### Nos. 12-15-00068-CR & 

### 12-15-00069-CR INTHE COURT OFAPPEALS FOR THE 12THJUDICIAL DISTRICT OFTEXAS AT TYLER ANDREW PJWHITAKER, APPELLANT


### v. THE STATE OFTEXAS, APPELLEE



### APPELLEE'S BRIEF

FROM THE 420THJUDICIAL DISTRICT COURT NACOGDOCHES COUNTY, TEXAS THE HONORABLE EDWINA. KLEIN, PRESIDING TRIAL CAUSE NUMBERS F1421007 AND F1521497 ACCEPTED 12-15-00068-CR TWELFTH COURT OF APPEALS

TYLER, TEXAS 9/17/2015 4:14:55 PM

Pam Estes CLERKOral argument is requested, butonly 

### if Appellant is also requesting oralargument. Respectfully submitted,

KEVIN BELANGER Assistant District Attorney Nacogdoches County, Texas State BarNo. 24094534 101 W. Main St., Ste. 250 Nacogdoches, Texas 75961 Phone:(936)560-7766 FAX: (936) 560-6036

11

### IDENTITY OFPARTIES & 

### COUNSEL Appellant.
............................................................ ANDREWPJ WIDTAKER Winfred A. Simmons, II APPELLATE COUNSEL Appellee
............................................................... TfIE STATE OF TEXAS KevinBelanger Assistant DistrictAttorney APPELLATE COUNSEL CristinLane Assistant DistrictAttorney TRIAL COUNSEL AndrewJones AssistantDistrictAttorney TRIAL CO-COUNSEL

l1lTABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL
...........................................................iii TABLE OF CONTENTS
.........................................................................................iv INDEX OF AUTHORITIES
.....................................................................................v STATEMENT OF TIIB CASE
................................................................................. 1 ISSUES PRESENTED
..............................................................................................3 STATEMENT OF FACTS
........................................................................................3 SlJMMARY OF TIIE STATE'S ARGUMENT
.......................................................5 STATE'S RESPONSE TO APPELLANT'S ARGUMENT
.....................................6 

### PRAYER
.................................................................................................................. 15 CERTIFICATE OF SERVICE
................................................................................ 16 CERTIFICATE OF COMPLIAN"CE
...................................................................... 17

IV

### INDEX OFAUTHORITIES STATUTES PAGE 

### TEX. PENAL CODE (2015) Sec. 6.03
.............................................................................................................. 11 Sec. 8.02(a)
...............................................................................13 Sec. 31.07
.................................................................................10 RULES 

### TEX. R.

### APP. P. (2011) R. 38
...................................................................................................................... 1 FEDERAL CASES PAGE Jackson v. Virginia, 443 U.S. 307 (1979)
................................................9 Stricklandv. Washington, 466 U.S. 668 (1984)
.....................................12 STATE CASES PAGE Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984)
.......................7,8 Barnes v. State, 876 S.W.2d 316 (Tex. Crim. App. 1994)
..........................9 Banks v. State, 530 S.W.2d 940 (Tex. Crim. App. 1975)
...........................14 Benavides v. State, 763 S.W.2d 587 (Tex. App.-Corpus Christi 1988,pet. refd)

...............................................................................................................................9 Burden v. State, 55 S.W.3d 608 (Tex. Crim. App. 2001)
....................................9 Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001)
................................ 10

vSTATE CASES (CON'T) PAGE Kingv. State, 29 S.W.3d 556 (Tex. Crim. App. 2000)
..................................9, 10 Losada v. State, 721 S.W.2d 305 (Tex. Crim. App. 1986)
................................ 10 McQueen v. State, 781 S.W.2d 600 {Tex. Crim. App. 2001)
..................11 Okonkwo v. State 398 S.W.3d 689 {Tex. Crim App. 2013)
..................12, 13 Posey v. State, 966 S.W.2d 57 {Tex. Cr. App. 1998)
..........................5, 6, 7, 8 Tolbert v. State, 306 S.W.3d 776 (Tex. Crim App. 2010)
..........................12 Vasquez v. State, 830 S.W.2d 948 {Tex. Crim. App. 1992)
........................12 Williams v. State, 692 S.W.2d 671 (Tex. Crim. App. 1984)
...............................9

