Baird

Siverand V Texas ~ What a Joke.......Saldano v Texas controls .....dumbass! 299th? I feel sorry for all those people in that court..........

2009-08-05T19:35:00.000-07:00

It would have done good if you read the whole fucking transcript dumbfuck.....send it, I promise you will regret it! And I will not have to do a thing!

LIMITING THE RECORD ON BEHALF OF THE STATE ... THE APPELLANT IS DENIED DUE PROCESS......

2008-09-24T00:59:00.000-07:00

U2 deserve each other~ in Hell that is ~Baird and Hubert ki......., first comes........

2008-03-15T22:34:00.000-07:00

The District Attorney requested the Grand Jury to subpoena the District Judge.

"the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker, 407 U.S. at 532-33, 92 S.Ct. at 2193-94.

John Hubert you are the Tamperer of governmental documentation records. I hope you do "spend the rest of the summer in the library."

Texas Fair Defense Act
Saturday, March 15, 2008
This is an issue of considerable public importance

because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Duh!

2008-03-14T23:19:00.000-07:00

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NUMBER 13-02-218-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ALEJANDRO RODRIGUEZ MATA, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 257th District Court of Hidalgo County, Texas.

O P I N I O N

Before Justices Yañez, Rodriguez and Baird

Opinion by Justice Baird

Appellant was charged by indictment with the offense of murder. The indictment also alleged a prior felony conviction for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant’s plea of not true, the jury found the enhancement allegation true and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division, and a fine of $10,000. We affirm the conviction, but reverse and remand for a new trial on punishment.

I. Self Defense and Defense of Third Person.

Points of error one, two, and three contend: (a) the trial judge erred in denying appellant’s requested jury instruction on the defense of a third person; (b) the trial judge erred in failing to sua sponte instruct the jury on self defense; and (c) defense counsel was ineffective for failing to request a charge on self defense.

A person is justified in using non-deadly force against another where he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. §§ 9.31 (Vernon Supp. 2004). A person is justified in using deadly force against another if: (1) he would be justified in using non-deadly force; (2) a reasonable person in the actor's situation would not have retreated; and, (3) he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Section 9.33 of the penal code “provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Since appellant used deadly force in the instant case, the issue is whether either appellant or a third person would have been justified in using such force against the decedent.

The only fact witness cited in appellant’s brief to support these points of error is Raymond Dean Sanchez. We need only consider his testimony because a defendant is entitled to an instruction on any properly requested defensive issue that is raised by the evidence, even if the evidence is weak, impeached, and not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Conversely, if the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).

Sanchez testified the decedent wanted to purchase some cocaine. Sanchez drove the decedent to the apartment complex where appellant lived, and asked where cocaine could be located. Appellant’s brother, Leo, got into the vehicle with Sanchez and the decedent, and drove to a location where cocaine was subsequently purchased. On the return trip, Leo and the decedent began snorting the cocaine. Upon their arrival, the two began arguing over whether Leo consumed too much of the decedent’s cocaine. After exiting the vehicle, the decedent shoved Leo, and a fight ensued. Sanchez attempted to break up the fight; when his efforts failed, Sanchez went to appellant’s apartment and sought help separating the fighters. Sanchez testified appellant approached the fighters and stabbed the decedent with a screwdriver.

According to Sanchez, after the initial push by the decedent, Leo got the better of the decedent and was on top of him during the fight. Leo was still on top of the decedent when appellant arrived, and Leo never asked appellant for help. Moreover, Sanchez was steadfast in his testimony that the decedent was unarmed at all times, and that the decedent did not threaten to kill anyone.

For the purpose of our analysis we will assume the initial shove by the decedent constituted unlawful force, and that Leo was entitled to defend himself against that force. However, Sanchez’s testimony is clear that Leo quickly gained the advantage during the fight, and was on top of the unarmed decedent. Consequently, there is no testimony from Sanchez that a reasonable person in Leo's situation would not have retreated, or that Leo reasonably believed the deadly force was immediately necessary to protect himself against the decedent's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Therefore, we hold Leo was not justified in using deadly force to protect himself against the decedent. Consequently, we further hold the evidence did not raise the issue of defense of a third person because there is no testimony from which appellant could have reasonably believed his intervention into the fight between Leo and the decedent was immediately necessary to protect Leo against the decedent's use or attempted use of unlawful deadly force. Hamel, 916 S.W.2d at 493. Additionally, we hold appellant was not entitled to an instruction on self defense because there was no evidence that appellant reasonably believed the force was immediately necessary to protect himself against the decedent’s use or attempted use of unlawful deadly force, or that a reasonable person in appellant's situation would not have retreated. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004).

