NO. 06-15-00079-CR

IN THE COURT OF APPEALS 

SIXTH DISTRICT OF TEXAS 

AT TEXARKANA 

BOBBY JOE EVENS, 

APPELLANT 

v.

THE STATE OF TEXAS, 

APPELLEE 

On Appeal from the 196th Judicial District Court 

Of Hunt County, Texas 

Trial Court Cause No. 27,388 

Honorable Andrew Bench, Judge Presiding 

APPELLANT’S BRIEF

 Elisha M. Hollis (SBN 24083189) 

 2608 Stonewall Street 

 P. O. Box 1535 

 Greenville, Texas 75403 

 Tel. (903)450-2473 

 Fax (903)200-1290 

 Email: ElishaHollis@gmail.com

 ORAL ARGUMENT NOT REQUESTED 

ACCEPTED

06-15-00079-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

7/10/2015 7:19:26 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 7/13/2015 8:02:00 AM DEBBIE AUTREY Clerk
2

IDENTITIES OF PARTIES AND COUNSEL

Appellant: Bobby Joe Evens

Defense Counsel at Trial: Mr. Chris Castanon

2000 E. Lamar Blvd.

Suite 600

Arlington, TX 76006

Appellant’s Attorney on Appeal: Mr. Elisha M. Hollis

2608 Stonewall Street

PO Box 1535

Greenville, TX 75403

Appellee’s Attorney at Trial: Ms. Keli Aiken

Assistant District Attorney

Hunt County District Attorney

2507 Lee Street, 4th Floor

Greenville, TX 75401

Appellee’s Attorney on Appeal: Ms. Keli Aiken

Assistant District Attorney

Hunt County District Attorney

2507 Lee Street, 4th Floor

Greenville, TX 75401

Trial Judge: Hon. Andrew Bench

196th Judicial District Court

2507 Lee Street, 3rd Floor

Greenville, TX 75401
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TABLE OF CONTENTS

Identities of the Parties and Counsel..........................................................................2

Table of Contents.......................................................................................................3

Index of Authorities...................................................................................................4

Statement of the Case.................................................................................................5

Issues Presented .........................................................................................................6

Statement of the Facts................................................................................................6

Issues and Authorities................................................................................................8

I. 38.14 Instruction ............................................................................................8

A. The State's witness Robert Lewis Smith, Jr. should have been

considered an accomplice to the Appellant.................................................8

B. The trial Court committed egregious harm by not giving an 

unrequested Art. 38.14 Instruction to the jury.........................................10

I. Insufficient evidence ....................................................................................13

A. The evidence was legally insufficient to support a finding of guilt by 

the jury because the accomplice testimony was not sufficiently

corroborated.................................................................................................13

Prayer .......................................................................................................................14

Certificate of Service ...............................................................................................15

Certificate of Compliance with Rule 9.4 .................................................................16
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INDEX OF AUTHORITIES

STATE CASES:

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)....................................12

Easter v. State, 536 S.W.2d 223 (Tex. Crim. App.1976)........................................10

Ferguson v. State, 573 S.W.2d 516 (Tex. Crim. App. 1978)....................................9

Granviel v. State, 552 S.W.2d 107 (Tex. Crim. App. 1976) ...................................11

Harris v. State, 645 S.W.2d 447, 457 (Tex. Crim. App. 1983)...............................9

Hinkle v. State, 442 S.W.2d 728 (Tex. Crim. App. 1969).......................................11

Holladay v. State, 709 S.W.2d 194, 196 (Tex. Crim. App. 1986)...........................11

Jackson v. Virginia, 443 U.S. 307 ...........................................................................14

Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988).................................12

Saunders v. State, 817 S.W.2d 688 (Tex. Crim. App., 1991)..................................12

Simmons v. State, 282 S.W.3d 504 (Tex. Crim. App. 2009)...................................14

Thomas v. State, 723 S.W.2d 696 (Tex. Crim. App. 1986).....................................12

Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005)............................15

Washington v. State, 127 S.W.3d 197 (Tex. App. Houston 2003)..........................15

STATE STATUTES:

Tex. Code Crim. Pro. Ann. Art. 38.14.....................................................................11
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NO. 06-15-00079-CR

IN THE COURT OF APPEALS

SIXTH DISTRICT OF TEXAS

AT TEXARKANA

BOBBY JOE EVENS,

APPELLANT

v.

