NO S

. 06- 14 -001 40

- CR , 06

- 14

- 00 141

- CR &

06 -14- 00142

- CR

____________________________________________________________

IN THE COURT OF APPEALS SIXTH DISTRICT

AT TEXARKANA, TEXAS

____________________________________________________________

DONNY JOE CURRY, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

____________________________________________________________ APPEAL IN CAUSE NUMBERS CR1301628, CR1301627, and
CR1301625 IN THE COUNTY COURT AT LAW NUMBER 1

OF HUNT COUNTY, TEXAS

________________________________________ ____________________ BRIEF FOR APPELLANT

____________________________________________________________ TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: Comes now the Appellant and submits this brief pursuant to the provisions of the Texas Rules of Appellate Procedure in support of his request for the judgment of conviction and sentences to be overturned in
Cause Nos

. CR1301628, CR1301627, and CR1301625. Appellant Requests Oral Argument ACCEPTED 06-14-00139-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 1/20/2015 11:59:06 PM DEBBIE AUTREY

CLERK2 IDENTITY OF PARTIES AND COUNSEL Appellant’s Attorney: Jason A. Duff 2615 Lee Street P.O. Box 11 Greenville, Texas 75403

- 0011 Appellant’s Trial Attorney: Toby Wilkinson P.O. Box 851266 Mesquite , Texas 75 149 Appellee: The State of Texas by and through Joel Littlefield Hunt County Attorney 4 th Floor Hunt County Courtho use 2500 Lee Street Greenville, Texas 75401 Appellee’s Trial Counsel: Jeffry Kovach Hunt County Attorney’s Office 4 th Floor Hunt County Courthouse 2500 Lee Street Greenville, Texas 754013 TABLE OF CONTENTS Identity of the Parties and Counsel

................................ ............................. 2
Table of C ontents

................................ ................................ ....................... 3
Index of Authorities

................................ ................................ ..................... 4
Statement of the Case

................................ ................................ ................ 5
Statement of the Facts

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

................................ ................................ .......... 9 Argument and Authorities

................................ ................................ ......... 10
Issue Number One

................................ ................................ ......... 1 0 The evidence is legally insufficient to prove beyond reasonable doubt, that Curr y committed Failure to Identify

. Issue Number Two

................................ ................................ ......... 13 Trial court imposed an illegal sentence in 06

- 14

- 00142 (CR1301628)

. Issue Number T hree

................................ ................................ ...... 15 Trial court imposed an illegal sentence in 06

- 14

- 0014 0 (CR130162 5 )

. Issue Number Four

................................ ................................ ........ 16 Trial court imposed a n illegal sentence in 06

- 14

- 00141 (CR130162 7 )

.
Prayer for relief

................................ ................................ ........................ 1 9
Certificat e of compliance of typeface and Word Count

............................. 2 0
Certificate of Service

................................ ................................ ................. 2 14 INDEX OF AUTHORITIES

FEDERAL CASE : Jackson v. Virginia, 443 U.S. 307.

................................ ............................ 1 0
STATE CASES:
Cordova v. State , 698 S.W.2d 107, 111 (Tex. Crim. App. 1985 ).

.............. 1 1
Ba nks v. State , 708 S.W.2d 460, 462 (Tex.Crim.App. 1986 )

..................... 1 4 Ex parte Pena , 71 S.W.3d 336 (Tex.Crim.App.2002 )

................................ 13
Johnson v. State , 871 S.W.2d 183, 186 (Tex. Crim. App. 1993 )

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

......................... 10
Mizell v. State , 119 S.W. 3d 804, 806 (Tex.Crim.App. 2003 )

..................... 13
Urbano v. State , 837 S.W.2d 114, 116 (Tex.Crim.App. 1992 )

................... 1 2 Vodochodsky v. State, 158 S.W. 3d 502, (Tex. Crim. App. 2005 )

............. 1 2 Washington v. State 127 S.W. 3d 197 (Tex. App. Houston [1st Dist.] 2003, pet. dism’d )

................................ ................................ ............................... 1 0

STATE STAT UTE S :
TEX PENAL CODE ANN. § 6 .0 3 (a) & (b) (West 2011 )

............................. 1 2
TEX PENAL CODE ANN. § 12.23 (Casemaker 2014 )

.............................. 1 1
TEX PENAL CODE ANN. § 38 .0 2(a) ( Casemaker 2014 )

.......................... 1 85

Tex.R.App.P. 43.2(b ) (Casemaker 201 4 )

................................ ................................ .................... 14 Tex.R.App.P. 43. 6 ( Casemaker 2014 )

................................ ................................ ................... 1 4 Tex. R. App. P. 43.2(d ) ( Casemaker 2014 )

