn up to his room for three hours to fulfill the 

agreement. R.R. 3:51. Sergeant Riddlespurger futher confirmed that all identification of 

Ms. Dawn and Dustin Rhoades came from her arrest without warrant on the 

6
prostitution charge, that prior to the Dawn post-arrest interview, the Amarillo Police 

Department and Special Crimes did not know who Dustin Rhoades was in relation to 

the case (unidentified white male), and that all identification to lead to the arrest of 

Dustin Rhoades on a murder warrant was the product of Cree-Anna Dawn’s 

prostitution arrest. R.R. 3:52. 

Subsequent to Appellant’s arrest on the murder warrant secured via the 

warrantless prostitution arrest of Cree-Anna Dawn, Sergeant Riddlespurger testified he 

was able to extract a confession, both oral and written, from Appellant, the written 

statement being entered at trial as State’s Exhibit 133 and reading as follows: 

“My name is Dustin Ryan Rhoades. My birthday is 1/30/85 and I am 27 years old. I 

have been living with my grandmother, Lucille Stone, at 41" -- I’m sorry -- “400 S.W. 

15th, #214, Amarillo, Texas. I have a girlfriend named Kristie Ortiz. On Thursday, June 

7, 2012, I got a phone call from a girl named Cree. I have known Cree for about a month 

and I met her at a friend named Chris’s house. Cree told me that a guy attempted to 

rape her and he took her money. She asked me to come pick her up and take her to try 

and get her money from the guy. I was driving Kristie’s maroon Chrysler or Dodge 

Grand Caravan minivan. I drove to Chris’s house at 16th and S. Jackson. Cree was 

outside waiting and she got in the van with me. I drove us to the apartments at Coulter 

and I-40. Cree told me where to go and I parked the van next to the street. We left both 

sliding doors open. I followed Cree to an apartment. I was carrying a .357 black revolver 

in my hand when we walked up to the apartment. Cree knocked on the door while I 

stood to the side. The man inside opened the door. He told Cree,” in quotations, “‘Did 

you bring a condom this time so I can do that shit again?’” End quotation. “I stepped up 

to the door with my gun pointed at the man. I told the man to give my girl the money 

and to empty his pockets. He said,” quote, “‘I ain’t got no pockets.’” End quote. “I told 

the man I was trying to be nice. He said to tell the girl to come in so he could get his 

money’s worth. He then said,” quote, “‘Kill me, kill me,’” -- end quote. Again, 

quotations, “‘because I would do it again.’” End quotation. “He kept saying,” quote, 

“‘Kill me,’” -- end quote, “and then stepped towards me. I twisted and pulled the 

trigger. I didn’t mean to. The shot hit the man in the face. He was in slow motion and 

7
fell to the ground. I was sorry and wanted so bad to help him. Cree had to come to me 

and pulled me away saying,” quote, “‘Come on.’” End quote. “We both ran to the van. 

She got in the passenger side and I got in the driver’s seat. I drove the van north on 

Coulter and then east onto I-40. I took Cree back to Chris’s house and let her out. I 

drove around for several hours and eventually went to my grandma’s house. The next 

day or two I told Kristie what happened. A couple of days ago, I was at a corner in 

North Amarillo. It was an area with crack dealing and prostitution. I pulled the car up 

to a black African dude and sold him my .357 revolver for $75. I do not know who the 

guy was. I had only owned the gun a couple of days before the shooting. I had bought it 

from an unknown guy for $150. I bought it for self protection. I wish I could take the 

man’s place. I swear that the above statement is true and correct to the best of my 

knowledge.” 

R.R. 3:62-64. 

Sergeant Riddlespurger testified that, as to Appellant’s oral statement, Appellant 

had stated that the decedent “reached toward Appellant” just before Appellant’s 

weapon discharged. R.R. 3:93-94. Kristie Ortiz, Appellant’s girlfriend, testified in 

response to questioning as to what Appellant had told her about June 8th of 2012, the 

night in question, (T)hat he took Cree-Anna to the victim’s house, apartment, to go get 

some money, and that they started arguing and that he pulled the gun out trying to 

scare him, and that she pulled his arm away to quit, and then the gun went off. R.R. 

4:51-52. 

 State’s witness Nathan Shaw testified that he was living, and present, at the 

Westminster Apartments, with an address of 2415 S. Coulter on June 7TH, 2012. R.R. 

3:12. Specifically, Mr. Shaw resided in Apartment 224. R.R. 3:13. On the evening in 

question, Mr. Shaw stated he heard a gunshot from inside his apartment, then saw 

Appellant running behind a black female toward a red van, holding a small black pistol. 

R.R. 3:14. Later, Mr. Shaw altered his testimony to say he first saw Appellant standing 

in a doorway. R.R. 3:15, 23-24. Still later, he altered his testimony again to say that he 

did not see Appellant and the black female in the doorway, but maybe three or four feet 

8
outside the doorway. R.R. 3:25. Mr. Shaw was quite clear in his testimony that he did 

not see what transpired at the doorway where he saw Appellant, and that he did not see 

Appellant and the black female approach the decedent’s doorway. R.R. 3:24. 

 

Sergeant Riddlespurger testified that Special Crimes was unable to retrieve any 

video that showed any interaction between Appellant, Ms. Dawn, and the decedent. 

R.R. 3:75. Further, Special Crimes located only two persons, Nathan Shaw and someone 

named LaVigne, who witnessed portions of the event, but neither witnessed the 

interaction between the two and the actual shooting. R.R. 3:76. No person named 

LaVigne testified at Appellant’s trial. R.R. 1:7. 

Juan Cerda was identified as being the third person in the van used by Appellant 

and Ms. Dawn to travel to the site of the incident. R.R. 3:82. Juan Cerda did not see the 

shooting. R.R. 3:83. Cree-Anna Dawn also did not see the final interaction between 

Appellant and the decedent, as evidenced by the following testimony given by Sergeant 

Riddlespurger relative to her interrogations: 

(By Mr. Wooldridge) 

Q. Cree-Anna Dawn said that she was running away and heard the shooting as she left 

Dustin standing with the gun at the door. 

Q. So she just assumed that Dustin had shot him? 

A. Yes. 

Q. In fact, you were never able to identify anyone other than Dustin Rhoades that was 

witness to the actual shooting and the immediate events prior to that shooting; is that 

correct? 

A. Correct. 

R.R. 3:97. 

Q. And she says that she was as far away as perhaps the next apartment door before she 

heard the shot? 

A. Correct. 

Q. And she does say that Deans Anderson was getting argumentative and in -- or in a 

way that is consistent with Mr. Rhoades’ statement? 

9
A. Yes. 

Q. But in any statement that she’s given, she -- she never states that she sees the actual 

shooting? 

A. Correct. 

Q. She always makes clear that she has left, she says, before the actual event can 

happen? 

A. That’s correct. 

Q. And neither she nor anyone else has provided any testimony, other than Dustin 

Rhoades, as to Deans Anderson’s last moves? 

A. Correct. 

Q. And Mr. Cerda was unclear as to where he was, but he finally decided he was in the 

van when he heard the shot? 

A. Yes, sir. 

R.R. 3:99-100.

10
SUMMARY OF THE ARGUMENT

ISSUE NUMBER ONE

In a prosecution for Murder, police sought an escort identified from the decedent’s 

phone. In order to be able to arrest her, the police committed the crime prostitution, i.e., 

made an offer of sex in return for money, which the escort (ultimately, co-defendant) 

accepted and thereupon was promptly arrested. The escort was then interrogated and 

implicated Appellant. All information leading to the identity of Appellant was 

garnered from the illegal arrest of the co-defendant, as was the warrant for Appellant’s 

arrest. Subsequent to Appellant’s arrest, he gave the only information presented to the 

jury concerning his involvement in the alleged offense. Per Article 38.23, all evidence 

should have been suppressed identifying Appellant as the perpetrator of the offense, 

and his confessions.

ISSUE NUMBER TWO

Murder may be predicated upon the commission of an act, in furtherance of a separate 

felony, that is clearly dangerous to human life and results in the death of another 

person, but not if it is Manslaughter or a lesser included thereof. Paragraph Two of the 

Indictment in this case either alleged that felony Deadly Conduct (discharging a 

firearm) was committed while committing misdemeanor Deadly Conduct (pointing a 

firearm - presumed reckless), or that misdemeanor Deadly Conduct was committed and 

some unspecified dangerous act was committed in furtherance thereof, or that in the 

course of committing felony Deadly Conduct (discharging), committed an antecedent 

misdemeanor Deadly Conduct (pointing), such that either the allegation was an attempt 

to bootstrap Manslaughter into Murder or was just so completely illogical as to require 

quashment.

ISSUE NUMBER THREE 

The Seventh Court of Appeals erred in holding that a preparatory voluntary act suffices 

to impute voluntariness to the ultimate act in an allegation that does not allow strict 

11
liability, but requires mental culpability and deprived Appellant of an instruction at trial 

as to voluntariness. 

ISSUE NUMBER FOUR 

On a Murder charge, the only testimony adduced at trial as to Appellant’s mental 

culpability was that Appellant either flinched, causing the discharge of the firearm that 

led to death, or that his arm was either bumped or grabbed by the co-defendant, 

causing the discharge. As there was no other testimony as to Appellant’s mental state, 

much less anything contradictory, the evidence should have been insufficient to support 

guilt beyond all reasonable doubt.

12
ARGUMENT

ISSUE NUMBER ONE: 

The Court of Appeals for the Seventh District of Texas erred by its disregard of 

precedent in favor of reversion to an overruled precedent, so as to deny Appellant 

standing to assert his right to Due Process or his right to be free from unreasonable 

seizure as a result of the commission of a crime by law enforcement officers seeking 

to ascertain his identity.

ARGUMENT AND AUTHORITIES

 The Seventh Court of Appeals, by and through its published Memorandum 

Opinion of Justices James T. Campbell, Mackey K. Hancock and Patrick Pirtle has 

decided that the standard elucidated in Fuller v. State and Chavez v. State control over 

the later ruling of this Court in Wilson v. State, such that Appellant had not standing to 

complain about the commission of crimes by law enforcement officers, who committed 

the crime with the specific intent to ascertain his identity, and used evidence gained as a 

direct result of criminal commission to secure the warrant upon which Appellant was 

arrested and deprived of his liberty.

FACTS RELEVANT TO APPELLANT’S ISSUE #1

Sergeant Jason Riddlespurger, a detective with the Amarillo Police Department 

Special Crimes Unit testified that he was assigned as the lead investigator on this 

suspected homicide. R.R. 3:44-45. From information taken from the decedent’s phone, 

Sergeant Riddlespurger identified a “Chocolate Cherry” as a person running an escorttype service that had been in contact with decedent shortly before decedent’s demise. 

