Juan Medina v. State ( 2015 )

ACCEPTED
13-14-00709-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
4/14/2015 9:59:45 PM
DORIAN RAMIREZ
CLERK
COURT OF APPEALS
13th SUPREME JUDICIAL DISTRICT OF RECEIVED
TEXAS IN
13th COURT OF APPEALS
FILED CORPUS CHRISTI/EDINBURG, TEXAS
IN THE 13TH COURT OF APPEALS
CORPUS CHRISTI, TEXAS 4/14/2015 9:59:45 PM
CORPUS CHRISTI
DORIAN E. RAMIREZ
04/14/15 CASE NO. 13-14-00709-CR Clerk
DORIAN E. RAMIREZ, CLERK
BY DTello Tr.Ct.No. 13-CR-2682-D(S1)
_______________________________________________________
JUAN MEDINA APPELLANT
VS.
THE STATE OF TEXAS APPELLEE
_______________________________________________________
Appealed from the 105th Judicial District Court
Nueces County, Texas
_______________________________________________________
APPELLANT'S BRIEF
_______________________________________________________
RANDALL E. PRETZER, PLLC
State Bar No. 16279300
P.O. Box 18993
Corpus Christi, Texas 78480
BUS: (361) 883-0499
FAX: (361) 883-2290
E-Mail: RPretzer@Clearwire.net
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
JUDGE PRESIDING
THE HONORABLE ANGELICA HERNANDEZ
105H JUDICIAL DISTRICT COURT
901 LEOPARD STREET
CORPUS CHRISTI, TEXAS 78401
COUNSEL FOR THE STATE
MS. MICHELLE PUTMAN
ASSISTANT DISTRICT ATTORNEY
901 LEOPARD STREET
CORPUS CHRISTI, TEXAS 78401
APPELLANT
MR. JUAN MEDINA
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
APPELLANT'S COUNSEL
MR. RANDALL E. PRETZER, PLLC
ATTORNEY FOR APPELLANT
P.O. BOX 18993
CORPUS CHRISTI, TEXAS 78480
i
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . ii-iii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE . . . . . . . . . . . . . . 1-3
STATEMENT OF FACTS . . . . . . . . . . . . . . . . 3-15
FIRST SUMMARY OF THE ARGUMENT . . . . . . . . . . 16
FIRST POINT OF ERROR . . . . . . . . . . . . . . . 16
FIRST POINT OF ERROR
THE EVIDENCE INTRODUCED AT TRIAL WAS FACTUALLY AND
LEGALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION
IN COUNT ONE (1) AGGRAVATED ASSAULT ON A PUBLIC
SERVANT, IN COUNTS (2) AND (3) ASSAULT ON A PUBLIC
SERVANT, ALL IN VIOLATION OF THE DUE PROCESS CLAUSE OF
THE 5TH AND 14TH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
ii
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . 16-22
SECOND SUMMARY OF THE ARGUMENT . . . . . . . . . 22
SECOND POINT OF ERROR . . . . . . . . . . . . . . 22-23
SECOND POINT OF ERROR
THE TRIAL COURT ERRED WHEN IT FAILED TO FIND, SUA
SPONTE, THAT THE POLICE OFFICERS UNLAWFULLY DISCHARGED
THEIR OFFICIAL DUTIES AS PUBLIC SERVANTS, SUCH ERROR
DEPRIVING APPELLANT OF BEING SENTENCED UNDER LESSER
INCLUDED OFFENSES OF SIMPLE ASSAULT, ALL IN VIOLATION
OF THE DUE PROCESS CLAUSE OF THE 5TH AND 14TH AMENDMENTS
TO THE UNITED STATES CONSTITUTION.
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . 23-27
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . 27-28
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 28
CERTIFICATE OF COMPLIANCE, RULE 9.4(i), T.R.A.P. 28
iii
INDEX OF AUTHORITIES
Cases: Page
Hightower v. State, 389 S.W.2d 674 (Tex.Crim.
App.1965) . . . . . . . . . . . . . . . . . . . . 17
Crocker v. State, 573 S.W.2d 190 (Tex.Crim.App.1978) 17
Moore v. State, 531 S.W.2d 140 (Tex.Crim.App.1978. 17
Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984) 17
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61
L. Ed. 2d 560 (1979) . . . . . . . . . . . . . . . . 17
Girard v. State, 631 S.W.2d. 162, (Tex.Crim.App.
