1

IN THE COURT OF APPEALS

FOR THE

TWELFTH SUPREME JUDICIAL DISTRICT

AT TYLER, TEXAS

JOSHUA PAUL CALHOUN §

Appellant §

§

VS. § NO. 12-15-00081-CR

§

THE STATE OF TEXAS §

Appellee §

__________________________________________________________________

APPELLANT’S BRIEF ON THE MERITS

__________________________________________________________________

On Appeal from the 173rd Judicial District Court

of Henderson County, Texas

The Honorable Dan Moore, Presiding

Trial Court Cause No. A-21,464

LESLIE POYNTER DIXON

Attorney at Law

State Bar No. 08327050

P.O. Box 636

Edgewood, Texas 75117

ORAL ARGUMENT Telephone: (903) 896-7649

REQUESTED Facsimile: (903) 896-7686

Email: Leslie@LesliePDixon.LegalOffice.pro

ATTORNEY FOR APPELLANT

ACCEPTED

12-15-00081-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

8/3/2015 3:19:09 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 8/3/2015 3:19:09 PM CATHY S. LUSK Clerk
2

IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Joshua Paul Calhoun

TDCJ # 01985495

Goodman Unit

349 Private Road 8430

Jasper, Texas 75951

TRIAL COURT JUDGE: The Hon. Dan Moore

173rd Judicial District Court

Henderson County, Texas

100 E. Tyler, Suite 207

Athens, Texas 75751

(903) 675-6107

ATTORNEYS FOR THE STATE: Nancy Margaret McKinney-Rumar

(at Trial) Assistant District Attorney

109 W. Corsicana, #103

Athens, Texas 74751

(903) 675-6100

Justin R. Weiner

Assistant District Attorney

109 W. Corsicana, #103

Athens, Texas 74751

(903) 675-6100

ATTORNEY FOR APPELLANT: Joshua Paul Calhoun, Pro Se

(at Trial Guilt-Innocence Phase) TDCJ # 01985495

Goodman Unit

349 Private Road 8430

Jasper, Texas 75951
3

(at Trial Punishment Phase) Samuel M. Smith

Attorney at Law

219 N. Palestine Street

Athens, TX 75751

(903) 675-8005

Stand-by Counsel

ATTORNEY FOR THE STATE: Nancy Margaret McKinney-Rumar

(on Appeal) Assistant District Attorney

109 W. Corsicana, #103

Athens, Texas 74751

(903) 675-6100

ATTORNEY FOR APPELLANT: Leslie Poynter Dixon

(on Appeal) Attorney at Law

P.O. Box 636

Edgewood, Texas 75117

(903) 896-7649
4

TABLE OF CONTENTS

Identity Of Parties And Counsel ...........................................................................2

Table Of Contents..................................................................................................4

Index Of Authorities...............................................................................................7

Statement Of The Case............................................................................................11

Issues Presented.......................................................................................................12

Issue Number One

The Judgment of conviction for the felony offense of evading with a vehicle

is incorrect, because the jury convicted Appellant of the misdemeanor

offense of evading. (CR 85; 8 RR 65)..........................................................12

Issue Number Two

The sentence of 15 years in prison is outside the range of punishment,

because Appellant was convicted of a misdemeanor offense with a

maximum punishment of one year in jail (CR 123).....................................12

Issue Number Three

If this Court finds that Appellant was, in fact, convicted of the felony

evading arrest with a vehicle, the sentence is void because it is outside the

range of punishment, because the State failed to prove the enhancement

paragraph alleged in the indictment beyond a reasonable doubt. (10 RR

11-100).........................................................................................................12

Issue Number Four

The state failed to prove the extraneous offense of theft of an airplane

offered at punishment beyond a reasonable doubt. (10 RR 11-19)..............13
5

Issue Number Five

The state failed to prove the extraneous offense of theft of a diesel tanker

truck offered at punishment beyond a reasonable doubt. (10 RR 34-

71)..................................................................................................................13

Issue Number Six

The state failed to prove the extraneous offense of Cause No. 12,689 offered

at punishment beyond a reasonable doubt. (10 RR 89-09)..........................13

Issue Number Seven

The state failed to prove the extraneous offense of Cause No. A,21,075

offered at punishment beyond a reasonable doubt. (10 RR 89-90)..............13

Issue Number Eight

The state failed to prove the extraneous offense of Cause U.S. District Court

No. 09-CR-011590001 offered at punishment beyond a reasonable doubt.

(10 RR 89-90)...............................................................................................13

Issue Number Nine

The evidence was insufficient to support a jury verdict of guilty to Evading

Arrest With A Vehicle. (7 RR 20-61)..........................................................13

Issue Number Ten

The trial court erred by submitting the Geesa definition of “reasonable

doubt” to the jury. (CR 85; 8 RR 65)...........................................................13

Issue Number Eleven

The trial court erred in denying appellant’s motion for mistrial without

conducting a hearing on whether jurors saw appellant being transported in a

patrol unit during trial. (8 RR 7-10)............................................................13
6

Statement of Facts...................................................................................................14

Summary of the Argument......................................................................................20

Argument and Authorities.......................................................................................23

Issue Number One.........................................................................................23

Issue Number Two........................................................................................23

Issue Number Three......................................................................................28

Issue Number Four........................................................................................28

Issue Number Five........................................................................................28

Issue Number Six..........................................................................................28

Issue Number Seven......................................................................................28

Issue Number Eight.......................................................................................28

Issue Number Nine........................................................................................43

Issue Number Ten.........................................................................................54

Issue Number Eleven....................................................................................60

Prayer.......................................................................................................................62

Statement Regarding Oral Argument......................................................................63

Certificate of Service...............................................................................................64

Certificate of Word Count.......................................................................................64
7

INDEX OF AUTHORITIES

CASES

Adkins v. State, 418 S.W.3d 856 (Tex.App.-Houston [14th Dist.] 2013).................57

Almanza v. State. 686 S.W.2d 157 (Tex.Crim.App.1985) (op. on reh'g) .............. 56

Bluitt v. State, 70 S.W.3d 901, 905-06 (Tex.App.--Fort Worth, 2002, no pet).......56

Bradley v. State, 560 S.W.2d 650 (Tex. Crim. App. 1978).....................................26

Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005).......................................25

Camacho v. State, 13-10-00369-CR (Tex.App.-Corpus Christi 2011)

(not designated for publication)..................................................................52

Conyers v. State, 864 S.W.2d 739, 740 (Tex. App.-Houston [14th Dist.]

1993)..............................................................................................................53

Delgado v. State, 235 S.W.3d 244, 249 (Tex.Crim.App. 2007).............................27

Dennis v. State, 178 S.W.3d 172 (Tex.App.-Houston [1st Dist.] 2005).................34

Escort v. State, 621 S.W.2d 608 (Tex. Crim. App. 1981).......................................26

Ex Parte Rich, 194 S.W.3d 508 (Tex.Crim.App. 2006)..........................................33

Ex Parte Wilson, 306 S.W.3d 259 (Tex.Crim.App. 2009) (op. on reh'g)................27

Flowers v. State, 200 S.W.3d 919 (Tex.Crim.App. 2007)................................33,31

Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991) ............... 17,22,23,54-58,60

Hall v. State, 225 S.W.3d 524 (Tex.Crim.App. 2007)............................................26
8

Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007) ................................. 52

Jackson v. Virginia, , 443 U.S. at 318, 99 S.Ct. 2781 (1979)..................................43

Kelly v. State, 841 S.W.2d 917 (Tex.App. - Corpus Christi 1992)....................60,62

Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)........................................25

Matthews v. State, 02-14-00428-CR (Tex.App. - Fort Worth 2015).................... 57

Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). ...........................55,57,58

Plata v. State, 926 S.W.2d 300 (Tex. Crim. App. 1996)....................................22,28

Reed v. State, 500 S.W.2d 497 (Tex.Crim.App.1973)............................................29

Reyes v. State, 938 S.W.2d 718 (Tex.Crim.App. 1996)........................................ 55

Schroeder v. State, Nos. 13-13-00379-CR, 13-13-00380-CR (Tex.App.-Corpus

Christi 2015) (not designated for publication)..............................................32

Skinner v. State, 956 S.W.3d 532 (Tex.Crim.App. 1997).......................................27

Smith v. State, 227 SW.3d 753, 763 (Tex.Crim.App. 2007)...................................34

Sweed v. State, 351 S.W.3d 63 (Tex.Crim.App. - 2011)......................................27

Vosberg v. State, 80 S.W.3d 320 (Tex.App.-Fort Worth 2002).........................56,57

Wise v. State, 394 S.W.3d 594, 598, 600 (Tex.App.-Dallas 2012)...................30,43

Wood v. State, 453 S.W.3d 488 (Tex.App.-San Antonio 2014)..............................32

Woods v. State, 152 S.W.3d 105 (Tex.Crim.App. 2004 en banc)...........................58

Zuniga v. State, No. 01-09-00715-CR (Tex.App.-Houston [1st Dist. 2011)

(not designated for publication)...............................................................52,53
9

CONSTITUTIONS

U.S. Const. amend. XIV..........................................................................................62

Tex. Const. art. I sec. 10..........................................................................................62

STATUES AND RULES

Tex. R. App. P. 33.1(a).............................................................................................56

Tex. R. Evid. 902......................................................................................................38

Tex. Code Crim. Proc. art. 36.01.............................................................................29

Tex. Code Crim. Proc. art. 36.14 ............................................................................27

Tex. Code Crim. Proc. art. 37.07........................................................................29,38

Tex. Code Crim. Proc. art. 37.07(a)(1)....................................................................33

Tex. Code Crim. Proc. art. 37.07(3((d)...................................................................34

Tex. Code Crim. Proc. art. 37.09(1)........................................................................26

Tex. Penal Code sec. 2.01...................................................................................36,53

Tex. Penal Code sec. 38.04.................................................................................25,43

Tex. Penal Code sec. 38.04(b)(2)(A) ......................................................................25
10

IN THE COURT OF APPEALS

FOR THE

TWELFTH SUPREME JUDICIAL DISTRICT

AT TYLER, TEXAS

JOSHUA PAUL CALHOUN §

Appellant §

§

VS. § NO. 12-15-00081-CR

§

THE STATE OF TEXAS §

Appellee §

__________________________________________________________________

APPELLANT’S BRIEF ON THE MERITS

__________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

Comes now Appellant, JOSHUA PAUL CALHOUN, by and through his

attorney, Leslie Poynter Dixon, and respectfully submits his brief on the merits

urging this Court to: (a) reverse Appellant’s conviction and render an acquittal; or,

in the alternative (b) remand the case to the Trial court for a new trial on

punishment; or, in the alternative (c) reverse Appellant’s conviction and remand

the case to the trial court for a new trial; or, in the alternative (d) reform the

Judgment to reflect a conviction for the misdemeanor offense of Evading Arrest
11

and remand to the trial court for a new trial on punishment and remand to the trial

court for a new trial on punishment.

