USA MATZ IN THE COURT OF APPEALS CLERK 5th DISTRICT FIFTH CICUIT OF TEXAS LOCATED AT DALLAS NO CR. The State of Texas, Appellee

Transcription

1 RECEIVED IN COURi OF APPEALS 1 5th DIST, MAR USA MATZ IN THE COURT OF APPEALS CLERK 5th DISTRICT FIFTH CICUIT OF TEXAS LOCATED AT DALLAS 5th Court of Appeals FILED: 3/15/11 14:00 Lisa Matz, Clerk NO CR Durwan Deon Green, Appellant v. The State of Texas, Appellee F:ILED l:n Court of Appeals MAR lisa Matz Clerk, 5th District On Appeal from the 219th District Court of Collin County, Texas Honorable Curt B. Henderson, Judge Presiding Trial Court Cause No Marcus D. Norman Attorney at Law Post Office Box 6603 McKinney, Texas Telephone: State Bar No ATTORNEY FOR APPELLANT 1

2 SECTION NO. I -TABLE OF CONTENTS SECTION NO. SECTION TITLE PAGE I. TABLE OF CONTENTS... 2,3 II. INDEX OF AUTHORITIES...4 III. TABLE OF PROPER AND NECESSARY PARTIES... 5 IV. STATEMENTREGARDINGORALARGUMENT... 6 V. DESIGNATION OF THE RECORD... 6 VI. STATEMENT OF THE NATURE OF THE CASE... 7,8 VII. STATEMENT OF POINTS OF ERROR a. POINT OF ERROR ONE THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S ORAL MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE AS WELL AS THE SUBSEQUENT MOTION FOR INSTRUCTED VERDICT BASED ON THE COURT LACKING PROPER SUBJECT MATTER JURISDICTION AND VENUE. b. POINT OF ERROR TWO THE TRIAL COURT ERRED IN PROCEEDING TO TRIAL BECAUSE IT DID NOT HAVE TERRITORIAL JURISDICTION OVER THE OFFENSE CHARGED AS APPELLANTS CONDUCT TOOK PLACE IN THE STATE OF COLORADO. c. POINT OF ERROR THREE APPELLANT WAS CONVICTED OF VIOLATING SECTION 34.02(E) (4), MONEY LAUNDERING FOR THE OFFENSE OF MONEY LAUNDERING; HOWEVER, HIS CONDUCT DID NOT INVOLVE ANY PROCEEDS OF CRIMINAL ACTIVITY AS REQUIRED BY TEXAS PENAL CODE SEC

3 SECTION I - TABLE OF CONTENTS (continued) SECTION NO. SECTION TITLE PAGE VIII. STATEMENT OF FACTS ,11 a. ARGUMENT AND AUTHORITIES FOR POINT OF ERROR ONE... 11,12 b. ARGUMENT AND AUTHORITIES FOR POINT OF ERROR TWO... 12,13,14,15,16, c. ARGUMENT AND AUTHORITIES FOR POINT OF ERROR THREE... 16,17,18 IX. CONCLUSION AND PRAYER FOR RELIEF X. CERTIFICATE OF SERVICE

4 SECTION II - INDEX OF AUTHORITIES Statutes, Codes, and Rules TEX. PENAL CODE SEC TEX. PENAL CODE SEC Cases Black v. State, 645 S.W.2d 789 (Tex. Crim. App. 1975) McGowan v. State, 938 SW2d 732 (Tex. App. Houston [McGowan v. State 14th Dist.] 1996) Banks v. State, 530 SW2d 940 (Tex. Crim. App. 1983) Trejo v. State, 280 SW 3d 258 In Garcia v. Dial, 596 S.W.2d (1980) American Plant Food Corp., v. State, 508 S.W.2d 598 (Tex.Cr. App. 1967) Hultin v. State, 351 S.W.2d 248 Tex. Crim App. 1961). Deschenes v. State, 253 S.W.3rct 374,379 (Tex.App.-Amarillo 2008). Dowden v. State, 537 S.W.2d 5 (Tex. Cr. App. 1976) Venzor v. State, (162 Tex.Cr. R. 175, 283 S.W.2d 397 Texas Penal Code Section TERRITORIAL JURISDICTION Texas Penal Code Sec MONEY LAUNDERING 4