THE STATE OF TEXAS,

APPELLEE

On Appeal from the 196th Judicial District Court

Of Hunt County, Texas

Trial Court Cause No. 27,388

Honorable Andrew Bench, Judge Presiding

APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

NOW COMES counsel for appellant and respectfully submits this brief 

pursuant to the rules of the Texas Rules of Appellate Procedure.

STATEMENT OF THE CASE

This is an appeal from the judgment and sentence in a criminal case in the 
6

196th District Court in Hunt County, Texas. The Appellant was indicted on May 

27, 2011 for Possession of a Controlled Substance, with Intent to Deliver, Namely: 

Cocaine, Four Grams or More but Less than Two Hundred Grams. After entering a 

plea of Not Guilty, Appellant elected to be tried and sentenced by a jury.

On April 09, 2015 the jury found Appellant guilty and made a finding of true 

to two or more enhancements. The jury assessed punishment at Life in the Texas 

Department of Criminal Justice – Institutional Division. Appellant filed a notice of 

appeal on May 05, 2015.

ISSUES PRESENTED

ISSUE ONE: The trial court cause egregious harm to the Appellant by not issuing 

an Art. 38.14 instruction to the jury.

ISSUE TWO: The evidence presented in this case was legally insufficient to 

support a conviction of the Appellant.

STATEMENT OF FACTS

Appellant, BOBBY JOE EVENS (hereinafter, “Appellant”) was indicted on 

May 27, 2011 for Possession of a Controlled Substance, with Intent to Deliver, 

Namely: Cocaine, Four Grams or More but Less than Two Hundred Grams (CR 6-

7)

1

. Appellant entered a plea of Not Guilty on August 22, 2011 (CR 8), and elected 

 

1 References to the Clerk’s Record are designated as “CR #”, references to the Reporter’s Record 

are designated RR Vol. ___, page #: line #, and State and Defendant’s exhibits are designated SX 

and DX, respectively). 
7

to be tried and sentenced by a jury on April 06, 2015. (RR vol. 4, 5:18-23).

On April 07, 2015, trial on the merits began. (RR vol. 5, 1:1-25). The state, 

attempting to show that the Appellant delivered a controlled substance to Robert 

Lewis Smith, Jr. on November 09, 2010, called Investigator Warren Mitchell. (RR 

vol. 5, 32:25). Investigator Mitchell testified that he had followed the Appellant to 

the NAT 24 gas station where he witnessed the Appellant meet with Robert Lewis 

Smith, Jr. in what he believed to be a drug transaction. (RR vol. 5, 37:3-38:16). 

The state then called Mr. Robert Lewis Smith, Jr. to testify. (RR vol. 5, 71:3-

4). Mr. Smith testified that he had met the Appellant at the NAT 24 gas station in 

Greenville, Texas on November 09, 2010 in order to purchase crack cocaine from 

the Appellant. (RR vol. 5, 72:18-23; 73:18-22). He stated that his plan in buying 

drugs from the Appellant was to sale half of it in another county. (RR vol. 5, 

81:14-25). He further stated that he paid the Appellant with 10 $20 bills. (RR vol. 

5, 75:15-23).

After calling Mr. Smith, the state called Jason Whitten. (RR vol. 5, 112:8-9). 

