NO. 07 -16 -0045 2
- CR In the COURT OF APPEALS For the SEVENTH JUDICIAL DISTRICT OF TEXAS

At Amarillo

_________________ No. 2894 In the 287 th Judicial District Court Of Bailey County, Texas Count III

– Retaliation

_______________ JOSEPH ALARCON GONZALEZ

Appellant

v. THE STATE OF TEXAS Appellee

_______________ BRIEF OF THE APPELLANT

_______________
TINA DAVIS RINCONES Law Office of Tina Davis Rincones 109 E 6 th Street Plainview, Texas 79072 Telephone (806) 429-0706 Facsimile (806) 553-4424 SBN 24030776
ATTORNEY FOR APPELLANT ORAL ARGUMENT NOT REQUESTED ACCEPTED 07-16-00452-CR SEVENTH COURT OF APPEALS

AMARILLO, TEXAS 7/6/2017 10:30 AM Vivian Long, Clerkii TABLE OF CONTENTS [Rule 38.1(b), Tex. R. App. Proc.]

RECORD REFERENCES

................................ ................................ .............................. iv PARTY REFERENCES

................................ ................................ ................................ .. iv INDEX OF AUTHORITIES

................................ ................................ ............................... v S TATEMENT REGARDING ORAL ARGUMENT

................................ ................... vi STATEMENT OF THE CASE

................................ ................................ ......................... i ISSUES PRESENTED

................................ ................................ ................................ ...... 3 1. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT HIS RIGHT TO CONFRONT THE WITNESS AGAINST HIM.

................................ ...... 3 2. THE TRIAL COURT ERRED BY FAILING TO ADMIT EVIDENCE IN OPPOSITION TO THE RULE OF OPTIONAL COMPLETENESS.

....................... 3 3. THE EVIDENCE WAS INSUFFICIENT FOR CONVICTION IN THIS CASE.

................................ ................................ ................................ ................................ 3 STATEMENT OF FACTS

................................ ................................ ............................... 4 ARGUMENT

................................ ................................ ................................ ..................... 7 1. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT HIS RIGHT TO CONFRONT THE WITNESS AGAINST HIM.

................................ ...... 7
a. Standard of Rev iew

................................ ................................ ................................ 7 b. T he Law, Generally

................................ ................................ ............................... 8
c. The Application of the Law to the Facts

................................ .............................. 10 2. THE TRIAL COURT ERRED BY FAILING TO ADMIT EVIDENCE IN OPPOSITION TO THE RULE OF OPTIONAL COMPLETENESS.

..................... 10
a. Standard of Review

................................ ................................ ............................... 10 b. The Law, Generally

................................ ................................ ............................... 11
c. The Application of the Law to the Fact

................................ ............................ 12 3. THE EVIDENCE WAS INSUFFICIENT FOR CONVICTION IN THIS CASE.

................................ ................................ ................................ .............................. 13
a. Standard of Review

................................ ................................ ............................... 13 b. The Law

................................ ................................ ................................ ................. 13
c. The Application of the Law to the Facts

................................ .............................. 14 CONCLUSION

................................ ................................ ................................ ............... 14 CERTIFICATE OF SERVICE

................................ ................................ ................... 15 CERTIFICATE OF WORD COUNT

................................ ................................ ........... 15iii I DENTITY OF PARTIES AND COUNSEL [Rule 38.1(a), Tex. R. App. Proc.] The following is a complete list of all parties to the trial cour t’s judgment or appealable order, as well as the names and addresses of trial and appellate counsel.
Joseph Alarcon Gonzalez , Appellant The State of Texas, Appellee
FOR THE APPELLANT: FOR THE STATE OF TEXAS: Counsel for Trial by Judge: Counsel for Trial by Judge:
James M. Moore Kathryn H. Gurley Law Office of James M. Moore, P.C. 287 th Judicial District Attorney 1705 Avenue K PO Box 729 Lubbock, Texas 79401 Friona, Texas 79035 Phone: 806