[Panel Op] 1982) . . . . . . . . . . . . . . . . . 17
Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1985). 18
Hall v. State, 158 S.W.3d, 470, 471 (Tex.Crim.App.).
2005) . . . . . . . . . . . . . . . . . . . . . . . 23
iv
COURT OF APPEALS
13th SUPREME JUDICIAL DISTRICT OF TEXAS
CORPUS CHRISTI, TEXAS
CASE NO. 13-14-00709-CR
Tr.Ct.No. 13-CR-2682-C(S1)
_______________________________________________________
JUAN MEDINA APPELLANT
VS.
THE STATE OF TEXAS APPELLEE
_______________________________________________________
Appealed from the 105th Judicial District Court
Nueces County, Texas
_______________________________________________________
APPELLANT'S BRIEF
_______________________________________________________
TO THE HONORABLE 13th COURT OF APPEALS:
STATEMENT OF THE CASE
On July 1, 2014, the Appellant waived his right to a
jury trial and proceeded to try his case before the judge
alone. (RR, Vol. 2, page 12). On July 1, 2014 the
Appellant pled NOT guilty to one count of Aggravated
Assault on a Public Servant, a first decree felony
1
(Repeat Felony Offender, enhanced and punishable to no
less than fifteen years and up to 99 years or life), and
NOT guilty to two counts of Assault on a Public Servant,
each a third decree felony (Repeat Felony Offender,
enhanced and punishable as a second degree felony), under
Cause No. 13-CR-2682-D(S1), entitled The State of Texas
v. Juan Medina. (RR, Vol. 3, pp. 14-17). Subsequently,
the state presented to the judge its evidence through
testimony and exhibits. Appellant presented to the judge
his evidence through testimony. Thereafter, the state
and Appellant rested. On July 9, 2014, after
deliberation, the judge found Appellant of guilty of all
counts under the indictment. (RR, Vol. 4, pp. 5-12). On
September 3, 2014, the court again convened to hear
evidence during the punishment phase of this trial. The
state submitted to the court documentation of Appellant’s
previous felony and misdemeanor convictions. Thereafter,
the state rested and closed, and presented argument to
the court regarding sentencing. The Appellant presented
his evidence through witnesses’ testimony. Thereafter,
2
Appellant rested and closed, and presented argument
regarding sentencing. The court then sentenced Appellant
as follows: to fifteen (15) years in prison, under count
one, for the offense of Aggravated Assault on a Public
Servant; and, to three (3) years in prison, for each the
remaining counts, two and three, for the offenses of
Assault on a Public Servant. All sentences for each count
would run concurrently. (RR, Vol. 4, pp. 5-34).
On October 2, 2014, Appellant filed a Motion for New
Trial and Arrest of Judgment. (CR, Vol. 1, page 121).
Appellant perfected his appeal by filing with the
District Clerk of Nueces County, Texas, in writing his
Notice of Appeal, on November 26, 2014. (CR, Vol. 1, page
140).
STATEMENT OF FACTS
Again, On July 1, 2014, the Appellant waived his
right to a jury trial and proceeded to try his case before
the judge alone. (RR, Vol. 2, pp. 12). On July 1, 2014
the Appellant pled NOT guilty to one count of Aggravated
Assault on a Public Servant, a first decree felony
3
(Repeat Felony Offender, enhanced and punishable to no
less than fifteen years and up to 99 years or life), and
NOT guilty to two counts of Assault on a Public Servant,
each a third decree felony (Repeat Felony Offender,
enhanced and punishable as a second degree felony), under
Cause No. 13-CR-2682-D(S1), entitled The State of Texas
v. Juan Medina.
Subsequently, the state presented to the court its
evidence through testimony and exhibits.