R.R. 3:46-47. In order to determine the identity of “Chocolate Cherry,” an undercover 

operation was initiated that involved an undercover narcotics officer contacting 

“Chocolate Cherry” and setting up a pretend date, whereupon actually meeting, the 

subject was to be pulled aside and identified. The operation identified “Chocolate 

Cherry” as being in reality, Cree-Anna Shamell Dawn. R.R. 3:47-48. The operation, a 

prostitution sting, was under the planning of Lieutenant Bohannon, head of Special 

13
Crimes, in coordination with Lieutenant Leidtke, commander of the Narcotics Task 

Force. Pursuant thereto, Officer Morgan of the Task Force set up a date and met with 

Ms. Dawn. R.R. 3:49-50. The “sting” occurred at a now-defunct Amarillo restaurant 

called TGIF (Thank God It’s Friday) on June 11TH, 2012. R.R. 3:83. As part of the sting, 

Officer Morgan and a Sergeant Clay were to make a recording of the interaction with 

Ms. Dawn, with Sergeant Clay listening to determine when an offer and acceptance for 

sex had been made. R.R. 3:50. Sergeant Riddlespurger testified that his operational 

partner Clay Rolan was informed by Sergeant Clay that an offer of sex for money had 

been made and Ms. Dawn was then arrested without warrant. R.R. 3:50-51. The offer 

for sex for money was made by Cree-Anna Dawn and Officer Morgan. R.R. 3:51. 

Sergeant Riddlespurger testified that he had personally reviewed the audiotape of the 

offer and acceptance for sex and confirmed that it involved Officer Morgan making an 

offer to the effect of taking Ms. Dawn up to his room for three hours to fulfill the 

agreement. R.R. 3:51. Sergeant Riddlespurger futher confirmed that all identification of 

Ms. Dawn and Dustin Rhoades came from her arrest without warrant on the 

prostitution charge, that prior to the Dawn post-arrest interview, the Amarillo Police 

Department and Special Crimes did not know who Dustin Rhoades was in relation to 

the case (unidentified white male), and that all identification to lead to the arrest of 

Dustin Rhoades on a murder warrant was the product of Cree-Anna Dawn’s 

prostitution arrest. R.R. 3:52.

Subsequent to Appellant’s arrest on the murder warrant secured via the 

warrantless prostitution arrest of Cree-Anna Dawn, Sergeant Riddlespurger testified he 

was able to extract a confession, both oral and written, from Appellant, the written 

statement being entered at trial as State’s Exhibit 133. R.R. 3:62.

Appellant lodged objections and sought suppression of the identification of and 

subsequent evidence against Appellant by Sergeant Riddlespurger and Nathan Shaw as 

the product of illegal police activity, in fact as the product of the commission of crimes 

by the police, and though overruled, was granted a running objection on such basis. 

R.R. 3:49, 54, 14-15, 57.

14
RELEVANT STATUTES

 A person commits an offense if the person knowingly offers to engage, agrees 

to engage, or engages in sexual conduct for a fee. TEX. PENAL CODE ANN. §43.02(a)(1). 

An offense is established under Subsection (a)(1) whether the actor is to receive or pay a 

fee. TEX. PENAL CODE ANN. §43.02(b). "Sexual contact" means any touching of the 

anus, breast, or any part of the genitals of another person with intent to arouse or 

gratify the sexual desire of any person. TEX. PENAL CODE ANN. §43.01(3). "Sexual 

conduct" includes deviate sexual intercourse, sexual contact, and sexual intercourse. 

TEX. PENAL CODE ANN. §43.01(4). "Sexual intercourse" means any penetration of the 

female sex organ by the male sex organ. TEX. PENAL CODE ANN. §43.01(5).

STANDARD OF REVIEW

FOURTH AMENDMENT & ARTICLE I, § 9

The right of the people to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures, shall not be violated, and no Warrants shall 

issue, but upon probable cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to be seized. U.S. CONST. 

amend. IV. The people shall be secure in their persons, houses, papers and possessions, 

from all unreasonable seizures or searches, and no warrant to search any place, or to 

seize any person or thing, shall issue without describing them as near as may be, nor 

without probable cause, supported by oath or affirmation. TEX. CONST. art. I, § 9. No 

evidence obtained by an officer or other person in violation of any provisions of the 

Constitution or laws of the State of Texas, or of the Constitution or laws of the United 

States of America, shall be admitted in evidence against the accused on the trial of any 

criminal case. TEX.CODE CRIM. PROC. ANN. art. 38.23(a).

Evidence obtained in violation of the constitutional prohibition against 

unreasonable searches and seizures is inadmissible and must be suppressed upon 

proper motion. Mapp v. Ohio, 367 U.S. 643, 660, 81 S.Ct. 1684, 1694, 6 L.Ed.2d 1081 

(1961); Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 

15
(1963). Smith v. State, 542 S.W.2d 420, 421 (Tex.Crim.App. 1976). Evidence obtained in 

violation of the Constitution(s) must be suppressed, and a court has no discretion in the 

matter. Polk v. State, 738 S.W.2d 274, 276 (Tex.Crim.App.1987). The purpose of the 

exclusionary rule is to deter unlawful police conduct by suppressing any evidence 

gathered when an officer engages in willful or at the very least negligent conduct which 

deprives a defendant of some right. Durio v. State, 807 S.W.2d 876, 878 (Tex.App.-Corpus 

Cristi 1991).

Whether a search or seizure is reasonable under the Fourth Amendment or 

Article 1, Section 9 is an issue of law reviewed de novo. Higbie v. State, 780 S.W.2d 228, 

230 (Tex.Crim.App.1989). If the appellate record in a criminal case reveals constitutional 

error that is subject to harmless error review, the court of appeals must reverse a 

judgment of conviction or punishment unless the court determines beyond a reasonable 

doubt that the error did not contribute to the conviction or punishment. TEX. R. APP. P. 

44.2 (a).

FIFTH AMENDMENT & ARTICLE I, § 19

No person . . . shall be deprived of life, liberty, or property without due process 

of law. U.S. CONST. amend. V. The Fifth Amendment of the United States Constitution 

applies to the individual states by virtue of the Fourteenth Amendment, which 

commands that no state shall make or enforce any law which shall abridge the 

privileges or immunities of citizens of the United States; nor shall any State deprive any 

person of life, liberty, or property, without due process of law; nor deny to any person 

within its jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV. The 

Texas Court of Criminal Appeals has long been aware of its duty to protect rights of the 

accused and of binding effect of concepts of due process announced by the Supreme 

Court of the United States. Charles v. State, 424 S.W.2d 909, 913 (Tex.Crim.App.1968), 

certiorari denied 88 S.Ct. 2319, 392 U.S. 940, 20 L.Ed.2d 1401.

Additionally, Texas provides its own constitutional due process safeguards. No 

citizen of this State shall be deprived of life, liberty, property, privileges or immunities, 

or in any manner disfranchised, except by the due course of the law of the land. TEX. 

CONST. art. I, § 19. This is further codified in the Texas Code of Criminal Procedure. 

No citizen of this State shall be deprived of life, liberty, property, privileges or 

16
immunities, or in any manner disfranchised, except by the due course of the law of the 

land. TEX.CODE CRIM. PROC. ANN. art. 1.04.

The Due Process Clause protects the accused against conviction except upon 

proof beyond a reasonable doubt of every fact necessary to constitute the crime with 

which he is charged. In re Winship 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 

(1970); Lowry v. State, 692 S.W.2d 86, 87 (Tex.Crim.App. 1985).

If the appellate record in a criminal case reveals constitutional error that is 

subject to harmless error review, the court of appeals must reverse a judgment of 

conviction or punishment unless the court determines beyond a reasonable doubt that 

the error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2 (a).

APPLICATION

Code of Criminal Procedure Article 38.23.

EVIDENCE NOT TO BE USED

No evidence obtained by an officer or other person in violation of any 

provisions of the Constitution or laws of the State of Texas, or of the Constitution or 

laws of the United States of America, shall be admitted in evidence against the accused 

on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be 

instructed that if it believes, or has a reasonable doubt, that the evidence was obtained 

in violation of the provisions of this Article, then and in such event, the jury shall 

disregard any such evidence so obtained. TEX.CODE CRIM. PROC. ANN. art. 38.23(a).

It is an exception to the provisions of Subsection (a) of this Article that the 

evidence was obtained by a law enforcement officer acting in objective good faith 

reliance upon a warrant issued by a neutral magistrate based on probable cause. 

TEX.CODE CRIM. PROC. ANN. art. 38.23(b).

 There are thirty exceptions under Texas law that allow law enforcement agents 

to engage in conduct otherwise criminalized. Those exceptions are codified as follows:

17
PENAL CODE

Unlawful Interception, Use, or Disclosure of Wire, Oral or Electronic 

Communications, TEX. PENAL CODE ANN. §§ 16.02(c)(2) and (c)(8)(C);

Unlawful Use of Pen Register or Trap & Trace Device, TEX. PENAL CODE ANN. § 

16.03(c)(3);

Unlawful Access to Stored Communications, TEX. PENAL CODE ANN. § 16.04(e)(4);

Illegal Divulgence of Public Communications, TEX. PENAL CODE ANN. § 16.05(c)(3);

Unlawful Installation of Tracking Device, TEX. PENAL CODE ANN. § 16.06(d)(2);

Criminal Trespass, TEX. PENAL CODE ANN. § 30.05(c);

Tampering With Identification Numbers, TEX. PENAL CODE ANN. § 31.11(b)(2);

Money Laundering. TEX. PENAL CODE ANN. § 34.02(c);

Witness Tampering, TEX. PENAL CODE ANN. § 36.05(c);

Prohibited Substances & Items in Correctional Facility or on TDCJ Property, TEX. 

PENAL CODE ANN. § 38.11(e);

Obstructing Highway or Other Passageway, TEX. PENAL CODE ANN. § 42.03(a);

Abuse of Corpse, TEX. PENAL CODE ANN. § 42.08(a) and (e);

Cruelty to Animals, TEX. PENAL CODE ANN. § 42.09(f) and (h)(B);

Chapter 46, Weapons, TEX. PENAL CODE ANN. §§ 46.15(a); 46.02 and 46.03; 

46.035(h-1); 46.04(c); and 46.05(b);

Gambling, TEX. PENAL CODE ANN. § 47.09(a)(3);

HEALTH AND SAFETY CODE

Possession of a Controlled Substance, TEX. HEALTH & SAFETY CODE ANN. § 481.062;

Manufacture With Intent to Deliver or Delivery of Simulated Controlled Substance, 

TEX. HEALTH & SAFETY CODE ANN. § 482.002(b)(1);

Possession of a Dangerous Drug, TEX. HEALTH & SAFETY CODE ANN. § 483.041(c)(5);

Contributing to the Delinquency of a Narcotics Addict, TEX. HEALTH & SAFETY CODE

ANN. §§ 463.011 and 463.013;

18
ALCOHOLIC BEVERAGE CODE

Purchase of Alcohol by a Minor. TEX. ALCOHOL & BEV. CODE ANN. § 106.02(a);

Possession of Alcohol by a Minor, TEX. ALCOHOL & BEV. CODE ANN. § 106.05(b)(3).

The Prostitution statute itself does set out an exception to the conduct it 

criminalizes, in that it is a defense to prosecution under such section that the actor 

engaged in the conduct that constitutes the offense because the actor was the victim of 

conduct that constitutes an offense under Section 20A.02 (Trafficking of Persons). TEX. 

PENAL CODE ANN. §43.02(d). “It is a well-known rule of statutory construction express 

mention or enumeration of one person, thing, consequence, or class is tantamount to an 

express exclusion of all others.” Ex parte McIver, 586 S.W.2d 851, 856 (Tex.Crim.App.

1979). While it is the duty of every peace officer to preserve the peace within the 

officer's jurisdiction, to effect such purpose, the officer shall use all lawful means. 