STATEMENT OF THE CASE

Appellant was indicted on August 7, 2014 for the offense of Evading Arrest

With A Vehicle, a Third Degree Felony (2-10 years in prison), alleged to have

occurred on June 18, 2014. The Indictment contained one enhancement paragraph

for a prior felony theft conviction in Cause No. A-10,030 on March 17, 2004 out of

Henderson County, Texas which enhanced the punishment to a Second Degree

Felony (2-20 years in prison). (CR 1) In the enhancement cause, the State

produced an Order Revoking Community Supervision and Imposition of Sentence.

(12 RR 89-90) The Indictment did not include a deadly weapon paragraph, but the

State filed a notice seeking an affirmative finding on the morning of trial. (CR 53)

On the same date, the Court granted Appellant’s motion to represent himself

during the guilt phase of the trial and appointed standby counsel. The Court

appointed standby counsel to represent Appellant at the punishment phase of the

trial. (5 RR 6-21; 9 RR 9,10) Appellant also filed a motion for continuance based

on his filing a motion to recuse the Henderson County District Attorney Office that

was denied. (CR 60,64; 5 RR 3)

Appellant pleaded Not Guilty to the felony offense of Evading With A

Vehicle before the Jury. (7 RR 13) The jury, however, found Appellant guilty of
12

the lesser included misdemeanor offense of Evading Arrest pursuant to the Court’s

Charge. The jury also found an affirmative finding of a deadly weapon. The

Judgment reflects Appellant was convicted of the felony offense of Evading With

A Vehicle. Appellant elected to have the Court assess punishment, and a

Presentence Investigation (“PSI”) was ordered. (CR 94) The Court sentenced

Appellant to fifteen (15) years in the Texas Department of Criminal Justice,

Institutional Division. (CR 93,123) Notice of Appeal was filed on March 30,

2015. (CR 183) The trial court’s Certification of Defendant’s Right to Appeal was

filed April 6, 2015. (CR 192)

ISSUES PRESENTED

Issue Number One

The Judgment of conviction for the felony offense of evading with a vehicle is

incorrect, because the jury convicted Appellant of the misdemeanor offense of

evading. (CR 85; 8 RR 65)

Issue Number Two

The sentence of 15 years in prison is outside the range of punishment, because

Appellant was convicted of a misdemeanor offense with a maximum punishment

of one year in jail. (CR 123)

Issue Number Three

If this Court finds that Appellant was, in fact, convicted of the felony evading

arrest with a vehicle, the sentence is void because it is outside the range of

punishment, because the State failed to prove the enhancement paragraph alleged

in the indictment beyond a reasonable doubt. (10 RR 11-100)
13

Issue Number Four

The state failed to prove the extraneous offense of theft of an airplane offered at

punishment beyond a reasonable doubt. (10 RR 11-19)

Issue Number Five

The state failed to prove the extraneous offense of theft of a diesel tanker truck

offered at punishment beyond a reasonable doubt. (10 RR 34-71)

Issue Number Six

The state failed to prove the extraneous offense of Cause No. 12,689 offered at

punishment beyond a reasonable doubt. (10 RR 89-09)

Issue Number Seven

The state failed to prove the extraneous offense of Cause No. A,21,075 offered at

punishment beyond a reasonable doubt. (10 RR 89-90)

Issue Number Eight

The state failed to prove the extraneous offense of U.S. District Court No. 09-CR011590001 offered at punishment beyond a reasonable doubt. (10 RR 89-90)

Issue Number Nine

The evidence was insufficient to support a jury verdict of guilty to Evading Arrest

With A Vehicle. (7 RR 20-61)

Issue Number Ten

The trial court erred by submitting the Geesa definition of “reasonable doubt” to

the jury. (CR 85; 8 RR 65)

Issue Number Eleven

The trial court erred in denying appellant’s motion for mistrial without conducting

a hearing on whether jurors saw appellant being transported in a patrol unit during

trial. (8 RR 7-10)
14

STATEMENT OF FACTS

The following witnesses testified at the guilt phase of the trial:

Henderson County Sheriff Deputy Gray (7 RR 20)

Henderson County Sheriff Deputy Clements (7 RR 61)

Henderson County Sheriff Investigator Shelley (8 RR 11)

On June 18, 2014, Clements was advised by Richard Atwood that he

received a phone call from an unidentified person at the John Deere tractor store in

Tyler, Texas stating Appellant was trying to pick up tractor parts for Atwood, and

that his pickup was in the parking lot. (7 RR 24, 62) Clements also testified she

“met” with Atwood on June 17, 2014. (7 RR 72) Atwood was Appellant’s

employer and the alleged owner of a 2002 Black Dodge pickup. (CR 108; 7 RR

44; 8 RR 51,52) He did not testify at either stage of the trial. According to Gray,

Atwood stated he may not file charges if Appellant returned the pickup undamaged

to Atwood’s place of business. (7 RR 25)

On June 18, 2014, at approximately 11:00 a.m., Clements contacted her

partner, Gray, who was parked on Highway 155. Clements advised Gray the

driver may be headed south on Highway 155, and Gray observed the pickup

traveling south on Highway 155. When Gray passed Clements, she began to

follow Gray. (7 RR 22-23) Gray’s only description of the driver was a “white

male, alone.” He could not see what the driver was wearing. (7 RR 24) Clements

also testified the driver was a white male. (7 RR 64) Gray followed the pickup
15

until he lost sight of it, and then he and Clements followed tire tracks into a

wooded area and located the pickup. No driver or keys were located in or around

the pickup. (7 RR 29) Other officers were dispatched to assist Gray and Clements

in the search for the driver after the pickup was located. (7 RR 31) No one

witnessed Appellant driving the pickup during the pursuit or exiting the pickup.

According to Gray and Clements, Appellant was driving recklessly and

others could have been endangered. Gray did testify the pickup was never directed

at him in a dangerous manner, and there were no personal injuries. (7 RR 47, 80)

Shelley was dispatched, and he searched for the driver about an hour. (8 RR

33) He saw Appellant on the front porch of a metal building on a county road, but

did not know how long he had been there. (8 RR 15) Shelley testified when he

began to pull into the next driveway, Appellant ran into heavy brush. When

Shelley identified himself and ordered Appellant to come out, he did and was

arrested without incident. (8 RR 16, 17)

Videos of the pursuit from the patrol units of Gray and Clements were

admitted and shown to the jury. (7 RR 33, 76-77)

A set of vehicle keys were found in Appellant’s possession during booking

at the jail, one with a Dodge Ram emblem. (7 RR 43) There was no evidence the

keys fit the subject pickup, or if the keys found on Appellant were given to the

person designated by Atwood to pick it up from the Sheriff’s Office.
16

A Whataburger receipt dated June 18, 2014 stamped at 10:47 a.m. and a

Kroger receipt dated June 18, 2014 stamped 8:46 a.m. were found in the pickup.

There was also a check made payable to Appellant from the Henderson County

Jail, clothes, and two cowboy hats. (8 RR 20; 12 RR State Ex. 14-18) Shelley

testified the pursuit was called in at approximately 11:00 a.m. on June 18, 2014. (8

RR 21)

Shelley obtained videos from Whataburger and Kroger that were shown to

the jury. (8 RR 23-29) The Kroger receipt was dated June 18, 2014, however, the

video was dated June 17, 2014. Exhibit No. 22 is a photograph from the

Whataburger video showing Appellant at the drive-through approximately 20

minutes prior to the pursuit of the pickup. (12 RR Ex. 22) Shelley stated

Appellant was driving the subject pickup in the Whataburger video, but the license

plate was not visible, and there was no evidence it was the same pickup. Exhibit

No. 21 is a photograph from the Kroger video of Appellant leaving the store. (8

RR 29; 12 RR Ex. 21). Shelley testified it was not possible for Appellant to have

walked or ran from the location of Whataburger to the front porch of the building

in the time frame; and that he saw no other vehicles that may have driven

Appellant to that location. He also state that he had no idea how long Appellant

may have been on the porch, and that it was possible another had dropped him off.

(8 RR 41,56)
17

During the guilt phase, Appellant was being transported to the courthouse in

a marked unit and saw three jurors. Appellant advised the Court and requested a

mistrial that was denied. (8 RR 7-10)

The Jury Charge included the Geesa definition of beyond a reasonable

doubt. Appellant did not object. (CR 85)

The Court’s Charge instructed the jury that Appellant was charged with the

offense of “Evading Arrest,” a Class A Misdemeanor. (CR 85) On page two, the

application paragraph states:

Now, if you find from the evidence beyond a reasonable doubt that

on or about the 18th day of June, 2014, in Henderson County, Texas,

the defendant, Joshua Paul Calhoun, did then and there, intentionally

flee from Spencer Gray, a person Joshua Paul Calhoun knew was a

peace officer who was attempting lawfully to arrest or detain Joshua

Paul Calhoun, then you will find defendant guilty as charged in the

indictment. (CR 86)

The verdict form also instructed the jury to find Appellant guilty or not guilty for

the offense of “evading arrest, as charged in the indictment.” The jury found

Appellant guilty of the misdemeanor Evading as instructed by the Court, but the

Judgment reflects a felony (CR 123) A PSI was ordered due to Appellant’s

election for the Court to assess punishment. (CR 94, 6 RR 25-26) The Court

sentenced Appellant to 15 years in prison which is beyond the maximum

punishment for a Class A Misdemeanor (one year in jail).
18

Punishment Phase

At the punishment phase, the State introduced three state certified copies of

prior convictions and one federal with three amended copies of the judgment.