5 SECTION III- TABLE OF PROPER AND NECESSARY PARTIES Pursuant to the Texas Rules of Appellant Procedure, Appellant hereby offers a list of the proper and necessary parties to this cause of action. The interested parties are indicated hereinbelow: APPELLANT Mr. Durwan Deon Green 5216 Evergreen Drive McKinney, Texas APPELLANTS' TRIAL COUNSEL Honorable Robert Wilson Preston Road, Ste. 150 Dallas, Texas APPELLANT' APPEAL COUNSEL Honorable Marcus Norman- Post Office Box 6603 McKinney,Texas APPELLEE State of Texas by and through the Collin County District Attorney's Office APPELLEES' TRIAL AND APPEAL COUNSEL Honorable Greg Willis Collin County District Attorney's Office Bloomdale Road McKinney, Texas

6 SECTION IV- STATEMENT REGARDING ORAL ARGUMENT Pursuant to the Texas Rules of Appellate Procedure, the Appellant respectfully defers to the Court for the necessity of oral argument in this case. Should the Court desire oral argument, the appellant will respectfully comply with the Court order if there exist significant questions of law that may be elucidated with greater clarity through oral argument. Tex. R. App. Proc. 75 (Vernon Supp 1996). SECTION V- DESIGNATION OF RECORD The record in this case consists of one white -backed Clerks' Record. The Statement of Facts (the oral transcript of the proceedings) consist of one bound reporter's record with fourteen separate pages ofvolumes of pages, with the 9th through 14th volumes containing State's and Defendant's trial Exhibits. For purposes on reference Appellant refers to these documents as follows: TRIAL COURT CLERK'S RECORD...(TR.-P ) STATEMENT OF FACTS...(SOF. Vol, P ) STATE'S EXHIBITS... (SE "_") DEFENDANTS EXHIBITS... (DE"_") 6

7 SECTION VI- STATEMENT OF THE NATURE OF THE CASE On March 2, 2008, Appellant, Durwan Green was indicted in a three count indictment for the following offenses: Count I- Money Laundering in an amount of$20,000 or more a first degree felony offense Count II - Securing Execution of Documents by Deception of the value of $200,000 or more, a first degree felony offense; and, Count III- Money Laundering in an amount of more than $20,000, but less than $100,000 a second degree felony offense. Appellant entered pleas of not guilty to the allegations contained in the indictment and a jury trial was held before the h Judicial District Court of Collin County, Texas. After trial Defendant has filed this appeal from cause CAUSE NUMBER IN THE 219TH DISRICT COURT OF COLLIN COUNTY, TEXAS, THE HONORABLE CURT B. HENDERSON, JUDGE PRESIDING. a) CHARGE- COUNT I.... MONEY LAUNDERING IN THE AMOUNT OF $200,000 OR MORE (1 sr Degree Felony). TEX. PEN. CODE Sec (e)(4) PLEA... NOT GUlL TY VERDICT (Jury)... GUlL TY PUNISHMENT (Jury) YEARS PROBATED FOR 10 YEARS $10,000 FINE~ $1,500 RESTITUTION~ $ COURT COSTS~ CONDITIONS OF PROBATION b) CHARGE -COUNT II... SECURING EXECUTION OF A DOCUMENT BY DECEPTION OF THE VALUE OF $200,000 OR MORE (1 sr DEGREE FELONY). TEX. PEN. CODE Sec (b)(7) PLEA... NOT GUILTY VERDICT (Jury)... GUlL TY 7

8 PUNISHMENT (Jury)....IO YEARS PROBATED FOR 10 YEARS $10,000 FINE CONDITIONS OF PROBATION c) CHARGE- COUNT III... MONEY LAUNDERING IN THE AMOUNT OF $20,000, BUT LESS THAN $100,000 (2No Degree Felony). TEX. PEN. CODE Sec (e)(4) PLEA... NOT GUlL TY VERDICT (Jury)... GUlL TY PUNISHMENT (Jury)... 2 YEARS CONFINEMENT IN THE INSTITUTIONAL DIVISION, TDCJ; $10,000 FINE The indictment alleges all three counts to have occurred on August 18, 2006 in Collin County, Texas. (T.R.P. 5-6) Appellant entered pleas on not guilty and a jury trial was held beginning June 9, (T.R.P. 65). A jury verdict of guilty was returned as to all three counts against Appellant on June 11, 2009 (T.R.P. 76). A sentencing hearing was conducted before the jury bon June 19,2009 and June 26, 2009, respectively and Judgment was entered on September 29, On June 19, 2009, Appellant filed a Motion for Instructed Verdict in favor of Appellant (T.R.P.85-88). The motion was denied (T.R.P. 89). Moreover, the Appellant, gave notice of the appeal. on August 13,2009 (TRP). The Appellant has the right to appeal this case. 8