- 747

- 7373 Phone: 806

- 250

- 2050 Fax: 806

- 747

- 6031 Fax 806

- 250

- 8051 SB N: 24065783 SBN: 10022700 Counsel for Appeal: Counsel for Appeal: Tina Davis Rincones Kathryn H. Gurley Attorney at Law 287 th Judicial District Attorney 109 E 6 th Street PO Box 729 Plainview, Texas 79072 Friona, Texas 79035 Tel: (806) 429

- 0706 Tel: ( 806) 250

- 2050 Fax: (806) 553

- 4424 Fax: (806) 250

- 8051 S BN: 2 4030776 SBN: 1002 2 700iv RECORD REFERENCES The Clerk’s Record in this case contains one original volume and is r eferenced in this brief as “CR. ” In this brief references to the Reporter’s Record will be made by the abbreviation
“RR ” followed by the volume, page and line. PARTY REFERENCES The Appellant is Joseph Alarcon Gonzalez and shall be referred to as “ Gonzalez ” or “Appellant.” The State will be referred to as the “State” or “Appellee.”v INDEX OF AUTHORITIES

Cases Bezerra v. State , 485 S.W.3d 133, 143 (Tex. App.

– Amarillo 2016)

............................... 11 Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001)

................................ ......... 13 Crawford v. Was hington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)

....... 8 Davis v. Alaska , 415 U.S. 308 (1974)

................................ ................................ .............. 8 Davis v. State , 169 S.W.3d 660, 665 (Tex. App. Austin 2005, no. pet.).

..................... 7 De La Paz v. State , 273 S.W.3d 671, 680 (Tex. Crim. App. 2008)

............................... 8 Flanagan v. Stat e , 675 S.W.2d 734, 746 (Tex. Crim. App. 1984)

................................ ... 13 Galliford v. State , 101 S.W.3d 600, 604 (Tex. App. Houston [1st Dist.] 2003, pet. ref.).

................................ ................................ ................................ ................................ 7 Herrera v. State , 915 S.W.2d 94, 98 (Tex. App.

- San Antonio 1996, no pet.)

................. 13 In re B.P.H ., 83 S.W.3d 400, 407 (Tex. App.

-- Fort Worth 2002, no pet.

........................ 13 Jackson v. Virginia, 433 U.S. 307, 319 (1979)

................................ ................................ . 13 Lagunas v. State , 187 S.W.3d 503, 513 (Tex. App. Austin 2005, no. pet.)

.................. 7 Lilly v. Virginia , 527 U.S. 116, 137 (1999)

................................ ................................ ..... 7 Kelly v. State , 321 S. W. 3d 5 83 (Tex. App. Houston [14]

- 2010

- no pet.)

........................ 12 Moses v. State , 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

................................ ..... 7 Pena v. State , 353 S. W. 3d 797 (Tex. Crim. App. 2011)

................................ ................. 12 Rankin v. State , 46 S.W.3d 899, 901 (Tex. Crim. App. 2001)

................................ ......... 13 Sauceda v. State , 129 S.W.3d 116, 123 (Tex.Crim.App.2004)

................................ ......... 11 See Torres v. State , 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).

............................... 7 United States v. Cromer , 389 F.3d 662, 675 (6th Cir. 2004)

................................ ......... 8 United States v. Rondeau , 430 F.3d 44, 47 (1st Cir. 2005)

................................ ............ 7 Wall v. State , 184 S.W.3d 730, 742 (Tex. Crim. App. 2006)

................................ ........ 7 Walters v. State , 247 S. W. 3d 204 (Tex. Crim. App. 2007)

................................ ............. 11 Statutes T EX
. P ENAL C ODE A NN . § 6.01(a) (Verno n 2016)

................................ ............................ 16 T EXAS R ULES OF E VIDENCE , R. 1071(Vernon 2016)

................................ ......................... 12 T EXAS R ULE OF E VID ENCE , Rule 401 (Vernon 2016)

................................ ........................ 13vi S TATEMENT REGARDING ORAL ARGUMENT Appellant does not request oral argument in this case

.vii STATEMENT OF THE CASE Appellant was indicted in the instant case an August 5, 2015 in a three count indictment charging him in Count I I I with the offense of R etaliation a third degree felony; the subject of this appeal. (CR Vol. 1, P. 9

- 10). A pretrial hearing was held on November 2, 2016; the trial before a jury began on November 15, 2016 through November 17, 2016