Only two of the State convictions included a fingerprint. No print comparisons

were done. (12 RR Ex. 4,5,6,7)

There is nothing in the record showing the enhancement paragraph was read

to Appellant or that any pronouncement was made of the trial court’s finding. The

Judgment, however, shows a finding of True. (CR 123)

The State called seven witnesses. Over Appellant’s objection, Reynolds

testified regarding the case of a stolen airplane from the Athens Airport, which had

been dismissed. (10 RR 11) Sandoval testified regarding the federal conviction

for Flight From An Immigration Checkpoint. (10 RR 19) Mitchell testified about

a pending indictment concerning a stolen diesel tanker truck from Louisiana that

was found in Henderson County, Texas. (10 RR 34) Ainsworth from the

Greenwood, La. P.D. was called to testify that he investigated the tanker truck.

(10 RR 42) Rodgers aka “Wild Bill” testified he was an acquaintance of

Appellant’s and saw Appellant driving a tanker truck on October 31, 2014.

Appellant told him someone gave him the truck and wanted Rodgers to help him

“cut it up.” (10 RR 50) Dunnington was from the Henderson County Sheriff’s

Office. That testimony concerned his investigation regarding the tanker truck in
19

Henderson County; that he had pursued the vehicle; the driver fled and was not

apprehended. (10 RR 59) Investigator Shelley who testified at the guilt phase also

testified at punishment regarding his investigation on the instant case, and how he

connected Appellant to this case from the tanker truck incident. (10 RR 71)

Reynolds, Sandoval, “Rodgers,” and Shelley identified a person in the

courtroom, however, the record is devoid of any evidence that the person identified

by any of them was Appellant. (10 RR 13, 29, 53) Ainsworth, Mitchell and

Dunnington did not identify anyone.

Appellant called Phillip Walker, the probation officer who prepared the PSI.

Walker had met Appellant only once before the PSI. (10 RR 91) He stated

Appellant was cooperative, and he did not have a reason to doubt what he told him.

Walker spoke with Atwood and confirmed the conversation on page three of his

report that Atwood did not want Appellant to go to prison for 20 years. (10 RR

92,93,99; CR 106) Walker also confirmed Appellant had once been diagnosed

with ADHA and Bipolar conditions. On cross-examination he testified Appellant

tried to minimize his role in the current offense, and that his federal parole officer

said Appellant did not comply with his conditions of supervised release. (10 RR

96,97) Walker discussed Appellant’s drug history, and stated it was unlikely he

would be successful on probation. (10 RR 98)
20

SUMMARY OF ARGUMENT

The Felony Conviction and Sentence are Void

Appellant was indicted for the felony offense of Evading With A Vehicle, a

Third Degree Felony, enhanced to a Second Degree Felony, as stated in the

Judgment. The Jury, however, found Appellant guilty only of the lesser included

misdemeanor offense of Evading Arrest. The opening paragraph of the Court’s

Charge advises the jury that Appellant was charged with the misdemeanor offense

of Evading Arrest. Paragraph 1. advises the jury how one commits the felony

offense of Evading With A Vehicle. More importantly, the application paragraph

that authorizes a jury to convict instructs the jury to find Appellant guilty of the

misdemeanor offense of Evading Arrest if they believed the State’s evidence

beyond a reasonable doubt. The State did not object. Appellant did not object,

probably because it was a misdemeanor. The record is silent as to why the

misdemeanor offense was included. Moreover, because the jury was instructed to

find Appellant guilty of a misdemeanor if they believed the evidence beyond a

reasonable doubt, the deadly weapon finding cannot and does not enhance

punishment.

Despite the fact the verdict form states “as charged in the indictment,” the

jury was only authorized to convict Appellant of the misdemeanor according to the

application paragraph. The felony conviction is void. The sentence of 15 years in
21

prison is void, because it is outside the range of punishment for a Class A

Misdemeanor. Appellant is currently incarcerated on the 15-year sentence when

he was convicted of a misdemeanor.

This is not a fundamental charging error. The application paragraph was

correct, and there was evidence in Shelley’s testimony that Appellant fled from

him on foot from the front porch. There is no question that the misdemeanor in the

application paragraph was a lesser included offense. The indictment against

Appellant for the felony Evading Arrest With A Vehicle alleges all of the elements

of the lesser-included offense of evading arrest.

Sufficiency

If the Court finds the jury did convict Appellant of the felony offense, there

is a sufficiency issue. The State failed to produce any witness that saw Appellant

driving the pickup during the pursuit, or exiting afterward. Any evidence the State

did produce to prove Appellant was the driver was circumstantial at best and

insufficient.

The Court allowed Appellant to represent himself during the guilt phase of

the trial with standby counsel. At punishment, however, the Court appointed

standby counsel to represent Appellant. To be clear, Appellant makes no claims

of ineffective assistance at either stage of the proceedings. It is a huge risk to

represent oneself, and those risks were knowingly accepted by Appellant.
22

The State has no duty to assist a pro se defendant, or to “go easy,” or even to

cease its objections. It does, however, have the duty of seeking justice rather than

a mere conviction. At what point in time does the cumulative effect of going

beyond the realm of fairness at trial become too much?

Among other issues, the State never identified Appellant as the driver during

the pursuit; never called the alleged owner of the vehicle; failed to produce

fingerprints, DNA, photo lineups or any other evidence that would have been

easily obtainable; failed to prove the keys found on Appellant were the keys to the

pickup; allowed the Geesa definition of beyond a reasonable doubt in the jury

charge; called a witness on punishment regarding a case the State knew had been

dismissed when it was unnecessary; failed to prove prior convictions with

fingerprint comparisons; failed to prove the enhancement paragraph in the

Indictment beyond a reasonable doubt; and failed to prove the extraneous offenses

beyond a reasonable doubt as required in non-capital felonies.

Geesa Definition

The definition for “beyond a reasonable doubt” was both criticized and

disapproved several years ago. Admittedly, if the parties agree, there is no error to

include it, although the Courts state the more appropriate action is not to do so.

Appellant did not object to the inclusion of the definition, but that is not an

agreement of the parties. It is merely an omission to act. A lawyer trying a case
23

against a nonlawyer is, at best, frustrating. This is never more evident than in the

criminal arena. Logic dictates, therefore, that the lawyer would be on “high-alert”

in an attempt to ensure the accuracy of the proceedings. The trial judge is not an

advocate--he’s a judge. Judges, rightly or wrongly, often look to the lawyers in

proper drafting of documents and other legal issues. Including the Geesa language

in a charge has been criticized and disapproved in many cases, and remains so

today.

Motion for Mistrial

The trial court exhibited a certain amount of leniency and patience with

Appellant representing himself in this case. Denying Appellant’s motion for a

mistrial, however, may have prejudiced Appellant beyond repair. To ask three

jurors if they had seen Appellant that morning before court would not have

interfered with the proceedings. All 12 jurors were not involved. A 15-minute

hearing could have determined if those three jurors were so biased, if they did see

Appellant in the patrol car, they could no longer be fair to Appellant.

ARGUMENTS & AUTHORITIES

Issues Number One and Two

Appellant combines the argument and authorities relating to Issues Number

One and Two for purposes of efficiency.

Appellant was indicted for Evading Arrest With A Vehicle, a third degree

felony. The Indictment included an enhancement paragraph alleging a prior
24

conviction which if proven would enhance punishment to that of a second degree

felony. The Judgment reflects that Appellant was found guilty by the jury of

Evading Arrest w/Motor Vehicle and sets out the purported verdict of the jury as

follows “We, the jury, find the Defendant, Joshua Paul Calhoun, guilty of Evading

Arrest w/Motor Vehicle, as charged in the indictment. /s/ Raynell Johnson,

Foreperson.” The Judgment also reflects that Appellant pleaded true to the

enhancement allegation, that the trial court found the enhancement allegation true,

and assessed punishment within the second degree range at 15 years confinement

in prison. CR 123-125. Appellant is currently confined in prison pursuant to this

Judgment of conviction and sentence.

The Judgment is not only factually erroneous, the purported felony

conviction and sentence are void, because the jury did not find Appellant guilty of

the felony offense of Evading Arrest With A Vehicle. The jury found Appellant

guilty of the only offense authorized by the trial court’s instructions, which was the

Class A misdemeanor offense of Evading Arrest.

The trial court’s charge to the jury must contain at least one application

paragraph. The “application paragraph” applies the abstract law to the particular

facts of the case. Any conviction not expressly authorized by the application

paragraph is void. Plata v. State, 926 S.W.2d 300 (Tex. Crim. App. 1996),
25

overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App.

1997).

The application paragraph in this case instructed the jury as follows: “Now,

if you find from the evidence beyond a reasonable doubt that on or about the 18th

day of June, 2014, in Henderson County, Texas, the defendant, Joshua Paul

Calhoun, did then and there, intentionally flee from Spencer Gray, a person Joshua

Paul Calhoun knew was a peace officer who was attempting lawfully to arrest or

detain Joshua Paul Calhoun, then you will find defendant guilty as charged in the

indictment.” This application paragraph contained all the essential elements of the

offense of Class A misdemeanor Evading Arrest as defined by Section 38.04 of the

Texas Penal Code and was a clear and unequivocal instruction to the jury

authorizing conviction of the misdemeanor offense only. The actual verdict of the

jury, which is different than what is set out in the judgment, was “We, the Jury,

find the Defendant, Joshua Paul Calhoun, guilty of Evading arrest as charged in the

indictment. /s/ Raynell Johnson.”

Appellant had been indicted for the felony offense of Evading Arrest With A

Vehicle. Section 38.04(b)(2)(A) of the Texas Penal Code provides that the offense

is a felony of the third degree if the actor uses a vehicle while the actor is in flight.

The use of the vehicle is an essential element of the felony charge of Evading

Arrest With A Vehicle. See Calton v. State, 176 S.W.3d 231 (Tex. Crim. App.
26

2005). The trial court must instruct the jury regarding all essential elements in the

application paragraph to authorize a conviction for the offense. The reference in

the application paragraph to “as charged in the indictment” does not suffice to

establish the instruction as authorizing a conviction for felony evading arrest with a

vehicle. And the reference in the jury’s verdict to “as charged in the indictment”

does not suffice to establish a conviction for the felony evading arrest with a

vehicle. The language “as charged in the indictment” does not supplant the

necessity of including all essential elements in the application paragraph. Escort v.