Consequently, we hold the trial judge did not err in denying appellant’s requested instruction on the defense of a third person, or in failing to instruct the jury on self defense. Furthermore, we hold defense counsel was not ineffective for failing to request a charge on self defense because counsel cannot be ineffective for not requesting an instruction the trial court could have properly refused. Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995). Accordingly, the first, second, and third points of error are overruled.

II. Ineffective Assistance of Counsel.

Points of error four through eleven contend defense counsel was ineffective at the trial of the instant case. The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 10 of the Texas Constitution. The well-known two-prong standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).

The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). This deferential review begins with the strong presumption that counsel's actions and decisions were reasonably professional, and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden of rebutting this presumption, and generally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (trial record generally not sufficient to establish an ineffective assistance of counsel claim). There is, however, a recognized exception to this general rule which will be discussed in relation to the tenth point of error.A. The Guilt Phase.

The fourth point of error contends defense counsel was ineffective for failing to secure an adverse ruling following his objection to the State’s argument that Sanchez had seen appellant with a knife stabbing the decedent as he lay on the ground. Defense counsel objected, stating the argument was “a mischaracterization of the testimony.” The trial judge responded by stating: “Use your own recollection, ladies and gentlemen, as to what the witness has testified to.”

We agree with defense counsel that the argument constituted a misstatement of Sanchez’s testimony. Sanchez categorically stated that he did not see anyone with a knife. The State cites Kinnamon v. State, 791 S.W.2d 84, 90 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994), for the proposition that defense counsel may have decided the instruction adequately admonished the jury. While we do not read Kinnamon as necessarily standing for that proposition, the State’s argument does prove that we do not know why defense counsel did not continue objecting until he obtained an adverse ruling. It could well be that counsel thought the instruction from the trial judge was adequate. Because the record is silent on this issue, we are left to speculate about counsel’s actions. This we will not do. The fourth point of error is overruled.

The fifth point of error contends defense counsel was ineffective for failing to object to the State calling a witness for the sole purpose of impeaching her. Our law is clear that the State may not call a witness solely for the purpose of impeaching that witness with otherwise inadmissible evidence. Hughes v. State, 4 S.W.3d 1, 7 (Tex. Crim. App. 1999).

The witness at issue, Adriana Mata, appellant’s sister, was a fact witness who had previously provided a written statement that she saw appellant stab the decedent. She had previously testified for the State at Leo’s trial for this same alleged offense. However, when called as a witness in the instant case, Adriana repeatedly stated that she did not remember making a statement or seeing the alleged murder. There is no showing the State called Mata solely for the purpose of impeaching her. Moreover, the information contained in Adriana’s statement which was subsequently introduced to impeach her was substantially testified to by other witnesses. Consequently, we hold there was no violation of the holding in Hughes, supra. Accordingly, the fifth point of error is overruled.

The sixth point of error contends defense counsel was ineffective for not objecting to an extraneous offense. Specifically, there was no objection to the testimony of Officer Adrian Medrano, who testified that he checked the criminal histories of Leo and appellant when attempting to find an address to locate them. Defense counsel’s failure to object does not constitute ineffective assistance because the mere suggestion of the possibility of an extraneous offense is not sufficient to constitute error. Roach v. State, 586 S.W.2d 866, 868 (Tex. Crim. App. 1979), overruled on other grounds, Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999). The fifth point of error is overruled.

The seventh point of error contends defense counsel was ineffective for “not objecting to irrelevant/overly prejudicial matters.” This point of error relates to the testimony of Sonia Garcia, the decedent’s sister, who identified a photograph of the decedent, and provided some background information. Although not specifically mentioned in appellant’s brief, we interpret this point of error as arguing that Garcia’s testimony constituted improper victim impact evidence.

