No oral argument requested

CASE NO. 12-15 -00 224

- CR

IN THE

TWELFTH COURT OF APPEALS

TYLER, TEXAS

_______________________________

FREDRICK HARRIS STRALOW, Appellant

vs.

THE STATE OF TEXAS, Appellee

_______________________________

On Appeal from the

County Court at Law No. 2

Henderson County, Texas

(Trial Court Case Number: 2014-0626CL2)

Honorable Nancy Adams Perryman, Judge Presiding

AMENDED BRIEF OF APPELLANT

Linda A. Altier

Altier Law Offices

1527 E. Fifth St.

Tyler, Texas 75701

Tel: 903-595 -4232

Fax: 903-595 -0031

e-mail: altierlaw@gmail.com

State Bar of Texas No.: 00783541

Attorney for Appellant, Fredrick Harris Stralow ACCEPTED

12-15-00224-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

11/2/2015 12:00:00 AM

Pam Estes

CLERKIDENTITIES OF PARTIES AND COUNSEL

State of Texas , Appellee

Prosecutor in Trial Court

M r

. Fredrick Harris Stralow , Appellant

Defendant in Trial Court

TRIAL COURT COUNSEL

M r. Bill C. Stephens , Attorney for Defendant

433 North Gun Barrel Lane

Gun Barrel , Texas 751 56

- 3731

M r. Barry Lee Spencer, Jr. , Attorney for State

100 E. Tyler St., Room 100

Athens, Texas 7575 1

M r . Daniel Barnes , Attorney for State

100 E. Tyler St.

, Room 100

Athens, Texas 75751

APPELLATE COUNSEL

Ms. Linda Altier, Attorney for Appellant

1527 E. Fifth St.

Tyler, Texas 75701

Mr. Barry Lee Spencer , Attorney for State

100 E. Tyler St.

, Room 100

Athens, Texas 75751

iTABLE OF CONTENTS

Identity of Parties and Counsel ............................................................i

Index of Authorities ........................................................................iii

Statement of the Case .......................................................................2

Statement of the Jurisdiction . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 2

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

POINT OF ERROR:

THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO

REJECT APPELLANT’S SELF

- DEFENSE PLEA AND SUPPORT THE JURY’S

FINDING OF GUILT.

Statement of Facts ...........................................................................3

Point of Error Restated

..... ....................................... .. ............ ............3

Summary of the Argument ..................................................................3

Argument and Authority

.. ...................................................................4

Certificate of Service

. ........................................................................6

Certificate of Compliance...

.. ...............................................................7

iiINDEX OF AUTHORITIES

CASES: Page

Jackson v. Virginia , 443 U.S. 307; 99 S.Ct. 27 81

. . . ......... .......................... 5

Smith v. State , 355 S.W.3d 138 (Tex.App

- Houston [1 st Dist. ] 2011, pet.ref’d)

. . . . 5

Zuliani v. State , 97 S.W.3d 589 (Tex.Crim.App.2003)

......... ... ................... .4

STATUTES AND RULES:

Texas Penal Code Ann. §9.31 (a).

. . . . . . . . . . . . . . . ............................ . . . 4

i iiCASE NO. 12

- 1 5

- 00 224

- CR

IN THE

TWELFTH COURT OF APPEALS

TYLER, TEXAS

_______________________________

FREDRICK HARRIS STRALOW , Appellant

vs.

THE STATE OF TEXAS, Appellee

_______________________________

On Appeal from the

County Court at Law No. 2

Henderson County, Texas

( Trial Court Case Number: 2014

- 0626CL2 )

Honorable Nancy Adams Perryman, Judge Presiding

AMENDED BRIEF OF APPELLANT

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW FREDRICK HARRIS STRALOW

, hereinafter

sometimes referred to as Appellant, and submits this h is Amended Brief on Appeal

in the above entitled and numbered Cause, pursuant to the provisions of the Texas

Rules of Appellate Procedure. Appellant hereby waives oral argument.

1STATEMENT OF THE CASE

On October 1, 2014, Mr. Fredrick Harris Stralow, hereinafter sometimes

referred to as Appellant, was charged by Complaint and Information with Assault

Causing Bodily Injury to a Family Member (CR 1 : 1

- 2). On May 11, 2015, a jury

found Appellant guilty as charged in the I nformation (CR 1:38). On July 22, 2015

the Court sentenced Appellant to t hree h undred s ixty f ive (365) days confinement

in the Henderson County Justice C enter probated for twenty f our (24) m onths

community supervision, with special conditions of t wenty (2 0 ) d ays in jail to be

completed on weekends (CR 1:44

- 4 8 ). Appellant filed his Notice of Appeal on

August 27, 2015 (CR 1:68).

STATEMENT OF JURISDICTION

Therefore, the Twelfth Court of Appeals holds jurisdiction.

Note: For purposes of thi s Appeal Brief, all references to the Clerk’s Record

will be noted as “CR,” followed by the volume number and page number

. References to the Reporter’s Record will be noted as “RR,” fo llowed by the

volume number, page number and line as necessary. Any em phasis added by this

writer will be noted as same immediately following the word or phrase emphasized

by italics. Where two or more points of error involve the same facts, they will be

combined and argued together as permitted by the Texas Rules of Appell ate

Procedure

.

2ISSUE S PRESENTED

POINT OF ERROR:

THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO

REJECT APPELLANT’S SELF

- DEFENSE PLEA AND SUPPORT THE JURY’S

FINDING OF GUILT.