TEX.CODE CRIM. PROC. ANN. art. 2.13(a). There is no authority for extra or unlawful 

means. In fact, Officer Morgan and the Amarillo Police Department were under two 

affirmative duties to not so act as they did. A person is criminally responsible for an 

offense committed by the conduct of another if, acting with intent to promote or assist 

the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid 

the other person to commit the offense. TEX. PENAL CODE ANN. § 7.02(a)(2). A person 

is criminally responsible for an offense committed by the conduct of another if, having a 

legal duty to prevent commission of the offense and acting with intent to promote or 

assist its commission, he fails to make a reasonable effort to prevent commission of the 

offense. TEX. PENAL CODE ANN. § 7.02(a)(3).

The Texas Legislature specifically exempted police officers who are acting in their 

official capacity from liability for the previously listed offenses. The Texas Legislature 

could, should it so decide, exempt police officers from liability for the offense of 

prostitution, but it has not yet done so. Thus courts are required to follow the law as it 

is currently written. Sometimes "it takes a thief to catch a thief," but the decision to 

exempt police officers from certain penal laws rests with the Legislature, not the courts. 

Wilson v. State, 311 S.W.3d 452, 463 (Tex.Crim.App.2010). Thus there is NO exception 

authorizing the police conduct as occurred in the instant matter. Finally, though motive 

19
and intent to consummate the act of prostitution was not discussed at Appellant’s trial, 

intent to consummate an offer or agreement to engage in sexual conduct is not an 

element of the offense of prostitution. Mattias v. State, 731 S.W.2d 936, 937 

(Tex.Crim.App.1982).

 "The Texas Legislature enacted an exclusionary rule broader than its federal 

counterpart." Miles v. State, 241 S.W.3d 28, 35 (Tex.Crim.App.2007). Article 38.23 

prohibits the use of a much broader category of "illegally obtained" evidence. Wilson v. 

State, 311 S.W.3d 452, 458 (Tex.Crim.App.2010). See generally GEORGE E. DIX AND 

ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE AND 

PROCEDURE §§ 4.11-4.35 (2d ed. 2001) (discussing the distinctions between the federal 

constitutional exclusionary law and the Texas statutory exclusionary rule; noting that 

"Article 38.23 of the Code of Criminal Procedure imposes what is probably the broadest 

state exclusionary requirement of any American jurisdiction.").

This Court of Criminal Appeals explained in Wilson that the purpose of Article 

38.23 is "to protect a suspect's privacy, property, and liberty rights against overzealous 

law enforcement . . . [and] to deter unlawful actions which violate the rights of criminal 

suspects in the acquisition of evidence for prosecution." Wilson v. State, 311 S.W.3d 452, 

458-59 (Tex. Crim. App. 2010). Public scandals involving police and "throw down" guns, 

pool-chalk wrapped to look like cocaine used as evidence to prosecute innocent people, 

false offense reports, and the like are not unheard of in this state. Wilson, 461. This is 

exactly the type of law violation that the Texas Legislature intended to prohibit when it 

enacted article 38.23—conduct by overzealous police officers who, despite their 

laudable motives, break the penal laws directly related to gathering and using evidence 

in their investigations. Id. A police officer's violation of statute to obtain a confession or 

other evidence is at the core of conduct proscribed by the Texas exclusionary statute. Id.

As admitted by Sergeant Riddlespurger at Appellant’s trial, Officer Morgan 

made the illegal offer of money for sex. Officer Morgan had no authority at law to 

establish such situation whereby Appellant’s co-defendant was ultimately entrapped 

and arrested. As further admitted by Sergeant Riddlespurger, all evidence of the 

identification of Cree-Anna Dawn and Appellant Dustin Rhoades came from Cree-Anna 

20
Dawn’s arrest without warrant on the prostitution charge, and that prior to the Dawn 

post-arrest interview, the Amarillo Police Department and Special Crimes did not know 

who Dustin Ryan Rhoades was in relation to the case (unidentified white male), and 

that all identification leading to the arrest of Appellant on a murder warrant was the 

product of Cree-Anna Dawn’s prostitution arrest. R.R. 3:52. See Brown v. State, 605 S.W.

2d 572, 577 (Tex.Crim.App. 1980) ("A search warrant may not be procured lawfully by 

the use of illegally obtained information."); see also State v. Aguirre, 5 S.W.3d 911, 913-14 

(Tex.App.-Houston [14th Dist.] 1999, no pet.) ("[I]f the evidence supporting the warrant 

was improperly obtained, the evidence obtained from executing the warrant was the 

fruit of an illegal search and was properly suppressed."). The poisoned tree of course 

produced the poisonous fruit, including Appellant’s confessions, both oral and written, 

all of which, per Wilson, should have been excluded from evidence, with a resultant 

complete absence of evidence against Appellant.

The Seventh Court of Appeals, however, has reverted to the now inapposite 

earlier holdings of Fuller, principally, and Chavez to justify denial of standing to 

Appellant. See Court of Appeals Opinion at 9-13. This, in spite of the fact that Wilson was 

acknowledged by Justice Hervey’s Dissenting Opinion in Wilson to have sub silentio

overruled Fuller and Chavez to the extent that those Opinions denied standing to 

complain of a violation of a right of third parties. Wilson, 311 S.W.3d at 470.

STARE DECISIS

Stare decisis dictates adherence to precedent and not disturb a settled principle of 

law. McGlothlin v. State, 896 S.W.2d 183, 188-89 (Tex.Crim.App.1995). ”The doctrine of 

stare decisis requires that we demonstrate the reluctance with which one in a judicial 

position should approach a line of decisions of long standing with the purpose of 

setting aside the doctrines therein laid down, some grey with antiquity, and the doctrine 

of stare decisis should bear heavily on retaining the integrity of such decisions." Wolfe v. 

State, 178 S.W.2d 274, 281 (Tex.Crim.App.1944). Stare decisis provides certainty and 

structure to the criminal trial process. "When a rule has been once deliberately adopted 

and declared and uniformly followed, it should not be abandoned except upon the most 

21
urgent of reasons." Gearheart v. State, 197 S.W. 187, 188-189 (Tex.Crim.App.1917). This 

Court has recognized that the doctrine of stare decisis should generally be followed, 

because it promotes judicial efficiency and consistency, it fosters reliance on judicial 

decisions, and contributes to the actual and perceived integrity of the judicial process. 

Proctor v. State, 967 S.W.2d 840, 844-45 (Tex.Crim.App.1998).

 "When the Legislature meets, after a particular statute has been judicially 

construed without changing the statute, we presume the Legislature intended the same 

construction should continue to be applied to that statute.” Marin v. State, 891 S.W.2d 

267, 271-272 (Tex. Crim. App. 1994); Hardy v. State, 963 S.W.2d 516, 523 (Tex.Crim.App. 

1997). Article 38.23 has remained unchanged since Wilson was decided in 2010, in fact 

since the 70TH Legislature last amended in 1987, and was reaffirmed by the 83RD, 84TH, 

and 85TH Legislatures, in 2011, 2013, and 2105, respectively.

 Subsequent to Wilson, this Court has further held that, when a defendant 

challenges the admissibility of evidence on the ground it was wrongfully obtained by a 

private person, the defendant must show that the person obtained the evidence in 

violation of law, such as criminal trespass or breach of computer security, reinforcing 

Wilson’s proposition that a violation of law is itself sufficient to invoke 38.23’s 

protection. See Baird v. State, 379 S.W.3d 353, 357 (Tex.App.-Waco 2012) (), aff'd, 398 S.W.

3d 220 (Tex.Crim.App. 2013). 

 In Wilson, the issue was an officer’s fabrication of a document, purported to be an 

official government document, to convince a suspect to confess. Here, the officers’ 

conspired to commit prostitution, and in fact committed prostitution. In both cases 

there were no victims whose rights had been violated, and thus, per the Seventh Court’s 

opinion, there could never be anyone with standing to complain about crimes 

committed by law enforcement. Worse, were we to follow the Seventh Court’s adoption 

and attempted perpetuation of the abandoned Fuller/Chavez line, it would be perfectly 

legal for the police to commit theft of information or property in someone else’s 

possession, or even commit Aggravated Kidnapping and Aggravated Assault By A 

Public Servant (as in torturing information out of people) and use the fruits thereof with 

complete impunity. That the issue here was a lesser degree of severity of the crime 

22
changes nothing, as the difference is only one of degree, not type. Such absurdities , per 

Wilson, obviously cannot exist in any rational and fair system of law 

 The Seventh Court of Appeals was bound to follow the precedent of this Court, 

and erred in reversion to the law of its choice, as opposed to the established law.

For the aforementioned reasons, Appellant complains that the Seventh Court of 

Appeals has so far deviated from previous interpretation by this Honorable Court of 

Criminal Appeals, of Code of Criminal Procedure Article 38.23, so as to annihilate the 

intention of Article 38.23 and render said Article defunct, such that Appellant has been 

denied the protection due him under and through the codified law of the land upon 

which Appellant relied, and petitions for a review by this Court.

23
ISSUE NUMBER TWO: 

The Court of Appeals for the Seventh District of Texas erred by its holding that an 

allegation of Murder based on Deadly Conduct committed while committing Deadly 

Conduct, or alternatively that Deadly Conduct standing alone, or alternatively that 

Deadly Conduct without a specified further dangerous act, is sufficient to deny 

quashment of an indictment paragraph so alleging.

ARGUMENT AND AUTHORITIES

THE OFFENDING PARAGRAPH

PARAGRAPH II

AND THE GRAND JURORS do further present in and to the Court that in Potter, 

County, Texas, and before the presentment of this Indictment, DUSTIN RYAN 

RHOADES, the defendant, on or about the 7th day of June, 2012 did then and there 

intentionally or knowingly commit or attempt to commit an act clearly dangerous to 

human life, to-wit: pointing a firearm at or in the direction of Deans Anderson, that 

caused the death of Deans Anderson, and the Defendant was then and there in the 

course of intentionally or knowingly committing a felony, to-wit: Deadly Conduct, 

and said death of Deans Anderson was caused while the Defendant was in the course 

of and in furtherance of the commission or attempt of said felony.

Appellant timely lodged objection to the offending paragraph by virtue of his 

Motion To Quash And Exception To The Substance Of The Indictment on the 30TH of 

August, 2013, prior to the commencement of trial on the 3RD of September, 2013. The 

Motion was heard at pre-trials on the 3RD of September, 2013, immediately before the 

commencement of trial, and was of course denied. R.R. 2:4-7.

ELEMENTS OF THE OFFENSE CHARGED

A person commits an offense if he commits or attempts to commit a felony, other 

than manslaughter, and in the course of and in furtherance of the commission or 

24
attempt, or in immediate flight from the commission or attempt, he commits or 

attempts to commit an act clearly dangerous to human life that causes the death of an 

individual. TEX. PENAL CODE ANN. § 19.02(b)(3). A person acts knowingly, or with 

knowledge, with respect to the nature of his conduct or to circumstances surrounding 

his conduct when he is aware of the nature of his conduct or that the circumstances 

exist. A person acts knowingly, or with knowledge, with respect to a result of his 

conduct when he is aware that his conduct is reasonably certain to cause the result. 

TEX. PENAL CODE ANN. § 6.03(b). A person acts recklessly, or is reckless, with respect to 

circumstances surrounding his conduct or the result of his conduct when he is aware of 

but consciously disregards a substantial and unjustifiable risk that the circumstances 

exist or 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 the actor's 

standpoint. TEX. PENAL CODE ANN. § 6.03(c).