VI

### Nos. 12-15-00068-CR & 

### 12-15-00069-CR IN THE COURT OFAPPEALS FORTHE 12THJUDICIALDISTRICT OF TEXAS AT TYLER
ANDREW PJWHITAKER, APPELLANT


### v. THE STATE OFTEXAS, APPELLEE

APPELLEE'S BRIEF

TO THE HONORABLE COURT OF APPEALS: COMES NOW, Appellee, the State of Texas, by and through the undersigned Assistant District Attorney, and respectfully submits this brief in response to Appellant, Andrew PJ Whitaker, pursuant to TEX. 

### R. APP. 

### P. 38, urging the Court to overrule Appellant's alleged point oferror and affirm the judgment and sentence ofthe trial court in the above-numbered cause. STATEMENT OFTHE CASE On June 20, 2014, Andrew PJ Whitaker was indicted in cause number F1421007 in a one count indictment for a State Jail Felony offense of
IUnauthorized Use ofa Vehicle committed on or about June 3, 2015. (F1421007, 1 C.R. 6). On February 6, 2015, Andrew PJ Whitaker was indicted in cause number F1521497 in a one count indictment for a Class A Misdemeanor offense of Evading Arrest committed on or about June 6, 2015. (F1521497, 1 C.R. 6). This offense was further aggravated by the fact that Appellant used a vehicle in the commission of the offense, and had previously been convicted of the felony offense ofRobbery. 

### Ibid. Appellant entered his plea of not guilty to in both cases on February 24, 2015. (3 R.R. 9:19-22). On February 24, 2015, ajury found Appellant guilty in
cause numbers F1421007 and F1521497; Unauthorized Use of a Motor Vehicle and Evading Arrest, respectively. (3 R.R. 116:1-8). The offenses for which Appellant was found guilty were alleged to have occurred on or about June 3 and 6 of2015. (Fl421007, 1C.R. 6;F1521497, 1 C.R. 6). On February 25, 2015, thejury assessed Appellant's punishment at 2 years confinement in a State Jail Facility in cause number F1421007, and 13 years confinement to be served in the Texas Department of Criminal Justice in cause number F1521497. (5 R.R. 28:7-20). Appellant's Notice ofAppeal was filed on February 26, 2015 with the district clerk's office. (F1421007 1 C.R. 36; F1521497 1C.R.25).