9 IN THE COURT OF APPEALS FIFTH CICUIT OF TEXAS LOCATED AT DALLAS NO CR Durwan Deon Green, Appellant v. The State oftexas, Appellee On Appeal from the 219th District Court of Collin County, Texas Honorable Curt B. Henderson, Judge Presiding Trial Court Cause No APPELLANT DURWAN DEON GREEN'S ORIGINAL BRIEF ON APPEAL TO THE HONORABLE JUSTICES OF THE FIFTH DISTRICT COURT OF APPEALS IN AND FOR THE STATE OF TEXAS LOCATED AT DALLAS, TEXAS COMES NOW, Durwan Deon Green (hereinafter "Appellant") by and through his attorney of record, Marcus D. Norman, and submits this his Appellant's Original Brief on Appeal. Appellant respectfully requests that this Court reverse the judgment granted in the trial court rendered in favor of the State of Texas, Appellee. This appeal is from a Judgment entered by the h District Court, before the Honorable Curt B. Henderson, in Collin County, State of Texas. 9

10 SECTION VII-STATEMENT OF POINTS OF ERROR a) POINT OF ERROR ONE THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S ORAL MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE AS WELL AS THE SUBSEQUENT MOTION FOR INSTRUCTED VERDICT BASED ON THE COURT LACKING PROPER SUBJECT MATTER JURISDICTION AND VENUE. b) POINT OF ERROR TWO THE TRIAL COURT ERRED IN PROCEEDING TO TRIAL BECAUSE IT DID NOT HAVE TERRITORIAL JURISDICTION OVER THE OFFENSE CHARGED AS APPELLANTS CONDUCT TOOK PLACE IN THE STATE OF COLORADO. c) POINT OF ERROR THREE APPELLANT WAS CONVICTED OF VIOLATING SECTION 34.02(E) (4), MONEY LAUNDERING FOR THE OFFENSE OF MONEY LAUNDERING; HOWEVER, HIS CONDUCT DID NOT INVOLVE ANY PROCEEDS OF CRIMINAL ACTIVITY AS REQUIRED BY TEXAS PENAL CODE SEC SECTION VIII- STATEMENT OF FACTS In August of 2006, Durwan Deon Green Appellant, Durwan Deon Green (Hereinafter "Green") while working in the capacity as an agent for a real estate company entered into an agreement to facilitate the sale of a residence located at 406 Sagebrush Trail in Murphy, Collin County, Texas to Barbara Miller (hereinafter referred to as "Miller") who was then both a resident and domicilary of the State of Colorado. Green flew to Denver, Colorado to meet Miller and consummate the transaction. The signing of the documents relating to the aforesaid transaction and execution of all necessary documents took place in the City of Denver, State of Colorado. Miller purchased the property with a purchase money mortgage loan from South Star Funding with the intent of using the property for investment purposes. Subsequently, Miller was unsuccessful in her endeavor as a real estate investor and the property was foreclosed upon by 10

11 the mortgage company. Thereafter, Miller complained to the Collin County District Attorney's Office, who in turn, filed charges against Appellant for two counts of Money Laundering and Securing Execution of Documents by Deception. Green was indicted, entered pleas of Not Guilty and the case was tried before a jury. Green was tried along with a Co-Defendant, Jasmine Aponte. Although, the record indicates that the closing transaction and execution of documents took place in the State of Colorado the jury found Appellant guilt of two counts of money laundering and one count of securing the execution of a document by deception. Therefore, Appellant Green filed a notice to appeal the judgments and convictions and asserts that the trial court erred resulting in his conviction. POINT OF ERROR NUMBER ONE THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S ORAL MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE AS WELL AS THE SUBSEQUENT MOTION FOR INSTRUCTED VERDICT BASED ON THE COURT LACKING PROPER SUBJECT MATTER JURISDICTION AND VENUE. a) ARGUMENT AND AUTHORITIES FOR POINT OF ERROR ONE Appellant, Green, contends that the trial court erred in overruling his motion for directed verdict at the close of the State's case and Motion for Instructed Verdict filed after verdict, because Collin County, Texas was an improper venue for the trial of this case. Green further contends that the State failed to meet its burden of proving venue by a preponderance of the evidence. The transaction related to the indictment in this case was contracted and completed in the State of Colorado; therefore, proper venue can not lie in Collin County, Texas. Thus, it was improper for the trial court to deny both the Motions for Directed Verdict as well as the Motion for Instructed Verdict asserted by Appellant's at trial. 11