Mr. Whitten testified that on November 09, 2010 he was with two other 

investigators in Greenville, Texas, who were going to show him the Appellant's 

truck and residence. (RR vol. 5, 114:3-17). On their way they passed the Appellant 

and followed him to the NAT 24 gas station. (RR vol. 5, 114:18-20). Mr. Whitten 

testified that they watched Mr. Smith get into the Appellant's truck for a few 
8

minutes and then exit the vehicle. (RR vol. 5, 115:5-10). It was Mr. Whitten's 

belief that a drug deal occurred in that brief meeting between Mr. Smith and the 

Appellant. (RR vol. 5, 115:17-20).

The State also called Officer Will Cole. (RR vol. 5, 131:19-20). Officer Cole 

testified that on the day of the alleged event he conducted a traffic stop on the 

Appellant immediately after the Appellant left the NAT 24 gas station. (RR vol. 5, 

124:13-21). He stated that after stopping the Appellant, he conducted a search 

incident to arrest and discovered $1,030 in cash (RR vol. 5, 135:2-13). Included in 

this cash was at least 10 $20 bills. (RR vol. 5, 136:19-22)(SX 23-26). 

The state also introduced several exhibits including SX 22 in which the 

Appellant admitted to dealing drugs in Greenville, Texas between February 2010 

and September 2011. At the end of the trial, and upon a finding of certain 

enhancement paragraphs, the jury sentenced the Appellant to Life in the Texas 

Department of Criminal Justice. (RR vol. 7, 41:13-15). 

ISSUES AND AUTHORITIES

I. 38.14 Instruction

A. The state's witness Robert Lewis Smith Jr. should have been considered 

an accomplice to the Appellant.

An accomplice is one who participated with another in a crime. Harris v. 

State, 645 S.W.2d 447, 457 (Tex. Crim. App. 1983); Ferguson v. State, 573 
9

S.W.2d 516, 523 (Tex. Crim. App. 1978). The benchmark for whether a person is 

an accomplice is whether they can be prosecuted for the same charges for which 

the defendant stands trial. Id.; Easter v. State, 536 S.W.2d 223, 227 (Tex. Crim.

App.1976).

In the present case, the state relied on the testimony of Robert Lewis Smith 

Jr. to prove delivery of a controlled substance by the Appellant. (RR vol. 5, 71:3-

4). Mr. Smith testified that he had met with the Appellant on November 9, 2010, 

the day of the alleged offense, in order to "score some work." (RR vol. 5, 72:15-

19). When asked what he meant by "work" he responded that it meant drugs. (RR 

vol. 5, 72:20-21). He also said that his plan in buying drugs from the Appellant 

was to sale half of it in another county. (RR vol. 5, 81:14-25). Furthermore, the 

State introduced the interview between an investigator and Mr. Smith on the day 

he was arrested in which Mr. Smith stated that he was buying drugs from the 

Appellant and reselling them in Emory, Texas. (SX 4). 

Based on these facts, Mr. Smith should have been considered an accomplice, 

and any testimony he gave should have been considered accomplice testimony. 

The Appellant was indicted for manufacturing or delivering a controlled substance 

on November 9, 2015. Based on Mr. Smith's testimony of buying drugs from the 

Appellant that day with intent to sale the drugs to others (RR vol. 5, 81:14-25) and 

State's Exhibit 4, Mr. Smith could have been indicted on the same charges as the 
10

Appellant. Because Mr. Smith clearly participated with the Appellant in the crime 

as alleged, any testimony he gave should have been considered accomplice 

testimony.

B. The trial Court committed egregious harm by not giving an unrequested

Art. 38.14 Instruction to the jury.

In the present case, the Appellant did not and could not have gotten a fair trial 

without a proper jury instruction as to the accomplice testimony of Robert Lewis 

Smith, Jr. As shown above, Mr. Smith was an accomplice to the alleged acts of the 

Appellant. Accomplice testimony is inherently suspicious and is untrustworthy 

enough that a conviction should not rest solely on such testimony. Holladay v. 