Clearly, the State is permitted to provide evidence identifying the decedent in a murder case. This type of testimony constitutes error when presented in an inflammatory and prejudicial manner. See Stahl v. State, 749 S.W.2d 826, 829-30 (Tex. Crim. App. 1988). However, the instant case is easily distinguishable from Stahl where the prosecutor deliberately violated an express court order that would have prevented the witness from testifying, and the court found that the prosecutor's conduct was blatant in that he had foreknowledge of the witness's likely emotional outburst. Id. at 831.

In this case, appellant does not allege, nor does the record suggest, the existence of prosecutorial misconduct. Further, there was no emotional outburst as in Stahl, but rather a brief identification of the decedent with some general background information. Accordingly, we hold Garcia’s testimony was not prejudicial to appellant. Assuming arguendo the testimony was prejudicial, the testimony of Garcia pales in comparison to that in Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), where the erroneous admission of such evidence was held to be harmless. See id. at 355. Accordingly, the seventh point of error is overruled.

B. The Punishment Phase.

The eighth, ninth, tenth, and eleventh points of error concern the good conduct time and parole instruction included in the punishment charge, and the State’s arguments on those subjects.

1. The Erroneous Instruction.

Appellant was convicted of murder, a first degree felony, for which he is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis v. State, 72 S.W.3d 355, 359 (Tex. Crim. App. 2002). Following such a conviction, the trial judge is required to instruct the jury as prescribed by the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). In its entirety, that instruction reads:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

See id. (emphasis added).

However, the trial judge instructed the jury that appellant would not become eligible for parole “until the actual time served plus any good conduct time earned equals one-half of the sentence imposed or 30 years, which ever is less, without consideration of any good conduct time he may earn.” (emphasis added). Because the italicized portion of the instruction was erroneous, we hold defense counsel was ineffective for failing to object. Accordingly, the first prong of Strickland has been established as it relates to the eighth point of error.

2. The Improper Argument.

After the reading of the court’s charge, the State elected to make an opening argument prior to defense counsel. The State began by referring to appellant’s pen packet, and how a final conviction would affect the range of punishment. The State then argued:

The other thing that’s important here there is a lot of language regarding your, you know, that he can get good time credit, that there is such a thing as parole. That’s to let you know there is parole in Texas. What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today. They can change those laws in two years from now, but it is to let you know that they do exist and you may consider the existence of them, the fact that he may at some point be eligible for parole in considering the amount of time you think is appropriate in this case.

For example, when you look at the pen packet you can see that he was sentenced and the date he was sentenced. And the date you’ll see it was a sentence for five years for burglary of a habitation, and possession of a prohibited weapon, and date of that sentence . . . And after that he was sent to prison for a period of five years on . . . January of 1998. And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1^st of the year 2001, less than five years later.

So you know parole does exist in reality.

And so that will help you understand those issues.

(Emphasis added). Defense counsel then presented her argument which did not mention good conduct time or parole.

The State’s argument was improper in several respects. First, the prosecutor stated a person convicted of murder “can get good time credit.” As discussed in the preceding section, this argument is a misstatement of the law; a person convicted of murder is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis, 72 S.W.3d at 359. Even if the trial judge had accurately instructed the jury, this argument would have been improper because the statutory instruction specifically prohibits the consideration of good conduct time in a particular case: “[Y]ou are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant.” Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).

Second, the State specifically asked the jury to apply the law of parole to appellant by stating: “What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today,” and asking the jury to consider parole “in considering the amount of time you think is appropriate in this case.” This argument violates the express language of the statutory instruction: “You are not to consider the manner in which the parole law may be applied to this particular defendant.” Id.

Third, subsection (d) of article 37.07, section 4 provides: “This section does not permit the introduction of evidence on the operation of parole and good conduct time laws.” Id., § 4(d). The State circumvented this mandatory statute by specifically referring the jury to the pen packet and arguing “And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1^st of the year 2001, less than five years later. So you know parole does exist in reality.” This argument was clearly improper. Hawkins v. State, 99 S.W.3d 890, 902 (Tex. App.–Corpus Christi 2003, pet. ref’d).

