NO. 07-16-00452-CR

In the 

COURT OF APPEALS 

For the 

SEVENTH JUDICIAL DISTRICT OF TEXAS 

At Amarillo 

_________________ 

No. 2894

In the 287th 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 6th 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, Clerk

 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 7/6/2017 10:30:54 AM VIVIAN LONG CLERK
ii

TABLE OF CONTENTS

[Rule 38.1(b), Tex. R. App. Proc.]

RECORD REFERENCES .............................................................................................. iv

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

INDEX OF AUTHORITIES............................................................................................... v

STATEMENT 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 Review................................................................................................ 7

b. The 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........................................................................... 15
iii

IDENTITY OF PARTIES AND COUNSEL

[Rule 38.1(a), Tex. R. App. Proc.]

The following is a complete list of all parties to the trial court’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. 287th 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

SBN: 24065783 SBN: 10022700

Counsel for Appeal: Counsel for Appeal:

Tina Davis Rincones Kathryn H. Gurley

Attorney at Law 287th Judicial District Attorney

109 E 6th 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

SBN: 24030776 SBN: 10022700

 
iv

RECORD REFERENCES

The Clerk’s Record in this case contains one original volume and is referenced 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. Washington, 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. State, 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 583 (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

TEX. PENAL CODE ANN. § 6.01(a) (Vernon 2016)............................................................ 16

TEXAS RULES OF EVIDENCE, R. 1071(Vernon 2016)......................................................... 12

TEXAS RULE OF EVIDENCE, Rule 401 (Vernon 2016)........................................................ 13
vi

STATEMENT 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 III with the offense of Retaliation 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 III. (CR Vol. 2, P. 15). Punishment was assessed 

by the jury at 7 years in the 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. (CR 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 Appeal was filed after 

the verdict was rendered by the Jury and the Court, on the docket sheet (CR Vol. 2, P. 7); 

in the reporter’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. 07-16-00452-CR

In the

COURT OF APPEALS

For the 

SEVENTH JUDICIAL DISTRICT OF TEXAS

At Amarillo

_________________

No. 2894

In the 287th Judicial District Court

Of Bailey County, Texas

Count III – Retaliation

_______________

JOSEPH ALARCON GONZALEZ

Appellant

v.

THE STATE OF TEXAS

Appellee

_______________

BRIEF OF THE APPELLANT

_______________

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 CONFRONT 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-mates 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 street to stay with the young child’s grandmother while 

Appellant 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 conflict 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 from the residence in question and notices Victim’s van is reparked 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 sees Victim putting away 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 unknown 

means, perhaps by hitting a door jam and the weapon fires and shoots Victim in his leg. (RR 
5

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 survives. 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 popped me” with no mention of a threat. (RR 

Vol. 4, P. 35, L. 13-23). After the shot but before the 911 call Victim testifies that Appellant 

and he exchanged words. (RR Vol. 46, L. 10-15). Appellant said he was being threatened 

and felt threatened so he did return a threat against Victim. (RR Vol. 5, P. 129, L. 5-14). The 

State alleged the Appellant “threatened to harm another, to-wit: Aaron Chavez by an unlawful 

act, to-wit: by “finishing him off”. (CR Vol. 1, P. 9). However, there is no evidence that the 

threat was retaliation and not what the Appellant 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 counsel 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 witness 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 Appellant 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 right 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 

completeness.”

There was legally insufficient evidence to convict Appellant of the offense of 

retaliation.
7

ARGUMENT

1. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT HIS 

RIGHT TO CONFRONT THE WITNESS AGAINST HIM.

a. Standard of Review

Generally, a trial court'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 ruling 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 Confrontation 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, 401 F.3d 290, 

299 (5th Cir. 2005); Lagunas v. State, 187 S.W.3d 503, 513 (Tex. 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 a 
8

statement is testimonial under Crawford “is determined 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 against the accused in investigating and prosecuting the crime.”). In 