State, 621 S.W.2d 608 (Tex. Crim. App. 1981); Bradley v. State, 560 S.W.2d 650

(Tex. Crim. App. 1978).

These are issues of an erroneous judgment of conviction that does not

comport with the jury’s verdict and a sentence that is void because it is outside the

range of punishment for the offense of conviction. This is not an issue of

fundamental charging error as the State may argue. The application paragraph was

a proper instruction on the lesser-included misdemeanor offense of evading arrest.

Generally a two-step analysis is used in determining whether an instruction

on an uncharged offense may or should be given.

The first step is to determine if the uncharged offense is a lesser-included

offense of the charged offense under Article 37.09(1) of the Texas Code of

Criminal Procedure. Under Hall v. State, 225 S.W.3d 524 (Tex. Crim. App.
27

2007), this determination is made using a cognate-pleading approach. An offense

is a lesser-included offense of another offense if the indictment for the greater

inclusive offense alleges all of the elements of the lesser-included offense. Ex

parte Wilson 306 SW 3d 259 (Tex. Crim. App. 2009)(op. on reh’g). The

indictment against Appellant for evading arrest with a vehicle alleges all of the

elements of the lesser-included offense of evading arrest.

If the uncharged offense is a lesser-included offense under the analysis

above, the court proceeds to the second step. The second step focuses on the

evidence before the jury. If a rational jury could find that, if the defendant is

guilty, he is guilty only of the lesser-included offense then the instruction is

warranted. Skinner v. State, 956 S.W. 2d 532 (Tex. Crim. App. 1997). Sweed v.

State, 351 S.W.3d 63 (Tex.Crim.App. - 2011).

The evidence before the jury certainly warranted an instruction on the lesser

included-offense of evading arrest due to Shelley’s testimony that Appellant fled

from him when Shelley observed Appellant on the front porch. (8 RR 16,17)

Article 36.14 of the Texas Code of Criminal Procedure requires the trial

judge to deliver to the jury "a written charge distinctly setting forth the law

applicable to the case." Delgado v. State, 235 S.W.3d 244, 249 (Tex.Crim.App.

2007). The lesser-included charge of misdemeanor evading arrest is part of the

law applicable to the case and was warranted under the evidence. The actual
28

language of the application paragraph was a proper instruction on the offense of

Evading Arrest. The instruction was included in the Court’s Charge without

objection from the State and without objection from the Appellant. There was no

error in submitting the instruction.

The error is the Judgment of conviction of felony Evading Arrest With A

Vehicle when such conviction was not authorized by the application paragraph of

the trial court’s charge. The error in the Judgment of conviction then lead to an

illegal sentence of imprisonment for 15 years on a Class A misdemeanor. This

Court is obliged to strike down any conviction not actually authorized by an

application paragraph of the trial court’s charge to the jury. Plata, supra.

The Judgment should be reformed to reflect conviction of the Class A

misdemeanor of Evading Arrest and the case should be remanded to the trial

court for a new punishment hearing with assessment of a sentence within the

statutory range of punishment.

Issues Number Three, Four, Five, Six, Seven and Eight

Appellant combines the argument and authorities relating to Issues Number

Two, Three, Four, Five, Six, Seven and Eight for purposes of efficiency.

Enhancement

If the Court finds the evidence sufficient on the felony offense, and that the

Judgment and sentence are not void, Appellant argues the State failed to prove the
29

enhancement alleged in the indictment. There is nothing in the record showing

Appellant was read the enhancement paragraph contained in the Indictment, that he

pleaded “true” or “not true,” or that he stipulated to the enhancement. There was

no finding by the trial court that the enhancement was true, however, the Judgment

contains such a finding. (CR 123) There is a line of cases that state when the court

assesses punishment, the enhancement paragraph need not be read to the

defendant, and the defendant does not have to enter a plea. Reed v. State, 500

S.W.2d 497 (Tex.Crim.App. 1973). In the majority of cases relying on Reed,

however, there was a stipulation or plea of true by the defendant, as was in Reed.

That is not the case here. Even the Reed Court noted that:

In the instant case the penalty stage of the bifurcated trial was before the

court alone and we find nothing in Articles 36.01 and 37.07, Vernon's

Ann.C.C.P., or any other statute which mandatorily requires the reading of

the enhancement portion of the indictment to the defendant and receiving his

plea, though such is the better and accepted practice and is to be

commended. Id. at 499. [Emphasis added.]

. . . .

Despite the holding today, it is to be hoped that trial judges and prosecutors

will make every effort to see that enhancement portions of an indictment are

read to the defendant and his plea obtained at the penalty stage of the trial

and simply avoid questions such as this one. Id. at 500.

If the record does not affirmatively establish that a defendant pleaded “true”

to enhancement allegations, as here, an appellate court will analyze the case as if

the defendant pleaded “not true”; thus, the court will sustain the enhancements

only if the record establishes that the State met its burden to produce sufficient
30

evidence that the enhancement allegations were true. Wise v. State, 394 S.W.3d

594, 598, 600 (Tex.App.-Dallas 2012)

The State introduced a certified copy of Cause No. A,10,030, Order

Revoking Community Supervision and Imposition of Sentence (“Order”) dated

March 17, 2004, the offense alleged in the enhancement paragraph. (10 RR 89)

Although it contained a “fingerprint page,” the State did not compare that print to

Appellant’s.

The Order states the original offense date was June 29, 2000, probation was

granted May 18, 2001, the date of the revocation March 17, 2004, and the offense

Theft Over $20,000. The PSI does not show any theft offense in the criminal

history with the dates of June 29, 2000 or March 17, 2004, or with Cause No.

A,10,030. (CR 103) The state failed to call any witness to testify about this

case.

In Flowers v. State, the Court examined the proof required by the State to

prove an enhancement:

To establish that a defendant has been convicted of a prior offense, the State

must prove beyond a reasonable doubt that (1) a prior conviction exists, and

(2) the defendant is linked to that conviction. No specific document or mode

of proof is required to prove these two elements. . . . . [T]he State may prove

both of these elements in a number of different ways, including (1) the

defendant's admission or stipulation, (2) testimony by a person who was

present when the person was convicted of the specified crime and can

identify the defendant as that person, or (3) documentary proof (such as a

judgment) that contains sufficient information to establish both the existence
31

of a prior conviction and the defendant's identity as the person convicted.

200 S.W.3d 919 (Tex.Crim.App. 2007).

In Flowers, the State produced a certified copy of defendant’s driving record

and computer printout from the jurisdiction, because the file was missing. Both

documents had exhaustive identifiers that the defendant was the same person. Id.

at 921. The revocation order in Appellant’s case has a name and a fingerprint--

which the State failed to compare to Appellant’s. There were no fact witnesses

regarding the Theft Over $20,000 offense alleged in the enhancement paragraph.

There was no probation officer who identified Appellant as the one being

convicted, on probation, or revoked. There was no evidence as to what was stolen

or who the complainant might have been.

The concurring opinion in Flowers should be noted:

When allowing use of non-traditional resources, courts must exercise great

care in assuring that the defendant is sufficiently connected to the prior

conviction.

. . . .

Clearly, we must not depend only on a name or even a name and a birth

date. An inexhaustive list of factors that might be considered includes: full

name, date of birth, Social Security number, what the prior offense was, the

place and date of the prior offense, the date of conviction, testimony about

the prior conviction from a corrections, parole, or probation officer, or the

prosecutor of the prior conviction. However the information is produced, it

must sufficiently connect the defendant to the prior offense. Id. at 925.

[Emphasis added.]
32

In Schroeder v. State, Nos. 13-13-00379-CR, 13-13-00380-CR (Tex.App. -

Corpus Christi April 9, 2015) (not designated for publication), this issue was once

again reviewed:

We find that the evidence was insufficient to link Schroeder to the prior

convictions. We note that it is not enough for the State to prove that it is

"unlikely" that someone other than Schroeder was convicted of the offenses

as evidenced by the exhibits; instead, the State must establish beyond a

reasonable doubt that Schroeder was convicted of those offenses. [cite

omitted.] Here, none of the documents in either exhibit contain any

identifying characteristics that match those of Schroeder other than her first

and last names.

In Wood v. State, 453 S.W.3d 488 (Tex.App.- San Antonio 2014), defendant

was charged for Evading With A Motor Vehicle with one enhancement in the

indictment, as here. There was no plea of “true” or “not true” in the record, nor

was there any objection by defendant. Wood is somewhat different in that the State

failed to produce any documents at all, however, the rule of the case remains the

same:

Without a plea of " true" in the record, we proceed with our analysis by

determining whether the State met its burden of proof on the enhancement

allegation. Id. at 491.

Wood’s case was reversed.

Absent the enhancement, and if this Court finds Appellant was convicted of

the felony Evading Arrest With A Vehicle, the punishment range would have been

a Third Degree Felony, 2-10 years in prison. Appellant was sentenced to 15 years

in prison. (10 RR 104)
33

Nowhere in the record does the State prove Cause No. A,10,030 beyond a

reasonable doubt. A sentence which is outside the maximum or minimum range of

punishment is unauthorized by law and therefore illegal. Ex parte Rich, 194

S.W.3d 508 (Tex.Crim.App. 2006). The sentence should be reversed and this case

remanded to the trial court for a new punishment hearing.

Extraneous Offenses

If the Court finds the evidence sufficient on the felony offense, and that the

Judgment and sentence are not void, Appellant argues the State failed to prove the

extraneous offenses and prior convictions beyond a reasonable doubt.

Evidence may be offered by the state and the defendant as to any matter the

court deems relevant to sentencing, including but not limited to the prior criminal

record of the defendant, his general reputation, his character, an opinion regarding

his character, the circumstances of the offense for which he is being tried and any

other evidence of an extraneous crime or bad act that is shown beyond a

reasonable doubt by evidence to have been committed by the defendant or for

which he could be held criminally responsible, regardless of whether he has

previously been charged with or finally convicted of the crime or act. Tex. Code

Crim. Proc. art. 37.07(a)(1) [Emphasis added.]
34

An extraneous offense has been defined as “any act of misconduct, whether

resulting in prosecution or not, that is not shown in the charging papers." Dennis

v. State, 178 S.W.3d 172 (Tex.App. - Houston [1st Dist.] 2005).

