Dionysios Spiro Kosmetatos v. State ( 2015 )

ACCEPTED
01-15-00095-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/22/2015 11:08:56 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00095-CR
01-15-00094-CR
FILED IN
IN THE COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS 10/22/2015 11:08:56 PM
CHRISTOPHER A. PRINE
Clerk
DIONYSIOS SPIRO KOSMETATOS
Appellant
v.
THE STATE OF TEXAS
Appellee
On Appeal from Cause Number 1449194 & 1414418
From the 338th District Court of Harris County, Texas
BRIEF FOR THE APPELLANT
TONYA ROLLAND MCLAUGHLIN
TBN 24054176
4301 Yoakum Boulevard
Houston, Texas 77006
Phone: (713) 529-8500
Fax: (713) 456-2203
Counsel for Appellant
ORAL ARGUMENT RESPECTFULLY REQUESTED
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Dionysios Spiro Kosmetatos
TDC# 1976828
French M. Robertson Unit
12071 FM 3522
Abilene, Texas 79601
TRIAL PROSECUTORS: David Bernard
Beth Exley
Assistant District Attorneys
Harris County, Texas
1201 Franklin Avenue
Houston, Texas 77002
DEFENSE COUNSEL AT HEARING: Randall Ayers
P.O. Box 1569
Houston, Texas 77251
COUNSEL ON APPEAL FOR APPELLANT: Tonya Rolland McLaughlin
4301 Yoakum Boulevard
Houston, Texas 77006
PRESIDING JUDGE: Hon. Brock Thomas
338th District Court
Harris County, Texas
1201 Franklin Avenue
Houston, Texas 77002
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .................................................................. 2
TABLE OF CONTENTS .................................................................................................... 3
INDEX OF AUTHORITIES .............................................................................................. 4
STATEMENT OF THE CASE .......................................................................................... 5
STATEMENT REGARDING ORAL ARGUMENT .................................................... 6
ISSUE PRESENTED ........................................................................................................... 7
STATEMENT OF FACTS .................................................................................................. 7
SUMMARY OF THE ARGUMENT ................................................................................. 9
ARGUMENT ......................................................................................................................... 9
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS
EVIDENCE WHERE THE OFFICER’S TESTIMONY WAS INSUFFICIENT TO
SUPPORT THE FINDING THAT APPELLANT VERBALLY CONSENTED TO THE
SEARCH OF HIS VEHICLE
STANDARD OF REVIEW............................................................................................. 9
OFFICER SMITH’S TESTIMONY WAS COMPLETELY LACKING IN OBJECTIVE
FACTS THAT APPELLANT CONSENTED TO THE SEARCH. ................................... 10
PRAYER ............................................................................................................................... 14
CERTIFICATE OF SERVICE ......................................................................................... 14
CERTIFICATE OF COMPLIANCE .............................................................................. 15
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INDEX OF AUTHORITIES
Cases
Bumper v. North Carolina, 391 U.S. 543, 549, 88 S. Ct. 1788, 1792 (1968) . .............................. 10
Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).. ...................................................... 9
Flores v. State, 172 S.W.3d 742, 749 (Tex. App.—Houston [14th Dist.] 2005, no pet.).. .. 11, 12
Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). ............................................. 11, 13
Guevara v. State, 97 S.W.3d 579, 582 (Tex. Crim. App. 2003)... ..................................10, 12, 13
Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) .......................................................... 12
Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985)... ............................................... 12
Meekins v. State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011). .............................................. 10
Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000)... ........................................... 10, 11
Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). . .................................................. 9
Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008).. ............................................... 9
State v. Garcia, 2014 WL 4364623, *4 (Tex. App.—Austin, August 8, 2014, no pet. h.).. 12, 13
State v. Ibarra, 953 S.W.2d 242, 244-45 (Tex. Crim. App. 1997).. ........................................... 10
Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010)... ....................................... 9, 13
Constitutional Provisions, Statutes and Rules
U.S. Const. amend IV .......................................................................................................... 10
TEX. R. APP. PROC. 38.1(e) ....................................................................................................... 6
TEX. R. APP. PROC. 44.4. ................................................................................................ 13, 14
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STATEMENT OF THE CASE
Appellant was charged in cause numbers 1414418, 1449194, and 1414419 with
two counts of Aggravated Assault - Public Servant and one count of Aggravated
Assault - Family Member, each alleged to have occurred on or about January 13, 2014.