The first witness called by the state was Sergeant
Edward A. Soliz, Corpus Christi Police Department (CCPD),
who being sworn, testified as follows: that on or about
August 13, 2013, he answered a call regarding a
disturbance at 2621 Elgin Street, Corpus Christi, Texas;
that his partner, Sergeant Gilbert Casas, had already
arrived at the scene of this disturbance and was talking
with the complainant, Juan Medina, the father of
Appellant; that the father informed the officers that
Appellant had just been released from a psychiatric
TRIAGE, that Appellant was trying to sell to his father
4
some of his medication, and that the father wanted
Appellant out of his house since he was in fear for his
life; that the father escorted the officers into the
house where they found Appellant sitting in a chair
(which was against the wall) in a small room about 20 by
20 feet in area; that the father preceded the officers
and sat down on a bed to the immediate right of where
Appellant was sitting; that Sergeant Soliz then initiated
a conversation with Appellant and informed him that his
father wanted him to leave his home; that Appellant
responded with some profanity directed at the officers
and then began to argue with his father regarding the
ownership of the medication; that at that time Sergeant
Soliz believed that the father might be in danger of his
person, so he asked Appellant to accompany the officers
outside the home; that Sergeant Soliz then moved in
between Appellant and his father and again asked him to
accompany the officers outside the home so that they
could talk about the situation; that Appellant, according
to Sergeant Soliz, then responded, ”Don’t touch me, if
5
you touch me I am going to kick your fucking ass”; that
Sergeant Soliz asked him several more times to leave with
the officers so they could talk about the situation; that
Appellant continued to curse at the officers and refused
to leave; that Sergeant Soliz then informed Appellant
that one of the officers would use the TASER if he did
not cooperate; that from Sergeant Soliz’s testimony it
appeared that the TASER failed; that Sergeant Soliz then
grabbed Appellant’s left arm in an effort to remove
Appellant from the home; that Appellant stiffened his
position in the chair (wherein he continued to sit); that
according to Sergeant Soliz, Appellant’s actions forced
him to attempt to pull Appellant’s left arm behind his
back; that Appellant struggled loose from Sergeant
Soliz’s grip and elbowed him several times; that such
action by Appellant’s elbow was painful; that during this
“elbowing” Sergeant Soliz heard his partner, Sergeant
Casa, ejaculate that Appellant had kicked him in the
testicular area; that Sergeant Soliz then grabbed
Appellant around his neck in an effort to subdue him;
6
that Appellant slipped out of the neck-hold; that
Sergeant Soliz again grabbed Appellant’s left arm with
both of his hands; that again Sergeant Soliz then lost
his grip on Appellant and that was when his arm was pulled
out of joint; that Sergeant Soliz heard the popping sound
regarding an injury to his right shoulder joint; that he
and Sergeant Casas then held Appellant down until back-
up police personnel arrive to assist in detaining and
transporting Appellant to the Nueces County jail; that
Sergeant Soliz was in his police officer’s uniform with
his badge displayed when this incident began; that
Sergeant Soliz as a result of this struggle had to undergo
surgery for his shoulder which had resulted in some
limitation of the movement of his right arm; that during
cross-examination by Appellant’s counsel, Sergeant Soliz
informed the court that there was no protocol that he
knew regarding interacting and, if necessary, arresting
a person with mental issues; that Appellant, while
sitting in the chair, never made any aggressive moves
toward anyone in the 20 by 20 foot room; that Appellant
7
did indeed put his hands behind his back while sitting
in the chair; that under cross-examination, Appellant was
deemed under arrest when he began to struggle with the
officers as they grabbed Appellant and warned him about
the possible use of the TASER; that until that time
Appellant, from the evidence, was just venting his anger
and frustration to all in this small room in his father’s
home; that Sergeant Soliz denied several times that he
ever pulled his service pistol on Appellant; that
Sergeant Soliz related that any injury he sustained
incurred after Appellant was deemed arrested; that
Appellant did not kick or pull his right arm out of joint;
and, that such injury occurred when the officers were
trying to lift Appellant out of the chair and take him
outside to talk. (RR, Vol. 2, pp. 23-73).
The next witness called by the state was Mrs. Rea
Strowbridge, physical therapist for Sergeant Soliz, who
being sworn, testified as follows: that in her opinion
Sergeant Soliz suffered serious bodily injury; that
though he suffered such serious bodily injury he was
8
still able to work as a policeman despite there being
was some limitation as to how high he could raise his
arm; and, that such limited mobility could be alleviated
by minor surgery to remove some bone tissue that would
press on muscle tissue when his arm was raised to a
certain height. (RR, Vol. 2, pp. 74-81).