Most of the cases arguing proof of extraneous offenses cite Smith v. State,

227 S.W.3d 753 (Tex.Crim.App. 2007). Smith holds the trial court may consider

any relevant punishment evidence including that contained in a PSI which the law

allows. Tex. Code Crim. Proc. art. 37.07(a)(1), 37.07(3)(d). In Smith, the

objected to evidence was medical records contained in the PSI. The probation

officer who prepared the PSI testified regarding the medical records that were

contained in both her file and the report. Id. at 756. The trial court had

specifically requested that the medical records be included when the report was

ordered. Id. at 755.

Other than the enhancement contained in the Indictment, the State produced

the following:

12,689 Theft SJF

Revocation of Probation Upshur County, Texas with a fingerprint.

(10 RR 89) There was no fingerprint comparison.

A-21-075 Theft Over $1,500

Adjudication of Guilt and Revocation of Probation Henderson

County, Texas. No fingerprint in document. (10 RR 89)

09-CR-011590001 High Speed Flight From Immigration Checkpoint

U.S. District Court Judgment. No fingerprint. (10 RR 89) Exhibits 5-

6-7 were amended copies of the federal conviction. (10 RR 89)
35

Michael Reynolds - Athens P.D. (10 RR 11-20)

Reynolds’ testimony was allowed over Appellant’s objection for the reason

the case about which he testified was dismissed, which was verified by the State.

(10 RR 12-13) This case was included in the State’s Extraneous Notice. (CR 54)

On March 4, 2009, Reynolds was contacted regarding a stolen airplane

from the Athens airport that had crashed at another location. He interviewed “the

person in custody,” but did know the person’s name. It was Appellant. Reynolds

stated Appellant said he purchased the airplane, but that the owner told Reynolds

Appellant did not have permission to fly the plane. Appellant was arrested, but it

was dismissed, arguably for lack of evidence. (10 RR 14-15) The State

acknowledged this case was dismissed. (10 RR 12-13) Reynolds identified

someone in the courtroom as the person he interviewed regarding the airplane, but

the record does not state if it was Appellant. (10 RR 13) It was not proven beyond

a reasonable doubt that Appellant stole the airplane.

When the State is seeking a conviction, they must and should be zealous in

doing so, even when a defendant is pro se. They produced six other witnesses who

testified to extraneous offenses, albeit none were proven beyond a reasonable

doubt. Failing to prove these extraneous offenses deprived Appellant of due

process of the law. The most significant article in the Texas Code of Criminal

Procedure is that a prosecutor’s primary duty is “not to convict, but to see that
36

justice is done.” Id. art. 2.01. The State can obtain the same conviction by

offering sufficient proof to ensure the accuracy of criminal proceedings. There

was no reason for the State to call Reynolds to testify about a case the State knew

had been dismissed.

It is not unreasonable to wonder if the “stolen airplane case” was

instrumental in the Court’s sentence of 15 years. The PSI references the following:

“3/4/09, Henderson County, Theft $100,000<$200,000, Dismissed Charges

dropped by arresting agency.” If such reference is this airplane incident, there are

no facts included. (CR 103) The State still has the duty to prove extraneous

offenses beyond a reasonable doubt. It should also be noted that the State argued

the airplane case in closing: “and also his history of not only starting and flying a

plane, but crashing a plane...” (10 RR 100)

Cynthia Sandoval - Border Patrol (10 RR 20-34)

Sandoval testified Appellant fled from the Falcon Port of Entry Checkpoint

where she worked on July 23, 2009. On cross-examination she said she could not

remember the date and thought it was the 9th. (10 RR 30) She was suspicious,

because he was not from the area, and it was a slow time frame for them for

“regulars.” Sandoval said he told her was a doctor. (10 RR 28) Her assistant

received an alert when he was running a check that Appellant was “armed and

dangerous.” That meant he had to be removed from the vehicle and patted down.
37

She stated he stepped out of the vehicle and then got back in and tried to drive

away. According to Sandoval, she was trying to get him to turn off the motor, and

he dragged her with his car about 30 feet while they were struggling. Her arm

was bruised, but she did not seek medical attention. He was apprehended “from

inbound.” She testified at his trial. (10 RR 26-29)

When the State asked her if she saw “Mr. Calhoun” in the courtroom, she

identified a man wearing a blue jumpsuit. There is nothing in the record stating the

person she identified was Appellant. (10 RR 29) This was the federal case

admitted as Exhibit No. 4. The documents in the federal case do not contain a

fingerprint. The only information in the documents on the defendant in that case is

the name (Joshua Calhoun), the last four digits of a social security number, a year

of birth, and an address. The State produced no evidence to link any of that

information to the Appellant. He was not proven to be the person convicted in

U.S. District Court No. 09-CR-01159-001 beyond a reasonable doubt.

After the witnesses testified, the State offered all of the certified copies of

the extraneous offenses. Appellant objected to the admission of the federal

Judgments on the basis the State did not “properly prove up the federal charge,” to

which the State responded “We don’t have to.” Appellant then objected because

the State did not prove it was “the same person.” The State argued the documents

were admissible because they “have a certification by the federal government” and
38

“are admissible under 37.07, and Texas Rules of Evidence 902.” The Court

admitted the Judgments. (10 RR 89-90; 12 RR State Ex. 4,5,6,7) A document

being certified does not prove identity, and it does not relieve the State of its

burden of proving Appellant was the same person convicted in the federal case and

all the others.

Derek Mitchell - Operations Manager, Pilot Flying J Travel Centers, Louisiana

(10 RR 34-42)

This testimony was allowed over Appellant’s objection that this case is

pending indictment. (10 RR 35) On October 31, 2013, Mitchell received a call

from one of his drivers that a tractor trailer with a diesel tank was missing in

Greenwood, Louisiana. Through the GPS system, it was tracked to Athens, Texas.

The truck was returned, but it was damaged. (10 RR 37) In response to the

State’s questions if ”Joshua Paul Calhoun” ever worked for his company or if he

gave “Joshua Paul Calhoun” permission to drive the tanker, he responded “no” to

both. (10 RR 39) Mitchell did not identify Appellant. He had no information

about Appellant.

Kevin Ainsworth - Greenwood, Louisiana P.D. (10 RR 42-50)

On October 31, 2013, Ainsworth was dispatched to the Flying J truck stop

about one vandalized truck and possibly one stolen tractor trailer. The vandalized

truck looked as though someone had attempted to hotwire it. They tracked the
39

missing truck through the GPS system to Athens, Texas. He contacted a deputy in

Athens who advised him the driver of the truck had fled. (10 RR 43-46) The

owner of the truck found in Athens identified it as the stolen one. (10 RR 49)

Ainsworth did not identify Appellant, nor did his testimony create any link to

Appellant.

William Rodgers AKA “Wild Bill” -

Acquaintance of Appellant (10 RR 50-59)

Rodgers knew Appellant as a “neighborhood kid” who had done some work

for him and believes his last name is Calhoun but just knew him as “Josh”. (10 RR

51, 57) Rodgers testified he saw Appellant driving a 1996 Peterbilt white large

truck, with a 20,000 gallon tank, on October 31, 2013 and was at Rodgers’ home.

Other than the date of October 31, 2013, there was no time frame. There was no

evidence what time the tanker was taken from Louisiana or what time Appellant

was seen in a “large truck” at Rodgers’ house. This is important to determine if

the driver of the stolen tanker would have had time to arrive at Rodgers’ home

when he did. He stated that what he knew was “according to the story,” and that

“I really don’t know anything.” The credibility of his testimony was, therefore,

questionable (10 RR 51,52,57) He continued to state that Appellant wanted

Rodgers to help him “cut the truck up,” but Rodgers refused, because he “believed

he belonged to Jesus Christ.” Rodgers said Appellant told him someone gave

Appellant the truck. About 15 minutes after Appellant left, the County came.
40

Rodgers called Appellant and tried to warn him, but there was no answer. (10 RR

52, 55) According to Rodgers, Appellant told him that Appellant and another

person were involved in an insurance scam. Rodgers identified Appellant in a

photo lineup with Shelley, but did not state when, where, or how. The photo

lineup was not offered, and there was no evidence that the manner in which it was

displayed was appropriate. There is no evidence Rodgers identified the truck as

the one he allegedly saw Appellant driving. Rodgers also testified he did not know

about any other thefts Appellant “had done.” (10 RR 58) The State asked

Rodgers “Is that Joshua Calhoun we are talking about the same one sitting here in

the courtroom?” to which he responded “Yes, ma’am.” There is nothing in the

record to indicate which person he identified. (10 RR 53-54)

Tracy Dunnington - Henderson County Sheriff Office (10 RR 59)

On October 31, 2013, Dunnington received a call from Ainsworth at the

Greenwood P.D. in Louisiana about a stolen tanker truck and gave the location of

it in Henderson County. Dunnington went to the location, but the tanker was

gone. The person at that residence is called “William,” but Dunnington stated he is

known as “Wild Bill.” Rodgers only knew the person who had been there with the

tanker as “Josh”, and did not give Dunnington a last name. Ainsworth was

coordinating with Dunnington with various GPS locations of the truck. He then

saw it on the highway and attempted to make a traffic stop for running a stop sign.
41

The truck did not stop, and both of their speeds were up to 60 mph. Dunnington

had his lights and siren activated. He followed the truck for about two miles. The

truck made a left turn, and became stuck in a ditch. The driver ran from the truck,

and Dunnington tracked him for about an hour. The driver’s description was a

male, 5’6”-5’10,” moustache, ball cap, plaid shirt, blue jeans and boots, but

Dunnington did not see the driver’s face. There was no evidence about

Appellant’s height. The driver was never apprehended. Dunnington did not

identify Appellant. (10 RR 60-67)

Investigator Shelley - Henderson County Sheriff Office (10 RR 71)

On November 12, 2013, Shelley reviewed Dunnington’s report on the stolen

tanker truck. Shelley remembered Dunnington had spoken with Rodgers about a

“Josh” in another case. Because of Gray’s report regarding “Joshua Calhoun,” and

the fact the two pursuits ended in the same general area, Shelley investigated

further, and presented Rodgers with a photo lineup, in which Rodgers identified

Appellant. (10 RR 71-74) Again, no evidence was produced regarding the

credibility of the photo lineup. There was no testimony from Shelley or any other

witness that Rodgers identified the truck they found as the one he said Appellant

was driving on October 31, 2013. Shelley made the following identification of a

person in the courtroom:

. . . .A. Yes, he made a selection. [from the photo lineup]

Q. Which person did he select?
42

A. Joshua Paul Calhoun.

Q. Is that the same Joshua Paul Calhoun that you placed under arrest on June

18th?