STANDARD OF REVIEW

No person . . . shall be deprived of life, liberty, or property without due process 

of law. U.S. CONST. amend. V. The Fifth Amendment of the United States Constitution 

applies to the individual states by virtue of the Fourteenth Amendment, which 

commands that no state shall make or enforce any law which shall abridge the 

privileges or immunities of citizens of the United States; nor shall any State deprive any 

person of life, liberty, or property, without due process of law; nor deny to any person 

within its jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV. The 

Texas Court of Criminal Appeals has long been aware of its duty to protect rights of the 

accused and of binding effect of concepts of due process announced by the Supreme 

Court of the United States. Charles v. State, 424 S.W.2d 909, 913 (Tex.Crim.App.1968), 

certiorari denied 88 S.Ct. 2319, 392 U.S. 940, 20 L.Ed.2d 1401.

Additionally, Texas provides its own constitutional due process safeguards. No 

citizen of this State shall be deprived of life, liberty, property, privileges or immunities, 

or in any manner disfranchised, except by the due course of the law of the land. TEX. 

CONST. art. I, § 19. This is further codified in the Texas Code of Criminal Procedure. 

25
No citizen of this State shall be deprived of life, liberty, property, privileges or 

immunities, or in any manner disfranchised, except by the due course of the law of the 

land. TEX.CODE CRIM. PROC. ANN. art. 1.04.

The Due Process Clause protects the accused against conviction except upon 

proof beyond a reasonable doubt of every fact necessary to constitute the crime with 

which he is charged. In re Winship 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 

(1970); Lowry v. State, 692 S.W.2d 86, 87 (Tex.Crim.App. 1985).

If the appellate record in a criminal case reveals constitutional error that is 

subject to harmless error review, the court of appeals must reverse a judgment of 

conviction or punishment unless the court determines beyond a reasonable doubt that 

the error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2 (a).

APPLICATION

A conviction for felony murder under Section 19.02(b)(3), will not lie when the 

underlying felony is manslaughter or a lesser included offense of manslaughter. Lawson 

v. State, 64 S.W.3d 396, 397 (Tex.Crim.App.2001). This holding is consistent with the 

plain meaning of the felony murder provision. As explained in Garrett:

If a felony murder may be predicated on the underlying aggravated assault, the 

statutory restriction on the scope of the doctrine that prohibits basing a felony 

murder prosecution on voluntary manslaughter could be regularly 

circumvented. The legislative prohibition against resting a Sec. 19.02(a)(3) [now, 

19.02(b)(3)] prosecution on voluntary manslaughter necessarily includes a 

prohibition against resting such a prosecution on offenses statutorily includable 

in voluntary manslaughter.

Id., (citing Garrett v. State, 573 S.W.2d 543, 546 (Tex.Crim.App.1978)).

Manslaughter lies in that a person commits an offense if he recklessly causes the 

death of an individual. TEX. PENAL CODE ANN. § 19.04(a). An offense is a lesser 

included offense if:

(1) it is established by proof of the same or less than all the facts required to 

establish the commission of the offense charged;

26
(2) it differs from the offense charged only in the respect that a less serious 

injury or risk of injury to the same person, property, or public interest suffices to 

establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable 

mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise 

included offense. TEX.CODE CRIM. PROC. ANN. art. 37.09.

Deadly Conduct, as entertained in the present case and offending paragraph of 

the indictment, lies in that a person commits an offense if he recklessly engages in 

conduct that places another in imminent danger of serious bodily injury. TEX. PENAL

CODE ANN. § 22.05(a). Recklessness and danger are presumed if the actor knowingly 

pointed a firearm at or in the direction of another whether or not the actor believed the 

firearm to be loaded. TEX. PENAL CODE ANN. § 22.05(c).

Of first note is that the charge alleges pointing a firearm at an individual as an 

instance of Deadly Conduct, and then seems to say that another unspecified act of 

Deadly Conduct was committed. Inasmuch as the offending paragraph alleges an act of 

Deadly Conduct that by statutory definition is presumed to be reckless, it differs from 

the offense of Manslaughter only in that 1), it is established by proof of the same or less 

than all the facts required to establish the commission of the offense charged, and 2), it 

differs from the offense charged only in the respect that a less serious injury or risk of 

injury to the same person, property, or public interest suffices to establish its 

commission - meaning that it is a lesser included of Manslaughter and cannot be 

charged as Murder. As the State did nothing to defeat the presumption of recklessness, 

the prosecution of Appellant on this allegation is a flagrant violation of Penal Code 

Section 19.02(b)(3) and Lawson.

Alternatively, if the allegation is that while committing the misdemeanor 

Deadly Conduct, Appellant further committed felony Deadly Conduct, the allegation 

still fails statutorily. As the dangerous act must have been committed in the course of a 

felony, which would be discharging in the direction of a person, that act was never 

specified. And if the misdemeanor Deadly Conduct (pointing) is supposed to be the 

basis for the act committed in the course of felony Deadly Conduct (discharging) then 

27
the allegation not only fails statutorily but abjectly fails as a proposition of reason. 

“Discharging in the direction of,” necessarily causally follows “pointing in the direction 

of.” 

Finally, the Seventh Court of Appeals reliance on Washington (incorrectly cited 

by Justice Campbell as 417 S.W.3d at 721; correctly cited as 417 S.W.3d 713, 721) Yandell, 

etc. is misplaced, as those case do not involve firearm discharge at persons, or otherwise 

commit the same logical fallacy. The Murder statute requires that, while in the course of 

committing a felony, yet another act must be committed in furtherance of the 

underlying felony. If the allegation is that the unspecified “dangerous act” in 

furtherance of the commission of the underlying felony is the discharge of the firearm, 

then the allegation must fail even more spectacularly. Consider, in the course of 

discharging a firearm at a person, Appellant discharged a firearm at a person. This is 

just the primal logical fallacy of Circularity. Though the Seventh Court of Appeals 

asserts Appellant is confused, the dictates of reason demonstrate that it is the Seventh 

Court of Appeals and the State that are confused concerning basic rules of logic and 

reasoning. 

Further, as the State was clear in informing Appellant’s jury that it could convict 

on either paragraph of the indictment, there can be no assurance that Appellant was not 

convicted on a Manslaughter/lesser-included-charge disguised as a Murder charge, to 

his detriment and harm, and thus there can be no determination beyond a reasonable 

doubt that the error did not contribute to the conviction or punishment.

For the aforementioned reasons, Appellant complains that the Seventh Court of 

Appeals erred in affirming the trial court’s failure to quash the offending paragraph as 

requested by Appellant, such that Appellant has been denied the protection due him 

under and through the codified law of the land upon which Appellant relied, and 

petitions for a review by this Court.

28
ISSUE NUMBER THREE: 

The Court of Appeals for the Seventh District of Texas erred by its holding that any 

voluntary act shall suffice to imply voluntariness to the ultimate act alleged, such 

that an instruction on voluntariness shall not lie, no matter that evidence was 

adduced as to the involuntariness of shooting an individual from multiple sources of 

testimony.

ARGUMENT AND AUTHORITIES

STANDARD OF REVIEW

No person . . . shall be deprived of life, liberty, or property without due process 

of law. U.S. CONST. amend. V. The Fifth Amendment of the United States Constitution 

applies to the individual states by virtue of the Fourteenth Amendment, which 

commands that no state shall make or enforce any law which shall abridge the 

privileges or immunities of citizens of the United States; nor shall any State deprive any 

person of life, liberty, or property, without due process of law; nor deny to any person 

within its jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV. The 

Texas Court of Criminal Appeals has long been aware of its duty to protect rights of the 

accused and of binding effect of concepts of due process announced by the Supreme 

Court of the United States. Charles v. State, 424 S.W.2d 909, 913 (Tex.Crim.App.1968), 

certiorari denied 88 S.Ct. 2319, 392 U.S. 940, 20 L.Ed.2d 1401.

Additionally, Texas provides its own constitutional due process safeguards. No 

citizen of this State shall be deprived of life, liberty, property, privileges or immunities, 

or in any manner disfranchised, except by the due course of the law of the land. TEX. 

CONST. art. I, § 19. This is further codified in the Texas Code of Criminal Procedure. 

No citizen of this State shall be deprived of life, liberty, property, privileges or 

immunities, or in any manner disfranchised, except by the due course of the law of the 

land. TEX.CODE CRIM. PROC. ANN. art. 1.04.

The Due Process Clause protects the accused against conviction except upon 

proof beyond a reasonable doubt of every fact necessary to constitute the crime with 

29
which he is charged. In re Winship 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 

(1970); Lowry v. State, 692 S.W.2d 86, 87 (Tex.Crim.App. 1985).

If the appellate record in a criminal case reveals constitutional error that is 

subject to harmless error review, the court of appeals must reverse a judgment of 

conviction or punishment unless the court determines beyond a reasonable doubt that 

the error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2 (a).

APPLICATION

Section 6.01(a) of the Texas Penal Code states that a person commits an offense 

only if he engages in voluntary conduct, including an act, an omission, or possession. 

Alford v. State, 866 S.W.2d 619, 621 (Tex.Crim.App.1993). “Voluntariness,” within the 

meaning of §6.01(a), refers only to one’s own physical body movements. Id; Trujillo v. 

State, 227 S.W.3d 164, 169 (Tex.App.-Houston [1st Dist.] 2006, pet. ref’d). The issue of 

the voluntariness of one’s conduct, or bodily movements, is separate from the issue of 

one’s mental state. Adanandus v. State, 866 S.W.2d 210, 230 (Tex.Crim.App.1993). When 

a person claims the involuntary-act defense he is conceding that his own body made the 

motion but denies responsibility for it. Rogers v. State, 105 S.W.3d 630, 639 n. 30 

(Tex.Crim.App.2003). If those physical movements are the non-volitional result of 

someone else's act, are set in motion by some independent non-human force, are caused 

by a physical reflex or convulsion, or are the product of unconsciousness, hypnosis or 

other non-volitional impetus, that movement is not voluntary. Id. Conduct is not 

rendered involuntary merely because an accused does not intend the result of his 

conduct. George v. State, 681 S.W.2d 43, 45 (Tex.Crim.App.1984). As a matter of law, the 

fact that the defendant’s conduct also includes a bodily movement of the defendant 

sufficient for a gun to discharge a bullet, without more—such as precipitation by 

another individual—a jury need not be charged on the matter of whether the defendant 

voluntarily engaged in the conduct with which he is charged. Id.

Accident is not a defense under the Texas Penal Code. Although previously a 

defense, it is now encompassed by Penal Code §6.01(a). Adanandus, at 229. While the 

defense of an accident is no longer present in the Penal Code, the courts have long held 

30
that homicide that is not the result of voluntary conduct is not to be criminally 

punished. Brown v. State, 955 S.W.2d 276, 280 (Tex.Crim.App. 1997).

The issue of the existence of a defense is not submitted to the jury unless 

evidence is admitted supporting the defense. TEX. PENAL CODE ANN. § 2.03(c). If the 

issue of the existence of a defense is submitted to the jury, the court shall charge that a 

reasonable doubt on the issue requires that the defendant be acquitted. TEX. PENAL

CODE ANN. § 2.03(d). A ground of defense in a penal law that is not plainly labeled in 

accordance with this chapter has the procedural and evidentiary consequences of a 

defense. TEX. PENAL CODE ANN. § 2.03(e).

