1

CAUSES 13

- 14

- 00742

- CR, 13

- 14

- 00743

- CR, & 13

- 14

- 00744

- CR IN THE TH IR TEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT CORPUS CHRISTI, TEXAS

CHARLES DANE HILL, APPELLANT

VS.
THE STATE OF TEXAS, APPELLEE

APPELLANT’S BRIEF
Trial Causes 13 -11- 9140, 13

- 11

- 9158, & 13

- 11

- 9159

Jackson County District Court

Submitted by
W. A. (BILL) WHITE Attorney for Appellant POB 7422, Victoria, TX 77903 (361) 575

- 1774 voice & fax TBN 00788659

ORAL ARGUMENT NOT REQUESTED ACCEPTED 13-14-00742-CR THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS 6/17/2015 3:30:26 PM CECILE FOY GSANGER

CLERK2 IDENTITY OF PARTIES AND COUNSEL Appellant was repre sented at trial by Mr. Larry Sauer, Attorney at Law, and Mr. Doran Sauer, Attorney at Law, b o t h of 1004 West Avenue, Austin, TX 78701. Appellant is represented on appeal by Mr. W. A. (Bill) White, Attorney at Law, POB 7422, Victoria, TX 77903

- 7422. During trial , appellant was a resident of Jackson County , Texas. Appellant is currently incarcerated in IDTDCJ. The State was repre sented at trial by Mr. Robert E. Bell, D.A. and Ms. Pam Guenther, A.D.A., both of the Jackson County District Attorney’s Of fice, located at 115 W. Main Street , 2 nd Flr, Edna, TX 77957. Appellant anticipates that the Stat e’s reply b rief will be prepared and filed by Mr. Jim Vollers, 2201 We stover R oa d, Austin, TX 78703.3 TABLE OF CONTENTS Page Index of Authorities 4 Appellant’s Brief 5 Statement of the Case and Statement of Facts 5 Issues Presented 1 0 Summary of Argument 1 0 Argument 1 2
Issue I 1 2 THE TRIAL COURT ERRED BY DENYING APPELLANT’S REQUEST FOR JURY INSTRUCTION ON SELF

- DEFENSE BECAUSE APPELLANT PLED “NOT GUILTY” WHEN TRIAL BEGAN

Issue II 1 5
THE EVIDENCE IS INSUFFICIENT TO SHOW THAT APPELLANT KNEW JASON MCCARRELL WAS A PUBLIC SERVANT WHEN SH OOTING AT HIM Prayer 1 9 Certificate of Service 1 9 Certificate of Compliance 2 04 INDEX OF AUTHORITIES
Cases Page Anderson v. St., 11 S.W.3d 369 ( Tex.App . - Houston 2000)
1 4 Conner v. St., 67 S.W.3d 192 (Tex.Crim.App. 2001) 1 6 Hamel v. St., 916 S.W.2d 491 (Tex.Crim.App. 1996) 1 5 Holberg v. St., 38 S.W.3d 137 (Tex.Crim.App. 2000) 1 6 Jackson v. Virginia, 443 U.S. 307 (1979) 1 5
MacDon a l d v. St., 761 S.W.2d 56 (Tex.App.

- Houston 1998)
1 4 Saxton v. St., 804 S.W.2d 910 (Tex.Crim.App. 1991) 1 3
Vodocho ds k y v. St., 158 S.W.3d 502 (Tex.Crim.App. 2005)
1 6 Walker v. St., 994 S.W.2d 199 (Tex.App.

- Houston 1999)
1 5 Young v. St., 991 S.W.2d 835 (Tex.Crim.App. 1999) 1 4

Statute s Tex.Pen.Code Ann., sec. 8.04(a)(Vernon 2013) 1 85

CAUSES 13

- 14

- 00742

- CR, 13

- 14

- 00743

- CR, & 13

- 14

- 00744

- CR Trial Cause s 13

- 1 1

- 9140, 13

- 11

- 9158, & 13

- 11

- 9159

CHARLES DANE HILL , Appellant IN THE THIRTEENTH
VS. COURT OF APPEALS AT
THE STATE OF TEXAS , Appellee CORPUS CHRISTI, TEXAS

APPELLANT’S BRIEF
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW A PPELLANT, CHARLES DANE HILL , through counsel, W. A. (BILL) WHITE, Attorn ey at Law, show ing :

STATEMENT OF THE CASE AND STATEMENT OF FACTS Appe llant was indicted in November 2013 for aggravated assault on public servant ( 13