................................ ................................ ................... 1 4 Tex. Transp. Code § 548.601 ( Casemaker 2014 )

................................ ..... 1 7 Tex. Transp. Code § 548.60 2 ( Casemaker 2014 )

................................ ..... 1 6 Tex. Transp. Code § 601.051 ( Casemaker 2014 )

................................ ..... 1 5 Tex. Transp. Code § 601. 191 ( Casemaker 2014 )

................................ ..... 1 56 STATEMENT OF THE CASE

This is an appeal of the judgment and sentence in a criminal case for

the County Court at Law No. 1 , in Hunt County, Texas. Appellant was convicted of Failure to Maintain Financial Responsibility in Cause No CR1301625 with a $250 fine , with a Sentence of 275 days confinement, Failure to Display / No Motor Vehicle Inspection in Cause No CR1301627 with a fine in the amount of $250 with a Sentence of 275 days confinement, and Failure to Identify with a fine assessed in the amount of $ 250 , with a Sentence of 275 days confinement on August 1, 2014. Notice of appeal was given on August 1, 2014

. The clerk's record was filed on October 1 , 2014 ; the reporter's record was filed on November 3 , 201 4

.7 STATEMENT OF THE FACTS

On March 1, 2 013, Donny Joe Curry (Appellant) was stopped by
Officer Samantha Marique in Commerce , Texas. (RR Vol. 9 p. 63 ).

Ma n rique testified at trial that while on a routine patrol she notice a blue

vehicle with no rear license plate. Ma n rique further testified th at when she confronted Appellant he state that he had no driver’s license and no insurance. (RR Vol. 9. 63). Later, Marique simply states that Appellant only gave her the name of Donny and that there was no registration insignia on
the front of the windsh ield. (RR Vol. 9. 67). Marique felt that she needed back up to deal with appellant so she called for the help of Officers Pehl and Scott. During that time Appellant waited in his vehicle. When Pehl and Scott arrived, Marique briefly explained wh y she ha d pulled Appellant over. Pehl immediately open ed the Appellant’s door ordered him to exit and used a Taser on Appellant. Manrique stated that while being Tased, Appellant held on to the steering wheel. (RR Vol. 9. 69). After Appellant screamed in pain from the Taser , and requested of Pehl to follow the law, Pehl removed Appellant from the

vehicle . As officer Pehl removed Appellant from the car Appellant held his

a rms up in the air and away from officer Pehl. Officer Pehl then put hand cuffs on Appella nt, guide d Appellant to the hood o f Manrique’s car and then8

escorted Appellant off camera. (State’s Exhibit 3 , 8:30

- 11:30 )

. Marique
testified that that the officers later found Appellant’s Social Security Card
and driver’s license. ( RR Vol. 9. 81).
On A ugust 28, 2013 Officer Manrique swore out a criminal complaint where she alleged:

“ ...Defendant did then and there refuse to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the informat ion.” (CR Vol. 1 p. 9)

.9 SUMMARY OF THE ARGUMENT S
Issue One : The evidence is legally insufficient to prove beyond reasonable doubt, that Curry Failed to give Identification The evidence presented at trial could not have led a rational the trial

court to find that Curry acted with a conscious objective or desire to intentionally refused to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the
information , or that he was aware that h er conduct was reasonably certain
to cause that result

. Concluding so, based on the evidence presented at trial, would have been speculation or suspicion by the factfinder. Thus, the evidence is legally insufficient to convict Curry in this case.

I ssues Two, Three, and Four : The trial court entered judgments that included illegal sentences on the remaining cases. The illegally imposed sentences that included punishments for
confinement when Cause No s

. CR1301628, CR1301627, and CR1301625 were alleg ed as Class C Misdemeanors

.10 A RGUMENT

Issue One: The evidence is legally insufficient to support

the conviction s of Appellant In a criminal case, an appellant may raise legal sufficiency for the first time on appeal. Washington v. State 127 S.W. 3d 197 (Tex. App. Houston [1st Dist.] 2003, pet. dism’d). When reviewing legal sufficiency of the evidence, a court must look at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have
foun d the essential elements of the offense were proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319; Vodochodsky v. State, 158 S.W. 3d 502, (Tex. Crim. App. 2005). While giving the proper
deference to the factfinder’s role this court mu st safeguard against the rare occurrence when a factfinder does not act rationally. Laster v. State, 275 S.W. 3d 512 (Tex. Crim. App. 2009).

In this case Appellant was charged with Failure to Identify . (CR Vol.