12 Venue is proper in a criminal case in the County where the offense was committed (Art V.A.C.C.P.). By entering a plea of not guilty to the indictment venue is put into issue in the case. Black v. State, 645 S.W.2d 789,790 (Tex. Cr. App. 1983). In a criminal case, venue only need be proven by a preponderance of the evidence. Banks v. State, 530 SW2d 940 (Tex.Cr.App.1975). That proof must be established by either direct or circumstantial evidence. Haynes v. State, 140 Tex.Cr.R. 52,143 S.W.2d (1940). If the issue of venue is timely raised, failure to establish venue can constitute reversible error. State v. Blankenship, 170 S.W.3d 676,681 (Tex.-App.-Austin 2005). The evidence at trial failed to establish venue in Collin County, therefore, Appellant's motion for directed verdict should have been granted. In the present case, the actions of Green giving rise to the allegations contained in the indictment occurred in the State of Colorado. No evidence was introduced indicating some of Green's actions may have taken place in Collin County, Texas. The only evidence was that actions taken by Green's co-defendant may have taken place in Dallas, County, Texas. Nevertheless, that is insufficient to establish venue in Collin County, Texas. Since there is no evidence that Green performed any actions in Collin County, Texas. And since the evidence does not indicate that Green performed any actions in Collin County, the evidence is insufficient to support a conviction, based on the indictment, that Green performed any actions in Collin County, Texas giving the trial court venue. Accordingly Green prays that the conviction be revered. POINT OF ERROR NUMBER TWO THE TRIAL COURT ERRED IN PROCEEDING TO TRIAL BECAUSE IT NOT HAVE TERRITORIAL JURISDICTION OVER THE OFFENSE CHARGED. 12

13 b) ARGUMENT AND AUTHORITIES FOR POINT OF ERROR TWO Further, Appellant complains that the trial court erred resulting in his conviction because the trial court should have granted Green's motion for Directed verdict at the close of the State's case based on the fact that the Court lacked territorial jurisdiction. The testimony provided during the trial indicates that all actions surrounding Green's conduct took place within the boundaries of the State of Colorado. The meeting between Green and Miller took place within the State of Colorado and there was no evidence contrary giving inference to the allegations that Green availed himself to the jurisdiction of the trial court. The offense charged in the indictment in a criminal case requires both a general grant of authority to the trial court and a charging instrument that invokes that jurisdiction over the particular case. Trejo v. State, 280 SW 3d 258. In the present case, the indictment alleges actions to have taken place in Collin County, Texas; however, the evidence is legally insufficient to support a conviction. In Garcia v. Dial, 596 S.W.2d (1980) the Court recognized the requirement of an indictment or information that charged an offense within the jurisdiction of the court: "Furthermore, it is well settled that a valid indictment is essential to the district court's jurisdiction in a criminal case... American Plant Food Corp., v. State, 508 S.W.2d 598 (Tex. Cr. App. 1967)..." These two precedents speak to the requirement of an indictment that invokes the subject matter jurisdiction in the particular case. The Court's opinion in American Plant Food Corp., provides "If the charge [that is, the charging instrument - an indictment or information] alleges an offense was committed by the defendant, then it is sufficient in law to support a verdict of guilty if one be so rendered thereon. If it does not so 13