. The jury found Appellant guilty of Count II I . (CR Vol. 2, P. 15). Punishme nt was assessed by the jury at 7 years in th e Texas Department of Criminal Justice; a $1,000.00 fine was assessed. (CR Vol. 2, P. 21). A Motion for New Trial was filed by trial counsel before the Judgment was prepared and entered (CR Vol. 2, P. 28

- 30). The Court entered judgment on the Jury’s Verdict. (C R Vol. 2, P. 34

- 35). A subsequent Motion for New Trial was filed by counsel for the appeal. (CR Vol. 2, P. 47

- 50). A Notice of A ppeal was filed after the verdict was rendered by the Jury and the Court, on the docket sheet (CR Vol. 2, P. 7); in the report er’s record accepted the verdict and rendered judgment (RR Vol. 6, P. 75, L.
19

- 25 through RR Vol. 6, P. 76, L. 1

- 18) ; this appeal ensued. (CR Vol. 2, P. 27).2 NO. 07
- 16
- 0045 2
- CR In the COURT OF APPEALS For the SEVENTH JUDICIAL DISTRICT OF TEXAS

At Ama rillo

_________________ No. 2 894 In the 287 th Judicial District Court Of Bailey County, Texas Count II I

– R etaliation

_______________ JOSEPH ALARCON GONZALEZ

Appellant

v. THE STATE OF TEXAS Appellee

_______________ BRIEF OF THE APPE LLANT

_______________
TO THE HONORABLE COURT OF APPEALS FOR THE SEVENTH DISTRICT:
COMES NOW JOSEPH ALARCON GONZALEZ , Appellant herein in cause number 07

- 16

- 00452

- CR before the Court of Appeals for the Seventh District, Amarillo, Texas by and through his attorney of record, files this Brief of the Appellant, and in support thereof would respectfully show this Honorable Court the following:3 ISSUES PRESENTED 1. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT HIS RIGHT TO CONF RONT THE WITNESS AGAINST HIM . 2. THE TRIAL COURT ERRED BY FAILING TO ADMIT EVIDENCE IN OPPOSITION TO THE RULE OF OPTIONAL COMPLETENESS. 3. THE EVIDENCE WAS INSUFFICIENT FOR CONVICTION IN THIS CASE.4 STATEMENT OF FACTS On the morning of May 15, 2015 two room

- mate s woke up in Muleshoe, Bailey County, Texas. (RR Vol. 5, P. 37, L. 4

- 8). The primary room

- mate, Appellant, also had his young son in his possession that morning. (RR Vol. 5, P. 37, L. 14

- 15). Appellant prepared his young son for a trip across the stree t to stay with the young child’s grandmother while Appe llant went to work for the day. (RR Vol. 5, P. 38, L. 2

- 3). The secondary room

- mate, Victim, remained at the residence. Victim says he and Appellant had a passing conversation the details of which c onflict in each of their memories ; Appellant did not relay the same conversation and the State did not corroborate this conversation as propounded by Victim

. (RR Vol. 5, P. 38, L. 4

- 9)

. Victim admits that he smokes a “bowl” of “meth ” while Appellant

was dropping off the child across the street. (RR Vol. 5, P. 38, L. 13

- 18). Appellant comes back from his brief absences f rom the residence in question and notices Victim’s van is re

parked in an awkward manner and doors in the house wide open

. (RR Vol. 5, P. 120, L. 7

- 9). Appellant comes back and finds Victim in an agitated state , “zooming” and notices a
smell of burnt chemical

. (RR Vol. 5, P. 120, L. 20

- 22) and (RR Vol. 5, P. 121, L. 3

- 4). It is undisputed that the Victim was doing his laundry and putting it away in a bedroom in the residence when Appellant and he next converse. (RR Vol. 5, P. 121, L. 11) and (RR Vol. 5, P. 39, L. 19

- 20). Overnight, sometime on May 14, 2015 or May 15, 2015 a shotgun has arrived at the residence at the hands of Victim. (RR Vol. 5, P. 42, L. 2

- 5). Appellant goes to the bedroom s ees Victim putting a way his laundry and sees the shotgun. (RR Vol. 5, P. 123,
L. 5

