IN THE COURT OF APPEALS

FOR THE FOURTEENTH DISTRICT OF TEXAS

HOUSTON, TEXAS

NO. 14-15-00696-CV

In the Matter of J.C.

On appeal from the County Court at Law No. Four (4), Sitting as a Juvenile Court, 

in Fort Bend County, Texas

Cause No. 14-CJV-018909

APPELLANT’S BRIEF

LEIGH LOVE

ATTORNEY FOR APPELLANT

SBN: 24058364

The Love DuCote Law Firm LLC

4610 Sweetwater Blvd.,

Suite 210

Sugar Land, Texas 77479

832.471.6904 telephone 

832.553.7765 facsimile

Email:leigh@loveducotelaw.com

ORAL ARGUMENT REQUESTED

ACCEPTED

14-15-00696-CV

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

12/28/2015 7:59:33 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 12/28/2015 7:59:33 PM CHRISTOPHER A. PRINE Clerk
2

STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument in this cause. See Tex. R. App. Proc. 39.7

IDENTITIES OF PARTIES AND COUNSEL

APPELLANT: J.C.

Trial counsel: DREW DORNBURG

Attorney at Law

SBN: 24049861

201 Jackson, 2nd Floor

Richmond, Texas 77469

832.449.6116 telephone

JAMES MCCALLA

SBN: 24051017

P.O. Box 2108

Bellaire Texas 77402

281.793.2158 telephone

Appellate counsel: LEIGH LOVE

SBN: 24058364

The Love DuCote Law Firm LLC

4610 Sweetwater Blvd., Suite 210

Sugar Land, Texas 77479

832.471.6904 telephone

832.553.7765 facsimile

leigh@loveducotelaw.com

APPELLEE: STATE OF TEXAS

Trial counsel: TYRA MCCOLLUM

SUSAN SWEENEY

Fort Bend County District Attorney’s Office

1422 Eugene Heimann Circle

Richmond, Texas 77469

281.341.4460 telephone

281.341.4440 facsimile
3

Appellate counsel: APPELLATE DIVISION

Fort Bend County District Attorney’s Office

301 Jackson Street

Richmond, Texas 77469

281.341.4460 telephone

281.341.4440 facsimile
4

TABLE OF CONTENTS

Page No.

STATEMENT REGARDING ORAL ARGUMENT ............................................2

IDENTITIES OF PARTIES AND COUNSEL...........................................2

TABLE OF CONTENTS .......................................................................................4

INDEX OF AUTHORITIES ..................................................................................6

STATEMENT OF THE CASE ..............................................................................7

ISSUES PRESENTED............................................................................................10

 

I. POINT OF ERROR NO. ONE: THE TRIAL COURT ERRED 

WHEN IT DENIED APPELLANT’S MOTION TO SUPPRESS 

REFERENCES TO A BB GUN 

A. THE PAT-DOWN OF JUVENILE APPELLANT, J.C., WAS 

ILLEGAL, AND, THEREFORE, ANY CONTRABAND FOUND 

AS A RESULT OF SAID ILLEGAL PAT-DOWN SHOULD BE 

SUPPRESSED

B. THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE 

TO USE A PHOTOGRAPH OF THE BB GUN FOUND ON 

JUVENILE APPELLANT AND WHEN IT ALLOWED THE 

STATE TO REPEATEDLY REFERENCE SAME.

II. POINT OF ERROR TWO: THE EVIDENCE ADDUCED AT 

TRIAL WAS NOT LEGALLY SUFFICIENT TO SUPPORT THE 

JURY FINDING BEYOND A REASONABLE DOUBT THAT THE 

ALLEGATION OF AGGRAVATED ROBBERY WAS TRUE AND 

PROPERLY SUPPORTED BY THE EVIDENCE AND THAT 

JUVENILE APPELLANT, J.C., ENGAGED IN DELINQUENT 

CONDUCT.
5

STATEMENT OF FACTS ................................................................11

SUMMARY OF THE ARGUMENT ....................................................13

ARGUMENT .................................................................................15

 POINT OF ERROR I(A).................................................................15

 POINT OF ERROR I(B).................................................................18

 POINT OF ERROR II...................................................................27

CONCLUSION..............................................................................33

PRAYER.....................................................................................35

CERTIFICATE OF SERVICE ............................................................36

CERTIFICATE OF COMPLIANCE.....................................................36
6

INDEX OF AUTHORITIES

CASES PAGE

 

Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010)........................30

Clark v. Procunier, 755 F.2d 394, 396 (5th Cir. 1985)..................................29

Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App. 2011) ...........................29

Gold v. State, 736 S.W.2d 685 (Tex.Crim.App. 1987).................................29

Hooper v. State, 214 S.W. 3d 9, 13, 15 (Tex.Crim.App. 2007)........................30

In re Winship, 297 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).................29

Jackson v. Virginia, 443 U.S. 307, 316, 319, 326 [1979] .....................28-30, 33

Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993).........................30

Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)...........................31

Richardson v. State, 879 S.W.2d 874 (Tex.Crim.App. 1993).........................29

Winfrey v. State, No. PD-0943-11, 2013 Tex. Crim. App. LEXIS 431, *16, 22-23 

(Tex. Crim. App. Feb. 27, 2013) (to be published).................................30-31

STATUTES AND RULES

Tex.Fam.Code 52.01(a)(3)(B)..............................................................16

Tex.Fam.Code 51.03(a)(3).................................................................17

Tex.R.Evid. Rule 402......................................................14, 19-22, 27, 34

Tex.R.Evid. Rule 403.........................................................14, 19-22, 27
7

STATEMENT OF THE CASE

The State of Texas filed an Original Determinate Sentence Adjudication 

Petition and Notice of Intention to Seek Approval of Grand Jury against Appellant 

on June 18, 2014, alleging that J.C., a child, engaged in delinquent conduct. (See 

Clerk’s Record, pgs. 17-18, hereinafter abbreviated C.R., pg.). The original 

petition in cause number 14-CJV-018909 containing the allegation of Aggravated 

Robbery was presented to the Grand Jury and was approved by same on June 23, 

2014. (C.R., pgs. 19-20). The certification to the juvenile court, specifically 

County Court at Law Number 4 of Fort Bend county, Texas, sitting as a Juvenile 

Court, was signed by the District Clerk in Fort Bend County, Texas, Annie 

Rebecca Elliott. Id. at 21.