Because ‘voluntarily’ means the absence of accidental act, omission or 

possession, it is not a fact that the State must prove in every case. [T]he State need not 

prove voluntariness unless the evidence raised the issue of accident, in which case the 

State must disprove the theory of accident beyond a reasonable doubt. Alford v. State, 

866 S.W.2d at 624 n. 8. If the issue is raised by the evidence, a jury may be charged that 

a defendant should be acquitted if there is a reasonable doubt as to whether he 

voluntarily engaged in the conduct of which he is accused. Adanandus, 866 S.W.2d at 

230.

Under § 2.03(c), a defense is supported (or raised) by the evidence if there is 

some evidence, from any source, on each element of the defense that, if believed by the 

jury, would support a rational inference that that element is true. If a defense is 

supported by the evidence, then the defendant is entitled to an instruction on that 

defense, even if the evidence supporting the defense is weak or contradicted, and even 

if the trial court is of the opinion that the evidence is not credible. Shaw v. State, 243 

S.W.3d 647, 657-58 (Tex.Crim.App.2007). This rule is designed to insure that the jury, 

not the judge, will decide the relative credibility of the evidence. Woodfox v. State, 742 

S.W.2d 408, 409-10 (Tex.Crim.App.1987). When a judge refuses to give an instruction on 

a defensive issue because the evidence supporting it is weak or unbelievable, he 

effectively substitutes his judgment on the weight of the evidence for that of the jury. Id. 

The weight of the evidence in support of an instruction is immaterial. Id. When the 

voluntariness of a defendant’s actions in firing a gun is the defendant’s primary 

defense, he is entitled to have the jury rule upon that defense and is harmed in not 

31
having the requested instruction submitted to the jury.” Payne v. State, 33 S.W.3d 374, 

376 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d).

 As the issue of whether the discharge of the firearm resulting in the decedent’s 

death was clearly raised by Appellant’s oral and written statements, as relayed by 

Sergeant Riddlespurger’s testimony, and by the testimony of Kristie Ortiz, Appellant 

was entitled to have his requested charge submitted to his jury. The failure of the trial 

court to so allow, prevented Appellant’s jury from considering such evidence and as a 

consequence, per Payne, was harmed.

 The Seventh Court of Appeals relies primarily upon Farmer v. State for the 

proposition that any voluntary preparatory act renders the ultimate act voluntary, such 

that an instruction per Article is precluded. Court of Appeals Opinion at 13-16. Yet the 

reliance is misplaced, at best. Farmer involved a Driving While Intoxicated charge 

predicated upon Farmer’s voluntary ingestion of medication, though Farmer alleged 

involuntariness on the basis of his lack of knowledge that one of the particular 

medications laid out for him by his wife was Ambien, or that he was involuntarily 

intoxicated even though the voluntarily took the medication. See Farmer v. State, 411 

S.W.3d 901 (Tex.Crim.App 2013). Yet such is distinguishable from the present set of 

facts. Farmer involved a single act, ingestion, as it relates to an issue in strict liability, for 

which there is no culpable mental state. The act in question here requires a culpable 

mental state, intention or knowledge, in causing the death of an individual through the 

discharge of a firearm. Thus, preparatory acts are irrelevant to the ultimate issue of the 

mental culpability in the discharge of the firearm. Per the Seventh Court of Appeals 

reasoning there could virtually never be an accidental discharge of a firearm lest it just 

go off by itself without any human voluntarily touching it, which both eviscerates and 

renders moot Chapter Two of Penal Code.

 However, the most condemnable aspect of the Seventh Court of Appeals reliance 

on Farmer lies in the Seventh Court of Appeals disregard of the implication expressly 

contained in Farmer’s conclusion. “Moreover, because no other evidence at trial raised 

an issue of Appellant's voluntariness in taking that medication, the trial court properly 

denied Appellant's request.” Farmer v. State, 411 SW 3d 901, 908 (Tex.Crim.App. 2013). 

In Appellant’s case at bar, there was ample evidence from Appellant that he suffered an 

32
involuntary reflex as the decedent stepped toward him and he flinched as he turned 

away, and from Appellant’s girlfriend, Kristie Ortiz, who testified he had told her that 

the gun had gone off when the co-defendant had either bumped or grabbed his arm. 

Appellant was entitled to have his requested charge submitted to his jury, and the 

Seventh Court of Appeals erred in failing to so acknowledge.

For the aforementioned reasons, Appellant complains that the Seventh Court of 

Appeals has so far deviated from all previous interpretations, by all courts, of Chapters 

Two and Six of the Texas Penal Code, so as to annihilate the intention of Sections 6.01 

and 2.03 thereof, and render said Sections defunct,such that Appellant has been denied 

the protection due him under and through the codified law of the land upon which 

Appellant relied, and petitions for a review by this Court.

33
ISSUE NUMBER FOUR: 

The Court of Appeals for the Seventh District of Texas erred by its holding that the 

evidence in this matter was sufficient to sustain a conviction for Murder.

ARGUMENT AND AUTHORITIES

ELEMENTS OF THE OFFENSE CHARGED

A person commits an offense if he intentionally or knowingly causes the death 

of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1). A person commits an offense if 

he commits or attempts to commit a felony, other than manslaughter, and in the course 

of and in furtherance of the commission or attempt, or in immediate flight from the 

commission or attempt, he commits or attempts to commit an act clearly dangerous to 

human life that causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(3). 

A person commits an offense if he recklessly causes the death of an individual. TEX. 

PENAL CODE ANN. § 19.04(a). A person commits an offense if he causes the death of an 

individual by criminal negligence. TEX. PENAL CODE ANN. § 19.05(a). A person 

commits an offense only if he voluntarily engages in conduct, including an act, an 

omission, or possession. TEX. PENAL CODE ANN. § 6.01(a). Except as provided in 

Subsection (b), a person does not commit an offense unless he intentionally, knowingly, 

recklessly, or with criminal negligence engages in conduct as the definition of the 

offense requires. TEX. PENAL CODE ANN. § 6.02(a). A person acts intentionally, or with 

intent, with respect to the nature of his conduct or to a result of his conduct when it is 

his conscious objective or desire to engage in the conduct or cause the result. TEX. 

PENAL CODE ANN. § 6.03(a). A person acts knowingly, or with knowledge, with respect 

to the nature of his conduct or to circumstances surrounding his conduct when he is 

aware of the nature of his conduct or that the circumstances exist. A person acts 

knowingly, or with knowledge, with respect to a result of his conduct when he is aware 

that his conduct is reasonably certain to cause the result. TEX. PENAL CODE ANN. § 

6.03(b). A person acts recklessly, or is reckless, with respect to circumstances 

surrounding his conduct or the result of his conduct when he is aware of but 

consciously disregards a substantial and unjustifiable risk that the circumstances exist 

34
or 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 the actor's standpoint. TEX. PENAL

CODE ANN. § 6.03(c). A person acts with criminal negligence, or is criminally negligent, 

with respect to circumstances surrounding his conduct or the result of his conduct when 

he ought to be aware of a substantial and unjustifiable risk that the circumstances exist 

or 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).

STANDARD OF REVIEW

No person . . . shall be deprived of life, liberty, or property without due process 

of law. U.S. CONST. amend. V. The Fifth Amendment of the United States Constitution 

applies to the individual states by virtue of the Fourteenth Amendment, which 

commands that no state shall make or enforce any law which shall abridge the 

privileges or immunities of citizens of the United States; nor shall any State deprive any 

person of life, liberty, or property, without due process of law; nor deny to any person 

within its jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV. The 

Texas Court of Criminal Appeals has long been aware of its duty to protect rights of the 

accused and of binding effect of concepts of due process announced by the Supreme 

Court of the United States. Charles v. State, 424 S.W.2d 909, 913 (Tex.Crim.App.1968), 

certiorari denied 88 S.Ct. 2319, 392 U.S. 940, 20 L.Ed.2d 1401.

Additionally, Texas provides its own constitutional due process safeguards. No 

citizen of this State shall be deprived of life, liberty, property, privileges or immunities, 

or in any manner disfranchised, except by the due course of the law of the land. TEX. 

CONST. art. I, § 19. This is further codified in the Texas Code of Criminal Procedure. 

No citizen of this State shall be deprived of life, liberty, property, privileges or 

immunities, or in any manner disfranchised, except by the due course of the law of the 

land. TEX. CODE CRIM. PROC. ANN. art. 1.04.

35
 If the appellate record in a criminal case reveals constitutional error that is 

subject to harmless error review, the court of appeals must reverse a judgment of 

conviction or punishment unless the court determines beyond a reasonable doubt that 

the error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2 (a). 

All persons are presumed to be innocent and no person may be convicted of an offense 

unless each element of the offense is proved beyond a reasonable doubt. The fact that he 

has been arrested, confined, or indicted for, or otherwise charged with, the offense gives 

rise to no inference of guilt at his trial. TEX. PENAL CODE ANN. § 2.01.

A review of the legal sufficiency of evidence entails a review of all the evidence 

in the light most favorable to the jury's verdict to determine whether any rational jury 

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

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 

U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.App.-Texarkana 2010, 

pet. ref'd). Legal sufficiency is examined under the direction of the Brooks opinion, 

while giving deference to the responsibility of the jury "to fairly resolve conflicts in 

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

ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson,

443 U.S. at 318-19).

Legal sufficiency of the evidence is measured by the elements of the offense as 

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 

(Tex.Crim.App.1997). The hypothetically correct jury charge "sets out the law, is 

authorized by the indictment, does not unnecessarily increase the State’s burden of 

proof or unnecessarily restrict the State’s theories of liability, and adequately describes 

the particular offense for which the defendant was tried." Id.

Because the jury is the sole judge of the weight and credibility of the witnesses' 

testimony, it may accept or reject any or all testimony of any witness. See Heiselbetz v. 

State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). The jury may also consider the 

evidence presented and make reasonable inferences based on that evidence. As the 

Court of Criminal Appeals has observed,

The jury can draw multiple reasonable inferences as long as each inference 

is supported by evidence presented at trial. . . . [A]n inference is a 

36
conclusion reached by considering other facts and deducing a logical 

consequence from them. Speculation is mere theorizing or guessing about 

the possible meaning of facts and evidence presented. A conclusion 

reached by speculation may not be completely unreasonable, but it is not 

sufficiently based on facts or evidence to support a finding beyond a 

reasonable doubt.

Hooper, 214 S.W.3d at 16.

Intent may be inferred from circumstantial evidence and from the defendant's words, 

acts, and conduct. Lay v. State, 359 S.W.3d 291, 295 (Tex.App.-Texarkana 2012, no pet.) 

(citing Laster v. State, 275 S.W.3d 512, 524 (Tex.Crim.App. 2009); Brown v. State, 122 S.W.

3d 794, 800 (Tex.Crim.App.2003)).

A jury can disregard testimony if it chooses to; it cannot, however, use that 

testimony to reach the opposite conclusion. Johnson v. State, 673 S.W.2d 190, 196 

(Tex.Crim.App.1984). The jury's right to disbelieve a witness does not constitute 

evidence to the contrary. Id. ("The fact the jury in the instant case was entitled to 

disregard the accident story to deputy Drewell (and offered by the State) does not mean 

that the missing elements of the charged offense are supplied by the rejection."); In re 

S.B., 117 S.W.3d 443, 451 (Tex.App.-Fort Worth 2003, no pet.); Tippitt v. State, 41 S.W.3d 

316, 326 (Tex.App.-Fort Worth 2001, no pet.).