Having determined the State’s argument was improper, the question under Strickland's first prong is whether counsel's failure to object to the improper argument was deficient conduct. Even where an objection would have been meritorious, the failure to object may be attributed to sound trial strategy. Strickland, 466 U.S. at 690. A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). As a general rule, claims of ineffective assistance of counsel not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689. However, an exception to the "sound trial strategy" presumption exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Chavez v. State, 6 S.W.3d 66, 71 (Tex. App.--San Antonio 1999, pet. ref'd); Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.--Dallas 1994, no pet.). Holding counsel ineffective in light of such a record is not speculation because the deficient performance is confirmed by the appellate record. Vasquez, 830 S.W.2d at 951; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.–Corpus Christi 2000, pet. ref'd); Weeks, 894 S.W.2d at 392. When the record establishes that ”the challenged conduct was so outrageous that no competent attorney would have engaged in it,” the presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy is rebutted. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In other words, Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir. 1985).

Obviously, the goal of every defense counsel at the punishment phase of trial is to have the jury assess the least amount of punishment possible. This was the goal of defense counsel in the instant case. To achieve this goal, counsel emphasized: (a) appellant’s relative youth -- twenty-three years of age; (b) the decedent’s lifestyle, which involved drinking and illicit drug use; and (c) that the decedent’s death was the result of a fight involving drugs, and not a planned killing. Defense counsel asked the jury to consider the lower end of the range of punishment.

In light of this obvious strategy, we hold there could have been no basis for defense counsel's failure to object to the improper argument of the State. Because the improper argument could only serve to increase appellant’s sentence, defense counsel’s failure to object was “so outrageous that no competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440. For these reasons, we hold the first prong of Strickland has been established.

Under the second prong, appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense counsel's deficient performance creates a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. In the instant case, the jury assessed the maximum punishment -- 99 years confinement and a fine of $10,000.00. While the decedent’s death was tragic and senseless, as are all murders, we do not find that the circumstances of the instant offense, in light of the decedent’s illicit drug use and unlawful attack on Leo, to be especially heinous. The jury certainly could have believed the crime warranted the maximum sentence. On the other hand, we must accept the probability that the jury accepted the State’s improper invitation to “go back and say, Let’s do him.” Consequently, our confidence in the punishment verdict is undermined by defense counsel's deficient performance. Therefore, we hold the second prong of Strickland has been met. Accordingly, the tenth point of error is sustained.

Additionally, we further hold the cumulative effect of the tenth point of error and the deficient conduct in the eighth point of error – failing to object to the erroneous good conduct time instruction – amounted to a denial of effective assistance of counsel at the punishment phase of appellant’s trial. Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). For this additional reason, we sustain the tenth point of error.

In light of this conclusion, we need not more fully address the eighth, ninth, and eleventh points of error. See Tex. R. App. P. 47.1. Further, we need not address the remaining points of error: numbers twelve, thirteen and fourteen. See id.

The trial court’s judgment of conviction is affirmed. However, because we sustain the tenth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).

_________________________

CHARLES BAIRD,

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 12^th day of August, 2004.

Therefore, in light of the record before us, which one is that? Who is "us"?"

2008-03-04T04:02:00.000-08:00

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NUMBER 13-03-00102-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RICHARD VELA, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court of Nueces County, Texas.

OPINION ON REMAND

Before Chief Justice Valdez and Justices Garza and Baird (1)

Opinion by Justice Charles F. Baird

On direct appeal, we reversed the judgment of the trial court related to Count III of the indictment, which alleged that appellant had nonconsensual anal intercourse with the complainant, on grounds that the trial court abused its discretion in failing to admit the expert testimony of Cheryl Hartzendorf. Vela v. State, 159 S.W.3d 172, 179 (Tex. App.--Corpus Christi 2004), rev'd, 209 S.W.3d 209 S.W.3d 128, 135 (Tex. Crim. App. 2006). The Texas Court of Criminal Appeals granted the State's petition for discretionary review and determined that we failed to conduct a proper analysis related to the trial judge's determination of the reliability of Hartzendorf's testimony. Vela, 209 S.W.3d at 135. The Court of Criminal Appeals remanded the case to this court for further proceedings. Id. at 136. We now affirm the judgment of the trial court.