1 p. 9 ). To support a conviction of the app ellant, the State must prove beyond a reasonable doubt that Appellant intentionally refused to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.11

TEX. PEN. CODE ANN

. §38 .0 2(a) ( Casemaker 2014 ) emphasis
added

. In reviewing the sufficiency of the evidence, courts should look at “events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding

and co mmon design to do the prohibited act.” Cordova v. State , 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances i s sufficient to support the

conviction. Johnson v. State , 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)

The video in this case depicts when officer Manrique first approach ed Appellant gave his first n ame. (RR Vol. 9. 67). Then Manrique retreats to
her vehi cle

. Then there are no more clear requests for Appellant to identify
himself until Appellant Tase d and arrested

. ( State’s Exhibit 3 )

. At no point before Officer Pehl Tase d Appellant and remove d him from the car does Pehl or other officer definitively ind icate that he is under

arrest. Even giving full play to the responsibility of the fact finder to fairly resolve conflicts in testimony, to weigh the evidence and to draw12

reasonable differences from basic facts to ultimate fact no rational fact
finder cou ld have found that C urry effected resistance to the arrest. Again looking to the actions or events before, during and after the
commission of the offence the facts do not amount to Failure to Identity as alleged in the Complaint . Therefore the evidence brought at trial was
insufficient and Curry’s conviction should be overturned. Appellant lacked the intent Additionally t he state must prove that Appellant acted with a conscious objective or desire to cause the result, or that he was aware that

his condu ct was reasonably certain to cause the result. Tex. Pen

. Code Ann. § 6 .0 3 (a) & (b) (West 2011)

. It is just as rational , if not more rational , that Appellants Proof that amounts to only a strong suspicion of guilt or a mere probability of guilt is
insuffi cient to sustain a conviction. Urbano v. State , 837 S.W.2d 114, 116 (Tex.Crim.App. 1992)

In this case the trial court could only form a suspicion that Appellant Failed to Identify himself before his arrest when there was no clear indication to Appellant a t the time just before he was Tased, the officers

were about to arrest him.13

T he State did not prove beyond a reasonable doubt that Appellant acted with a conscious objective or desire to fail to identify himself before

he was arrested , or that he was aware that his conduct was reasona bly
certain to cause the result in this case

.

ILLEGAL SENTENCE S A sentence outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal. Mizell v. State , 119 S.W. 3d 804, 806 (Tex.Crim.App. 2003 ). A defendan t may obtain relief from an unauthorized sentence on direct appeal or by a writ of habeas corpus

. Ex parte Pena , 71 S.W.3d 336 (Tex.Crim.App.2002). In addition to the above arguments in issue one, Appellant asserts in his remaining issues the trial

court imposed illegal sentences in CR1301628, CR1301627, and
CR1301625 ) because the y each include a period of confinement, even though they all clearly state that each offence is a Class C Misdemeanor

.

Issue Two: Fail to Identify insufficient to include Confine ment

The trial court entered a Judgment and Sentence on August 1, 2014. In addition to a fine of $250.00, the court hand wrote sentence for14

confinement of 275 days in Cause number CR1301628

. When the trial court orally pronounced the judgments, he did n ot include a sentence of confinement. RR Vol3 11 p.7

- 8) A person adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500. Tex. Penal Code Ann § 12.23 (Casemaker 2014)
Texas Penal Code §38.0 2 provides that: (c) Except as provided by Subsections (d) and (e), an offense under this section is: (1) a Class C misdemeanor if the offense is committed under Subsection (a); or (2) a Class B misdemeanor if the offense is committed under Subsection (b).
TEX. PEN. CODE ANN

. §38.0 2 ( Casemaker 2014 ). It is not alleged that Appellant nor was it proved that Appellant committed the offences under subsection (b). Even if he did the trial court still would have pronounced a sentence greater than the maximum of a
Class B misdemeanor

. Th is court can remand this Case for a new punishment hearing. Tex. R. App. P. 43.2(d). I f the Court finds it has the necessary data and evidence before it for reformation, the judgment and sen tence may be reformed on appeal

. Tex.R.App.P. 43.2(b), 43.6; Ba nks v. State , 708 S.W.2d 460, 462 (Tex.Crim.App. 1986).15

Issue Three: Failure to Ma intain Financial Responsibility provides for a penalty of fine only. CR1301625 / 06
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- 00140 The complaint in 6

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- 00140 alleges that appellant violated 601.191(a)/601 .051 of the Texas Transportation Code. (CR Vol. 1 p. 9)

A person may not operate a motor vehicle in this state unless financial responsibility is established for that vehicle through: (1) a motor vehicle liability insurance policy that complies with Su bchapter D; (2) a surety bond filed under Section 601.121; (3) a deposit under Section 601.122; (4) a deposit under Section 601.123; or (5) self