APPLICATION

Section 6.01(a) of the Texas Penal Code states that a person commits an offense 

only if he engages in voluntary conduct, including an act, an omission, or possession. 

Alford v. State, 866 S.W.2d 619 (Tex.Crim.App.1993). “Voluntariness,” within the 

meaning of §6.01(a), refers only to one’s own physical body movements. Id; Trujillo v. 

State, 227 S.W.3d 164, 169 (Tex.App.-Houston [1st Dist.] 2006, pet. ref’d). The issue of 

the voluntariness of one’s conduct, or bodily movements, is separate from the issue of 

one’s mental state. Adanandus v. State, 866 S.W.2d 210, 230 (Tex.Crim.App.1993). When 

a person claims the involuntary-act defense he is conceding that his own body made the 

motion but denies responsibility for it. Rogers v. State, 105 S.W.3d 630, 639 n. 30 

(Tex.Crim.App.2003). If those physical movements are the non-volitional result of 

someone else's act, are set in motion by some independent non-human force, are caused 

37
by a physical reflex or convulsion, or are the product of unconsciousness, hypnosis or 

other non-volitional impetus, that movement is not voluntary. Id.

Accident is not a defense under the Texas Penal Code. Although previously a 

defense, it is now encompassed by Penal Code §6.01(a). Adanandus, at 229. While the 

defense of an accident is no longer present in the penal code, the courts have long held 

that homicide that is not the result of voluntary conduct is not to be criminally 

punished. Brown v. State, 955 S.W.2d 276, 280 (Tex.Crim.App.1997). Because 

‘voluntarily’ means the absence of accidental act, omission or possession, it is not a fact 

that the State must prove in every case. [T]he State need not prove voluntariness unless 

the evidence raised the issue of accident, in which case the State must disprove the 

theory of accident beyond a reasonable doubt. Alford, 866 S.W.2d at 624 n. 8.

Per the testimony adduced at trial and Sergeant Riddlespurger’s summation, 

there was no evidence of what ultimately transpired leading to Deans Anderson’s death 

beyond Appellant’s recitation. Nathan Shaw did not see what happened, only the 

aftermath. LaVigne did not testify and no statement from such person was ever 

produced. Co-defendant Cree-Anna Dawn, by all of her accounts, did not witness the 

shooting or the final interaction that led to it. There were no witnesses that provided 

testimony that Appellant intentionally and knowingly caused the death of Deans 

Anderson.

Appellant’s statement was that when Deans Anderson confrontationally stepped 

toward him and reached toward him, as he was holding the gun, he twisted away and 

the gun discharged, and that he did not mean for it do so. That is not an admission of 

Appellant of intent or knowledge of anything other than an involuntary defensive reflex 

to avoid harm to himself in the event his weapon was taken away and used on him, and 

an inability to make the weapon do as he intended, or to keep it from doing as he 

intended it not do. There was no evidence that Appellant was familiar with firearms 

and knew how to handle one without creating a risk of accidental discharges. 

Alternatively, Kristie Ortiz’ hearsay statement that the weapon discharged when CreeAnna Dawn grabbed Appellant’s arm cannot and does not establish an intentional or 

knowing murder, but instead just an accident. And by all accounts, Appellant did not 

confront Deans Anderson to murder, assault, or do anything else than to retrieve money 

38
rightfully belonging to Cree-Anna Dawn and in the possession of Deans Anderson by 

virtue of his act of robbery.

While the versions may be inconsistent, there yet remains no version entered in 

testimony wherein Appellant committed the act as charged, and thus this is a “no 

evidence” matter. Even if Appellant were completely disbelieved by his jury, there is no 

evidence to the contrary by which a jury may have found beyond all reasonable doubt 

Appellant guilty as charged.

 The Seventh Court of Appeals asserts, to the contrary, and specifically contrary to 

Johnson, that a fact-finder may infer evidence contrary to that adduced at trial. While 

correct that a jury was entitled to take at face value Appellant’s statement that, as 

decedent stepped towards him, he “twisted and pulled the trigger,” what the Seventh 

Court of Appeals misses is that the face value of such a statement is inherently limited. 

“I twisted and pulled the trigger” only answers the question of how the deed was done, 

but not why. As the crux of the offense is why the deed was done, there necessarily 

must be more. In this case the more was answered by Appellant as an involuntary 

flinching, or answered by his girlfriend as an involuntary discharge when his arm was 

either bumped or grabbed by the co-defendant. Yet there was no testimony to the 

contrary. Thus, in upholding the sufficiency of the evidence in this matter, the Seventh 

Court of Appeals has held that a jury may indeed infer non-existent evidence, and 

evidence to the contrary of that adduced at trial. And while correct that Appellant’s 

jury may have been within its prerogative to disregard the testimony of both Appellant 

and the only other witness to testify as to motive, or even the co-defendant’s statement 

that Appellant had agreed to “not do anything stupid” as they were approaching the 

decedent’s apartment, they were yet not within their prerogative to believe the opposite 

and self-supply the missing element of intention or knowledge, as the standard under 

which any and every criminal jury must labor is the standard of beyond all reasonable 

doubt. 

For the aforementioned reasons, Appellant complains that the Seventh Court of 

Appeals has so far deviated from all previous interpretations, by all courts, of the 

39
standards governing evidentiary sufficiency as to annihilate the sufficiency of the 

evidence as a viable concept of law and render said concept defunct, such that 

Appellant has been denied the protection due him under and through the codified law 

of the land upon which Appellant relied, and petitions for a review by this Court.

40
 PRAYER

WHEREFORE, Appellant respectfully prays this honorable Court of Criminal 

Appeals take this case under review for the reasons stated above, and that after findings 

by this Court, that the judgment of the Court of Appeals for the Seventh District of 

Texas at Amarillo be reversed, the Judgment and conviction vacated, and Appellant 

Dustin Ryan Rhoades be ordered acquitted of the charges against him, or otherwise be 

remanded to the trial court for a new trial.

Respectfully submitted,

 ________________________________

 JAMES E. WOOLDRIDGE

 S.B.T. No. 24010492

 600 S. Tyler Street 

 Suite 1704 

 LB 12051

 Amarillo, Texas 79101

 TEL: (806) 418 8575

 FAX: (806) 418 8576

 j.e.wooldridge@att.net

Attorney for Appellant

DUSTIN RYAN RHOADES

41
CERTIFICATE OF SERVICE 

I, JAMES E. WOOLDRIDGE, certify that a true and correct copy of the foregoing 

Brief For Appellant was delivered by electronic service, via ProDoc efiling 2 to the 47TH

Judicial District Attorney’s Office for Appellee the State of Texas, 501 S. Fillmore Street, 

Suite 5A, Amarillo, Texas 79101, on the 16TH day of November, 2015, in accordance with 

TRAP 9.5.

 /s/ JAMES E. WOOLDRIDGE 

 JAMES E. WOOLDRIDGE

CERTIFICATE OF COMPLIANCE

I, JAMES E. WOOLDRIDGE, certify that the foregoing Brief For Appellant, 

including headings, footnotes, and quotations, but excepting caption, identity of parties 

and counsel, statement regarding oral argument, table of contents, index of authorities, 

statement of the case, statement of issues presented, statement of jurisdiction, statement 

of procedural history, signature, proof of service, certification, certificate of compliance, 

and appendix, contains 11,549 words.

 /s/ JAMES E. WOOLDRIDGE 

 JAMES E. WOOLDRIDGE

42
APPENDIX A

43
In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-13-00319-CR 

DUSTIN RYAN RHOADES, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 320th District Court 

Potter County, Texas 

Trial Court No. 65,540-D, Honorable Don R. Emerson, Presiding 

 

September 15, 2015 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

A jury convicted appellant Dustin Ryan Rhodes of murder and assessed 

punishment, enhanced, at forty years’ confinement in prison.1 The trial court imposed 

sentence accordingly. Appellant challenges his conviction through four issues. Three 

seek rendition of a judgment of acquittal and the fourth, a new trial. We will affirm the 

judgment of the trial court. 

 1 See TEX. PENAL CODE ANN. § 19.02(b) (West 2011) (murder); § 12.42(c)(1) 

(West Supp. 2014) (enhancing minimum term of confinement for first degree felony to 

fifteen years).
2

Background

Around midnight on June 7, 2012, Deans Anderson was found shot to death just 

inside his Amarillo apartment. Another resident of the complex had called 911 after he 

heard a gunshot and watched a man and woman run to a red minivan. The man carried 

a “small black pistol.” From Anderson’s cellphone a police detective obtained 

information that led officers, through an undercover investigation, to Cree-Anna Shamell 

Dawn, a participant in an escort service. Dawn had accompanied appellant to the door 

of Anderson’s apartment on the night of his death. She identified appellant as 

Anderson’s shooter.

Questioned by police, appellant gave a voluntary written statement. According to 

his statement, appellant had been acquainted with Dawn for a short time. On June 7, 

she called appellant to tell him a man attempted to rape her and took her money. She 

enlisted appellant’s help to recover the money. Using a minivan belonging to his 

girlfriend Kristie Ortiz, appellant drove Dawn to the apartment complex and followed her 

to Anderson’s apartment. Appellant held his .357 revolver in his hand. Anderson 

opened the apartment door after Dawn knocked. Anderson spoke to Dawn. Appellant 

then stepped up to the door, pointed the gun at Anderson and demanded he give Dawn 

the money and empty his pockets. The men exchanged words and Anderson stepped 

toward appellant. The statement continued, “I twisted and pulled the trigger. I didn’t 

mean to. The shot hit the man in the face. I was sorry and wanted so bad to help him.” 

Appellant and Dawn ran to the minivan and left the complex. A few days later, his 

statement said, appellant sold the gun to an unidentified man along a north Amarillo 

street.
3

Appellant was charged by indictment with Anderson’s murder. Appellant’s 

written statement was admitted into evidence at trial. Ortiz testified, telling the jury that 

a few days after the occurrence appellant told her he pulled the gun on Anderson to 

scare him and Dawn “pulled his arm away to quit, and then the gun went off.” Ortiz 

acknowledged she did not recount this version of the occurrence in a June 12 written 

statement to police. 

A pathologist testified to his autopsy of Anderson’s body, and expressed the 

opinion the cause of death was a gunshot wound to the head. 

Appellant did not testify. He was convicted and sentenced as noted.

Analysis

By his first, third, and fourth issues appellant seeks rendition of a judgment of 

acquittal. He requests reversal and remand in his second issue. We will first consider 

appellant’s three rendition issues.

Sufficiency of the Evidence

In his first issue, appellant asserts the evidence was insufficient to prove he 

intentionally or knowingly murdered Anderson because the firearm discharged as a 

result of an “involuntary reflex.” 

We evaluate the sufficiency of evidence supporting criminal convictions under the 

standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed. 2d 

560 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). That 

standard requires that we view all evidence in the light most favorable to the verdict and 
4

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

the crime beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. 

Crim. App. 2005). As fact finder, the jury is the sole judge of the credibility of the 

witnesses and may choose to believe all, some, or none of the testimony the parties 

presented. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008); Chambers v. 