Crawford the United States Supreme Court explained that the 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 reliability 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 reliability 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 being 
9

allowed to confront the witnesses physically. The primary interest secured by 

confrontation is the right of cross- examination. The Supreme 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 interrogation, the crossexaminer 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 new Crawford 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] solemn 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 equivalent - 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) “extrajudicial statements... contained in formalized testimonial materials, such 

as affidavits, depositions, prior testimony, or confessions”; and
10

3) “statements that were made under circumstances which would lead an objective 

witness reasonably to believe that the statement 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 regarding 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 refused to allow defense counsel 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. (RR 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 

from 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 conversations between the two 

the morning of this incident and the actions of Appellant. Because Appellant was denied 

the opportunity to fully develop these 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 an 
11

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 ruling if it lies 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) (“The 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 

reduce 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 is 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 Completeness because the state relied on the visual portion to prove 

its case. TEXAS RULES OF EVIDENCE, R. 107 (Vernon 2016); Pena v. State, 353 S. W. 3d 
12

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. TEXAS RULE OF EVIDENCE, 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 evidence. 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 effectively 

precludes the defendant from presenting a defense. Kelly v. State, 321 S. W. 3d 583 (Tex. 

App. Houston [14]-2010 -no pet.)

c. The Application 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 of retaliation. The Court erred and the Appellant was harmed, demanding this case be 
13

remanded to the Trial Court for further action consistent with any ruling from the Appeals 

Court.

3. THE 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 determine 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 

testimony 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 duties 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 alleged in Count I, Aggravated Assault, 

finding the Appellant not guilty. However, the jury chose to find Appellant guilty of Count 

III, Retaliation. This is an inconsistent result that lacks sufficient evidence to sustain the 

jury’s verdict. Appellant was quick to call 911, administer aid and the jury believed these 

among other facts did not justify an aggravated assault. (RR Vol. 5, P. 126, L. 23-24) (RR 

Vol. 5, P. 129, L. 15-17) and (RR Vol. 5, P. 130, L. 11-12). Further, Appellant testified and 

admitted that he told the Victim to say it was him that shot himself, and admitted that he did 

this out of fear because he was a convicted felon. No corroborating evidence was produced

to support Victim’s statement at trial that Appellant said he would finish him off was actually 

made as a retaliatory threat, instead Appellant testified that he only threatened the Victim 

because he was taking an aggressive stance or posture against Appellant. (RR Vol. 5, P. 129, 

L. 5-14). The jury was unclear as to the audio evidence produced in the recorded 911 as

evidenced by the statement of “juror” in the Reporter’s Record. (RR Vol. 5, P. 202, L. 1 

through P. 203, L. 3).

CONCLUSION

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 substances 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 complete audio/video recording and instead only admitted the State’s version of 
15

the audio/video recording over the objection of defense counsel citing the “rule of optional 

completeness” for which Appellant is entitled to a judgment of acquittal.

There was legally insufficient evidence to convict Appellant of the offense of 

retaliation; thus Appellant should be released from the bonds of this conviction.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable 

Court reverse the conviction and render a judgment of acquittal in this case.

Respectfully Submitted,

/s/TINADAVISRINCONES

TINA DAVIS RINCONES

Attorney at Law

109 E 6thStreet

Plainview, Texas 79072

Telephone (806)429-0706

Facsimile (806)553-4424

SBN 24030776

Email: trincones@redraiderlaw .com

ATTORNEYFORAPPELLANT

CERTIFICATE OF SERVICE

Thisisto certify that a true and correct copy ofthe Brief ofthe Appellee has been

emailed to the parties listed below on this 5

th day of July, 2017.

Kathryn H. Gurley

287th District Attorney

districtattorney@parmercounty.net

/s/TINADAVISRINCONES

TINA DAVIS RINCONES

CERTIFICATE OF WORD COUNT

I certify that this document contains 4,625 words and is incompliance with the Texas 

Rules of Appellate Procedure.

/s/TINADAVISRINCONES

TINA DAVIS RINCONES