- 8). This causes Appellant great alarm and he picks up the firearm to take it from the residence. (RR Vol. 5, P. 124, L. 13

- 18). Appellant jostles the weapon by some unknow n means, perhaps by hitting a door jam and the weapon fires and shoots Victim in his leg. (RR5

Vol. 5, P. 126, L. 24

- 25) and (RR Vol. 5, P. 137, L. 2

- 8). Victim is wounded; Appellant calls 911; emergency personnel arrive; Victim is saved and surv ives. During the 911 call Appellant says something that the jury in this matter requested replayed multiple times because it was inaudible due to static. (RR Vol. 5, P. 201, L. 24 through P. 203, L. 3). When EMS arrives the Victim states to EMT Robin Claborn “ he po pped me ” wi th no mention of a threat. ( RR
V o l

. 4, P. 35, L. 13

- 23). After the shot but before the 911 call Victim testifies that Appellant and he exchanged words. (RR V o l. 46 , L. 1 0

- 15). Appellant said he was being thre a tened and felt threat ened so he did return a thre at against Victim. (RR Vol. 5, P. 129, L. 5

- 14). The
S tate alle ged the Appellant “ t hreatened to harm another, t o - wit: Aaron Chavez by a n unlawful act, to

- w i t: by “ finishing him off ”

. (CR Vol. 1, P. 9) . However, there is n o e vidence that the threat was retaliation and not what the Appella nt testified a threat to keep harm from himself [Appellant]. (RR Vol. 5, P. 129, L. 5

- 14). At trial the State protested all attempts by defense co unsel to adequately cross examine the victim on his proclivity for the use of mind altering substances, and his extensive criminal history. The Court agreed with the State and the Appellant was denied effective cross examination/confrontation of the witne ss against him. (See generally, RR Vol. 5, P. 35

- 85). At trial the State was also allowed to admit incomplete audio/video recordings over the objection of defense counsel. Defense counsel made bill of exception/review and admitted the complete recordings for consideration by this honorable Court. (See RR Vol. 4, P. 99

- 103). The jury rejected and acquitted Appell ant on the aggravated assault count; found the Appellant guilty of possession of a firearm by a felon and guilty of felony retaliation. This appeal followed.6 SUMMARY OF ARGUMENT
The Appellant was denied his constitutional r ight to confront the witness against him when the Court denied defense counsel’s attempts to cross examine the victim on his criminal history which bears on his credibility and his use of mind altering substances which affect his memory. The Appellant was denied a fair trial and due process of law when the Court refused to admit a complete audio/video recording and instead only admitted the State’s version of the audio/video recording over the objection of defense counsel citing the “optional rule of compl eteness.” There was legally insufficient evidence to convict Appellant of the offense of

r etaliation

.7 ARGUMENT 1. T HE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT HIS RIGHT TO CONFRONT THE WITNESS AGAINST HIM .

a. Standard of Review Generally, a trial cour t's ruling on the admissibility of evidence is reviewed for an abuse of discretion. See Moses v. State , 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). An abuse of discretion occurs when the trial court acts without reference to guiding rules or principles or acts arbitrarily or unreasonably. Galliford v. State , 101 S.W.3d 600, 604 (Tex. App. Houston [1st Dist.] 2003, pet. ref.). Reviewing courts will affirm the trial
court's ru ling if it lies within the zone of reasonable disagreement. See Torres v. State , 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). However, this Court should review de novo the constitutional legal ruling of whether the Appellant was denied his right to confront the witness against him, in this case the Victim. See Lilly v. Virginia , 527 U.S. 116, 137 (1999) (When reviewing the admissibility of out

- of

- court statements [or in this case statements about drug use to law enforcement and medical personnel] over a Co nfrontation Clause objection, reviewing courts should independently review whether the evidence “satisfies the demands of the Constitution.”); Wall v. State , 184 S.W.3d 730, 742 (Tex. Crim. App. 2006) ; See also United States v. Rondeau , 430 F.3d 44, 47 (1st Cir. 2005) (Crawford issues are reviewed under de novo standard); United States v. Delgado , 40 1 F.3d 290, 299 (5th Cir. 2005); Lagunas v. State , 187 S.W.3d 503, 513 (T ex. App. Austin 2005, no. pet.) ; Davis v. State , 169 S.W.3d 660, 665 (Tex. App. Austin 2005, no. pet .). The reason for the de novo standard of review is because the legal ruling of whether a8

statement is testimonial under Crawford “is determ ined by the standard of an objectively reasonable declarant standing in the shoes of the actual declarant.” Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)