The next witness called by the state was Sergeant
Gilbert Casas (CCPD), who being sworn, testified as
follows: that on the day of the incident he had arrived
at the house where Appellant was living with his father;
that Appellant’s father had informed him that Appellant
had just left the psychiatric TRIAGE; that his partner,
Sergeant Soliz also arrived at this residence about the
same time; that Appellant’s father related to the
officers that he and Appellant were in an argument about
his not buying drugs from Appellant; that Sergeant Casa
entered the home and went to the room where Appellant was
sitting in a chair; that Appellant was angry, very
agitated, and had made threats to beat on Sergeant Soliz;
that he then decided that Appellant should be removed
9
from the home and taken outside so that the officers
could talk to him; that since the threats continued, he
and Sergeant Soliz decided to take Appellant into
custody; that Sergeant Casas was on Appellant’s right-
side and Sergeant Soliz was on his left-side; that
Appellant then put his hands behind his back and crossed
his legs; that a struggle ensued wherein Sergeant Soliz
injured his right-shoulder and that he, Sergeant Casas,
was kicked in the groin; that both officers held him down
until back-up police personnel arrived to assist them
with the arrest and transport of Appellant to the Nueces
County jail; that under cross-examination by Appellant’s
counsel, Sergeant Casas related that it was after
Appellant had kicked him in the groin that he attempted
to deploy his TASER, but it failed; that his reason for
detaining Appellant in the first place was to deal with
Appellant’s wanting to sell his medication and his
father’s refusal to return Appellant’s medication to
Appellant; and, that the detention devolved into an
10
arrest when Appellant allegedly became combative and
verbally abusive. (RR, Vol. 2, pp. 82-108).
Thereafter, the state called Senior Officer George
Alvarez (CCPD), who being sworn, testified as follows:
that on the day of the incident he came to the scene of
the confrontation with Appellant as back-up for Sergeants
Soliz and Casas; that during the struggle he managed to
get Appellant in a head-lock so that he could be
handcuffed; that he witnessed Appellant struggling with
the other policemen, all of whom were yelling and
struggling with each other; that Appellant did yell at
Senior Officer Alvarez complaining that he was choking
him; that Appellant was very strong; and, that shortly
thereafter other officers arrived who placed Appellant
in a police vehicle and transported him to the Nueces
County jail. (RR, Vol. 2, pp. 109-123).
At that time the state rested.
Appellant called one witness, Robert Jonathan
Medina, during the merits of the case, who being sworn,
testified as follows: that on that day, he was in the
11
room where Appellant had the confrontation with the
police officers; that he saw the two officers when they
first arrived and approached Appellant and his father,
Juan Medina; that Appellant was sitting at all times in
the chair (which later evolved into a love seat); that
he had left the room briefly and when he returned he
noticed that the older policeman (Sergeant Edward Soliz)
was very angry; that Appellant had not made any
threatening movements towards the policemen; that
suddenly the two policemen approached Appellant and began
to struggle with him; that he saw Appellant put his arms
behind his back and cross his legs; that he saw the same
older policeman (Sergeant Edward Soliz) pull his service
pistol and point it at Appellant’s abdomen; that the
younger officer (Sergeant Gilbert Casas) then attempted
to deploy his TASER, but it failed; that he then shouted
at the police that the use of a gun was not necessary;
that the two officers then grabbed Appellant again and
fell on him, all the while he was still on this love
seat; that when the other officers arrived they subdued
12
Appellant and removed him from the house; that when he
was interviewed by the investigating officer for this
case, he did indeed tell him about the older policeman
(Sergeant Edward Soliz) pointing his service pistol at
Appellant’s abdomen; that it was his opinion that there
was no way that Appellant could have elbowed or kicked
anyone due to his being pressed down onto this love seat;
that furthermore there were too many policemen and there
was too little wiggle room for Appellant to do much of
anything; that during cross-examination by the state the
witness was familiar with Appellant’s having just
returned from the psychiatric TRIAGE; that it was his
understanding that Appellant had problems with
schizophrenia; that it appeared to him that Appellant was
not feeling very well due to the medication which he had
received at the hospital; that he did recall Appellant
using the “F-word” in the presence of the police; that
he did not recall Appellant ever threatening to
physically harm anyone; and, that even Appellant’s father
13
became upset with the police for their overreacting to
the Appellant’s demeanor. (RR, Vol. 2, pp. 142-177).