(1 CR at 7; 2 CR at 5).1 The State filed a motion to consolidate the three cases into
one trial on November 24, 2014, which was granted. (2 CR at 6).
On January 14, 2015, a jury found Appellant guilty in cause numbers 1414418
and 1449194 of both counts of Aggravated Assault – Public Servant. The jury found
Appellant not guilty in cause number 1414419 of Aggravated Assault – Family
Member. On January 14, 2015, the jury sentenced the Appellant to forty (40) years in
the Institutional Division of the Texas Department of Corrections. Appellant filed a
timely notice of appeal. (1 CR at 96; 2 CR at 38).
The two convictions are combined in a single brief for purposes of appeal.
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STATEMENT REGARDING ORAL ARGUMENT
Oral argument should be permitted because this appeal is not frivolous and the
facts and legal arguments are adequately presented. TEX. R. APP. PROC. 38.1(e).
Appellant requests oral argument because the Court of Appeal’s decision, whether the
trial court erred in denying Appellant’s motion to suppress evidence, would be
significantly aided by oral argument.
**change wording**
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ISSUE PRESENTED
ISSUE: THE EVIDENCE IS LEGALLY INSUFFICENT TO ESTABLISH APPELLANT
KNEW THE OFFICERS WERE PUBLIC SERVANTS.
STATEMENT OF FACTS
On January 13, 2014, Appellant, Dionysios Kosmetatos, was at his mother in
law’s apartment with his children and wife. Appellant and his wife, Rebecca
Kosmetatos, began arguing inside of the apartment. Rebecca and her mother, Patricia
Dow, left the Appellant and children inside of the apartment and went to the
apartment of downstairs neighbor, Urica Blackwell. Urica called 911. (4 RR at 74).
Officer Patrick Woods and Officer Serguei Gromyko responded to the
disturbance call a little after midnight. (4 RR at 161). Officer Woods testified at this
point they only knew that the Appellant was alleged to have locked his wife out of the
apartment and Officer Gromyko was behind him. Officer Woods stated there had
been no report of weapons and he did not feel threatened walking up the stairs. (4 RR
at 154). CSU Officer Arthur Lyons testified the stairwell was dark with very limited
illumination and on the landing in front of Patricia’s apartment the light fixture was
out. (4 RR at 46-50). The available light was coming from the balcony below. (4 RR at
51). Officer Woods said as they were talking to Patricia when Appellant flung the
door open. At this point, he testified they had not knocked or announced police. (4
RR at 128, 147). Urica’s testimony conflicts with the Officer’s because she allegedly
saw the Officers arrive and knock on the door. (4 RR at 79). Officer Woods said
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Appellant screamed and rushed him. Patricia Dow first testified on direct for the State
that she saw Appellant come out of her apartment with a knife in his hand and heard
him threaten the Officers. (3 RR at 45-46). But lost credibility on cross when she
testified she did not see any altercation between Appellant and the Officers and never
saw Appellant with the knife. (4 RR at 26, 29). She only heard gunshots. (4 RR at 26).