At the time of the alleged commission of the acts alleged in the State’s 

petition, J.C. was a child over the age of 10 years and under the age of 17 years, 

having been born of October 8, 1997. 

The State of Texas filed a First Amended Determinate Sentence 

Adjudication Petition and Notice of Intention to Seek Approval of Grand Jury on 

October 6, 2014, alleging that he engaged in the same delinquent conduct (namely 

Aggravated Robbery). (C.R., pgs. 32-33). Following the First Amended 

Determinate Sentence Adjudication Petition and Notice of Intention to Seek 

Approval of Grand Jury is the certificate of approval of juvenile petition by Grand 
8

Jury, which is blank and not signed by any member of the Grand Jury. (C.R., pgs. 

34-35). The subsequent certification to the juvenile court is also not signed by the 

District Clerk in Fort Bend County, Texas, Annie Rebecca Elliott, on June 14, 

2014. Id. at 36.

On October 13, 2014, the first amended petition in cause number 14-CJV018909 containing the allegation of Aggravated Robbery was presented to the 

Grand Jury and was approved (C.R., pgs. 38-39). The certification to the juvenile 

court, specifically County Court at Law Number 4 of Fort Bend County, Texas, 

sitting as a Juvenile Court, was signed by the District Clerk in Fort Bend County, 

Texas, Annie Rebecca Elliott, on October 17, 2014. Id. at 40.

On March 24, 2015, Voir Dire commenced in the matter of J.C., a Juvenile, 

in County Court at Law Number 4, sitting as a Juvenile Court. The Jury was 

sworn and released until the following Tuesday. [Reporter’s Record Vol. II, pgs. 

117-122, hereinafter abbreviated R.R. Vol., pg.].

On March 30 and 31, 2015, the Juvenile Appellant, J.C., argued a motion to 

suppress evidence, to wit: a gun. The trial court Judge found that the State failed to

prove up the proper chain of custody for the gun, and that the State also failed to

properly authenticate the gun as the same gun used in the alleged robbery. [R.R.

Vol. IV, pgs. 51-52]. After refusing to allow the gun into evidence, however, he 

allowed the State to “go into a full description of it” and to use the gun as 
9

demonstrative evidence. Id. at 52. The trial court also allowed the State to use a 

photograph of the gun that was found on Juvenile Appellant when he was in New 

Braunfels. [R.R. Vol. V, pg. 9]. 

On March 31, 2015, the trial on the merits commenced, and the Juvenile 

Appellant, J.C., pled “Not True.” (C.R., pgs. 56-57). On April 1, 2015, the trial 

Court admonished the Juvenile Appellant in accordance with juvenile procedure. 

[R.R., Vol. V, pgs. 5-9]. On April 6, 2015, the jury found that Juvenile Appellant, 

J.C., did engage in delinquent conduct on or about May 2, 2014, by committing the 

offense of Aggravated Robbery to wit: while in the course of committing theft and 

with the intent to obtain property of Thomas Mathew, without the effective consent 

of said Thomas Mathew, and with intent to deprive the said Thomas Mathew of 

said property, by using and exhibiting a deadly weapon, to wit: a gun, and 

intentionally or knowingly place Thomas Mathew in fear of imminent bodily 

injury and death. (C.R., pg. 85). The jury also answered the Special Issue in the 

affirmative, and found from the evidence beyond a reasonable doubt, that the

Juvenile Appellant, J.C., while in the course of committing the delinquent conduct 

of Aggravated Robbery, did then and there personally use or exhibit a deadly 

weapon, to-wit: a gun, in the commission of the Aggravated Robbery. (C.R., pg. 

86). 

After the Juvenile Appellant was adjudicated delinquent, on May 12, 2015, 
10

the trial Court reconvened for the disposition hearing. The trial court sentenced 

Juvenile Appellant to a sentence of eleven (11) years confinement in the Texas 

Juvenile Justice Department (“TJJD”) with the possibility of transfer to the 

Institutional Division of the Texas Department of Criminal Justice. (C.R., pg. 98). 

Juvenile Appellant J.C., accordingly, appeals the jury’s verdict of delinquent 

conduct and the trail Court’s sentence of eleven (11) years confinement.

ISSUES PRESENTED

I. POINT OF ERROR NO. ONE: THE TRIAL COURT ERRED 

WHEN IT DENIED APPELLANT’S MOTION TO SUPPRESS 

REFERENCES TO A BB GUN 

A. THE PAT-DOWN OF JUVENILE APPELLANT, J.C., WAS 

ILLEGAL, AND, THEREFORE, ANY CONTRABAND FOUND 

AS A RESULT OF SAID ILLEGAL PAT-DOWN SHOULD BE 

SUPPRESSED

B. THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE 

TO USE A PHOTOGRAPH OF THE BB GUN FOUND ON 

JUVENILE APPELLANT AND WHEN IT ALLOWED THE 

STATE TO REPEATEDLY REFERENCE SAME.