. ; De La Paz v. State , 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (Whether a statement is testimonial under the Confrontation Clause is a question of law); United States v. Cromer , 389 F.3d 662, 675 (6th Cir. 2004) (The inquiry under a Confrontation Clause objection to hearsay is “whether a reasonable person in the declarant's position would anticipate his statement being used ag ainst the accused in investigating and prosecuting the crime.”). In Crawford the United States Supreme Court explained that t he Confrontation Clause was based on the English common law tradition of “live testimony in court subject to adversarial testing.” Crawford , 541 U.S. at 43). The Court noted that this tradition was in contrast to the European civil law that “condoned[d] examination in private by judicial officers.” Id. Crawford rejected the Roberts analysis, holding that although the ultimate goal of the confrontation clause is to ensure reliability of evidence, “it is a procedural rather than a substantive guarantee.” Crawford , 541 U.S. at 61. The Opinion states: The confrontation clause “commands, not that the evidence be reliable, but that reliabil ity be assessed in a particular manner: by testing in the crucible of cross

- examination.” Id. b. The Law, Generally The Court explained that the Confrontation Clause provides a procedural guarantee: “It commands, not that evidence be reliable, but that re liability be assessed in a particular manner: by testing in the crucible of cross

- examination.” Crawford , 541
U.S. at 61. In Davis v. Alaska , 415 U.S. 308 (1974) the Supreme Court explained that the accused's right to be confronted with the witnesses against him is more than being9

allowed to confront the witnesses physically. The primary interest secured by confrontation is the right of cross

- examination. The Sup reme Court stated, “Cross

- examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of the trial judge to preclude repetitive and unduly harassing interro gation, the cross

examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross

- examiner has traditionally been allowed to impeach, i.e., discredit the witness ... [ T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionality protected right of cross examination. Davis , 415 U.S. at 316. Thus the prior opportunity to cross

- examine required by Crawford must serve that same function. The ne w C rawford rule, by its position, applies only to testimonial evidence. Specifically, the Court clarified that the confrontation clause applies to those who “bear testimony” against the accused.” Crawford , 541 U.S. at 51. “Testimony,” it continued, is “[a] so lemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. (quotation omitted). The Court identified three kinds of statements that could be regarded as testimonial: (1) “ex parte in

- court testimony or its functional e quivalent

- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to

cross - examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorial [ly] ”; 2) “extrajudici al statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”; and10

3) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the s tatement would be available for use at a later trial.” Id. At 51

- 52.

c . The Application of the Law to the Facts The Court in this case at every turn refused defense counsel the opportunity to cross examine law enforcement and medical professionals regard ing admissions by the Victim of his drug use including but not limited to the frequency, kind and consistent nature of the use. Further, the Court refus ed to allow defense c ounsel to fully cross

- examine the Victim regarding his “clubbing” the night before the events in question. (RR Vol. 5, P. 80, L. 10 through P. 82, L. 13). The Court consistently denied defense counsel the right to elicit testimony from medical professionals regarding the statements made by the Victim in the course of his treatment. (R R Vol. 5, P. 93, L. 23 through P. 97, L. 11) and (RR Vol. 5, P. 99, L. 16 through P. 100, L. 4). This evidence was directly relevant to the clarity and credibility of the witness. The Appellant’s defense was that Victim was high on meth; possibly drunk
f rom his night of partying in two locations, Littlefield and Lubbock; lack of sleep which bears heavily on his memory about the facts that surround the c onversations between the two the morning of this incident and the actions of Appellant . Because Appellant was denied the opportunity to fully develop t hese factors the jury was unable to consider the full credibility of the witness, denying Appellant of his constitutional right of confrontation of the witness in this case. 2. THE TRIAL COURT ERRED BY FAILING TO ADMIT EVIDENCE IN OPPOSITION TO THE RULE OF OPTIONAL COMPLETENESS.