Urica said she saw him come out screaming with a knife above his head and tried to
stab the Officers. Her testimony again conflicts with the Officers because she
allegedly saw them telling Appellant to put the knife down and then she heard
gunshots. (4 RR at 81-83). Officer Woods testified he did not tell Appellant to drop
the knife. (4 RR at 132). Urica also claims to have called 911 a second time because
the Officers needed help, but there is no recording or proof of the second call. (4 RR
at 108-109). Officers concur it was mere seconds from the time the door flung open
to the firing of his gun. (4 RR at 149, 154, 183). Officer Gromyko testified there was
no time to reflect. (4 RR at 184). Officer Woods fired his gun shooting Appellant
twice. (4 RR at 135, 174). He had never shot anyone before. Appellant fell down the
stairs. (4 RR at 138, 174). Neither Officer sustained any injuries. (4 RR at 158, 187).
Officer Gromyko testified he thinks he saw Appellant on the balcony looking
at them when they first arrived; however, defense counsel pointed out this was
nowhere in the offense report supplements or their sworn statements. (4 RR at 190,
192; 5 RR at 24).
SUMMARY OF THE ARGUMENT
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In Appellant’s only issue, he complains that without a warrant or consent
Officer Smith illegally searched his vehicle. Officer Smith’s testimony merely states a
legal conclusion and is insufficient to prove verbal consent was given. Evidence
obtained through this illegal search is in violation of the Fourth Amendment
protections and should have been suppressed.
ARGUMENT
ISSUE ONE: THE TRIAL COURT ERRED IN DENYING APELLANT’S MOTION
FOR DIRECTED VERDICT BECAUSE THE EVIDENCE IS INSUFFICENT TO
ESTABLISH APPELLANT KNEW THE OFFICERS WERE PUBLIC SERVANTS.
ISSUE TWO: THE EVIDENCE IS INSUFFICENT FOR A RATIONAL JURY TO FIND
BEYOND A REASONABLE DOUBT APPELLANT KNEW THE OFFICERS WERE
PUBLIC SERVANTS.
THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION
STANDARD OF REVIEW
Challenging the trial court’s ruling on directed verdict is a challenge to the legal
sufficiency of the evidence to support the conviction. Williams v. State, 937 S.W.2d
479, 482 (Tex. Crim. App. 1996). Appellate courts review both legal and factual
sufficiency challenges using the same standard of review. Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010). When reviewing sufficiency of the evidence,
appellate courts examine all the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and any reasonable inferences from it, any
rational trier of fact could have found the essential elements of the offense beyond a
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reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The factfinder
is the exclusive judge of the credibility of witnesses and the weight of the evidence.
Isassi, 330 S.W.3d at 638; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
It is the factfinder's duty to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson,
443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When
the record supports conflicting inferences, the reviewing court presumes that the
factfinder resolved the conflicts in favor of the prosecution and defer to that
determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
APPLICABLE LAW
A person commits an assault if he intentionally or knowingly threatens another
with imminent bodily injury. Tex. Penal Code Ann. § 22.01(a)(2) (2011). The offense
is elevated to an aggravated assault if the person uses or exhibits a deadly weapon
during the commission of the assault. Tex. Penal Code Ann. § 22.02(a)(2).
Aggravated assault is punishable as a first-degree felony if the offense is
committed against a person the actor knows is a public servant while the public
servant is lawfully discharging an official duty. Tex. Penal Code Ann. § 22.02(b)(2)(B).
The statute creates a presumption that an accused knew that the person assaulted was
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a public servant if the person was wearing a distinctive uniform or badge indicating
the person's employment as a public servant. Tex. Penal Code Ann. § 22.02(c).
ANALYSIS
Due process requires the State to prove beyond a reasonable doubt every
element of the crime charged. Jackson, 443 U.S. at 313. The State was required to
prove beyond a reasonable doubt Appellant knew Officer Gromyko and Officer
Woods were public servants at the time of the offense. See Tex. Penal Code Ann. §
22.02(b)(2)(B). However, viewing all of the evidence in the light most favorable to the
prosecution a rational trier of fact could not have found this element beyond a
reasonable doubt.