- 11

- 9140; three counts), aggravated assault with a deadly weapon ( 13

- 11

- 9158; one count with three paragraphs), and deadly conduct ( 13

- 11

- 9159; one c ount with two paragraphs). These crim es were alleged to have all occurred on or

a bout 10/05/13 in Jack s on County, Texas. Under the State’ s theory , the offens es all occurred during a course of events lasting from morning into6

late night of 10/05/13, endi ng with appellant’s transportation by EMS for med ical care , and subsequent arrest by law enforceme nt. On 10/05/13, appellant was scheduled to part icipate in a local fishing tournament. (RR Vol. 5, p. 124). He drank beer all day in large volume and ate Vodka

- soaked gummy bears . (RR Vol. 5, p. 74 ; p . 1 2 7 ). I n the aftern oon, appellant visited an outdoor festival with friends in nearby Victoria (25 miles away) nam ed

“ Bootfest ”
. At Bootfest, which w a s crowded, appellant became separated from his fr iends for about two hours. When reuniting with appellant, friends noticed t hat he was unusual in his behavior , and not himself
. (RR Vol. 5, pp. 132

- 134). According to trial testimony, appellant later admitted to a witness that h e ingested LSD during his solitary wanderings at Bootfest. ( R R V o l
. 5 , p p . 2 0 8

- 2 1 0 ) Upon returning to rural Jackson County a f t e r
B o o t f e s t , appellant began behaving aggressively toward7

his fri ends at 694 County Road 313 East near Vanderbilt
. ( R R V o l
. 5 , p p . 1 3 6

- 1 4 1 )
. An argument ensued between appellant and Adam Twa rdowski , a nd Adam told appellant to leave his home. Not long afterward, a physical strug gle occurred on the premises inside a pickup truck between Michael Cornwell and appe llant, in which appellant hel d a loaded pistol. During this struggle, the pistol discharged , shooting a hole in the truck’s roof and firing another projectile toward the
T wardowski house nearby
. (RR Vol. 5, pp. 51

- 5 3 ). At some point, Cornwell actually managed to stick one of his fingers betw een the pistol’s hammer and firing plate at the insta nt appellant pulled the trigger , preventing t h e g u n f r o m f i r i n g a n o t h e r t i m e . (RR Vol. 5, pp. 53

- 59). Appellant also bit Cornwell during this scuffl e . Appellant then left the scene and returned to his own residence nearby, while f riends called 911 and
alerted law enforcement. As the darkness of night fell , law e nforcement officers from various local and8

state agencies made their way to the residence of appellant, who was now armed with a rifle. ( R R V o l
. 4 , p . 4 2 ) Law enforcement kept their vehicle lights off to avoid pinpoint ing their positions, hoping that appellant would not see or fire at them. ( R R V o l
. 4 , p p . 4 3

- 4 6 ; 5 2 )
. According to testimony, appellant eventually fire d at one officer , D e p u t y Jason McCarrell
. ( R R V o l
. 4 , p p . 5 4

- 5 5 ) It is important to note that peace officers on the

scene during this dark , country night intentionally

us ed neither their blue and red , overhead lights, nor

an y other vehicle lights , including i n t e r i o r dome light s . ( R R V o l
. 4 , p . 5 2 )
. Out in the country, after sundown, it was ver y dark. Law enforcement relied on thermal body sensor equipment ( n i g h t v i s i o n ) to discover appellant holding his rifle , rather than using
fl ashlights
. ( R R V o l
. 4 , p p . 3 7

- 3 9 )
. A l s o , t h e peace officers did not verbally identify themselves as being9

present, or that they were even peace officers, for the same tactical reason. ( R R V o l
. 4 , 4 6

- 4 7 ) Appellant was ultimately subdued and taken int o custody after being shot in the arm by law enforcement. He was medically s tabilized and l a t e r jailed
. Appellant’s trial began on 11/1 7/14, with jury selection start ing t he same day. The State’s case

- in

chief began o n 11/18/14, and the State later rested its case on guilt/innocence on 11/24 /14. The defense presented no witnesses at guilt/innocence. The jury returned verdicts of guilty on all counts of the three indictments, except count I of cause 13

- 11

- 9140 (attempted capital murder) , which was not r ead to the jury at the start of the State’s case

- in

- chief and was presumably abandoned before trial began. (RR Vol. 3, pp. 20

- 25; RR Vol. 7, pp. 105

- 106) The punishment phase began on 11/25/14. Appellant elect ed j u ry punishment. The jury assessed punishment
th at same day at 20 years prison in cause 13

- 11

- 9140, 10 years in prison in cause 13

- 11

- 9158, and 5 years in10

prison in cause 13

- 11

- 9159. The sentences were ordered
to run concurrently with no fines in any cause
. (RR Vol. 8, pp. 185

- 188). The c auses were tr ied together in a single trial. Appellant filed notice of appeal.