A. Yes.

Q. Is he present in the courtroom?

A. Yes.

Q. Please point him out and identify an article of clothing he is wearing.

A. Sitting here at the end of the table wearing a jail uniform. (10 RR 75)

There is nothing in the record to indicate which person he identified. The

record is silent as to how many persons were in the courtroom wearing “jail

uniforms.” It is not uncommon for other defendants to be in the courtroom for

various reasons. Shelley interviewed Appellant about the tanker truck, and he

denied any involvement, and told Shelley that “Wild Bill” was mentally unstable.

(10 RR 76-77) There was no sufficient link proven between this incident and

Appellant, and certainly not beyond a reasonable doubt.

During cross-examination, Appellant’s counsel asked Shelley if he was

aware of any other convictions Appellant had for evading either on foot or with a

vehicle. He responded “no.” (10 RR 81) On redirect examination, the State

argued Appellant opened the door to other circumstances. (10 RR 84 Line 23)

The State claimed Appellant “didn’t ask just specifically about convictions,” which

is clear from the record he did. Appellant’s objection was overruled, and the

witness was allowed to testify regarding another extraneous alleged incident with

other officers that he said were trying to execute a warrant, and Appellant fled. (10

RR 84) Appellant’s objection should have been sustained. This also may have
43

contributed to Appellant’s sentence of 15 years in prison. Shelley’s testimony did

not prove this allegation beyond a reasonable doubt.

This case should be remanded to the trial court for a new trial on

punishment.

Issue Number Nine

If the Court finds the judgment and sentence are not void, Appellant argues

the evidence was insufficient as to the felony offense of Evading With A Motor

Vehicle.

In a sufficiency claim, the Court views all the evidence in the light most

favorable to the prosecution to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. at 318, 99 S.Ct. 2781 (1979). The evidence

sufficiency standard of review is the same for both direct and circumstantial

evidence. The State need not disprove all reasonable alternative hypotheses that

are inconsistent with the defendant’s guilt. Wise v. State, 354 S.W.3d 900

(Tex.Crim.App. 2012).

A person commits the offense of Evading Arrest or Detention if he

intentionally flees from a person he knows is a peace officer or federal special

investigator attempting lawfully to arrest or detain him. Tex. Penal Code Sec.

38.04.
44

At the guilt-innocence phase of the trial, the State failed to produce any

witness who identified Appellant as the driver of the alleged stolen pickup.

Investigator Shelley, Henderson County S.O., was the sole witness who identified

Appellant as “Joshua Calhoun” and as the person he arrested for this offense -- but

not the person who was driving the pickup, to-wit:

.... Q. [BY THE STATE] Now, the man that you arrested was named

Joshua Calhoun; is that correct?

A. That's correct.

Q. Do you see him present in the courtroom today?

A. I do.

Q. If you would point him out to the jury and identify an article of clothing

he is wearing.

A. He is sitting right here wearing a navy suit and has a full beard.

Q. Now, is there anything different as far as his facial hair? I think you said

it.

A. Yes.

Q. But you are still sure that's who you arrested that day; is that right?

A. Yes.

.... (8 RR 36)

The record is devoid of any ruling by the Court, or any other evidence, that

shows the person Shelley identified was, in fact, Appellant. From this record, it is

impossible to discern what person in the courtroom was identified.

On June 17, 2014 Deputy Clements met with Richard Atwood who advised

her his 2002 Black Dodge pickup was spotted in Tyler, Texas. She also testified

she spoke to him on June 18, 2014. (7 RR 62,72) Atwood told Clements that an

unknown person called him from the John Deere Tractor Store in Tyler, Texas,

stating Appellant was trying to pick up some tractors parts for Atwood, and that his
45

pickup was in the parking lot. Atwood told Clements he felt “Josh” was there

attempting to pick up the tractor parts Atwood ordered. (7 RR 63) Atwood said

“Josh” would be traveling south on 155 to take the parts back to Atwood’s ranch,

and, if so, he would think about not filing charges if the pickup was not damaged.

(7 RR 24-25) She then notified her partner, Deputy Gray with the information. (7

RR 64)

Gray and Clements were both driving marked units that day. (7 RR 26, 68)

They decided that Gray would park on 155 at Coffee City, and Clements would go

to County Road 4120. They also had the license number of the 2002 Black Dodge

pickup. (7 RR 23)

After approximately eight minutes, Gray observed the pickup. He followed

it about half a mile and passed Deputy Clements parked at County Road 4120.

Gray testified if the driver of the pickup was going to Atwood’s ranch, the driver

would have turned on 4120, but kept traveling southbound. (7 RR 25) At that

time, the only thing he could see was that the driver was a white male, alone. He

specifically stated he could not see what the driver was wearing. (7 RR 24) On

cross-examination, he stated the driver appeared to be wearing a white t-shirt -- but

that clearly was not his testimony. (7 RR 48) Clements testified all she saw was a

white male in the driver’s seat. (7 RR 64). State’s Exhibit No. 23 is a photograph
46

of Appellant in the patrol unit after being arrested on the same date. He is not

wearing a white t-shirt. (8 RR 29; 12 RR State Ex. 23)

Gray then activated his red and blue lights and followed the pickup for

another half mile. When they approached County Road 4222 going West from

155, he activated his siren. Gray and Clements turned on 4222 heading west, and

the pickup increased it speed and fled. He informed the dispatchers they were in

pursuit and followed the pickup about a quarter of a mile. He thought there was

one or maybe two other vehicles on the road. (7 RR 26)

According to Gray, it was a dangerous situation, and the other drivers had to

swerve. The indicator on his COBAN in-car video monitor showed he was

traveling 90 mph. At County Road 4224, the pickup turned left heading toward

Frankston, Texas. Gray radioed dispatch to advise Frankston to be on standby.

Clements had been behind Gray since he passed her earlier. They followed 4224

about a mile, and the pickup veered off the road, back onto the road, crossed a bar

ditch, and turned through a front yard. (7 RR 27; 12 RR State Ex. 6,7) There was

only minor damage to the yard, and the homeowner was not worried about it. (7

RR 51)

Gray advised Clements the pickup was turning around, at which time there

possibly could have been a collision between Clements and the pickup. Gray

followed the pickup on 4224 about a mile. As he approached a hay meadow with
47

an open metal gate, he saw a glimpse of the pickup on top of a hill. Gray and

Clements proceeded through the gate. (7 RR 28)

At that time, they lost sight of the pickup. Gray found fresh tire tracks and

followed them through the hay meadow into a wooded area to another hay meadow

and found the pickup in another wooded area. (7 RR 41; 12 RR State Ex. 8,9)

They did not see anyone inside or around the pickup. The front bumper was

damaged. (7 RR 43; 12 RR State Ex. 9) Investigator Shelley testified the damage

was caused during the pursuit, but there was no evidence of such. (8 RR 20) It

was a couple of minutes from the time they lost sight of the pickup until they

located. (7 RR 29) Clements testified she believed the entire pursuit was

approximately two to three miles, one direction. (7 RR 64) Due to the nature of

the pursuit and not knowing what to expect, both Gray and Clements exited with

their A-15 weapons. (7 RR 30, 47, 69) They had no knowledge about any

weapons in the pickup or on the suspect. (7 RR 30)

DPS, highway patrol, and Frankston P.D. were trying to locate Gray and

Clements and were dispatched to their location for backup. Chief Dan Parker was

first on the scene and directed Gray to return to the pickup in case the driver

returned. (7 RR 31) The license plate and pickup matched the description of

Atwood’s pickup. (7 RR 43)
48

Shelley was dispatched to the location of the pickup, and directed by the

Chief to search a section of County Road 4224 for the driver. He patrolled that

area for about an hour before seeing someone in the yard of a residence on 4224.

(8 RR 15) He was never given a clothing description of the driver. (8 RR 40)

Shelley testified he saw Appellant in the yard of a metal building home, and

that Appellant walked onto the porch and sat down. He found it suspicious,

because he passed that residence several times and had not seen any vehicles or

anyone in the yard. (8 RR 15) He testified Appellant “kind of” turned away from

the roadway “to conceal his face.” When Shelley turned into the next driveway,

Appellant ran toward the tree line into heavy brush, but surrendered himself and

fully complied when Shelley identified himself as an officer. (8 RR 16, 17)

Appellant identified himself as Joshua Calhoun and was arrested. (8 RR 18)

Shelley admitted he had no idea how long Appellant had been on the front

porch before Shelley saw him. (8 RR 41) Shelley’s testimony that he had not seen

any other vehicles which may have dropped off Appellant at that location is,

therefore, meaningless. Someone could easily have driven Appellant to the arrest

location from Whataburger prior to Shelley’s arrival, or perhaps via a different

route.

After Appellant’s arrest, Shelley returned to the location where they were

processing the pickup. (8 RR 19) In the pickup, they found a check made payable
49

to Appellant from the Henderson County Jail, receipts from Kroger in Palestine,

Texas, and Whataburger in Tyler, Texas, clothes, and two cowboy hats. (12 RR

Ex. 19, 20; 8 RR 16, 17, 24) Shelley obtained the videos from Whataburger and

Kroger, and both were published to the jury. (8 RR 26; 12 RR Ex. 20; 8 RR 25; 12

RR Ex. 19)

Exhibit No. 17, the Kroger receipt, shows the date of June 18, 2014 at 8:46

a.m. The Kroger video shows June 17, 2014. (8 RR 58-59) The State attempted

to explain this significant discrepancy by arguing: “So those technicalities about

whether or not a surveillance system has an hour or day wrong is trumped by the

fact that you have that receipt with the right date right there.” (8 RR 78) The

existence of a dated receipt is not evidence the video date is wrong. Appellant

could have gone to Kroger, a common grocery store, on June 17, 2014. At closing,

the State argued “people lie, circumstances don’t.” (8 RR 75) The circumstances

here are undisputed regarding the different dates. There was no evidence the items

listed on the Kroger receipt were found in the pickup or on Appellant.