STATEMENT OF FACTS

Fredrick Harris Stralow was convicted of Assault Causing Bodily

Injury to a Family Member in a trial by jury involving an altercation with his 24

year old sister, Stephanie Nicole Duggan. Appellant, Mr. Stralow, plead

self

- defense against Ms. Duggan’s aggr ession against him

. Ms. Duggan testified

she yelled and cursed at Mr. Stralow for bringing to her attention the mess her

eleven month old child had caused . She further testified that her actions escalated

the situation when she pushed Mr. Stralow with he r hands around his neck . Mr.

Stralow testified the choke was hard enough to make him stop breathing and at this

point he str uck her in self

- defense. The State did not provide the jury with any

evidence to disprove Appellant’s self

- defense plea.

POINT OF ERROR (Restated):

THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO

REJECT APPELLANT’ S SELF

- DEFENSE PLEA AND SUPPORT THE JURY’S

FINDING OF GUILT.

SUMMARY OF THE ARGUMENT

The e vidence presented at trial was factually and legally i nsufficient for a

3jury to find beyond a reasonable doubt that Appellant was guilt y . Appellant

contends that the evidence the State presented at trial was insufficient to support

the jury’s rejection of his self

- defense claim.

ARGUMENT AND AUTHORITY

Appellant argues that the evidence at trial showed that he was justified in

defending himself when Ms. Stephanie Duggan choked him on October 1, 2014.

Tex. Penal Code Ann. § 9.31 (a) states in part, “ A person is justified in using force

against another when and to the degree the actor reasonable believes the force is

immediately necessary to protect the actor against the other’s use or attempted use

of unlawful force.” Appellant met his burden to prod uc e evidence in support of

his claim of self

- defense by the following testimony: Ms. Stephanie Duggan

testified that she escalated the argument when she yelled and cursed at Appellant

(RR 2:66) and put her hands on his throa t and pushed him (RR 2:83). Appe llant

testified that Ms. Duggan choked him so hard that it hurt and it was hard enough to

make him stop breathing (RR 2:125). Appellant admitted that when Ms. Duggan

grabbed him by the throat with both hands, he at that time reached over and hit her

one t ime ( RR 2:116). The State failed to provide the jury with controverting

evidence to dispute Appellant’s self

- defense. In Zuliani v. State , 97 S.W.3d 589

(Tex.Crim.App.2003)

, Defendant Zuliani was co nvicted of a misdemeanor assault

4causing bodily injury and Zuliani plead self

- defense . The f acts are identical

to A ppellant’s, i.e. an argument escalated into a physical confrontation . The Court

of Appeals affirmed the T rial C ourt ’s finding of guilt. H owever, the Court of

Criminal Appeals reve rsed and remanded the case f or review based on the lack of

the Stat e ’s evidence to support the jury’s rejection of Appellant’s self

- defense plea.

Smith v. State , 355 S.W.3d 138 (Tex.App

- Houston [1 st Dist. ] 2011, pet.ref ’d) holds

that t he State carries the burden of persuasion to disprove self

- defense beyond a

reasonable doubt and the review of challenge to the sufficiency of the evidence

supporting a jury’s rejection of a claim of self

- defense should only be under the

Jackson standard.

Jackson v. Virginia , 443 U.S. 307; 99 S.Ct. 2 7 81

, is the holding case and the

final test for establishing the legal sufficiency o f the evidenc e and the burden is on

the State to prove each element of the crimi nal offense. Appellant argues that the

evidence is legally insufficient to disprove his plea of self

- defense. The only

evidence that the State presented to the jury for consideration in Appellant’s

self

- defense plea was in the State’s final argument: “Y’ all saw the injuries. Y’all

saw Steph a nie. No red marks on him. Oh, she choked me so hard I couldn’t

breathe. Bull.” (RR 2: 151;L 16

- 18)

Accordingly, this case should be remanded.

5PRAYER

WHEREFORE, PREMISES CONSIDERE D, Appellant respectfully prays

this Honorable Court hold that the evidence was insufficient for the jury to find

Appellan t guilty and reject his self

- defense plea. Ap pellant prays that this case be

remanded to the Henderson County Court at La w #2

.

Respectf ully Submitted,

ALTIER LAW OFFICES

1527 E. Fifth St.

Tyler, Texas 75701

Tel: 903

- 595

- 4232

Fax: 903

- 595

- 0031

altierlaw@gmail.com

By: /s/ Linda A. Altier

TSBN: 00783541

Attorney for Appellant

Fredrick Harris Stralow

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the

foregoing Amended Appellant’s Brief has been served on Barry L. Spencer

, Attorney for the State , Henderson County Assistant County Attorney, 10 0 E. Tyler

St., Room 100 , A thens, Texas, by e

- mail to barryspencer@co.henderson.tx.us

, on

October 31 , 201 5

.

/s/ Linda A. Altier

6CERTIFICATE OF COMPLIANCE

In compliance with TRAP 9.4(i), t he undersigned hereby certifies that

the number of words contained in the above Amended Brief of Appellant are 694 ;

excluding caption, ide ntity of parties and co unsel, statement regarding oral

argument, table of contents, index of authorities, statement of the case, statement

of issues presented, statement of jurisdiction, signature, proof of service,

certification, and certificate of compliance.

/s/ Lind a A. Altier

7