ISSUES PRESENTED
I. THE TRIAL COURT ERRED BY DENYING APPELLANT’S REQUEST FOR JURY INSTRUCTION ON SELF

- DEFENSE BECAUSE APPELLANT PLED “NOT GUILTY” WHEN TRIAL BEGAN
II. THE EVIDENCE IS INSUFFICIENT TO SHOW THAT APPELLANT KNEW JA SON MCCARELL WAS A PUBLIC SERVANT WHEN SHOOTING AT HIM

SUMMARY OF ARGUMENT It is error for a trial court to deny jury instruction o n the issue of self

- defense because a defendant enters a “not guilty” plea at the outset of his jury trial. While self

- defense is an affirmative defense, and while elements of t he charged crime must
be factually admit ted by the defense throughout trial to argue self

- defense, merely entering a plea of “not guilty” after the prosecut or reads the i ndictment at11

the start of its c a s e - in

- ch ief does not preclude a self

- defense claim , nor its inclusion as an instruction in the jury charge if the evidence supports. There is insufficient evidence to support the element in cau se 13

- 11

- 9140 (second count) that appellant “knew that Jason McCarrell was a public

servan t”. Trial testimony established that, for tactical reasons and rea sons relating to officer safety , McCarrell did not announce himself to appellant as a peace officer o n 10/05/13, nor did he allow any lights o n his police unit to i l luminate, to avoid
alert ing appellant to his position or highlight ing himself as a target. While this is a safety and tactical measure, it also precluded any knowledge in appellant that the p erson at whom he fired his rifle on 10/05/13 was a peace officer or public servant.12 ARGUMENT
ISSUE I When the defense requested a jury instruction on self

- defense in these causes at trial, it was denied by the trial court. (RR Vol. 7, pp. 5

- 9 ). The trial judge gave more than one re ason for denial. O ne rea son was,

“ The law is also clear that if you want to assert your right to self

- defense you must first admit the elements of the offense that has been charged. The defendant has pled not guilty to all of the elements of the offense as charged and therefore has not qualified himself to claim the right to self

- defense.” (RR Vol. 7, p. 9, lines 8

- 13) (italics added) Appellant’s trial counse l filed in the clerk’s
record o f each cause his proposed, but denied, j u r y charge on self

- defense. (CR 13

- 11

- 9140, pp. 43

- 49; CR 13

- 11

- 9158, pp. 24

- 30; CR 13

- 11

- 9159, pp. 24

- 30) There can be a difference between denying the elements of the offense and merely pleading “not guilty” at the outset of a cr iminal trial. By pleading13

“not guilty”, an accused activates his presumption of innocence and puts the State to its proof beyond a
reasonable doubt . It requires the government to produce evidence i n o p e n c o u r t and meet its burden of proof. A defe ndant can then, as the trial progresses, admit the elements of the offense , through its own or
even State ’s witnesses, and offe r the justification of self

- defense. By making these remar ks, the trial judge conveyed his erroneous belief that, by merely lodg ing a “not guilty” plea at the trial’s outset , an accused procedurally bars himself from even presenting a self

defense claim at trial. This cannot be what the law envisioned. A jury finding of guilty is an implicit finding rejecting the defendant’s self

- defense theory. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991). If this is true, then entering a “guilty” plea before one’s jury immediately after the prosecutor rea ds aloud the indictment is tantamount to asking that jury to summarily reject one’s self

- defense claim before any14

evidence , from either side, has been presented. This cannot be correct. Self

- defense is a justification for one’s actions, which necessarily requires admission that the conduct occurred. See Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App. 1999); MacDonald v. State, 761 S.W.2d 56, 60 (Tex.App.

- Houston [14 th Dist.] 1998, pet. ref’d ). To raise the issue of self

- defense, appellant must admit th e com mitted offense and then offer s e l f

- defense as justification. See Young at 839. This is reiterated in Anderson v. State, 11 S.W.3d 369 (Tex.App.