Gray’s in-car video, State Ex. No. 1, was played for the jury without

objection. (7 RR 33) The video portrayed the entire pursuit showing speeds of 70,

72, and 83 mph on his COBAN. (7 RR 34) On cross-examination, Gray admitted

he did not know how the speed mechanism on his unit was calibrated, and that

when it showed 58 mph on the video when Gray was not moving that it could not
50

be correct. (7 RR 53, 55) Cements testified they reached 90 mph on a county

road, and that she felt her life was in danger. (7 RR 65) Clements’ in-car video

was offered by the State, admitted, but played for the jury by Appellant. (7 RR

67-68, 77)

Gray’s and Clements’ opinions were that the manner in which the pickup

was used, i.e. recklessly, constituted a deadly weapon. (7 RR 38, 66)

No witnesses testified they saw Appellant driving the pickup during the

pursuit, or exiting the pickup. Clements stated she never saw the driver exit the

pickup. (7 RR 80) Shelley also testified he never saw Appellant driving the

pickup during the pursuit. (8 RR 51, 58) Gray stated there was no one in the

pickup when he found it a couple of minutes after losing sight of it during the

pursuit. (7 RR 29)

Appellant was Atwood’s employee. (CR 108; 7 RR 44; 8 RR 51-52) There

was no evidence showing Atwood had not allowed Appellant to drive his pickup in

the past. If so, this would explain why Atwood was reluctant to press charges, and

why he did not want Appellant to go to prison.1(CR 106, 10 RR 93) It is a logical

conclusion Appellant’s personal items were in the pickup from previous times. It

would also explain why Appellant may have had a set of keys to the pickup--if the

keys were, in fact, those to the pickup.

1Mr. Attwood told the probation officer that Appellant was not a bad guy, makes bad decisions,

and he did not want him to spend 20 years in prison on his conscience.
51

There were two Whataburger receipts. One is dated June 18, 2014 at 10:49

a.m., the other at 10:47 a.m. (12 RR Ex. 16, 24) Exhibit No. 22 is a photograph

from the Whataburger video showing Appellant at the drive-through wearing what

appears to be a cowboy hat. (12 RR Exhibit 22)

Based on Shelley’s testimony, the State argued Appellant was the driver

during the pursuit, because he was seen at the Whataburger approximately 20

minutes prior to the pursuit driving the pickup. (8 RR 28, 29, 35) The license place

was not visible on the video, so it is unknown if it was the same pickup. (8 RR 28-

29)

The address of Appellant’s arrest was never identified. Shelley testified only

that it was on County Road 4224. (8 RR 15, 33) The maps the State exhibited to

the jury were not explained on the record and not admitted into evidence, therefore,

there is nothing for review. (8 RR 33)

It should also be noted the State argued Appellant was guilty, because of the

keys found on him when he was booked into the jail. Gray admitted he did not

know if they fit the pickup in question. (7 RR 43) This could easily have been

proven but was not. There was no evidence the keys in Appellant’s possession

were the keys to the pickup, or that they were not a second set, especially if

Atwood had allowed Appellant use of the pickup in the past.
52

The law does not require an in-court identification, and it is merely one

factor to consider in assessing the weight and credibility of a witness’s testimony.

Conyers v. State, 864 S.W.2d 739, 740 (Tex. App.—Houston [14th Dist.] 1993,

pet. ref’d). Identity can be proven by either direct or circumstantial evidence,

coupled with all reasonable inferences from that evidence. Hooper v. State, 214

S.W.3d 9, 16 (Tex. Crim. App. 2007)

Conyers was an aggravated robbery case. Although the complainant was

unable to identify the robber at trial, there was a positive identification of Conyers

by his employer from the in-store camera photos of the robbery. In Appellant’s

case, there was absolutely no identification of Appellant as the driver. The

Whataburger video did not show the license plate of the pickup Appellant was

driving.

In the majority of cases citing Conyers, the identification of the perpetrators

was proven by other witness identifications, DNA, photos, videos, codefendant

testimony, or fingerprints. None of which existed in Appellant’s case.

The facts of Camacho and Zuniga are closest to the facts here, but are easily

distinguishable. Camacho was a failure to stop and render aid case. Three

witnesses gave a detailed physical description of the driver (the driver of our

pickup was merely a “while male”); defendant’s truck was the same as the one

involved and stipulated to at trial; defendant lived near the scene; and, unlike
53

Appellant, witnesses saw defendant fleeing from the scene. No. 13-10-00369-CR

(Tex.App.-Corpus Christi 2011) (not designated for publication).

The facts of Zuniga involved a robbery. Again, witnesses identified the

defendant as one of the men in the subject car; the car was parked in defendant’s

driveway and was still warm; defendant was pretending to be asleep but was not

and was wearing the same clothes described by a witness. No. 01-09-00715-CR

(Tex.App.-Houston [1st Dist. 2011) (not designated for publication).

The State was required to prove that Appellant was the driver of the alleged

stolen pickup beyond a reasonable doubt. All persons are presumed to be innocent

and no person may be convicted of an offense unless each element of the offense is

proved beyond a reasonable doubt. The fact that he has been arrested, confined, or

indicted for, or otherwise charged with, the offense gives rise to no inference of

guilt at his trial. Texas Penal Code Sec. 2.01.

The State failed to produce any fingerprints, DNA, witnesses, photo lineups,

or any other evidence to prove Appellant evaded law enforcement in the pickup on

June 18, 2014. The identity of Appellant as the driver of the pickup is an element

of the charged offense and was not proven beyond a reasonable doubt, and the

verdict is contrary to the law and the facts. The conviction should be reversed and

a judgment of acquittal entered.
54

Issue Number Ten

The Court gave the following instruction to the jury pursuant to Geesa v.

State, 820 S.W.2d 154 (Tex.Crim.App.1991):

.... [1] The prosecution has the burden of proving the defendant

guilty and it must do so by proving each and every element of the

offense charged beyond a reasonable doubt and if it fails to do so,

you must acquit the defendant. [Geesa paragraph 2]

[2] It is not required that the prosecution prove guilt beyond all

possible doubt; it is required that the prosecution's proof exclude all

reasonable doubt concerning the defendant's guilt. [Geesa paragraph

3]

[3] A “reasonable doubt” is a doubt based on reason and common

sense after a careful and impartial consideration of all the evidence in

the case. It is the kind of doubt that would make a reasonable person

hesitate to act in the most important of his own affairs. [Geesa

paragraph 4]

[4] Proof beyond a reasonable doubt, therefore, must be proof of such

a convincing character that you would be willing to rely and act upon

it without hesitation in the most important of your own affairs. ....

[Geesa paragraph 5] [paragraph numbering added.]

(CR 87-88; 8 RR 68-69)

In 1991, the Court of Criminal Appeals held for the first time that trial courts

must define reasonable doubt in their jury charges, and included the required

language.2 In 2000, the Court reversed its decision:

2 [1] All persons are presumed to be innocent and no person may be convicted of an

offense unless each element of the offense is proved beyond a reasonable doubt. The fact

that a person has been arrested, confined, or indicted for, or otherwise charged with, the

offense gives rise to no inference of guilt at his trial. The law does not require a defendant

to prove his innocence or produce any evidence at all. The presumption of innocence
55

We specifically overrule that portion of Geesa which requires trial courts to

instruct juries on the definition of "beyond a reasonable doubt." We also

overrule Reyes. [938 S.W.2d 718 (Tex.Crim.App. 1996)] We find that the

better practice is to give no definition of reasonable doubt at all to the jury.

On the other hand, if both the State and the defense were to agree to give the

Geesa instruction to the jury, it would not constitute reversible error for the

trial court to acquiesce to their agreement. Paulson v. State, 28 S.W.3d 570

(Tex.Crim.App. 2000).

The Paulson Court further stated that its decision in Geesa requiring trial

courts to instruct juries on the definition of reasonable doubt was poorly reasoned.

Id. at 572. In conclusion, Paulson declared:

It is ill-advised for us to require trial courts to provide the jury with a

redundant, confusing, and logically-flawed definition when the Constitution

does not require it, no Texas statute mandates it, and over a hundred years of

pre- Geesa Texas precedent discourages it. Id. at 573. [Emphasis added.]

alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a

reasonable doubt of the defendant's guilt after a careful and impartial consideration of all

the evidence in the case.

[2] The prosecution has the burden of proving the defendant guilty and it must do so by

proving each and every element of the offense beyond a reasonable doubt, and if it fails

to do so, you must acquit the defendant.

[3] It is not required that the prosecution prove guilt beyond all possible doubt; it is

required that the prosecution's proof excludes all " reasonable doubt" concerning the

defendant's guilt. [CR 88]

[4] A " reasonable doubt" is a doubt based on reason and common sense after a careful

and impartial consideration of all the evidence in the case. It is the kind of doubt that

would make a reasonable person hesitate to act in the most important of his own affairs.

[CR 88]

[5] Proof beyond a reasonable doubt, therefore, must be proof of such a convincing

character that you would be willing to rely and act upon it without hesitation in the most

important of your own affairs. [CR 88]

[6] In the event you have a reasonable doubt as to the defendant's guilt after considering

all the evidence before you and these instructions, you will acquit him and say by your

verdict " Not guilty." Geesa, supra. [Paragraph numbering added.]
56

The record shows that Appellant did not object to the submission of the

Geesa definition. The absence of an objection is not tantamount to mutual

agreement to include the definition. In Vosberg v. State, 80 S.W.3d 320 (Tex.App.

-Fort Worth 2002), the Court stated that generally, to preserve error, a party must

object. TEX.R.APP. P. 33.1(a). The Court of Criminal Appeals carved out an

exception to this general rule for jury charge error in Almanza v. State. 686 S.W.2d

157 (Tex.Crim.App.1985) (op. on reh'g) holding that if the defendant does not

object to error in the jury charge, to complain about it on appeal he must show the

error was fundamental. Id. at 171. Fundamental error in the jury charge is error that

is so egregious and causes such harm as to deprive the accused of a fair and

impartial trial. Id.