II. POINT OF ERROR TWO: THE EVIDENCE ADDUCED AT 

TRIAL WAS NOT LEGALLY SUFFICIENT TO SUPPORT THE 

JURY FINDING BEYOND A REASONABLE DOUBT THAT THE 

ALLEGATION OF AGGRAVATED ROBBERY WAS TRUE AND 

PROPERLY SUPPORTED BY THE EVIDENCE AND THAT 

JUVENILE APPELLANT, J.C., ENGAGED IN DELINQUENT 

CONDUCT.
11

STATEMENT OF THE FACTS

On Friday, May 2, 2014, a gaming establishment/convenience store/ “beer 

joint” called the Riverside Drive-In was robbed at gunpoint. [R.R. Vol. IV, pg. 72; 

Vol. VI, pg. 44]. The Riverside Drive-In is located in the town of East Bernard in 

Fort Bend County, Texas. The complaining witness, Thomas Mathew, identified 

the armed robber as a black male. [R.R. Vol. IV, pg. 117]. This unidentified black 

male also exhibited a firearm and stole money from the establishment. [R.R. Vol.

IV, pg. 125].

Juvenile Appellant, J.C., resides with his grandmother, D.C., in East 

Bernard. On Friday, May 2, 2014, at about 7:40 p.m., she told J.C. to walk the dogs 

then take the trash to their burn pit; the juvenile complied with her instructions. 

[R.R. Vol. V, pgs. 90-91]. At approximately 9:00 p.m., D.C. gave Juvenile 

Appellant, J.C., his dinner. Together, they then watched the Fashion Police on 

television. D.C. testified that Juvenile Appellant, J.C., was never sweaty, out of 

breath, nor flushed at any time. [R.R. Vol. V, pgs. 92-93]. D.C. further testified 

that Juvenile Appellant, J.C., was at her house until she went to bed at midnight on 

Friday night. [R.R. Vol. V, pg. 56].

On Saturday, May 3, 2014, at approximately 10:00 a.m., she noticed he was 

gone. [R.R. Vol. V, p 93]. She called his mother who resides in New Braunfels. 

[R.R. Vol. V, pg. 59]. The grandmother then used an app installed on Juvenile 
12

Appellant’s phone and discovered that he was in New Braunfels also. [R.R. Vol. V,

pg. 61]. On Sunday, May 4, 2015, Juvenile Appellant contacted his grandmother 

and informed her that he was with his girlfriend, who also resides in New 

Braunfels. [R.R. Vol. V, pgs. 68, 131-32]. On Monday, May 5, 2014, New 

Braunfels Police Department officers (hereinafter referred to as NBPD) notified 

the grandmother that they found Juvenile Appellant J.C. [R.R. Vol. V, pg. 70].

On May 5, 2014, NBPD officers, Corporal William Spence and Officer 

Leslie Bettice, located Juvenile Appellant J.C. sitting on a curb in a state park in 

New Braunfels with a T-shirt wrapped around his head. [R.R. Vol. V, pgs. 70, 97, 

118]. They were actually looking for a different person who had been reported 

suicidal when they made contact with Juvenile Appellant. When the police 

realized Juvenile Appellant was not the person for whom they were looking, they 

left. [R.R. Vol. III, pg. 8]. Officer Bettice observed a green truck and remembered 

a call from the night before from a grandmother who had reported that her 

grandson had runaway and was driving her green truck. [R.R. Vol. V, pg. 101]. 

NBPD then made contact with Juvenile Appellant J.C. a second time, who was in 

the exact same place that he had been when the police first made contact with him. 

[R. R. Vol. 5, pgs. 101-103]. There was no testimony that he was nervous when the 

police approached him a second time.
13

NBPD detained Juvenile Appellant J.C. for approximately 40 to 45 minutes, 

who was by all accounts very cooperative. [R.R. Vol. III, pg. 12.; Vol. V, pg. 152]. 

Corporal William Spence testified that Juvenile Appellant J.C. was not free to 

leave. [R.R. Vol. III, pg. 12]. Because no relatives could quickly pick up the 

juvenile, the officers decided to detain him and transport him to the New Braunfels 

Juvenile Probation. [R.R. Vol. V, pg. 108]. The police searched Juvenile Appellant

J.C. prior to transporting him. [R.R. Vol. III, pg. 30]. When the police went to 

search him, he volunteered that he had a BB gun on him. [R.R. Vol. V pg. 130]. 

Officers testified that not only is it not against the law to possess a BB gun, a BB 

gun is also not a firearm. [R.R. Vol. V, pgs. 115, 129, 145, 151]. The police also 

found some coins on his person, but no actual dollar bills. Id. at 128.

SUMMARY OF THE ARGUMENT

This Honorable Court should reverse and remand the cause for new 

proceedings because the trial court erred when it did not grant Juvenile Appellant

J.C.’s motion to suppress and when it allowed inadmissible evidence to be 

considered by the jury. First, the officers’ pat-down of Juvenile Appellant was 

illegal, rendering any fruits found as a result of said pat-down inadmissible. 

Second, even if this Honorable Court determines the search was justified, the 

motion to suppress should have still been granted. Third, the State presented 

evidence that was both irrelevant and unfairly prejudicial evidence and should have 
14

been deemed inadmissible under either Texas Rule of Evidence 402 or Texas Rule 

of Evidence 403. Finally, the evidence was legally insufficient to sustain a verdict. 