- insurance under Section 601.124. Tex. Transp. Code § 601.051 (Casemaker 2014) The above statute penalty is enumerated in Section 601.191 of the Transportation Code and states in pertinent part: (a) A person commits an offense if the person operates a motor vehicle in violation of Section 601.051. (b) Except as provided by Subsections (c) and (d), an offen se under this section is a misdemeanor punishable by a fine of not less than $175 or more than $350. (c) If a person has been previously convicted of an offense under this section, an offense under this section is a misdemeanor punishable by a fine of not less than $350 or more than $1,000. (d) If the court determines that a person who has not been previously convicted of an offense under this section is economically unable to pay the fine, the court may reduce the fine to less than $175. Tex. Transp. Co de § 601. 19 1 (Casemaker 2014)16

Here the statute does not contemplate even a possibility for a
sentence of confinement to be assessed. As in above the trial court entered a Judgment and Sentence on August 1, 2014. In addition to a fine of $250.00, the cour t hand wrote sentence for confinement of 275 days. When the trial court orally pronounced the judgments, he did not include a
sentence of confinement. ( RR Vol3 11 p.7

- 8)

Issue Four: Failure to display inspection sticker in CR1301627 / 06
- 14
- 00141 is pu nishable by fine only. The complaint in 6

- 14

- 00141 alleges that appellant violated of §

548.602 Texas Transportation Code. (CR Vol. 1 p.9) . That section of the

code states: (a) After the fifth day after the date of expiration of the period designated fo r inspection, a person may not operate:

(1) a motor vehicle registered in this state unless a current and appropriate inspection certificate is displayed on the vehicle; or

(2) a commercial motor vehicle registered in this state unless it is equippe d as required by federal motor carrier safety regulations and displays an inspection certificate issued under the program established under Section 548.201. (b) A peace officer who exhibits a badge or other sign of authority may stop a vehicle not display ing an inspection certificate on the windshield and require the owner or operator to produce an inspection certificate for the vehicle. (c) It is a defense to prosecution under Subsection (a)(1) that an inspection certificate for the vehicle is in effect at the time of the arrest. Tex. Transp. Code § 548.60 2 (Casemaker 2014)

.17

The penalty for failure to display an inspection sticker is enumerated
in Section 548. 601 of the Transportation Code and states in relevant part:

(a) A person, including an inspect or or an inspection station, commits an offense if the person:

(1) issues an inspection certificate with knowledge that the issuance is in violation of this chapter or rules adopted under this chapter; (b) Unless otherwise specified in this chapter, an offense under this section is a Class C misdemeanor. Tex. Transp. Code § 548.601 (Casemaker 2014) Again, a person adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500. Tex. Penal Code Ann § 12.23 (Casemaker 2014). A nd again as in the other cases in this brief, the statute does not contemplate even a possibility for a sentence of confinement to be assessed. The trial court entered a Judgment and Sentence on August 1, 2014. In addition to a fine of $250.00, the court hand wrote sentence for confinement of 275 days. When the trial court orally pronounced the judgments, he did not include a sentence of confinement. (RR Vol3 11 p.7

- 8)

This court may remand th ese c ase s for a new punishment hearing. Tex. R. App. P. 43. 2(d). Additionally, if the Court has the necessary data and evidence before it for reformation, the judgment and sentence may be reformed on appeal. Tex.R.App.P. 43.2(b), 43.6; Banks v. State , 70818

S.W.2d 460, 462 (Tex.Crim.App. 1986). Appellant argues t hat if this Court does not overturn the conviction in Failure to Identify that this Court at a minimum reform the judgments to not reflect confinement.19 PRAYER FOR RELIEF Wherefore, premises considered, Appellant respectfu lly prays that his
conviction in the above entitled and numbered cause be reversed and acquit h im . Appellant further prays for all other lawful relief to which he may be entitled, at law or in equity. Respectfully submitted,

_____ /s/ Jason A. Duff

____ J ason A. Duff State Bar No. 24059696 2615 Lee Street P.O. Box 11 Greenville, TX 75403

- 0011 jasonaduff@hotmail.com Attorney for the Appellant20

CERTIFICATE OF COMPL IANCE OF TYPEFACE AN D WORD COUNT In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the undersigned attorney or record certifies that Appellants Brief contains 14

- point typeface of the body of the brief, 12

- point typeface for footnotes in the brief and contains 2,27 words , excluding those words identified as not being counte d in appellate rule of procedure 9.4(i)(1), and was prepared on Microsoft Word 2010.

_____/s/ Jason A. Duff____ Jason A. Duff Attorney for the Appellant21 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing in strument was forwarded to Collin County District Attorney ’s
Office , on this the 20 th day of January , 201 5 and to the Court of Appeals in

Texarkana via , by electronic delivery

.

_____ /s/ Jason A. Duff

____ Jason A. Duff Attorney for the Appellant