In Bluitt v. State, 70 S.W.3d 901, 905-06 (Tex.App.--Fort Worth, 2002, no

pet.), an affirmative waiver in the context of jury charge error was reexamined.

That Court held the Almanza egregious harm test is applicable to both unobjected

to jury charge error and affirmatively waived jury charge error where the error

complained of constitutes the law applicable to the case.' " Id. at 906.

The Vosberg Court found that Appellant's argument regarding whether

reasonable doubt should be defined in a jury charge addressed the law applicable to

the case; therefore, Almanza's egregious harm analysis was applicable despite
57

Appellant's affirmative waiver of error, if any. Vosberg, supra at 322. The

Court held the trial court did not err in submitting the instruction on reasonable

doubt, but the Vosberg instruction included only paragraph three. Appellant’s jury

charge included Geesa paragraphs both three and four.3

In Matthews v. State, 02-14-00428-CR (Tex.App. - Fort Worth 2015), the

Vosberg Court explained its decision regarding Geesa’s paragraph three:

In Vosberg, we held that the trial court did not commit error in giving that

instruction. We did not hold, and we do not now hold that giving such an

instruction is a wise thing for trial courts to do. But, under existing law and

on this record, we must hold that it was not error to give the charge in this

case.

.....

Nevertheless, this court has held that instructing the jury what the term

"reasonable doubt" does not mean is not providing a definition of what the

term does mean.

Paragraphs three and four in Appellant’s Charge actually define reasonable

doubt and have been disapproved by the courts:

In Adkins v. State, 418 S.W.3d 856 (Tex.App. - Houston [14th Dist.] 2013),

the issue was only the first sentence of paragraph four which was found to be error.

Id. at 864. This finding was based upon three reasons. First, the Paulson Court

3 [3] It is not required that the prosecution prove guilt beyond all possible doubt; it is required

that the prosecution's proof excludes all " reasonable doubt" concerning the defendant's guilt.

[CR 88]

[4] A " reasonable doubt" is a doubt based on reason and common sense after a careful and

impartial consideration of all the evidence in the case. It is the kind of doubt that would make a

reasonable person hesitate to act in the most important of his own affairs. [CR 88]
58

singled out paragraphs four and five definitions of reasonable doubt for criticism.

Paulson, 28 S.W.3d at 572. Secondly, relying on Woods v. State, 152 S.W.3d 105

(Tex.Crim.App. 2004, en banc):

.... In response, the Court said, " We specifically criticized paragraphs [4]

and [5] of the Geesa instruction.... The instruction in the instant case did not

contain these paragraphs. The trial court did not abuse its discretion by

including paragraph [3] ... in the jury charge...." Id. The Woods Court held

that submitting Paragraph [3] was not error and implied that submitting

Paragraphs [1], [2], and [6] would not be error. By inference, the Court

strongly suggested that submitting Paragraphs [4] and [5] in their entirety

would constitute error.

The third reason was that the Paulson court strongly implied that it would be

error if the court submitted the Geesa instruction without the mutual agreement of

the defendant and the State. Furthermore, the Court stated it had found no binding

authority holding that the inclusion of paragraph four was not erroneous, and

concluded it was error for the trial court to submit the first sentence of Paragraph

four to the jury. Id. at 866.

After a harm analysis, the Court found the error harmless, because: (a)

there was overwhelming evidence of defendant’s guilt; (b) during voir dire, the

State described " reasonable doubt" to the potential jurors as " the highest standard

we have in our legal system" and made clear that the State bears the burden of

proving guilt beyond a reasonable doubt; the trial judge also discussed reasonable

doubt, specifically stating that the term does not mean " beyond all doubt" or "

beyond a shadow of a doubt;" and (c) the remainder of the jury charge was proper
59

stating: “ The challenged instruction in this case occupies only one sentence in a

three-page jury charge.” Id. at 866.

In Appellant’s case, the evidence was mainly circumstantial and did not rise

to being “overwhelming.” Appellant was never identified as the driver.

During voir dire, the State told the panel “. . . .[Y]ou know the fancy CSI

language ‘beyond the shadow of a doubt,’ like in a Scorsese script, or ‘all doubt.’

It’s ‘beyond a reasonable doubt,’ any doubt you have that’s reasonable.” (6 RR

66) In opening statement, the State said: “. . . . . We often talk in jury selection

why it's beyond a reasonable doubt, not beyond all doubt. That's because you

would have to be a witness.” (7 RR 14) The State never explained to the panel it

was the highest standard of proof.

The trial court told the panel: “The burden of proof in this case rests solely

on the State of Texas throughout the trial. Never, at any time, does it shift to the

defendant. The State of Texas must prove each and every element of the offense

beyond a reasonable doubt.” (6 RR 41)

“Beyond a reasonable doubt” should be defined only in the minds of the

jurors. Instructing a jury that it is based on the “kind of doubt that would make a

reasonable person hesitate to act in the most important of his own affairs” lessens

the State’s burden. Everyone reacts differently to something “most important” in

their lives. Their verdict is not the most important thing in their lives--it is the
60

most important thing in the defendant’s life. Although Courts have been reluctant

to reverse cases where Geesa charges are included, they have been clear that it is

the better practice not to include it and have been critical of courts that do so. Trial

courts and prosecutors should ensure a fair trial by not including such

inappropriate language in its jury charges. There is no more egregious harm than

to allow the jury to be told how to decide the fate of an accused which constitutes a

clear invasion of the province of the jury.

The “most important of your own affairs” could mean where to vacation for

one juror and open heart surgery to another. This is why the Court reversed itself.

“Reasonable doubt” is to be defined by the individual juror. The “vacation juror”

would decide the case with a lesser standard than the “open heart” juror.

Appellant’s jury should have been allowed to decide his case by using its own

definition of beyond a reasonable doubt. The conviction should be reversed and

the case remanded to the trial court.

Issue Number Eleven

A trial court’s denial of a mistrial is reviewed under an abuse of discretion

standard. A momentary, inadvertent, and fortuitous encounter between a juror and

a shackled defendant away from the courtroom does not necessarily call for

mistrial or reversal. Kelly v. State, 841 S.W.2d 917 (Tex.App. - Corpus Christi

1992).
61

On the second day of trial, the following exchange occurred between

Appellant and the Court:

THE DEFENDANT:I would like to make a statement that this

morning, during the process of me being brought over here, I was

held out front with three jurors that came by and witnessed me in

the back of the police car. The last three jurors, two females and

a male.

. . . .

THE COURT: So you think that three people saw you, what, in the

back of a car or a Tahoe?

. . . .

THE COURT: A Tahoe or a car?

. . . .

THE DEFENDANT: No, sir, a car with no tint on it.

THE COURT: Well, see, if I ask the jury about it, then they

know that you are in custody and they know that you were

brought over here in a sheriff's vehicle.

THE DEFENDANT: That's why I brought it up to you without

them present, sir.

THE COURT: It's possible that they were not really even

looking at you. It's possible, if they looked at you, they didn't

realize it was you. And I think that the best thing to do is to just

let it lie and, you know, we talked yesterday about ...

. . . .

THE DEFENDANT: I would like to make an oral motion of a

mistrial based on those facts.

. . . .

THE COURT: Okay. The motion is denied. State ready for the

jury?

(8 RR 10)

Appellant properly alerted the Court to the situation, but the Court did not

allow the jurors to be questioned and advised Appellant it would be unwise. As
62

stated in Kelly, Appellant was placed in the awkward position of having to choose

either to reveal his dilemma to the jurors, which might not have seen him, or

waiver error if the jurors did. Id. at 920. It was not necessary for the Court to

inquire if a juror had actually seen Appellant being transported. A simple question

such as “did you see the defendant this morning before trial any place other than

the courtroom, and if so, did that prejudice you against the defendant?” would have

sufficed. Appellant, however, was denied the opportunity to obtain this

information. It is now unknown whether or not any jurors actually saw Appellant

in the marked vehicle, and if so, whether or not it deprived Appellant of a fair trial

as guaranteed by both the Texas and U. S. Constitutions. U.S. Const. amend. XIV;

Tex. Const. art. I, sec.10. The trial court’s failure to inquire as to whether the

jurors had seen Appellant was error and the conviction should be reversed and the

case remanded to the trial court.

PRAYER

WHEREFORE, Appellant prays that this Court: urging this Court to: (a)

reverse Appellant’s conviction and render an acquittal; or, in the alternative (b)

remand the case to the trial court for a new trial on punishment; or, in the

alternative (c) reverse Appellant’s conviction and remand the case to the trial court

for a new trial; or, in the alternative (d) reform the Judgment to reflect a conviction
63

for the misdemeanor offense of Evading Arrest and remand to the trial court for a

new trial on punishment

Respectfully submitted,

/s/ Leslie Poynter Dixon

LESLIE POYNTER DIXON

Attorney at Law

P.O. Box 636

Edgewood, Texas 75117

State Bar No. 08327050

(903) 896-7649

FAX (903) 896-7686

ATTORNEY FOR APPELLANT

STATEMENT REGARDING ORAL ARGUMENT

Appellant respectfully requests oral argument in this case.

/s/ Leslie Poynter Dixon

LESLIE POYNTER DIXON
64

CERTIFICATE OF SERVICE

I do hereby certify that on August 3, 2015, a true copy of the Appellant’s

Brief will be served on the following parties by U.S. Mail or by e-service, if

available.

APPELLANT: PAUL JOSHUA CALHOUN

TDCJ # 01985495

Goodman Unit

349 Private Road 8430

Jasper, Texas 75951

ATTORNEY FOR THE STATE:

Nancy McKinney Rumar

Assistant District Attorney

Henderson County, Texas

/s/ Leslie Poynter Dixon

LESLIE POYNTER DIXON

CERTIFICATE OF COMPLIANCE WITH RULE 9.4

Using Microsoft Word word count utility, I have determined that this

document contains 12,076 words, not including the “caption, identity of parties and

counsel, statement regarding oral argument, table of contents, index of authorities,

statement of the case, statement of issues presented, statement of jurisdiction,

statement of procedural history, signature, proof of service, certification, certificate

of compliance, and appendix.”

/s/ Leslie Poynter Dixon

LESLIE POYNTER DIXON