No rational trier of fact could believe that Appellant had engaged in delinquent 

conduct by committing the offense of Aggravated Robbery. Accordingly, the State 

failed to prove essential elements of its case beyond a reasonable doubt, and, 

consequently, the jury should not have found that Appellant engaged in delinquent 

conduct by committing the offense of Aggravated Robbery.
15

ARGUMENT

I. POINT OF ERROR NO. ONE: THE TRIAL COURT ERRED 

WHEN IT DENIED APPELLANT’S MOTION TO SUPPRESS 

REFERENCES TO A BB GUN 

A. THE PAT-DOWN OF JUVENILE APPELLANT, J.C., WAS 

ILLEGAL, AND, THEREFORE, ANY CONTRABAND FOUND 

AS A RESULT OF SAID ILLEGAL PAT-DOWN SHOULD BE 

SUPPRESSED

FACTS

On Friday, May 2, 2014, a gaming establishment/convenience store/ “beer 

joint” called the Riverside Drive-In was robbed at gunpoint. [R.R., Vol. IV, pg. 72; 

Vol. VI, pg. 44]. The Riverside Drive-In is located in the town of East Bernard in 

Fort Bend County, Texas. Four days later, New Braunfels Police Department 

officers detained, searched, and apprehended Juvenile Appellant J.C. on May 5, 

2014. [R.R., Vol. III, pg. 7]. The NBPD did not have a directive to apprehend. Id.

They were actually looking for a different person who had been reported suicidal 

when they made contact with Juvenile Appellant. NBPD left Juvenile Appellant

after realizing Juvenile Appellant was not the person for whom they were looking. 

[R.R., Vol. III, pg. 8]. 

Officer Bettice observed a green truck and remembered a call from the night 

before from a grandmother who had reported that her grandson had run away and 

was driving her green truck. NBPD then made contact with Juvenile Appellant
16

J.C. a second time, who was in the exact same place that he had been when the 

police first made contact with him. [R.R., Vol. V, pgs. 101-103].

The police detained Juvenile Appellant J.C. for approximately 40 to 45 

minutes, who was, by all accounts, very cooperative. [R.R., Vol. III, pg. 12; Vol..

5, pg. 152]. Corporal William Spence testified that Juvenile Appellant J.C. was 

not free to leave. [R.R., Vol. III, pg. 12). Because no relatives could quickly pick 

up Juvenile Appellant, the NBPD officers decided to detain and transport him to 

the New Braunfels Juvenile Probation. [R.R., Vol. V, pg. 108]. The NBPD 

searched Juvenile Appellant J.C. after detaining him and prior to transporting him. 

[R.R., Vol. III, pg. 30]. During the search of Juvenile Appellant J.C., he 

volunteered that he had a BB gun on him. [R.R., Vol. V, pg. 130]. The NBPD 

admitted at trial that it not against the law to possess a BB gun and that a BB gun is 

also not a firearm. [R.R., Vol. V, pgs. 115, 129, 145, 15]. The police also found 

some coins on his person, but no actual dollar bills. Id. at 128.

APPLICABLE LAW

Section 52.01 of the Texas Family Code states that a child may be taken into 

custody by a law-enforcement officer, including a school district peace officer 

commissioned under Section 38.0071, Education Code, if there is probable cause 

to believe that the child has engaged in delinquent conduct or conduct indicating a

need for supervision. [Texas Family Code, Section 52.01(a)(3)(B)]. Section 51.03 
17

of the Texas Family Code defines conduct indicating a need for supervision as, 

inter alia, the voluntary absence of a child from the child's home without the 

consent of the child's parent or guardian for a substantial length of time or without 

intent to return. [Texas Family Code, Section 51.03(b)(3)].

ANALYSIS

During the Motion to Suppress and throughout the trial, the State failed to 

provide any evidence that the child had no intent to return to his home in East 

Bernard. The State failed to elicit any testimony that it was the opinion of any 

witness that the child was not planning on returning home. There was no evidence 

that Juvenile Appellant J.C. had taken all of his belongings or his clothes from his 

house in East Bernard. Conversely, the testimony and evidence revealed that he 

was merely visiting his girlfriend in New Braunfels. Further, the State proffered

no evidence that Juvenile Appellant J.C. was absent from his home for a 

substantial length of time. To the contrary, NBPD Officer Bettice testified that on 

May 4, 2015, Juvenile Appellant J.C.’s grandmother had reported to the NBPD 

that he had run away. Since it was NBPD Officer Bettice and Corporal Spence 

who detained Juvenile Appellant, it is their knowledge that controls. And the only 

knowledge they had was that Juvenile Appellant had been missing for one night. 

One night cannot be considered a substantial length of time.

Since there was no directive to apprehend, NBPD had no legal right to take 
18

Juvenile Appellant J.C. into custody. Without the legal right to take Juvenile

Appellant J.C. into custody, they had no authority to pat him down. 

Consequently, the NBPD should have never discovered the BB gun. Therefore, 

there should have been no mention of any BB gun found on Juvenile Appellant

J.C. during the trial. 

B. THE TRIAL COURT ERRED WHEN IT ALLOWED THE 

STATE TO USE A PHOTOGRAPH OF THE BB GUN FOUND 

ON JUVENILE APPELLANT AND WHEN IT ALLOWED THE 

STATE TO REPEATEDLY REFERENCE SAME.

FACTS

On Friday, May 2, 2014, the Riverside Drive-Inn located in East Bernard 

was robbed at gunpoint. Witnesses to the armed robbery testified that the assailant 

was a black male in possession of a firearm which he used in the commission of 

said robbery. Four days later, on May 5, 2014, the NBPD discovered a BB gun on 

Juvenile Appellant as a result of an unlawful detainment and search. 