2ISSUES PRESENTED Appellant presents four issues to be addressed by this Court: 1) Whether the defendant was deprived of a fair trial when the defense of mistake offact was raised by the evidence, but was not submitted to the juryas part ofthe charge, and its absence was not objectedto, 2) Whether the evidence ofunauthorized use ofa vehicle was sufficient for the trier offact to find the defendant guilty, 3) Whether the failure of defense counsel to request an instruction on mistake of fact or to object to its absence constituted ineffective assistance ofcounsel, and 4) Whether the defendant was sufficiently harmed by failure to prove venue to require a newtrial. STATEMENT OFFACTS On February 24, 2015, testimony and evidence were presented in the trial court. Such evidence established that Jesus Barrios Quezada lived in Nacogdoches County and owned a 2002 Dodge truck. (3 R.R. 16:16-17:7). On June 3, 2014, Guadalupe Barrios Quezada, Jesus' sister, arrived at Jesus' home and noticed that the Dodge truck was missing. (3 R.R. 11:11-12:8). She phoned Jesus about the missing vehicle, then called 911. (3 R.R. 12:9-23). Mr. Barrios Quezada did not give Appellant, Andrew PJ Whitaker, permission to use his truck. (3 R.R. 18:17-
319:4). On June 6, 2014, at approximately 4:00 A.M., Deputy Austin McDonald
was working patrol. (3 R.R. 28:24-29:3). Deputy McDonald noticed a tan Dodge truck commit a traffic offense. (3 R.R. 29:9-13). Deputy McDonald then attempted to stop the vehicle, which fled down highway 59. (ST. Ex. 1; 3 R.R. 32- 21). During the pursuit, Deputy McDonald ran the plates on the Dodge truck, and dispatch reported back that it was a stolen vehicle. (3 R.R. 33:21-34:4). After a lengthy pursuit, the truck became stuck in a median on highway 59, and the suspect driving the vehicle fled into the nearby woods. (3 R.R. 36:21-24). Deputy McDonald then caught up to and apprehended the suspect, who turned out to be Andrew PJ Whitaker. (3 R.R. 37:5-22). Atthe conclusion ofthe State's case-in-chief, the State rested. (3 R.R. 67:2- 3). The defense then called Appellant Andrew PJ Whitaker to the stand. (3 R.R. 73: 13-14). Appellant stated that he borrowed the truck in exchange for 10 dollars from a man named "Runny". (3 R.R. 77:8-23, 75:24-76:6). The defense then rested. (3 R.R. 90:25). After closing remarks, thejury deliberated. (3 R.R. 112:2- 115:10). The jury returned a guilty verdict as to cause numbers F1421007 and f 1521497. (4 R.R. 4:14-21). The punishment phase of the trial followed the guilt/innocence phase. (8 R.R. 7:24). Testimony was elicited and evidence was admitted remarking as to
4

### Appellant's past and character. (4 R.R. 5:17-13:16). Again, thejury deliberated, returning a sentence of 2 years confinement on cause F1421007 and 13 years confinement on cause Fl521497. (4 R.R. 28:7-20). The sentence in cause Fl421007 was to be served in statejail, and the sentence in cause Fl521497 was to be served in the Texas Department ofCriminal Justice-Institutional Division with each count to run concurrently with one another. Ibid. SUMMARY OF THE STATE'SARGUMENT 

### Appellant is not entitled to have his conviction overturned by this Court. Appellant's first argument is thatthe trial court has a sua sponte duty to instruct the jury on unrequested defense issues. Such an argument is without merit

- case law is clear on this point. Posey v. State, 966 S.W.2d 57 {Tex. Cr. App. 1998). Appellant's second argument, that the evidence of unauthorized use of a motor vehicle was not sufficient for thejury to return a verdict ofguilt, is also without merit. A rational trier of fact could have found the essential elements of Unauthorized Use of a Vehicle proved beyond a reasonable doubt. Appellant's third argument is that Appellant's trial counsel's failure to request a jury instruction on mistake of fact or to object to its absence constituted ineffective assistance ofcounsel. This argument is also without merit. Trial counsel's failure to request the instruction and object to its absence was a strategic decision by counsel, and there is no reason to believe that but for the different instruction, the
5result of the trial would be different. Finally, Appellant also argues that he requires a new trial as the State did not prove venue when it did not elicit evidence that the crime occurred in Texas

- only that the crime occurred in Nacogdoches County

- and that Appellant was substantially harmed as a result of this error. This argument has no merit

- the State proved that the offense occurred in Nacogdoches County, and therefore proved venue through circumstantial evidence. Furthermore, any possibility of harm to Appellant would be a legal fiction. Accordingly, Appellant's conviction and sentence should be upheld. STATE'SRESPONSE TOAPPELLANT'SARGUMENT A. The trial courtdoes not have a 

### suasponte duty to instructthejuryon an unrequested mistake offact issue. It is not disputed that when Appellant testified at trial, in doing so he raised the defense ofmistake offact to thejury. The State further does not dispute that Appellant's defense was "obvious, he believed he had consent of the owner to possess the vehicle". The State further agrees with Appellant's concession that the Posey court has held that omission ofmistake offact from ajury charge does not deny the Appellant a fair trial. Id. at 71. However, Appellant's assertion that Posey must be distinguished because the defendant did not testify on his own behalf at trial in that case is disingenuous, as evidence of mistake of fact was

6

### submitted to thejury in Posey 

### in the defense' case in chief, even ifthe defendant himselfdid not testify. In Posey, 

### the defendant was stopped in a Jaguar by a deputy, and the deputy noticed that the car was not registered in the defendant's name. Posey 

### at 58. The deputy noticed that the inside door panel of the driver's side of the Jaguar was pulled back and the alarm system was cut. Ibid. 