- Houston [1 st Dist.] 2000, pet. ref’d ). Appellant finds no language in Anderson which necessarily requires a defendant to specifically plead “guilty” before his jury at the trial’s outset to then be allowed to gradual ly admit the elements of the offense during trial and offer the legal justification of self

- defense through testimony o r o t h e r e v i d e n c e . If evidence of same is then admitted, the accused is entitled to a15

jury charge on same and may argue this defense or justification to his jury. A defendant is entitled to an instruction on any defensive theory ... if the issue is raised by the evidence, w hether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the evidence. Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996); Walker v. State, 994 S.W.2d 199, 201 (Tex .App.
- Houston [1 st Dist.] 1999, pet. ref’d ). For this reason, the convictions in these causes
should be reversed.

ISSUE II In determining legal sufficiency of the evidence, the reviewing court views all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasona ble doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 9916

S.Ct. 2781, 61 L.Ed.2d 560 (1979); see Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). In making this determination, the reviewing court considers all the evidence admitted, includi ng improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim.App. 2000). Appellant’s trial counsel made a motion for directed verdict, when the State rested at the guilt/innocence phase, in regard to the State’s failure to present sufficient evidence that appellant knew
Jason McCarrell was a public servant. The trial court den ied this motion. (RR Vol. 7, p.11) Evidence showed at trial that McCarrell kept his service vehicle completely dark when responding to this call, using no lighting of any sort to prevent himself from becoming a target to appellant, who was holding a rifle in the dark, country night. McCarrell was only able to locate appellant by using thermal body sensor17

equipment, which illuminated appellant to him through appellant’s body heat. Although appellant eventually fired his rifle at McCarrell, McCarre ll admitted at trial that he never announced himself as a peace officer or other public servant, and that he did not in fact announce his
presence at all, to prevent a ppellant from target ing him or even knowing he was present. McCarrell did not yell , “Stop, police!” , or otherwise give appellant any knowledge that he was a law enforcement officer, peace office r , or other public servant prior to appellant firing his rifle at him
. In fact, McCarrell said nothing at all to al ert appellant that he was e v e n there before appellant fired at him. While appel lant later hollered s o m e a n t i

- p o l i c e

r e m a r k s a n d p r o f a n i t i e s as EMS personnel dressed his wound, this was after appellant had been shot in his

arm and had realized that police officers were on the

scene. ( R R V o l
. 4 , p p . 1 5 8

- 1 5 9 )
. A c c o r d i n g l y , t hese remarks a r e n o t evidence that appellant knew McCarrell18

to be a public servant or peace officer when he fired his rifle at him minutes earlier. Amazingly, a ppellant made two 911 calls to law enforcement of his own on the night in question after being shot by law enforcement, asking for help because “some motherfucker” had shot him in the arm. (RR SX

- 140 and SX

- 141). Appell ant’s speech sounds erratic, slurred, and di stressed, due in part to his ingestion of copious amounts of alcohol and LSD. It is clear in
SX

- 140 that appellant, at the time of making the call, does not realize he had been shot by a law enforcement officer. Appellant identifies himself with out hesitation during the call as “Charles Hill” and gives his address as “958 CR 313 East”. (RR SX

- 140) While voluntary intoxication is not a defense to any crime in Texas, appellant’s ingestion of beer a n d
l i q u o r all day , plus LSD (hallucinogen) that afternoon , could not ha ve helped his powers of perception and
obser vation by nightfall. See generally Tex.Pen.Code Ann., sec. 8.04 (a)(Vernon 2013). This mitigates19

against him realizing that M cCarrell was a policeman when he fired at him. There is no evidence that appellant knew he was shooting at a policeman, sheriff’s deputy, trooper, or other law enforcement agent , or any kind of public
servant w h e n h e f i r e d a t D e p u t y M c C a r r e l l
. For these reasons, t he convict ion for the second count in cause 13

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- 9140 should be reversed.

PRAYER Ap pell a n t prays that the convictions in these

causes be revers ed
. Respectfully submitted, /s/ W. A. White W. A. (BILL) WHITE ATTORNEY FOR APPELL ANT POB 7422, Vict., TX 77903 (361) 575

- 1774 voice/ fax TBN 00788659

CERTIFICATE OF SERVICE I certify that a true and correct copy or duplicate original of the foregoing has been provided to Robert20

E. Bell, Jackson Co. District Attorney’s Off ice, 115 W. Main Street , 2 nd Flr, Edna, TX 77957 via U.S. mail, fax , electronic delivery , o r hand

- delivery on this the 17 th day of June 2015
. /s/ W. A. White W. A. White

CERTIFICATE OF COMPLIANCE I certif y that this brief contains 2 , 6 9 7 words. /s/ W. A. White W. A. White