State, 709 S.W.2d 194, 196 (Tex. Crim. App. 1986). The Texas legislature 

memorialized this truth through Article 38.14 of the Code of Criminal Procedure 

which states that "[a] conviction cannot be had upon the testimony of an 

accomplice unless corroborated by other evidence tending to connect the defendant 

with the offense committed; and the corroboration is not sufficient if it merely 

shows the commission of the offense." Tex. Code Crim. Pro. Ann. Art. 38.14. 

Generally, a defendant must timely object at trial to preserve error. Thomas v. 

State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986); Granviel v. State, 552 S.W.2d 

107, 121 (Tex. Crim. App. 1976), cert. denied 431 U.S. 933 (1977); Hinkle v. 

State, 442 S.W.2d 728, 732-33 (Tex. Crim. App. 1969). But, "if no proper 
11

objection was made at trial and the accused must claim that the error was 

'fundamental,' he will obtain a reversal only if the error is so egregious and created 

such harm that he 'has not had a fair and impartial trial'--in short 'egregious harm.' "

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1981) (op. on reh'g), 

superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 

787, 788 (Tex. Crim. App. 1988). Specifically, in the case of a necessary Art. 

38.14 instruction that was omitted without objection at trial, egregious harm occurs 

if "jurors would have found the corroborating evidence so unconvincing in fact as 

to render the State's overall case for conviction clearly and significantly less 

persuasive" without the accomplice testimony. Saunders v. State, 817 S.W.2d 688, 

692 (Tex. Crim. App., 1991). 

The jury in this case was asked to determine the guilt or innocence of the 

Appellant based mostly off of the testimony of Mr. Smith but with no instruction 

concerning accomplice testimony. This caused egregious harm to the Appellant. 

The state's non-accomplice evidence is weak on its own, and absent the accomplice 

testimony, would have made the state's case "significantly less persuasive." The 

state presented evidence that Appellant met with Robert Lewis Smith, Jr. at the 

NAT 24 (RR vol. 5, 37:3-38:16), that Appellant had $1,030.00 in cash on his 

person after meeting with Mr. Smith (RR vol. 5, 135:2-13), and that Robert Lewis 

Smith, Jr. had crack cocaine in his vehicle after meeting with the Appellant. The 
12

state also offered prior testimony of the Appellant through SX 22 admitting that he 

was dealing crack cocaine during that time period in Hunt county. 

This evidence, without the accomplice testimony, leaves the state's case

devoid of any evidence upon which a conviction could rest. Meeting Mr. Smith at 

a gas station and later finding drugs on him doesn't immediately infer that the 

drugs came from the Appellant. In fact, the defense presented a reason for the 

meeting between Mr. Smith and the Appellant in cross-examination of Mr. Smith 

when Mr. Smith was asked whether it was true that the Appellant met him that day 

to pick up a set of keys. (RR vol. 5, 84:23-85:3). Also, having $1,030 in cash on 

him after meeting with Mr. Smith does not infer that the Appellant sold Mr. Smith 

the crack cocaine. Any inference that the money must be from the sale of drugs is 

downplayed by the fact that the cost of the drugs in Mr. Smith's possession was 

only $200. (RR vol. 5, 42:11-12).

Finally, testifying that he has sold cocaine at some point in time does not tend 

to connect the Appellant as the dealer from whom Mr. Smith received his cocaine. 

If it did, then one might infer that the Appellant was the cocaine dealer for every 

person he came into contact with who was in possession of such a drug, something 

a reasonable juror would not do. Thus, egregious harm occurred to the Appellant in 

this case because the corroborating evidence was of such a nature that, without the 

accomplice testimony, the state's case against the Appellant was "significantly less 
13

persuasive."

II. Insufficient Evidence

A. The evidence was legally insufficient to support a finding of guilt by the 

jury because the accomplice testimony was not sufficiently corroborated.