### The defendant told the deputy that a man named "Chuck" had given him permission to use the vehicle, and inside the glove compartment ofthe Jaguar were some repair bills with the
name "Chuck" written on them. Ibid. 

### The owner was in fact a woman named Wanda Thomas, who did not give anybody permission to use her vehicle, which she had parked at Hobby Airport on November 4, 1993. Ibid. 

### Though the defendant did not testify at trial, he did produce two witnesses. Ibid. 

### The witnesses stated that they saw a man named Charles Yates give the keys to the Jaguar to the defendant on November 7, 1993. Ibid. 

### This testimony was not contradicted by any evidence from the State other than impeachment evidence and cross-examination. Id. 

### at 59. The state argued in closing that the defense' arguments were not worthy of belief. Ibid. 

### There was no mistake of fact instruction in thejury charge

- the defendant did not request it, nor did he object to its absence at trial. Ibid.

7

### The court in Posey 

### upheld the verdict at trial, on the basis that the harm analysis of Almanza v. State 

### does not apply until the court finds an error in thejury charge. Id 

### at 61, citingAlmanza v. State, 

### 686 S.W.2d 157, 174 (Tex. Crim. App. 1984). TheAlmanza 

### court set out a framework for analysis on appeal to preserved and unpreserved errors in ajury charge based on its interpretation ofArticle 36.19 of the Texas Code of Criminal Procedure. See Almanza 

### at 171-74. Because Almanza 

### and Article 36.19 are solely concerned with the harm analysis, neither is instructive on whether an error actually occurred. See Posey 

### at 60. "Therefore, the question boils down to whether Article 36.14 imposes a duty on trial courts to sua sponte 

### instruct the jury on defensive issues, or whether article 36.14 permits a defendant to complain for the first time on appeal about the omission of unrequested defensive issues in the charge." Id 

### at 60-61. The Posey 

### court found that the plain language of36.14 makes clear that a defendant must object to the charge to preserve error, and that the trial court does not have a duty to instruct a jury sua sponte 

### on defensive issues. See Posey 

### at 61-62. Therefore, as there was
no error, the harm analysis under 36.19 and theAlmanza 

### court did not apply. Id 

### at 62. This case and Posey 

### are functionally identical. The distinction Appellant attempts to make is irrelevant

- even though the defendant inPosey 

### did not testify, evidence was submitted to thejury, and argued at closing, that the defendant was 8

### mistaken in his beliefthat he had permission from the lawful owner to use the vehicle. The state, as it did in the instant case, argued that the defense case did not hold water. Because the charge to thejury was not objected to at trial, and because the trial court does not have a duty to sua sponte instruct the jury on defensive issues, no error occurred, andtheAlmanza harm analysis does not apply. B. The evidence ofUnauthorized Use ofa Vehicle was legally sufficient for thejuryto return a guilty verdict.
a. TheLegal Sufficiency Standard ofReview The relevant question in a legal sufficiency review is not whether there is any evidence to support a conviction, but whether there is sufficient evidence for a rational trier offact to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Kingv. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In reviewing the legal sufficiency of the evidence under the criminal standard, all the evidence should be viewed in the light most favorable to the judgment in order to determine whether any rational trier offact could have found the essential elements ofthe crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001). The trier offact, in this case thejury, is the exclusivejudge ofthe credibility ofwitnesses and ofthe weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Williams v. State, 692 S.W.2d 671, 676
9(Tex. Crim. App. 1984). Thejury is entitled to draw reasonable inferences from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App.-Corpus Christi 1988,pet. refd). Moreover, reconciliation ofany conflict in the evidence is within the exclusive province ofthejury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). Although this Court's analysis should properly consider all the evidence presented at trial, it should not re-weigh the evidence and substitute itsjudgment for that ofthejury. King, 29 S.W.3d at 562. The legal sufficiency of the evidence is measured by the elements ofthe offense as defined by the hypothetically correctjury charge, which is a charge that accurately sets out the law, is authorized by the indictment, and does not unnecessarily increase the State's burden. Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001). 