On March 30 and 31, 2015, the Juvenile Appellant, J.C., argued a motion to 

suppress evidence. The Honorable Sandy Bielstein found the State did not prove 

up the proper chain of custody, nor did it properly authenticate the BB gun found 

on Juvenile Appellant in New Braunfels as the same gun used in the aggravated 

robbery in East Bernard days earlier. [R.R., Vol. VI, pgs. 51-52]. Specifically, the 

Honorable Sandy Bielstein stated:
19

I do not believe that anyone can prove to this Court or a 

jury, at this point in time, that this is the weapon or an air 

pistol or BB gun or pellet pistol, at any particular point in 

time was used for any offense. It is merely one -- e

pluribus unum, one out of many.

Id. Emphasis Added. 

However, even though the Honorable Sandy Bielstein himself admitted it 

would be error to let the BB gun into evidence, he allowed the State to “go into a 

full description of it” and use the photograph of the BB gun found on Juvenile 

Appellant when he was in New Braunfels as demonstrative evidence. [R.R., Vol. 

VI, pg. 52; Vol. V, pgs. 9-12; Vol. VI, pg. 38].

The trial court then ruled that the NBPD could testify about the BB gun they 

found on Juvenile Appellant when he was in New Braunfels, and the trial court 

overruled Juvenile Appellant’s Rule 403 objection to same. [R.R., Vol. V, pgs. 13-

14]. To preserve error, Juvenile Appellant requested a running objection based on 

Rule 403 and the length of time between the aggravated robbery and the discovery 

of the BB gun on Juvenile Appellant. [R.R., Vol. V, pgs. 94, 95]. Juvenile 

Appellant’s objection was discussed in detail outside the presence of the jury. 

[R.R., Vol. V, pgs. 94-95]. The trial court then granted Juvenile Appellant’s 

request for a running objection to the BB gun. [R.R., Vol. V, pg. 95]

APPLICABLE LAW

Under Rule 402 of the Texas Rules of Evidence, irrelevant evidence is not 

admissible. Under Rule 403 of the Texas Rules of Evidence, the court may 
20

exclude relevant evidence if its probative value is substantially outweighed by a 

danger of one or more of the following: unfair prejudice, confusing the issues, 

misleading the jury, undue delay, or needlessly presenting cumulative evidence. 

ANALYSIS

Assuming, arguendo, and that the NBPD’s search of Juvenile Appellant was 

valid, the BB gun found as a result of that search should still be deemed 

inadmissible. A BB gun found on Juvenile Appellant, 4 days later, roughly 160 

miles from where the aggravated robbery happened is irrelevant, especially when 

the trial court determined there was no proper authentication or chain of custody. 

The Honorable Sandy Bielstein correctly denied the BB gun’s admission into 

evidence. Because the trial court found that there was no evidence to support the 

contention that the BB gun was the deadly weapon used in the aggravated robbery 

on May 2, 2014, or that it had ever been used in any offense, the BB gun found on 

Juvenile Appellant was completely irrelevant and should have been found 

inadmissible under Rule 402 of the Texas Rules of Evidence.

However, after the trial court properly denied the BB gun from being 

admitted into evidence, the trial court’s allowance of the State to repeatedly 

mention in front of the jury that the NBPD found a BB gun on Juvenile Appellant

and to repeatedly elicit testimony concerning same was error. Since it was not 

admitted as substantive evidence, it should have never been referenced to nor 
21

shown to the jury. The allowance of any reference to a BB gun found days after an 

armed robbery, in a different town, on someone who is a different race from the 

purported robber is inadmissible under Rule 402 because it is not relevant. 

The Honorable Sandy Bielstein then erroneously ruled the State could use 

the photograph of the BB gun. The trial court then mistakenly ruled that the 

NBPD could testify about the BB gun they found on Juvenile Appellant days after 

the robbery, some 160 miles from the scene of the crime, and the trial court 

incorrectly overruled Juvenile Appellant’s Rule 403 objection. 

Juvenile Appellant’s Rule 403 objection should have been sustained because 

the BB gun was also inadmissible under Rule 403 of the Texas Rules of Evidence

because the prejudicial effect far outweighed any probative value. Not only did the 

testimony that a BB gun was found on Juvenile Appellant cause unfair prejudice, it 

also confused the issues and mislead the jury. The fact that a BB gun was found on 

Juvenile Appellant should have never been introduced into evidence because the 

trial court had already ruled the BB gun was not related to the offense for which 

Juvenile Appellant J.C. was being tried. 

To Juvenile Appellant J.C.’s substantial detriment, the State was allowed to 

introduce irrelevant, damning and highly prejudicial testimony from its witnesses 

regarding the fact that the NBPD found a BB gun on Juvenile Appellant. This 

irrelevant and prejudicial testimony created harm to Juvenile Appellant for which 
22

no corrective measures could have provided relief. 

The following exchange took place between the prosecutor and NBPD 

Officer Bettice:

Q: “And during the pat-down, were any weapons recovered? 

A: It was what he described as a realistic pellet gun. 

Q: Was that gun subsequently given to you? 

A: Yes.”

 [R.R., Vol. V, pg. 115]. 

In fact, the prosecutors elicited testimony from Officer Bettice concerning 

the BB gun found on Juvenile Appellant on 8 pages of trial transcript [R.R., Vol. V, 

pgs. 115, 116, 117, 123, 124, 126, 127, 128]. They spent one-fourth of that 

officer’s time on the stand having her talk about the BB gun found on Juvenile 

Appellant, hammering it home in the minds of the jury. 

The State once again violated Rule 403 when it continued this same 

prejudicial line of questioning when examining Corporal Spence, thereby causing 

unfair prejudice to Juvenile Appellant J.C., confusing the issues, misleading the 

jury, and needlessly presenting cumulative evidence. In fact, the State asked 

Corporal Spence very similar questions to those asked of Officer Bettice. To 

illustrate, the State continued its same line of questioning with the following 

leading question:
23

Q: “And when that search was ultimately conducted did you find that there 

was a weapon, or a simulated weapon on his person? 