a. Standard of Review Generally, a trial court's ruling on the admissibility of evidence is reviewed for an11

abuse of discretion. See Moses v. State , 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). An abuse of discretion occurs when th e trial court acts without reference to guiding rules or principles or acts arbitrarily or unreasonably. Galliford v. State , 101 S.W.3d 600, 604 (Tex. App. Houston [1st Dist.] 2003, pet. ref.). Reviewing courts will affirm the trial court's ruling if it li es within the zone of reasonable disagreement. See Torres v. State , 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). b. The Law, Generally

“ The rule of optional completeness is one of admissibility and permits the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter “opened up” by the adverse party. Walters v. State , 247 S.W.3d 204, 217

– 18 (Tex.Crim.App.2007) ; see Sauceda v. State , 129 S.W.3d 116, 123 (Tex.Crim.App.2004) (“Th e plain language of [Texas Rule of Evidence, Rule 107 ] indicates that in order to be admitted under the rule, the omitted portion of the statement must be ‘on the same subject’ and must be ‘necessary to make it fully understood.’ ”). It is designed to
redu ce the possibility of the jury receiving a false impression from hearing only a part of some act, conversation, or writing. Walters, 247 S.W.3d at 218. ” Bezerra v. State , 485 S.W.3d 133, 143 (Tex. App.

– Amarillo 2016 ) , ( petition for discretionary review refused (June 15, 2016), cert. denied, 137 S. Ct. 495, 196 L. Ed. 2d 404 (2016) )

. The evidence which i s used to fully explain a matter opened up by the other party need not be ordinarily admissible. It must be on the same subject and necessary to make it fully understood. Walters v. State , 247 S. W . 3d 204 (Tex. Crim. App. 2007)

. Further, although the audio portion of a videotape introduced by the state may be hearsay; it was ruled admissible under the Rule of Optional C ompleteness because the state relied on the vi sual portion to prove its case. T EXAS R ULES OF E VIDENCE , R. 1 07 (Vernon 2016); Pena v. State , 353 S. W . 3d12

797 (Tex. Crim. App. 2011)

. Further , evidence can be admissible when the state leaves a false impression with the jury. The prevention of the presentation of a defense is subject to constitutional error analysis. T EXAS R ULE O F E VID ENCE , Rule 401 (Vernon 2016) provides that relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evide nce. Whether rooted directly in the due process clause of the 14th Amendment or in the compulsory process or confrontation clause of the 6th Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. A trial court's ruling excluding evidence may rise to the level of a constitutional violation if a trial court's clearly erroneous ruling excludes otherwise relevant, reliable evidence which forms such a vital portion of the case that exclusion effectivel y precludes the defendant from presenting a defense. Kelly v. State , 321 S. W. 3d 583 (Tex. App. Houston [14]

- 2010

- no pet.)

c. The App lication of the Law to the Fact The State in this case sought and was allowed to admit a portion of a video/audio tape retrieved from a much longer and complete video/audio tape from the scene of the offense. The defense promptly objected that the admission of just a portion of a much longer tape would violate the Rule of Optional Completeness. Defense counsel made a bill of review/exception and was allowed to admit the omitted audio/video tape as Defendant’ s Exhibit 1 for the purposes of the bill of review/exception. (See RR Vol. 4, P. 99

- 103). The Appellant was denied the opportunity to clarify what was going on at the scene and provide the jury with a complete picture of the events as they were unfolding . Further, the jury was misled as to the issue o f re taliation . The Court erred and the Appellant was harmed, demandi ng this case be13

remanded to the Trial Court for further action consistent with any ruling from the Appeals
Court. 3 . T HE EVIDENCE WAS INSUFFICIENT FOR CONVICTION IN THIS CASE.

a. Standard of Review A challenge to the legal sufficiency of the evidence need not be preserved at trial, and may be raised for the first time on appeal. Rankin v. State , 46 S.W.3d 899, 901 (Tex. Crim. App. 2001)

. In reviewing a legal sufficiency or “no evidence” claim, the appellate court will review the evidence in the light most favorable to the verdict, and will dete rmine whether the trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Jackson v. Virginia, 433 U.S. 307, 319 (1979) ). The appellate court will consider all evidence admitted, whether proper or improper. “Every fact need not point directly and independently to the defendant’s guilt [citation omitted]. A conclusion of guilt can rest on the combined and cumulative force of all incriminating circumstances.” Id. The trier of fact is free to believe or disbelieve the
te stimony of any witness. Flanagan v. State , 675 S.W.2d 734, 746 (Tex. Crim. App. 1984) (op. on reh’g). b. The Law Retaliation is a result oriented offense. See In re B.P.H ., 83 S.W.3d 400, 407 (Tex. App.