### b. Application oftheLaw to the Facts ofthis Case There was legally sufficient evidence for a rational trier offact to find every essential elementproved beyond a reasonable doubt and that Appellant committed the offense ofUnauthorized Use ofa Vehicle. A person commits the offense of Unauthorized Use ofa Vehicle ifhe 1) intentionally orknowingly 2) operates another's boat, airplane, or motor-propelled vehicle 3) without the effective consent ofthe owner. 

### TEX. PENAL CODE §31.07 (2015). As for the culpable mental states, Texas law defines them as follows:
10A person acts intentionally
... with regardto the nature ofhis conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct orcause the result. A person acts knowingly
... with respect to the nature ofhis conduct or to the circumstances surrounding his conduct when he is aware of the nature ofhis conduct orthat the circumstances exist. A person acts knowingly
... with respect to a result ofhis conduct when he is aware that his conduct is reasonably certainto cause the result. 

### TEX. PENAL CODE §6.03 (2015). Inthe instant case, it is not in dispute thatAppellant operated another's motorpropelled vehicle withoutthe effective consent ofthe owner-whatis in dispute is whether ornothe did soknowingly. Inthis regard, the opinion inMcQueen v. State is instructive. McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 2001). The McQueen courtheldthat Unauthorized Use ofa Vehicle encompassedtwo "conduct elements" which make the overall conduct criminal

- that the defendant intentionally orknowingly operated a motor vehicle, knowing that such operation
was without the effective consent ofthe owner. McQueen at 604. In the instant case, as inMcQueen, Mr. Quezada'stestimonythathe did not give Appellant permissiontouse his vehicle proved, from a sufficiency standpoint, that Appellant knewthathe did nothave Mr. Quezada'spermission. As tothe affirmative defense ofmistake offact, that Appellant had "Runny"'s permission to
use the vehicle and thathe believedthat "Runny" ownedthe vehicle, the finder of fact was free to reject this evidence.
11

### C. Appellant's Counsel was notineffective for failing to requesta mistake offact instruction orobject to its absence. The relevant question in an ineffective assistance ofcounsel argument is first whether in light ofall the circumstances, the acts oromissions oftrial counsel were
so outside the wide range ofprofessionally competent assistance as to implicate the adversarial nature ofthe proceeding. Stricklandv. Washington, 466 U.S. 668, 690 (1984). "Defensive issues frequently 'dependupon trial strategy andtactics"', and therefore the failure to request orobjectto the lack ofany possibly available defensive instruction is notnecessarily objectively unreasonable
. Okonkwo v. State 398 S.W.3d 689, 397(Tex. Crim App. 2013), citing Tolbert v. State, 306 S.W.3d 776, 779-82 (Tex. CrimApp. 2010). "Justbecause a competent defense attorney recognizes that a particulardefense mightbe available to a particular offense, he or she could also decide it would be inappropriate topropound such a defense in a given case." Vasquez v. State, 830 S.W.2d 948, 950 (Tex. Crim. App. 1992).Trial counsel's conduct in the instant case certainly falls within the scope of providing a competent defense, and the Okonkwo decision isparticularly instructive. In Okonkwo, the Appellant was charged with forgery ofmoney. Okonkwo at 692. TheAppellant's defense was thathe did notknowthat the money was counterfeit, and his trial counsel did notrequest, nor objectto the
12absence ofa mistake offact instruction inthejurycharge. However, the Okonkwo Court on appeal found that trial counsel's actions were objectively reasonable, giventhat a mistake offact instruction couldhave arguably misleadthejuryinto decreasing the state's burden ofproof. 