A: Yes, ma'am, we did.

Q: Why don't you describe that for us.

A: It was basically a BB gun, but it looked exactly like a -- I don't know 

how much y'all know about guns. It's a 1911 Commander sized .45 caliber 

semiautomatic pistol.”

[R.R., Vol. V, pg. 144]. Emphasis Added. 

Trial counsel proceeded to object, and the State simply withdrew that 

question, allowing the harmful and unfair prejudice to permeate the jurors’ minds. 

Id. Even though trial counsel objected and the State withdrew its question, the 

irreparable, harmful and prejudicial damage was already done to Juvenile 

Appellant, J.C., thus adversely affecting his substantial rights. 

Later in the trial, the trial court clarified its ruling. The Honorable Sandy 

Bielstein stated, “[T]hat is demonstrative to show the jury what a BB pellet gun, 

whatever is. Just to show them what it is. I can't let that in without letting the other 

in. And because of the circumstances, I would be in error to do it.” [R.R., Vol. VI, 

pg. 38]. 

Unfortunately, the trial court allowed the evidence to exceed its 

demonstrative scope. The State had already repeatedly referenced the fact that a

BB gun was found on the Juvenile Appellant. However, they went even farther 
24

and elicited testimony that the BB gun found on Juvenile Appellant was a deadly 

weapon. The State was further allowed to imply to the jury that the BB gun found 

on Juvenile Appellant was the same deadly weapon used at the armed robbery. 

The trial court erred when it allowed the State to ask Detective Justin White 

the following:

Q: “Are you familiar with in the course of your training and experience, or 

just your work out there, investigating -- I guess what some people call them 

BB guns, some people call them pellet guns, some people call them Co2 

guns? 

A: Yes, ma'am.

Q: Are you familiar with those?

A: Yes, ma'am.

Q: What is that?

A: It is a weapon that is used to -- it doesn't use a gunpowder charge to fire a 

bullet the way a traditional handgun would. It uses air pressure to dispense a 

pellet or a BB. 

Q: So, it is not the same thing as a firearm? 

A: Correct. 

Q: Can a Co2 gun, a BB gun, a pellet gun, can that be a deadly weapon? 

A. Absolutely.” 

[R.R., Vol. VI, pgs. 40-41]. Emphasis added.

Juvenile Appellant’s trial counsel objected and was overruled. Detective 

Justin White continued his testimony without being asked a question and stated:
25

“BB gun, pellet gun, a Co2 gun could be considered a deadly weapon in the 

fact that if I were to discharge one at someone and hit you in the eye with it 

and blinded your eye, I would consider that to be serious bodily injury, for 

sure.”

Q: So, there are ways you described, as in the manner and means of the use 

of a Co2, BB gun, pellet gun, that it would be a deadly weapon? 

A: Yes, ma'am. 

Q: But does it have to be used that way, or just the manner and means of it's 

intended use? 

A: The manner of use or intended use.

[R.R., Vol. VI, pg. 41]. 

The State then questioned Detective White about pellet guns. The State 

showed Detective White a picture of the BB gun found on Juvenile Appellant

(Petitioner’s Exhibit 1) and asked him “So, this is a photograph of a pellet gun?” 

[R.R., Vol. VI, pg. 42]. Detective White answered in the affirmative. [R.R., Vol.

VI, pg. 43]. The State then published the picture of the BB gun found on Juvenile 

Appellant to the jury for “demonstrative purposes.” [R.R., Vol. VI, pg. 40-44]. 

The State then referred to the inventory of items that were found on Juvenile 

Appellant by NBPD and asked Detective White:

Q: “Detective White, I believe my question was, did you retrieve other items 

that you thought were of evidentiary value?

A: Yes, Ma’am.
26

Q: And what were those items?

A: A realistic looking pellet pistol that very much resembled a real hand 

gun.”

[R.R., Vol. VI, pg. 67. Emphasis added]. 

The State continued:

Q: “I'm showing you what has been admitted as Petitioner's Exhibit 2-A. 

That's the inventory there from the New Braunfels. I'm going to ask you to 

just look at that inventory and determine if the items that you see indicated 

in the inventory include those items of evidentiary value that you were 

looking for?”

A: Yes, ma'am, they do.

Q: Which?

A: The pellet gun.

Q: And did you proceed to take that into custody?

A: Yes, ma'am.”

 [R.R., Vol. VI, pgs. 67-68]. 

Q: Detective White, you have now -- you have been to New Braunfels, and 

you have the nature of your investigation in East Bernard? 

A: Correct. 

Q: And you have the nature of your investigation in New Braunfels? 

A: Yes. 

Q: Where were you in terms of your probable cause in the investigation 

itself? 

[R.R., Vol. VI, pg. 68]. 
27

Detective White then stated that he determined that probable cause had been 

established for J.C. as the suspect and that he obtained a directive to apprehend or 

an arrest warrant for the juvenile, over the relevance objection from counsel. 

[R.R., Vol. VI, pg. 69]. 

Any reference to a BB gun found on Juvenile Appellant by NBPD should 

have been ruled inadmissible under either Rule 402 or Rule 403 of the Texas Rules 

of Evidence. The fact that a BB gun was found on Juvenile Appellant by NBPD 

days after the armed robbery in East Bernard, in a different town, on someone who 

is a different race from the purported robber was inadmissible under Texas Rule of 

Evidence Rule 402 because it is not relevant. Additionally, the State’s repeated 

references to the fact that a BB gun was found on Juvenile Appellant by NBPD

caused unfair prejudice to Juvenile J.C., confused the issues, mislead the jury, and 

further violated Rule 403 by creating a needless presentation of cumulative 

evidence. This irrelevant and prejudicial testimony created harm to Juvenile 

Appellant for which no corrective measures could have provided relief. 