State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Williams v. State, 290 S.W.3d 407, 

412 (Tex. App.—Amarillo 2009, no pet.).

The State’s indictment charged appellant with murder under two theories, that he 

intentionally and knowingly caused Anderson’s death by shooting him with a firearm; 

and that he committed or attempted to commit a felony, deadly conduct, and in the 

course of it committed or attempted to commit an act clearly dangerous to human life, 

pointing a firearm at or in Anderson’s direction, that caused Anderson’s death. See

TEX. PENAL CODE ANN. § 19.02(b)(1), (b)(3) (West 2011). 

Under Penal Code section 19.02(b)(1), a person commits murder if he 

intentionally or knowingly causes the death of an individual. TEX. PENAL CODE ANN. § 

19.02(b)(1). Section 19.02(b)(3) is the “felony murder” provision. TEX. PENAL CODE 

ANN. § 19.02(b)(3). Essentially, felony murder is, “an unintentional murder committed in 

the course of committing a felony.” Rodriguez v. State, 454 S.W.3d 503, 508 (Tex. 

Crim. App. 2014) (citing Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 

1999)). Specifically, felony murder is committed where a person “commits or attempts 

to commit a felony, other than manslaughter, and in the course of and in furtherance of 

the commission or attempt . . . he commits or attempts to commit an act clearly 

dangerous to human life that causes the death of an individual.” Id. (quoting Penal 
5

Code section 19.02(b)(3)). A person commits the offense of deadly conduct if he 

“knowingly discharges a firearm at or in the direction of . . . one or more individuals.” 

TEX. PENAL CODE ANN. § 22.05(b) (West 2011). Deadly conduct may serve as the 

underlying felony for proof of felony murder. Washington v. State, 417 S.W.3d 713, 721 

(Tex. App.—Houston [14th Dist.] 2013, pet. refused); Miles v. State, 259 S.W.3d 240, 

247 (Tex. App.—Texarkana 2008, pet. refused). 

A person acts intentionally with respect to a result of his conduct when “it is his 

conscious objective or desire to engage in the conduct or cause the result.” TEX. PENAL 

CODE ANN. § 6.03(a) (West 2011). A person acts knowingly with respect to a result of 

his conduct when “he is aware that his conduct is reasonably certain to cause the 

result.” TEX. PENAL CODE ANN. § 6.03(b).

The court’s charge authorized conviction under either of the State’s theories of 

guilt, and from our review of the record we find the evidence sufficient to permit 

conviction under either theory. By appellant’s statement, he pointed the .357 revolver at 

Anderson and told him to give Dawn the money and empty his pockets. When 

Anderson stepped toward him, appellant “twisted and pulled the trigger.” In its role as 

trier of fact, the jury was entitled to accept appellant’s statement at face value. From his 

conduct of pointing the revolver at Anderson at close range and pulling the trigger, and 

despite appellant’s assertion he did not “mean to,” the jury was further entitled to infer 

appellant intended the natural and usual consequence of such an action, the death of 

Anderson. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (“Intent may 

also be inferred from circumstantial evidence such as acts, words, and the conduct” of 

the accused). The jury also could have concluded appellant’s actions were 
6

accompanied by the knowledge that they were reasonably certain to cause Anderson’s 

death, even if appellant did not intend it. Either mental state authorizes conviction for 

murder. 

The jury was equally entitled to disbelieve Ortiz’s version which included 

appellant’s statement the gun discharged when Dawn pulled his arm away. Ortiz made 

no mention of Dawn pulling appellant’s arm in her written statement given some eight 

days after the shooting. Rather, she first mentioned this version in January 2013 during 

a conversation with the prosecutor and an investigator. 

Appellant’s written statement also provided evidence permitting a rational jury to 

conclude beyond reasonable doubt that appellant knowingly discharged a firearm at or 

in Anderson’s direction, that doing so was clearly dangerous to human life and that it 

caused Anderson’s death. See TEX. PENAL CODE ANN. § 22.05(b). 

Because, viewed in the light most favorable to the verdict, the record contains 

evidence from which jurors rationally could have found all elements of the offense of 

murder, the evidence is sufficient. Appellant’s first issue is overruled.

Motion to Quash Paragraph Two of the Indictment

By his third issue, appellant argues the trial court erred in refusing to quash 

paragraph two of the indictment. As we understand appellant’s argument here, he 

contends paragraph two of the indictment did not properly allege felony murder because 

as worded it alleged only the misdemeanor level of deadly conduct.

The second paragraph of the indictment read: 
7

AND THE GRAND JURORS do further present in and to the Court that . . . 

DUSTIN RYAN RHOADES, the defendant, on or about the 7th day of 

June, 2012 did then and there intentionally or knowingly commit or attempt 

to commit an act clearly dangerous to human life, to-wit: pointing a firearm 

at or in the direction of Deans Anderson, that caused the death of Deans 

Anderson, and the Defendant was then and there in the course of 

intentionally or knowingly committing a felony, to-wit: Deadly Conduct, and 

said death of Deans Anderson was caused while the Defendant was in the 

course of and in furtherance of the commission or attempt of said felony.

In his pretrial motion to quash appellant asserted, “As alleged, Deadly Conduct is 

an act Reckless in its level of culpability, and is therefore a lesser included offense of 

Manslaughter, and cannot therefore be charged as Murder against Defendant Dustin 

Ryan Rhoades.” After a brief hearing on the morning of trial, the motion was denied. 

The sufficiency of a charging instrument presents a question of law. Smith v. 

State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). An appellate court reviews a trial 

judge’s ruling on a motion to quash a charging instrument de novo. Id. at 14.

As applicable here, a person commits the offense of murder if he commits a 

felony, other than manslaughter, and in the course of and in furtherance of the 

commission he commits an act clearly dangerous to human life that causes the death of 

an individual. See TEX. PENAL CODE ANN. § 19.02(b). 

Penal Code section 22.05 contains misdemeanor and felony categories of the 

offense of deadly conduct. See TEX. PENAL CODE ANN. § 22.05. First, the offense is 

committed if a person “recklessly engages in conduct that places another in imminent 

danger of serious bodily injury.” TEX. PENAL CODE ANN. § 22.05(a). This is a Class A 

misdemeanor. TEX. PENAL CODE ANN. § 22.05(e). Second, a person commits the 

offense of deadly conduct if he “knowingly discharges a firearm at or in the direction 
8

of . . . one or more individuals.” TEX. PENAL CODE ANN. § 22.05(b). This is a thirddegree felony. TEX. PENAL CODE ANN. § 22.05(e). Thus the felony category of deadly 

conduct is committed only by knowingly discharging a firearm.

Section 22.05(c) states that “recklessness and danger are presumed if the actor 

knowingly pointed a firearm at or in the direction of another . . . .” TEX. PENAL CODE ANN.

§ 22.05(c). Those concepts, recklessness and danger, have application only to the 

misdemeanor category of deadly conduct. See TEX. PENAL CODE ANN. § 22.05(a). But 

paragraph two of the indictment alleged that appellant pointed a firearm at or in the 

direction of Anderson.

Perhaps because, and as the State concedes, paragraph two of the indictment 

“could have been more artfully drawn,” appellant confuses the elements of the required 

underlying felony with the “act clearly dangerous to human life” requirement contained 

in the felony murder provision of section 19.02(b)(3). It was to satisfy that requirement 

that paragraph two contains the allegation appellant pointed a firearm. 

It now appears “well established under Texas law that deadly conduct can be the 

underlying felony for felony murder.” Washington, 417 S.W.3d at 721 (citing Miles, 259 

S.W.3d at 247; Yandell v. State, 46 S.W.3d 357, 361 (Tex. App.—Austin 2001, pet. 

refused); Rodriguez v. State, 953 S.W.2d 342, 354 (Tex. App.—Austin 1997, pet. 

refused), cited with approval in Lawson v. State, 64 S.W.3d 396, 401 (Tex. Crim. App. 

2001) (Cochran, J., concurring)). The culpable mental state for felony deadly conduct is 

knowingly, which precludes the offense from being a lesser-included offense of 

manslaughter which requires only the less culpable mental state of recklessness. See 
9

Washington, 417 S.W.3d at 721-22 (citing Yandell, 46 S.W.3d at 361). Finally, the 

underlying felony necessary for proving the offense of felony murder, so long as it is not 

manslaughter, may also serve as the act clearly dangerous to human life that causes 

the death of an individual. See Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App. 

1999) (disavowing the “overly broad statement in Garrett v. State, 573 S.W.2d 543, 546 

(Tex. Crim. App. [Panel Op.] 1978), that in order to support a conviction under the 

felony murder provision, ‘[t]here must be a showing of felonious criminal conduct other 

than the assault causing the homicide’” and holding the only limitation by merger on the 

offense of felony murder is a conviction “will not lie when the underlying felony is 

manslaughter or a lesser included offense of manslaughter”). We find no error by the 

trial court in denying appellant’s motion to quash. Appellant’s third issue is overruled. 

Standing

Appellant argues in his fourth issue that police learned his identity, and as a 

result later obtained his written statement, through the means of unlawful activity, a 

violation of the prostitution statute.2 Therefore, he urges, the trial court erred by failing 

to suppress identification evidence and his written statement.

As noted, police discovered a recent contact on Anderson’s cellphone. Following 

up, they linked the call to a person working in an “escort service” under the alias 

“Chocolate Cherry.” Officers set up an undercover prostitution investigation of this 

person and arranged a meeting with her. During a hearing outside the presence of the 

jury, a detective testified at the meeting an offer of sex for money was made and 

 2 See TEX. PENAL CODE ANN. § 43.02 (West Supp. 2014) (offense of prostitution).
10

accepted. As a result, Chocolate Cherry was arrested. She was then identified as 

Dawn. Further investigation based on information Dawn provided led to a second 

interview, in which Dawn told the detective she and appellant were at the door of 

Anderson’s apartment, appellant held a gun in his hand, he pointed the gun at 

Anderson, and she ran while appellant remained at the door with the gun. As she ran 

she heard a gunshot. Appellant thus asserts his identification as a suspect resulted 

from the initial undercover conversation with Dawn, in which an officer participated in 

the agreement for sex for money.3 

Code of Criminal Procedure article 38.23(a) states, “No evidence obtained by an 

officer or other person in violation of any provisions of the Constitution or laws of the 

State of Texas, or of the Constitution or laws of the United States of America, shall be 

admitted in evidence against the accused on the trial of any criminal case.” TEX. CODE 

CRIM. PROC. ANN. art. 38.23(a) (West 2005). Article 38.23 protects “a suspect’s privacy, 

property, and liberty rights against overzealous law enforcement.” Wilson v. State, 311 

S.W.3d 452, 459 (Tex. Crim. App. 2010). It is substantive in nature, providing a remedy 

for a violation of those rights. Id. But a defendant has no standing to complain about 

evidence seized in violation of Texas law unless the defendant’s rights were invaded by 

the seizure. Chavez v. State, 9 S.W.3d 817, 819 (Tex. Crim. App. 2000) (citing Fuller v. 

State, 829 S.W.2d 191, 201-02 (Tex. Crim. App. 1992), overruled on other grounds by 

 3 Some penal statutes contain exceptions allowing law enforcement agents to 

engage in conduct that otherwise would be criminal. See, e.g., TEX. HEALTH & SAFETY

CODE ANN. § 481.062(a)(4) (West 2010); Wilson v. State, 311 S.W.3d 452, 463 (Tex. 