In a criminal case, an appellant may raise legal sufficiency for the first time 

on appeal. Washington v. State, 127 S.W.3d 197 (Tex. App. Houston [1st Dist. ] 

2003, pet. Dism'd). When reviewing legal sufficiency of the evidence, a court 

must look at all of the evidence in the light most favorable to the verdict to 

determine whether any rational trier of fact could have found the essential elements 

of the offense were proven beyond a reasonable doubt. Jackson v. Virginia, 443 

U.S. 307, 319; Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005). In 

the context of an Art. 38.14 objection, the standard used to determine the 

sufficiency of corroborating evidence is "whether a rational fact-finder could 

conclude that the non-accomplice evidence 'tends to connect' appellant to the 

offense. Simmons v. State, 282 S.W.3d 504, 509 (Tex. Crim. App. 2009).

The state presented evidence through officer testimony that the Appellant 

was at the NAT 24 on November 9, 2010 and met with Robert Lewis Smith, Jr. 

there (RR vol. 5, 37:3-38:16), that Appellant had $1,030.00 in cash on his person 

after meeting with Mr. Smith (RR vol. 5, 135:2-13), and that Robert Lewis Smith, 

Jr. had crack cocaine in his vehicle after meeting with the Appellant. The state also 
14

offered evidence through SX 22 that Appellant was dealing crack cocaine during 

that time period in Hunt county.

Taken on its own, a rational juror would not find that this evidence tends to 

connect the Appellant to the offense in this case. Meeting at a gas station with Mr. 

Smith who was later found to have possession of drugs does not connect the 

Appellant to the crime of delivery of a controlled substance any more than anyone 

else who happened to meet with Mr. Smith on that day. Nor does finding $1,030 in 

cash on the Appellant tend to connect the Appellant to the offense given that 

testimony showed that the amount of drugs found on Mr. Smith was only worth 

about $200. (RR vol. 5, 42:11-12). Furthermore, even the fact that the Appellant 

sold drugs at other times is tenuous at best in showing that Appellant sold crack 

cocaine on this particular date. Thus, taking the non-accomplice testimony on its 

own, it does not tend to connect the Appellant to the offense, and is legally 

insufficient to corroborate the accomplice testimony in this case.

CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that his 

judgment in the above entitled and numbered cause be reversed and rendered. 

Appellant further prays for all other lawful relief to which he may be entitled, at 

law or in equity.

Respectfully submitted,
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By: /s/ Elisha Hollis

Elisha Hollis

The Law Office of Elisha Hollis

PO Box 1535

Greenville, Texas 75403 

903-450-2473 (ph)

903-200-1290 (fax)

ElishaHollis@gmail.com

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the Appellant’s Brief was sent by first 

class United States Mail, postage prepaid, to the Honorable Noble Walker, Hunt 

County District Attorney, P.O. Box 441, Greenville, Texas 75403-0441 on this the 

10th day of July, 2015. 

I further certify that a true and correct copy of Appellant’s Brief was sent by 

first class United States mail, postage prepaid to BOBBY JOE EVENS, TDJC #

1995944, Byrd Unit, 21 FM 247, Huntsville, TX 77320 on this the 10th day of 

July, 2015.

/s/ Elisha Hollis

Elisha Hollis
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CERTIFICATE OF COMPLIANCE WITH RULE 9.4

Pursuant to Texas Rule of Appellate Procedure 9.4, this certifies that this 

document complies with the type volume limitations because it is computer 

generated and does not exceed 15,000 words. Using the word count feature of 

Microsoft Word, the undersigned certifies that this document contains 2,083 words 

in the entire document, except in the following sections: caption, identities of 

parties and counsel, statement regarding oral argument, table of contents, index of 

authorities, statement of the case, statement of issues presented, signature, 

certificate of service and certificate of compliance. This document also complies 

with the typeface requirements as it has been prepared in a proportionally spaced 

typeface using Microsoft Word in 14-point Times New Roman. 

/s/ Elisha Hollis

Elisha Hollis
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