14 allege, then it is utterly insufficient and any conviction based thereon is void. Moreover, in Nolte v. State, 854 S. W.2d 304 (Tex. App. Austin, 1993) the Court of Appeals stated that a judgment of conviction returned by a court without jurisdiction of offense is nullity. In Texas, it is well settled that a "court of competent" jurisdiction" means a court which has jurisdiction over the offense, then that phrase is used with respect to criminal law. Hultin v. State, 351 S.W.2d 248 Tex. Crim App. 1961). Additionally, the expression "jurisdiction over subject matter", in criminal law refers to the offense. Hultin at 248. Therefore, Texas Courts lacked jurisdiction to prosecute Green for either Money Laundering or Securing Execution of Documents by Deception. Appellant argues that Texas Courts lacked jurisdiction because the actions he allegedly committed do not fall within the limits of Texas's territorial jurisdiction as set forth in Section 1.04 of the Texas Penal Code. Texas Penal Code Section TERRITORIAL JURISDICTION provides, in pertinent part: (a) This state has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which he is criminally responsible if: ( 1) either the conduct or a result that is an element of the offense occurs inside this state; (2) the conduct outside this state constitutes an attempt to commit an offense inside this state; (3) the conduct outside this state constitutes a conspiracy to commit an offense inside this state, and an act in furtherance of the conspiracy occurs inside this state; or ( 4) the conduct inside this state constitutes an attempt, solicitation, or conspiracy to commit, or establishes criminal responsibility for the commission of, an offense in another jurisdiction that is also an offense under the laws of this state... 14

15 (c) An offense based on an omission to perform a duty imposed on an actor by a statute of this state is committed inside this state regardless of the location of the actor at the time of the offense. (d) This state includes the land and water and the air space above the land and water over which this state has power to define offenses. (TEX. PEN. CODE Section 1.04) Generally, jurisdiction is recognized as a government's general power to exercise authority over all persons and things within it's territory or a court's power to decide a case or issue a decree. (Black's Law Dictionary) In the present case, all elements relating to the conduct of Appellant took place in the State of Colorado. There is no relation between the State of Texas and the consummation of the real estate transaction the subject of this case. In fact, the only connection with the State of Texas is that the real property is situated within the boundaries of the State of Texas. This fact alone is insufficient to provide Texas courts jurisdiction over a transaction when the closing takes place in another state. Real property itself can not commit a crime, but it takes a transaction for a crime to have been committed. The Court has previously addressed a similar issue in McGown v. State, 938 S.W.2d 732,735 (Tex. App.- Houston [14 1 h Dist.] 1996). In McGowan the Defendant was convicted of commercial bribery and theft of trade secrets he appealed and the Court of Appeals held (1) Texas did not have jurisdiction over the commercial bribery charges; (2) Texas had jurisdiction over the theft of trade secrets charge. The Court of Appeals affirmed, in part, and reversed, in part and remanded the case to the trial court. The Court of Appeals stated "[f]or Texas to have jurisdiction, McGowan must have solicited, accepted or agreed to accept a benefit in Texas. Although money was wired to McGowan from Texas and, presumably in exchange, documents were sent to Texas, these acts are not elements 15

16 of the offense of commercial bribery. There is no circumstantial or direct evidence indicating that a benefit was solicited or, accepted or agreed to in Texas. Thus, jurisdiction if any exist in Washington, but not in Texas." (McGowan at 735.) Likewise, in the present case the evidence is both legally and factually insufficient to support Appellant convictions because the State of Texas failed to prove that any element of the offense took place within the territorial limits of the State of Texas. The State may only prosecute crimes that occur directly within or that directly affect the state. TEX PEN. CODE ANN Sec. 104 (Vernon 2003). There was no testimony that the transaction made the subject of these indictments took place anywhere within the State of Texas. Therefore, the jury's finding of guilt, although no elements of the offense took place within the State of Texas was so greatly outweighed by the contrary proof as to make the jury's verdict manifestly unjust and the trial court erred by denying Green's Motion for both Directed and Instructed Verdicts. POINT OF ERROR NUMBER THREE Appellant was convicted ofviolating Section 34.02(e) (4), Money Laundering for the offense of Money Laundering; however, his conduct did not involve any proceeds of criminal activity as required by Texas Penal Code Sec b) ARGUMENT AND AUTHORITIES FOR POINT OF ERROR THREE Appellant's conduct did not involve any proceeds of criminal activity. Therefore, the evidence was insufficient to find Appellant guilty of the offense of money laundering. Texas Penal Code Sec MONEY LAUNDERING provides: (a) A person commits an offense if the person knowingly: ( 1) acquires or maintains an interest in, conceals, possesses, transfers, or transports the proceeds of criminal activity; 16