Due to confliction testimony regarding the alleged
us of Sergeant Soliz’s service pistol, the court
requested that the state bring forth for examination the
police officer who prepared the written offense report.
The state related to the court that the officer who
prepared this written offense report was Detective Ramiro
Torres. Thereafter, Detective Torres was summoned to
appear before the court.
Detective Torres, who being sworn testified as
follows: that he prepared the written offense report in
this particular case involving Appellant; that he
interviewed several witnesses, including Robert Medina;
that he recalled that Robert Medina did relate to him
that the older officer (Sergeant Edward Soliz) had
allegedly pulled his service pistol and pointed it at
Appellant’s abdomen; that Detective Torres however did
NOT include this statement from Robert Medina because he
did not think that he was a CREDIBLE witness; that he
14
contended that his reasoning for not including Robert
Medina’s observations regarding Sergeant Soliz’s drawing
his service pistol was that none of the other witnesses
he interview mentioned this pistol; that though the
“recorded statement” contained Robert Medina’s pistol
observations, it was not included in the narrative
statement since such statement was more of a summary and
NOT a detailed account of the incident; that he felt
Robert Medina was “. . . not believable, in my opinion”
[RR, Vol. 2, page 183]; that during cross-examination by
Appellant’s counsel, Detective Torres had a difficult
time determining the credibility of Sergeants Soliz and
Casas due to their inconsistent statements regarding the
attempted use of the TASER, the possible inability of
Appellant kicking Sergeant Casas in the groin or
precipitating the injury to Sergeant Soliz’s shoulder.
(RR, Vol. 2, pp. 179-202).
The state rested and closed.
The defense rested and closed.
15
SUMMARY OF THE ARGUMENT
The state failed to offer sufficient evidence to
support the court’s finding that Appellant had, beyond a
reasonable doubt, committed any of the offenses set forth
in counts 1, 2 and 3 of the indictment, all in violation
of the 5th and 14th Amendments to the United States
Constitution.
FIRST POINT OF ERROR
THE EVIDENCE INTRODUCED AT TRIAL WAS FACTUALLY AND
LEGALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION
IN COUNT ONE (1) AGGRAVATED ASSAULT ON A PUBLIC
SERVANT, IN COUNTS (2) AND (3) ASSAULT ON A PUBLIC
SERVANT, ALL IN VIOLATION OF THE DUE PROCESS CLAUSE OF
THE 5TH AND 14TH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
ARGUMENT AND AUTHORITIES
Appellant contends that the evidence introduced
during the trial was insufficient to support his
conviction under any of the counts in the indictment.
16
The courts have held that the state always has the
burden to prove beyond a reasonable doubt that the
accused committed the criminal acts charged in the
indictment, Hightower v. State, 389 S.W.2d 674
(Tex.Crim.App.1965). Furthermore, the state being bound
by its allegations in the indictment must prove them
beyond a reasonable doubt. Crocker v. State, 573 S.W.2d
190 (Tex.Crim.App.1978); Moore v. State, 531 S.W.2d 140
(Tex.Crim.App.1978). The courts have held that in all
criminal cases regarding points of error for insufficient
evidence, the courts must examine the evidence in the
light most favorable to the verdict and determine whether
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Houston
v. State, 663 S.W.2d 455 (Tex Crim.App.1984); Jackson v.
Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979); Girard v. State, 631 S.W.2d. 162, (Tex.Crim.App.
[Panel Op] 1982). In addition, the courts have held that
this test for the sufficiency of the evidence would be
applied equally to direct and circumstantial evidence
17
cases. Wilson v. State, 654 S.W.2d 465
(Tex.Crim.App.1985).