In McDaniel v. State, this court found the evidence was legally sufficient to
support the defendant’s conviction where his argument implied that he did not know
he was pointing a gun at police officers. McDaniel v. State, No. 01-11-00107-CR, 2012
Tex. App. LEXIS 406, 2012 WL 151465 (Tex. App. – Houston [1st Dist.] January 19,
2012, pet. ref’d) (mem. Op. not designated for publication). The Houston Police
Department was called to a weapons disturbance at an apartment. (Id. at 1). Three
Officers arrived in uniform to speak to the reportee that stated his roommate had
locked him out of the apartment after threatening him with a gun. (Id.). It was
approximately midnight, but all three officers testified there was enough light outside
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the apartment for the defendant to see their uniforms. (Id. at 2). They further testified
they knocked forcefully on the door and loudly announced Houston Police
Department three times with a total of 9 knocks when the defendant opened door
with a gun in hand. (Id.). Officers told him to drop the weapon and when the
defendant pointed it at them they tackled the defendant and subdued with force. (Id.).
Although a similar scenario, this case differs. Houston Police Department was
likewise dispatched to an apartment where Appellant’s wife was claiming to have been
locked out, but there was no mention of weapons. Officer __ testified he never
knocked on the door or announced police. Officer __ testified it was dimly lit and
missing a light. No testimony from Officers that knife was pointed at them and never
told him to throw it down. Officers subdued Appellant with force by shooting him
multiple times.
In this case, Appellant
In Villa v. State, the fifth court of appeals found a rational trier of fact could
have found the appellant knew an officer was a public servant when they executed a
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“no knock” search warrant at the residence. The court found (1) each officer wore
uniforms emblazoned with the word “police” in large letters, (2) officers repeatedly
and continually identified themselves as officers, and (3) there was a live feed
television monitor in the bedroom where appellant was located, where one could see
outside. Villa v. State, No. 05-10-00584-CR, 2011 Tex. App. LEXIS 10190, 2011 WL
6848392, at * (Tex. App. – Dallas 30, 2011, no pet.) (mem. Op. not designated for
publication).
Viewing all of the evidence in the light most favorable to the prosecution,
giving full play to the responsibility of the trier of fact to resolve conflicts of
testimony, to weight the evidence, and draw reasonable inferenseces from basic facts
to ultimate facts a rational jury could not have found BRD that D…
The jury could not have rationally inferred…
The necessary inferences are not reasonable based upon the combined
evidence when viewed in light most favorable to the verdict.
The jury could not have rationally inferred…
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Hamilton v. State, 2007 Tex. App. LEXIS 1559, 2007 WL 624700 (Tex. App. –
Houston [1st Dist.] March 1, 2007, pet. ref’d) (mem. Op. not designated for
publication).
-notes the presumption (page 13)
-arrived in marked patrol cars, wearing HPD uniforms, officer testified lighting
in the hallway was sufficient for shooter to see and believed shooter knew he
was a police officer. (page 14)
-HPD dispatched to residence for home invasion in progress (p. 4)
PRAYER
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Appellant prays this Court to reverse the conviction and remand the case to the
trial court for entry of an order of acquittal. TEX. R. APP. PROC. 44.2.
Respectfully submitted,
_s/Tonya Rolland McLaughlin
Tonya Rolland McLaughlin
4301 Yoakum Boulevard
Houston Texas 77006
Phone: (713) 529-8500
Fax: (713) 453-2203
TBN 24054176
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been mailed to the
following address:
Alan Curry
Chief Prosecutor, Appellate Division
Harris County District Attorney’s Office
1201 Franklin Suite 600
Houston, Texas 77002-1923
_s/Tonya Rolland McLaughlin
Tonya Rolland McLaughlin
CERTIFICATE OF COMPLIANCE
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I certify that this computer-generated document has a word count of 2, 608
words, based upon the representation provided by the word processing program used
to create the document.
_s/Tonya Rolland McLaughlin
Tonya Rolland McLaughlin
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