### Id at 696. "the instructions onthe forgery elements required the State to prove beyond a reasonable doubtthat appellant actually knewthe bills were forged. By comparison, had counsel pursued an instruction on mistake offact to address his second alternative theory, thejurywould have also hadto decide whether that beliefwas reasonable. See TEX. PENAL CODE§ 8.02(a). This wouldhave been problematic for appellant because the instruction would have decreased the State's burden ofproofbypermittingthejuryto convicthim ifit concluded thathis mistake was unreasonable, even ifit found that the belief was honest. Therefore, counsel was not objectivelyunreasonable in failing to request an instruction that may have causedthejuryto convict him based on a lessened burden ofproof." 

### Id at 696. Counsel's strategy in the instant case could easily have followed the same line oflogic as the Okonkwo court
- had counsel successfullyrequested a mistake offact defense be included inthejurycharge, thejurymighthave been misled that the State's burden ofproofwas not to prove that Appellant knew that he did not have the permission ofthe rightful ownerto operatethe motor vehicle, but instead that Appellant's beliefthathe had consentto use the motor vehicle was objectively unreasonable. Therefore, as Appellant's counsel attrial acted to protecthis client from a lowered burden ofproof, it cannot be saidthattrial counsel's strategy rendered his performance ineffective.
13

### D. The State successfully proved thatthe crime occurredwithin the state of Texas through circumstantial evidence. Appellant's argumentthat the State did notproperlyprove venue is without merit. The evidence established thatMr. Barrios Quezada lived in Nacogdoches County, andkepthis 2002 Dodgetruck at his home there. (3 R.R. 16: 16-17:7). DeputyMcDonald also testified thathe was onpatrol on Highway 7 inNacogdoches County whenhe first attempted to pull Appellant
over. (3 R.R. 29:3-8). Appellant states in his motion, and the State agrees, that venue need onlybe proven by a preponderance ofthe evidence. Banks v. State, 530 S.W.2d 940, 943 (Tex. Crim. App. 1975). Thoughthere is no direct evidencethat Nacogdoches County is inthe State ofTexas, there is circumstantial evidence given that there is no otherNacogdoches County inthe entire United States of America orthe State ofTexas. This circumstantial evidence was never contradictedby counsel attrial oron appeal, and certainly meets the standard of preponderance ofevidence to prove venue. Furthermore, Appellant cannot articulate any actual harmthat was suffered at a result ofthe State's failure toprove that venue was proper inNacogdoches County. Appellantraises the spectre offorum shopping within the state of Texas, howeverthis argument is without merit, as again, there is only one
14Nacogdoches County in the State ofTexas and the entire United States of America. 

### PRAYER WHEREFORE, PREMISES CONSIDERED, the undersigned counsel for the State of Texas respectfully requests and prays that this Honorable Court overrule Appellant's Point ofError and affirm the judgment and sentence ofthe 420thJudicial District Court ofNacogdoches County, Texas. Respectfully submitted,

KEVIN BELANGER Assistant District Attorney Nacogdoches County, Texas

State BarNo. 24094534 101 W. Main St., Ste. 250 Nacogdoches, TX 75961 Phone: (936) 560-7766 FAX: (936) 560-6036

15CERTIFICATE OF SERVICE
A true copy ofthe State's briefhas been served via FAX/certified mail/hand delivery to counsel for Appellant, Winfred A. Simmons II, on this, the 17th day of September, 2015.

# ~ Kevin Belanger

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### CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule ofAppellate Procedure 9.4, I hereby certify that this brief contains 3,436 words-excluding the caption, identity of parties, table of contents, index of authorities, signature, proof of service, certification, and certificate of compliance. This is a computer-generated document created in Microsoft Word, using 14-point typeface for all text. In 

### making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.



### 'Ke\lil;Belanger

17