II. POINT OF ERROR TWO: THE EVIDENCE ADDUCED AT 

TRIAL WAS NOT LEGALLY SUFFICIENT TO SUPPORT THE 

JURY FINDING BEYOND A REASONABLE DOUBT THAT THE 

ALLEGATION OF AGGRAVATED ROBBERY WAS TRUE AND 

PROPERLY SUPPORTED BY THE EVIDENCE AND THAT 

JUVENILE APPELLANT, J.C., ENGAGED IN DELINQUENT 

CONDUCT.
28

FACTS

A jury made a finding of “True” to the aforementioned allegation of

delinquent conduct and the finding of “True” to the special issue. The trial court 

accepted the findings of the jury and the trial court further found beyond a 

reasonable doubt that the Juvenile Appellant, J.C., had engaged in delinquent 

conduct by violating section 29.03 of the Texas Penal Code and had engaged in the 

personal use or exhibition of a deadly weapon during the commission of said 

offense. Specifically, the jury found beyond a reasonable doubt that the Juvenile

Appellant, J.C., did engage in delinquent conduct on or about May 2nd, 2014, in 

Fort Bend County, Texas, by committing the offense of aggravated robbery, to wit: 

while in the course of committing theft and with the intent to obtain property of 

Thomas Mathew, without the effective consent of the said Thomas Mathew and 

with intent to deprive the said Thomas Mathew of said property, by using and 

exhibiting a deadly weapon, to wit: a gun, and intentionally or knowingly place 

Thomas Mathew in fear of imminent bodily injury and death.

APPLICABLE LAW

When reviewing legal sufficiency, an appellate court views all of the 

evidence in the light most favorable to the verdict to determine whether a rational 

trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 [1979]. Based on that 
29

evidence and the reasonable inferences drawn therefrom, this Court determines 

whether or not a rational juror could have found each element of the crime beyond 

a reasonable doubt. See Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App. 2011) 

(citing Jackson v. Virginia, 433 U.S. 307, 318-19 (1979)).

The due process clauses of the U. S. and Texas Constitutions protect an 

Appellant 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, 297 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See also, 

Richardson v. State, 879 S.W.2d 874 (Tex.Crim.App. 1993).

The State is required to affirmatively prove each element of the offense. Gold 

v. State, 736 S.W.2d 685 (Tex.Crim.App. 1987). If the evidence, when viewed in 

the light most favorable to the verdict or judgment, gives equal or nearly equal 

support to the theories of innocence and guilt, the evidence is insufficient. Clark v. 

Procunier, 755 F.2d 394, 396 (5th Cir. 1985). The chief value and function of 

sufficiency review is to protect an Appellant from conviction except upon proof 

beyond a reasonable doubt. The necessity of this protection is that it

operates to give ‘concrete substance’ to the presumption of innocence to 

ensure against unjust convictions, and to reduce the risk of factual error 

in a criminal proceeding. [citation omitted] At the same time by 

impressing upon the factfinder the need to reach a subjective state of near 

certitude of the guilt of the accused, the standard symbolizes the 

significance that our society attaches to the criminal sanction and thus to 

liberty itself.

Jackson v. Virginia, 443 U.S. 307, 316 (1979).
30

This Court must defer to the jury’s determinations of credibility and weight 

given to the evidence. Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App. 2010) 

(citing Jackson, 433 U.S. at 319, 326). Not every fact must point directly and 

independently toward guilt, as long as the conviction is supported by the 

“cumulative force of all the incriminating evidence.” Johnson v. State, 871 S.W.2d 

183, 186 (Tex.Crim.App. 1993).

Circumstantial evidence can be as probative as direct evidence, and 

circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 

214 S.W.3d 9, 13 (Tex.Crim.App. 2007). However, circumstantial evidence, 

which is “more speculative than inferential as to [Appellant’s] guilt”, is not 

sufficient to support a conviction. See Winfrey v. State, No. PD-0943-11, 2013 

Tex.Crim.App. LEXIS 431, *22-23 (Tex.Crim.App. Feb. 27, 2013) (to be 

published). A jury may draw inferences – even multiple inferences – from both 

direct and circumstantial evidence, as long as each inference is both reasonable 

and supported by the evidence. Hooper, 214 S.W.3d at 15.

A jury may not “come to conclusions based on mere speculation or factually 

unsupported inferences or presumptions.” Id. The distinction between inferences 

and speculation is crucial:

[A]n inference is a conclusion reached by considering other facts and 

deducing a logical consequence from them. Speculation is mere 

theorizing and guessing about the possible meaning of facts and 

evidence presented. A conclusion reached by speculation may not be 
31

completely unreasonable, but it is not sufficiently based on facts or 

evidence to support a conclusion beyond a reasonable doubt.

Id. at 15-16 (emphasis added). Even if the evidence leads to a “strong suspicion of 

guilt,” that “does not equate with legally sufficient evidence of guilt.” Winfrey, 

2013 Tex.Crim App. LEXIS 431, at *16. To determine the sufficiency of the 

evidence, this Court will apply the foregoing standard to the evidence, as defined 

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 

(Tex.Crim.App. 1997). 