Crim. App. 2010) (“The Texas Legislature specifically exempted police officers who are 

acting in their official capacity from liability for the penal offense of possession of a 

controlled substance”). Appellant points out the prostitution statute contains no similar 

exception.
11

Riley v. State, 889 S.W.2d 290 (Tex. Crim. App. 1994)). We find appellant has no 

standing to complain that the officer violated the prostitution statute. 

Fuller is instructive here. While detained in the county jail the defendant in Fuller 

made an audio recording and gave it to a fellow prisoner, Hall. 829 S.W.2d at 201. 

Another prisoner took the recording from Hall and delivered it to jail authorities. Id. The 

trial court admitted the recording into evidence at the punishment phase of the 

defendant’s capital murder trial to show his lack of remorse. Id. The defendant argued 

the recording should have been suppressed under article 38.23(a) because it was 

illegally taken from Hall. Id. The State countered that the defendant had no standing to 

contest the evidence. The court agreed, concluding the defendant lacked standing “to 

challenge such illegality in the context of a criminal prosecution.” Id. at 202. It 

explained that despite its broad language, article 38.23(a) does not “confer automatic 

third party standing upon all persons accused of crimes, such that they may complain 

about the receipt of evidence which was obtained by violation of the rights of others, no 

matter how remote in interest from themselves.” Id.

Thus under the facts of Fuller:

The justiciable injury suffered as a direct and immediate result of the 

illegality of which [the defendant] here complains was not his own. The 

illegality, if any, was theft or conversion. The victim, if any, was [Hall]. 

[She] may have a cognizable cause of action for conversion against 

someone. The State of Texas may have a basis to prosecute someone 

for the criminal offense committed against [Hall]. But no one may sue, nor 

may the State of Texas prosecute, anyone for an injury to the [defendant] 

arising from the illegality about which he now complains, since he suffered 

no injury actionable under our law as a result of it. No actionable wrong 

was visited upon [the defendant] as a result of the seizure. For this 

reason we hold that he is also without standing to challenge such illegality 

in the context of a criminal prosecution . . . .

829 S.W.2d at 202.
12

In like manner, appellant does not explain how the undercover operation that 

resulted in Dawn’s arrest for prostitution invaded his rights with respect to the charge of

murdering Anderson. See Gower v. State, No. 02-10-00362-CR, 2011, Tex. App. 

LEXIS 8185, at *19-25 (Tex. App.—Fort Worth Oct. 13, 2011, no pet.) (mem. op., not 

designated for publication) (holding defendant lacked standing to complain under article 

38.23(a) of evidence obtained from deputy medical examiner, allegedly acting in 

violation of Code of Criminal Procedure article 49.25 (a Class B misdemeanor), when 

defendant failed to identify a violation of his own rights resulting from the alleged 

violation); Orr v. State, 306 S.W.3d 380, 400 (Tex. App.—Fort Worth 2010, no pet.)

(holding defendant had no standing to complain that testimony of unlicensed fire 

investigator should have been struck under article 38.23(a) when defendant did not 

allege a violation of her rights related to the investigator’s alleged violation of law); State 

v. Tyson, 919 S.W.2d 900, 903 (Tex. App.—Eastland 1996, pet. refused) (finding 

defendant had no standing to complain under article 38.23 of evidence agents obtained 

through allegedly unlawful purchase of alcoholic beverages by cooperating minor as 

none of defendant’s rights were violated by the transaction); Stockton v. State, 756 

S.W.2d 873, 874 (Tex. App.—Austin 1988, no pet.) (finding evidence obtained by an

undercover narcotics officer enrolled in high school, allegedly in violation of the Texas 

Education Code, was not subject to exclusion under article 38.23); see also Andrews v. 

State, 164 Tex. Crim. 1, 3, 296 S.W.2d 275, 276 (1956) (overruling a defendant’s 

contention that testimony from a physician was inadmissible because the physician 

conducted a vaginal examination of a rape victim while not licensed to practice). Thus 
13

appellant has no standing to complain, under article 38.23, of the admission of the 

challenged evidence. Appellant’s fourth issue is overruled. 

Failure to Instruct on Voluntariness

By his second issue appellant complains the trial court erred by refusing to 

submit a requested instruction on voluntariness. Appellant’s proposed instruction 

provided:

You are instructed that a person commits an offense only if he voluntarily 

engages in conduct, including an act, omission, or possession. Conduct is 

not rendered involuntary merely because the person did not intend the 

results of his conduct.

You are instructed that it is your duty to consider the evidence of all 

relevant facts and circumstances surrounding the alleged shooting of 

Deans Anderson and the previous relationship existing between the 

accused and the deceased, if any, including by way of any third party, 

together with all relevant facts and circumstances going to show the 

condition of the mind of defendant Dustin Ryan Rhoades at the time of the 

alleged shooting, and you should place yourselves in the position of 

defendant Dustin Ryan Rhoades at the time in question and view the 

circumstances from his viewpoint alone.

Thus, if you believe from the evidence beyond a reasonable doubt that on 

the occasion in question the defendant, Dustin Ryan Rhoades, did cause 

the death of Deans Anderson by shooting him with a gun, as alleged in the 

indictment, but you further believe from the evidence, or you have a 

reasonable doubt thereof, that the shooting was a result of an accidental 

discharge of the gun and was not the voluntary act or conduct of the 

defendant, you will acquit the defendant and say by your verdict “Not 

Guilty.”

The court denied the requested instruction. 

“When a defensive theory is raised by evidence from any source and a charge is 

properly requested, it must be submitted to the jury.” Woodfox v. State, 742 S.W.2d 

408, 409 (Tex. Crim. App. 1987) (quoting Gavia v. State, 488 S.W.2d 420, 421 (Tex. 
14

Crim. App. 1972)). A trial court must submit an instruction on every defensive issue 

raised by the evidence, “regardless of whether the evidence is strong, feeble, 

unimpeached, or contradicted, and even when the trial court thinks that the testimony is 

not worthy of belief.” Rogers v. State, 105 S.W.3d 630, 637 (Tex. Crim. App. 2003) 

(concerning voluntariness of conduct as defensive issue). The evidence must support a 

rational jury finding on each element of the defense. Shaw v. State, 243 S.W.3d 647, 

658 (Tex. Crim. App. 2007).

“A person commits an offense only if he voluntarily engages in conduct, including 

an act, an omission, or possession.” TEX. PENAL CODE ANN. § 6.01(a) (West 2011).

“Voluntariness,” as applied by section 6.01(a), refers only to one’s own physical body 

movements. Rogers, 105 S.W.3d at 638 (citing Rashann Maurice Brown v. State, 89 

S.W.3d 630, 633 (Tex. Crim. App. 2002)). “If those physical movements are the 

nonvolitional result of someone else’s act, are set in motion by some independent nonhuman force, are caused by a physical reflex or convulsion, or are the product of 

unconsciousness, hypnosis or other nonvolitional impetus, that movement is not 

voluntary.” Id. (citing Tex. Penal Code § 6.01, Practice Commentary).

[B]efore criminal responsibility may be imposed, the actor’s conduct must 

“include[ ] either a voluntary act or an omission when the defendant was 

capable of action.” The operative word under Section 6.01(a), for present 

purposes, is “include.” Both the Model Penal Code comments and the 

Practice Commentary to the 1974 Texas Penal Code stress that the 

“voluntary act” requirement does not necessarily go to the ultimate act 

(e.g., pulling the trigger), but only that criminal responsibility for the harm 

must “include an act” that is voluntary (e.g., pulling the gun, pointing the 

gun, or cocking the hammer). 

Farmer v. State, 411 S.W.3d 901, 905-06 (Tex. Crim. App. 2013) (quoting Rogers, 105 

S.W.3d at 638).
15

Here, according to appellant, he armed himself with a .357 revolver which he 

carried in his hand as he and Dawn approached Anderson’s apartment door. Appellant 

stepped up to the door with his gun pointed at Anderson and demanded money. Based 

on appellant’s own version of the occurrence he voluntarily engaged in an act leading to 

the shooting of Anderson. That is, he carried his loaded revolver and pointed it at 

Anderson. No evidence suggests those actions were involuntary. “All that is necessary 

to satisfy Section 6.01(a) of the Texas Penal Code is that the commission of the offense 

included a voluntary act.” Farmer, 411 S.W.3d at 907 (emphasis in original). Therefore, 

the trial court did not err by refusing appellant’s request for a voluntariness instruction. 

See George v. State, 681 S.W.2d 43 (Tex. Crim. App. 1984) (finding a person 

“voluntarily engages in conduct when the conduct includes, inter alia, a voluntary act 

and its accompanying mental state. That such conduct also includes an involuntary act 

does not necessarily render engaging in that conduct involuntary” (footnote omitted, 

emphasis in original)); Conroy v. State, 843 S.W.2d 67, 72 (Tex. App.—Houston [1st 

Dist.] 1992, no pet.) (“Even assuming that the discharge of the weapon was unintended, 

the intentional pointing of a weapon is a voluntary act and the resulting death is 

imputable to the [defendant]”); Arroyo v. State, No. C14-92-00540-CR, 1994 Tex. App. 

LEXIS 459, at *11 (Tex. App.—Houston [14th Dist.] Mar. 10, 1994, no pet.) (not 

designated for publication) (explaining instruction on voluntariness not required if 

defendant engaged in single voluntary act and required mental state even though 

involuntary act may also have constituted part of overall act). Cf. Farmer, 411 S.W.3d 

at 906 (“Thus, a voluntary act that comprised a portion of the commission of the offense 
16

is sufficient to satisfy the requirement of Section 6.01(a), even if that voluntary act was 

accidental or the consequences of that act were unintended”).

Appellant’s second issue is overruled. 

Conclusion

Having overruled each of appellant’s issues, we affirm the judgment of the trial 

court. 

James T. Campbell

 Justice

Do not publish. 

Pirtle, J., concurring. 
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Case # PD-1350-15

Case Information

Location Court Of Criminal Appeals

Date Filed 11/16/2015 09:12:14 PM

Case Number PD-1350-15

Case Description

Assigned to Judge

Attorney James Wooldridge

Firm Name James E. Wooldridge

Filed By James Wooldridge

Filer Type Not Applicable

Fees

Convenience Fee $0.09

Total Court Case Fees $0.00

Total Court Filing Fees $0.00

Total Court Service Fees $0.00

Total Filing & Service Fees $0.00

Total Service Tax Fees $0.00

Total Provider Service Fees $3.00

Total Provider Tax Fees $0.25

Grand Total $3.34

Payment

Account Name James Wooldridge

Transaction Amount $3.34

Transaction Response

Transaction ID 12811188

Order # 007854441-0

Petition for Discretionary Review

Filing Type EFile

Filing Code Petition for Discretionary Review

Filing Description Petition for Discretionary Review

Reference Number Rhoades

Comments

Status Rejected

Fees

Court Fee $0.00

Service Fee $0.00

Rejection Information

Rejection

Reason Time Rejection Comment

Other

11/17/2015

02:22:40

The petition for discretionary review does not contain a certification in compliance

with T.R.A.P. 9.4(i)(3); it exceeds the word count limit of 4500 words indicating that
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PM there are 11,549 words in the document. You have ten days to file a corrected

petition.

Documents

Lead Document Petition for Discretionary Review - Rhoades.pdf [Original]