17 (2) conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity; (3) invests, expends, or receives, or offers to invest, expend, or receive, the proceeds of criminal activity or funds that the person believes are the proceeds of criminal activity; or (4) finances or invests or intends to finance or invest funds that the person believes are intended to further the commission of criminal activity. (a) Knowledge of the specific nature of the criminal activity giving rise to the proceeds is not required to establish a culpable mental state under this section. (b) For purposes of this section, a person is presumed to believe that funds are the proceeds of or are intended to further the commission of criminal activity if a peace officer or a person acting at the direction of a peace officer represents to the person that the funds are proceeds of or are intended to further the commission of criminal activity, as applicable, regardless of whether the peace officer or person acting at the peace officer's direction discloses the person's status as a peace officer or that the person is acting at the direction of a peace officer. (c) It is a defense to prosecution under this section that the person acted with intent to facilitate the lawful seizure, forfeiture, or disposition of funds or other legitimate law enforcement purpose pursuant to the laws of this state or the United States. (d) It is a defense to prosecution under this section that the transaction was necessary to preserve a person's right to representation as guaranteed by the Sixth Amendment of the United States Constitution and by Article I, Section 10, of the Texas Constitution or that the funds were received as bona fide legal fees by a licensed attorney and at the time of their receipt, the attorney did not have actual knowledge that the funds were derived from criminal activity. 17

18 (e) An offense under this section is: ( 1) a state jail felony if the value of the funds is $1,500 or more but less than $20,000; (2) a felony of the third degree if the value of the funds is $20,000 or more but less than $1 00,000; (3) a felony ofthe second degree ifthe value ofthe funds is $100,000 or more but less than $200,000; or (4) a felony of the first degree ifthe value ofthe funds is $200,000 or more. (f) For purposes of this section, if proceeds of criminal activity are related to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the value of the proceeds aggregated in determining the classification of the offense. (g) For purposes of this section, funds on deposit at a branch of a financial institution are considered the property of that branch and any other branch of the financial institution. (h) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both. Sufficiency of the evidence necessary to support a conviction should be measured by the elements of the offense. In the present case, there were no proceeds of illegal activity. In evaluating the legal sufficiency of the evidence, the Court must consider the record in the light most favorable to the State and determine whether any rational trier of fact could have found the Defendant guilty of all the elements of the offense beyond a reasonable doubt. Deschenes v. 18

19 State, 253 S.W.3rd 374,379 (Tex.App.-Amarillo 2008). In order to sustain a conviction for Money Laundering, there must be direct or circumstantial evidence of a temporal or nexus between the money and criminal activity. Deschenes, at 381. The State alleges that the proceeds related to the purchase of the property located at 406 Sagebrush Trail Murphy, Texas constitute proceeds representing a transaction involving the proceeds of criminal activity. However, Green contends that the State failed to prove any violation of Texas Penal Code Sec beyond a reasonable doubt. Consequently, the evidence is insufficient to establish each and every element beyond a reasonable doubt. It is clear that a conviction for an offense cannot stand unless the charge authorized the jury to find a defendant guilty for conduct constituting that offense, the indictment alleged such conduct and the evidence at trial showed such conduct. Venzor v. State, (162 Tex.Cr. R. 175, 283 S.W.2d 397) In the instant case none of these requirements of due process of law were met because the trial court authorized the jury to find Defendant guilty based upon a set of circumstances that could not constitute the offense charged. It is clear that a charge which allows the jury to convict an accused upon a theory not alleged in the indictment is fundamentally defective. Dowden v. State, 537 S.W.2d 5 (Tex. Cr. App. 1976). Therefore, Green requests that the Court sustain point of error number three and reverse the judgment entered by the trial court. SECTION IX- CONCLUSION AND PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that this Court reverse the judgment and conviction in this cause for the reasons set out in the foregoing points of error and that he have such other relief to which he is or may show himself to be entitled under the laws and Constitutions of both this State and United States of America; including, but 19

20 not limited to an order that the cases be dismissed with prejudice to the refilling thereof because of the reasons provided herein. Respectfully submitted, Marcus D. Norman Attorney at Law Post Office Box 6603 McKinney, Texas Telephone: State Bar No

21 SECTION X- CERTIFICATE OF SERVICE By affixing my signature below, I hereby certify that on 3 ~ 9-/ \, a true and correct copy of the forgoing brief, was delivered personally or through the United States Postal Service to: Collin County District Attorney's Office 2100 Bloomdale Road McKinney, Texas ~ Marcus Norman 21