In this particular case, this honorable Court of
Appeals should note the following:
1. That Appellant, prior to his being contacted by
the police officers, had just come home from a
hospital’s psychiatric TRIAGE;
2. That Appellant was on medication;
3. That Appellant appeared to be very agitated;
4. That Appellant appeared to be very angry;
5. That Appellant, other than using bad language, had
NOT made any aggressive moves toward the police or
his father;
6. That Appellant was the VICTIM, to say the least,
of heavy-handed management/conduct by the police
officers, who tried to use a TASER on Appellant and
who according to Robert Medina, un-holstered and
pointed a service pistol at Appellant’s abdomen;
18
7. That this pistol issue was FOR SOME REASON omitted
from the detective’s investigation report, which
could be seen as an effort by the authorities to
cover-up unacceptable and unprofessional police
conduct;
8. That Appellant appeared from the evidence to have
been lodged in the chair (or love seat) during this
confrontation with the police, with little ability
to inflict any injury on anyone, until he was
finally removed from his father’s home and taken
to the Nueces County jail;
9. That Appellant’s father had objected to the way
the police dealt with Appellant;
10. That the police made little effort to diffuse this
family argument, especially considering Appellant
had just been released from a psychiatric TRIAGE;
11. That the police admitted that they had no protocol
or procedures to deal with Appellant who they knew
had just returned from a psychiatric TRIAGE;
19
12. That the police never considered summoning EMS in
an effort to deal with this Appellant who appeared
still agitated, angry, on medication, and may not
have been rational nor in control of his mental
faculties;
13. That Sergeant Edward Soliz, as a senior police
officer, clearly appeared to be unable to control
his own emotional response to Appellant’s bad
language -- as if a seasoned officer had never
heard such language before or experienced similar
volatile incidents after over thirty-four years
with CCPD; and,
14. That even the court expressed its reservations
regarding the professionalism of the police
officer’s conduct – using such language, or words
to that effect, that the police officer’s conduct
was heavy-handed, if not excessive. (RR, Vol. 4,
pp. 57-62).
20
Accordingly, the state failed to meet its burden of
proof and the court should have found at least that there
was, as a matter of law and fact, insufficient evidence
to prove the elements of the offense of aggravated
assault on a public servant, and prove the elements of
assault on a public servant, since Sergeant Soliz who
appeared from the record to be ill-tempered, precipitated
a simple detention of Appellant into a police officer’s
brawl with this Appellant who had just left a psychiatric
TRIAGE. Furthermore, it is Appellant’s opinion that
Sergeant Casas’ injuries did not constitute bodily
injury, since he, according to the record, never sought
medical attention for the alleged kick in his groin nor
was there evidence that he was incapacitated from
continuing duties a police officer; and, regarding
Sergeant Soliz, his injury required minor surgery, and
it was more likely that his age and extended service as
policeman made an otherwise minor injury seem worse than
it ever actually was.
21
Your Honors, citizens should not be convicted by
inconclusive and ambiguous evidence, which does not meet
the very high burden of proof as set forth by the time
tested phrases “beyond a reasonable doubt,” or “to a
moral certainty.”
SUMARY OF THE SECOND ARGUMENT
The Appellant contends that the trial court should
have found that Appellant was guilty of the lesser
included offense of simple assault in each count, since
the evidence at trial clearly demonstrated that the
police had UNLAWFULLY discharged their official duties
as public officials
SECOND POINT OF ERROR
THE TRIAL COURT ERRED WHEN IT FAILED TO FIND, SUI
SPONTE, THAT THE POLICE OFFICERS UNLAWFULLY DISCHARGED
THEIR OFFICIAL DUTIES AS PUBLIC SERVANTS, SUCH ERROR
DEPRIVING APPELLANT OF BEING SENTENCED UNDER LESSER
INCLUDED OFFENSES OF SIMPLE ASSAULT, ALL IN VIOLATION
22
OF THE DUE PROCESS CLAUSE OF THE 5TH AND 14TH AMENDMENTS
TO THE UNITED STATES CONSTITUTION.
ARGUMENT AND AUTHORITIES
Again, Appellant will repeat those factors
previously set forth above, for this honorable Court of
Appeals that would support the factual and legal
conclusion that the trial court could have and should
have found, sui sponte, that the police officers
unlawfully discharged their duties as public officers
[See, Hall v. State, 158 S.W.3d 470, 471 (Tex.Crim.App.