-- Fort Worth 2002, no pet. ); Herrera v. State , 915 S.W.2d 94, 98 (Tex. App.

- San Antonio 1996, no pet.) . As a result oriented offense, the action being criminalized is the threat to harm and the intent to inhibit public service by others. Herrera, 915 S.W.2d at 97. “A central purpose of the statute is to encourage a certain class of citizens to perform vital public dutie s without fear of retribution.” Doyle v. State , 661 S.W.2d 726, 729 (Tex. Crim.14

App. 1983).

c . The Application of the Law to the Facts In this case the jury rejected an intentional act alleg ed in Count I , Aggravated Assault , finding the Appellant not guilty . However, the jury c hose to find Appellant gu ilty of Count III, R e taliation. T his is an inconsistent result that lacks suffic ient evidence to sustain the jury ’ s verdict. Appellant was quick to call 911, administer aid and the jury believed these
among o ther facts did not jus tify an aggravated assault. (RR Vol . 5, P. 126, L. 23

- 24 ) (RR
Vo l. 5, P. 129 , L. 15

- 17) and (RR Vol. 5 , P. 130, L. 11

- 12). Further, Appellant te s tified and admitted that he told the Victim to say it was him that s hot himself, and admitted t hat he did this out of fear because he was a convicted felon. N o corroborating evidence was produced to support Victim ’ s statement at trial that Appellant said he would finish him off was actua lly made as a retaliatory threat, instead A ppellant testified that he only threatened the V i ctim because he was taking an aggressive stance or posture against Appella n t. (RR Vol. 5, P. 129, L. 5

- 14). The jury was un clear as to the audi o evidence pro duced in the recorded 911 as evidenced by the statement of “ juror ” in the Report er ’ s Record

. (RR Vol. 5, P. 202 , L. 1 through P. 203, L. 3). C ONCLUSION The Appellant was irreparably harmed when the Court denied defense counsel’s attempts to cross examine the victim on his criminal history which bears on his credibility and his use of mind altering substanc es which affect his memory. Appellant was harmed in this denial and for this reason the Court of Appeals should reverse and render a judgment of acquittal. The Appellant was denied a fair trial and due process of law when the Court refused to admit a com plete audio/video recording and instead only admitted the State’s version of15

the audio/video recording over the objection of defense counsel citing the “rule of optional completeness” for which Appellant is entit led to a judgment of acquittal. There was legally insufficient evidence to convict Appellant of the offense of

r etaliation ; thus Appellant should be released from the bonds of thi s conviction.
PRAYER WHEREFORE, PREMISES CONSIDERED , Appellant prays th i s Honorab l e Court reverse the conviction and render a judgment of acquittal in this case. Respectfully Submitted , / s / TIN A DAVIS RINCONES TINA DAVIS RINCONES Attorney a t Law 109 E 6th Street Plainview , Texas 79072 Telephone ( 806) 429

- 0706 Facsimile (806) 553

- 4424 SBN 24030776 Email: trincones@redraiderlaw

. com ATTORNEY FOR APPELLANT CERTIFICATE OF SERVICE
T hi s is to cert i fy that a true and correct copy of the B r ief of the Appellee has been emailed to the parties listed below on this 5 th day of July, 2017. Kathryn H. Gurley 287 th District Attorney districtattorney@parmercounty.net / s / TIN A DAVIS RINCONES TINA DAVIS RINCONES
CERTIFICATE OF WORD COUNT I certify that this document contains 4 , 6 25 words and is incompliance with the Texas Rules of Appellate Proced ure. / s / TIN A DAVIS RINCONES TINA DAVIS RINCONES