ANALYSIS

The only evidence of purported delinquent conduct presented by the State 

was that Juvenile Appellant was found days later with a BB gun in New 

Braunfels1, in spite of the fact that he had two perfectly reasonable reasons for 

being in New Braunfels since both his mother and girlfriend lived there. In order 

for the jury members to reach the conclusion that Juvenile Appellant engaged in 

delinquent conduct by committing the offense of Aggravated Robbery, they 

theorized and guessed about the possible meaning of the evidence, instead of 

rendering a verdict supported by the evidence.

																																																						 1 Appellant contests the admissibility of this evidence, as discussed more fully in Point of Error 

One. However, in conducting a legal sufficiency review, this Court considers all the evidence 

before the jury, even improperly admitted evidence. 
32

When the Court considers the lack of evidence that Juvenile Appellant

engaged in delinquent conduct by committing the offense of Aggravated Robbery, 

the sheer speculation of the jury becomes all the more apparent:

• No testimony or evidence identified the Juvenile Appellant as 

being the same person who committed the aggravated robbery in 

East Bernard

• No testimony or evidence identified the Juvenile Appellant as 

being present at the Riverside Drive-In on day of the robbery 

• No testimony or evidence placed Juvenile Appellant near the 

location of the store

• Juvenile Appellant’s grandmother testified that Juvenile Appellant

was with her on the night in question [R.R. Vol. V, pg. 56].

• The complaining witness Thomas Mathew stated a black man 

robbed him [R.R. Vol. VI, pg. 117]

• The complaining witness Thomas Mathew stated the armed robber 

was 6’1” or 6’2,” but the evidence showed that Juvenile Appellant

was 5’8” [Id.]

• There was no description of any vehicle used by the robber [R.R., 

Vol. VI, pg. 78]

• Juvenile Appellant did not flee from the police [R.R. Vol. V, pg. 

101-103].

• Juvenile Appellant did not act nervous and was very cooperative 

with the police [R.R. Vol. III, pg. 101-12; R.R. Vol. V, pg. 152].

• No money was found on Juvenile Appellant or in his wallet [R.R. 

Vol. V, pg. 128].
33

In the instant case, it is abundantly clear that the jury came to its conclusions 

based on mere speculation or factually unsupported inferences or presumptions or 

specious implications promulgated by the State. Without question, it cannot be said 

that the near certitude of the delinquent conduct of the accused child was 

established in the case at bar. Accordingly, under Jackson v. Virginia, the 

evidence is legally insufficient to sustain the jury’s finding of delinquent conduct, 

because even when all of the evidence is viewed in the light most favorable to the 

verdict, a rational trier of fact simply could not have found all of the essential 

elements of aggravated robbery true beyond a reasonable doubt or that the 

evidence supported a finding beyond a reasonable doubt that Juvenile Appellant 

used or exhibited a deadly weapon during the commission of the aggravated 

robbery. 

CONCLUSION

The due process clauses of the U. S. and Texas Constitutions protect an 

Appellant against wrongful conviction. Erroneous convictions trouble even the 

most conservative of thinkers; erroneous convictions/adjudications of delinquent 

conduct regarding juveniles are even more troubling and even more deleterious to 

the child himself. It is incumbent upon us all that we safeguard our children and 

afford them all of the protections and guarantees that our law provides. 
34

The prosecution should always be held to its burden, that of the greatest in 

the land, namely, proof beyond all reasonable doubt. Certainly, when it comes to 

adjudicating juveniles and restricting their liberty, great pains should be made to 

make certain that the State has met its burden of proof beyond all reasonable doubt 

on each and every element of the offense. The State’s evidence should be strictly 

scrutinized to assure that noting is in contravention of the law. In the case at bar, 

that cannot be said. The crux of the State’s argument was that a BB gun was found 

on Respondent when he was in New Braunfels. The admission of that evidence 

was improper, affected a substantial right of a child and should have ben excluded 

as inadmissible evidence for any of the following reasons: (1) it was the result of 

an unlawful search; (2) it was irrelevant under Rule 402; (3) its probative value 

was substantially outweighed by unfair prejudice to the child; (4) its probative 

value was substantially outweighed by confusing of the issues; (5) its probative 

value was substantially outweighed by the jury being misled by this evidence; and 

(6) its probative value was substantially outweighed by the needless presentation of 

cumulative evidence. The State should be restrained from utilizing evidence that 

has no legal basis for admission and results in an unjust result, especially when 

prosecuting a child. 
35

Accordingly, this Court should reverse and render a verdict of “Not True” or 

reverse and remand for new proceedings in accordance with the arguments 

contained herein.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court 

will reverse and render a verdict of “Not True” or, in the alternative, that this Court 

will reverse and remand for new proceedings in accordance with the arguments 

herein. 

Respectfully submitted,

The Love DuCote Law Firm LLC

4610 Sweetwater Blvd.

Suite 210

Sugar Land, Texas 77479

832.471.6904 telephone

832.553.7765 facsimile

/s/ Leigh Love

LEIGH LOVE

SBN: 24058364

4610 Sweetwater Blvd.

Suite 210

Sugar Land, Texas 77479

832.471.6904 telephone

832.553.7765 facsimile

leigh@loveducotelaw.com

Attorney for Appellant,

J.C.
36

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing instrument has 

been e-mailed to John Harrity of the Appellate Division of the Fort Bend County 

District Attorney’s Office at john.harrity@fortbendcountytx.gov, on the date of the 

filing of the original with the Clerk of this Court and has been sent via facsimile 

281.341.4440.

/s/ Leigh Love

LEIGH LOVE

CERTIFICATE OF COMPLIANCE

This is to certify that in accordance with Texas Rule of Appellate Procedure 

9.4(i)(3), the Appellant’s Brief has been reviewed by the word count function in 

Microsoft Word and contains 5,507 words in accordance with the applicable rule.

/s/ Leigh Love

LEIGH LOVE