2005)]. This case contended that trial courts could
permit an instruction to the jury permitting those same
jurors to find a defendant guilty of a lesser included
offense if there was “some evidence” that the same
defendant was guilty of such lesser included offense. In
Hall the Court of Criminal Appeals found that the
defendant had not offered evidence that the prison
officer’s conduct was unlawful during his effort to
restrain and subdue the Appellant in that case. However,
23
in this particular case, it is Appellant’s position that
the police officer’s conduct was excessive, heavy-handed
and without justification, again considering all the
following factors:
1. That Appellant, prior to his being contacted by
the police officers, had just come home from a
hospital’s psychiatric TRIAGE;
2. That Appellant was on medication;
3. That Appellant appeared to be very agitated;
4. That Appellant appeared to be very angry;
5. That Appellant, other than using bad language,
had NOT made any aggressive moves toward the
police or his father;
6. That Appellant was the VICTIM, to say the least,
of heavy-handed management/conduct by the police
officers, who tried to use a TASER on Appellant
and who according to Robert Medina, un-holstered
and pointed a service pistol at Appellant’s
abdomen;
24
7. That this pistol issue was FOR SOME REASON omitted
from the detective’s investigative report, which
could be seen as an effort by the authorities to
cover-up unacceptable and unprofessional police
conduct;
8. That Appellant appeared from the evidence to have
been lodged in the chair (or love seat) during
this confrontation with the police with little
ability to inflict any injury on anyone, until he
was finally removed from his father’s home and
taken to the Nueces County jail;
9. That Appellant’s father had objected to the way
the police dealt with Appellant;
10. That the police made little effort to diffuse
this family argument, especially considering
Appellant had just been released from a
psychiatric TRIAGE;
11. That the police admitted that they had no
protocol or procedures to deal with Appellant who
25
they knew had just returned from a psychiatric
TRIAGE;
12. That the police never considered summoning EMS
to attempt to deal with this Appellant who
appeared still agitated, angry, on medication,
and may not have been rational nor in control of
his mental faculties;
13. That Sergeant Edward Soliz, as a senior police
officer, clearly appeared to be unable to control
his own emotional response to Appellant’s bad
language -- as if a seasoned officer had never
heard such language before or experienced similar
volatile incidents after over thirty-four years
with CCPD; and,
14. That even the court expressed its reservations
regarding the professionalism of the police
officer’s conduct – using such language, or words
to that effect, that the police officer’s conduct
was heavy-handed, if not excessive. (RR, Vol. 4,
pp. 57-62).
26
The Appellant did indeed at trial present evidence
that clearly indicated that this simple detention turned
into an unnecessary police brawl with Appellant who
apparently had just been released from a psychiatric
TRIAGE, who was not stable, who was under medication, and
who should have been attended by EMS personnel and
returned to the hospital for further treatment.
PRAYER FOR RELIEF
For ALL the reasons stated above, Appellant
respectfully requests that the honorable Court of Appeals
reverse the trial court’s judgment, and render a finding
that Appellant is NOT guilty of all counts as set forth
in the indictment; or, in the alternative, reverse the
trial court’s judgment and render a judgment wherein
Appellant is found guilty of the lesser included offense
of simple assault in each count.
RESPECTFULLY SUBMITTED:
/S/ Randall E. Pretzer
Randall E. Pretzer, PLLC
Attorney for Appellant
27
State Bar No. 16279300
P.O. Box 18993
Corpus Christi, Texas 78480
BUS: (361) 883-0499
FAX: (361) 883-2290
E-Mail: RPretzer@Clearwire.net
CERTIFICATE OF SERVICE
I certify that a true and correct copy of Appellant’s
Brief was hand-delivered to the Nueces County District
Attorney’s Office, ATTN: Appellant Division, 901 Leopard
Street, Corpus Christi, Texas 78401, on April 6, 2015.
/S/ Randall E. Pretzer
Randall E. Pretzer, PLLC
Attorney for Appellant
CERTIFICATE OF COMPLIANCE
UNDER RULE 9.4 (i), TRAP
Please be advised that in compliance with Texas Rule
of Appellate Procedure 9.4(i)(3), as amended, I certify
that the number of words in this brief, excluding those
matters listed in Rule 94 (i)(1), is 4,202 as per the
computer count.
/S/ Randall E. Pretzer
Randall E. Pretzer, PLLC
Attorney for Appellant
28