I. The Court of Criminal Appeals' Decision.

Trial judges are required to make three separate inquiries before admitting expert testimony: (1) is the witness qualified as an expert by reason of his knowledge, skill, experience, training, or education; (2) is the subject matter of the testimony appropriate for expert testimony; and (3) will admitting the expert testimony assist the fact-finder in deciding the case. Id. at 131. As the court of criminal appeals stated, "[T]hese conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance." Id. at 131. The court of criminal appeals held that we "muddled the qualification and reliability analyses and, therefore, failed to consider the reliability of Hartzendorf's testimony at all," and that we failed to give proper deference to the trial judge. In that light, we will reconsider our earlier analysis. Id. at 133, 136.

II. The State's Expert Witness.

During its case-in-chief, the State called Sonia Eddleman as an expert witness. Eddleman was the director of the Sexual Assault Nurse Examiner (S.A.N.E.) Program at Doctor's Regional Medical Center. She had been a registered nurse for eighteen years and was certified as a S.A.N.E. with the Texas Attorney General's office. She had been recognized as an expert and testified many times prior to appellant's trial. Eddleman testified that she examined the complainant and prepared a report that appellant had orally, sexually, and anally assaulted the complainant. Eddleman stated the complainant had a one-and-a-half centimeter "oozing tear" to her anus. The complainant did not exhibit any other genital injuries. However, according to Eddleman this did not indicate that the complainant had not been sexually assaulted because "92 to 95 percent of the time patients that are either consensually sexually active or have been sexually assaulted do not have genital injuries."

III. The Defense's Expert Witness.

To rebut Eddleman's testimony, defense counsel called Cheryl Hartzendorf. Pursuant to Texas Rule of Evidence 705(b), the State requested a hearing outside the jury's presence. See Tex. R. Evid. 705(b). At that hearing, Hartzendorf testified she was an R.N. and a Certified Legal Nurse Consultant. Hartzendorf owned an independent legal nurse consulting business and had spent 400 hours at the Medical Legal Nurse Institute in Houston to be a Certified Legal Nurse Consultant. She had participated in twenty-five to thirty cases, both criminal and civil. She had testified three times previously in civil trials and once in a criminal trial alleging sexual assault and involving DNA evidence.

Prior to her testimony, Hartzendorf reviewed the medical records of the complainant from both Corpus Christi Medical Center and Christus Spohn Memorial Medical Center, and the D.P.S. analysis of the swabs and hair combing taken by Eddleman from the complainant. After offering this proof on her qualifications, the following exchange occurred:

DEFENSE COUNSEL: And did you note any evidence that was collected in the records for Doctors Regional? I guess what I'm referring to is the S.A.N.E. exam.

HARTZENDORF: Yes, sir. There was evidence collected by the S.A.N.E. nurse, the Sexual Assault Nurse Examiner. What was collected were wet mounts for vaginal, anal and oral swabs, head hair combings, vaginal swabs, fingernail swabs, oral smear, vaginal smear and anal smears.

DEFENSE COUNSEL: And was, to your knowledge, was there any sperm found?

HARTZENDORF: No. sir, there was none.

DEFENSE COUNSEL: Now, is it possible that after two days if someone was raped or even if they had just had regular sex, is it possible for sperm to still be here after two days?

HARTZENDORF: Yes, sir.

DEFENSE COUNSEL: It could possibly still be present?

HARTZENDORF: Yes, sir.

DEFENSE COUNSEL: Okay. What about the testing under the fingernails, did you get any results from that?

HARTZENDORF: I reviewed the D.P.S. record of the results of the swabs, the fingernail swabs, the vaginal swabs, the hair combing and it did not list any substantive evidence.

DEFENSE COUNSEL: Judge, I believe that I've qualified her for - for an expert and she has - she is familiar with the case to testify in this trial.

During the State's cross-examination of Hartzendorf the following exchange occurred:

HARTZENDORF: There -There is no evidence to indicate that this particular person, no sperm, no head hair combings, no vaginal swabs, fingernail swabs, oral smears, vaginal smears that - there is no DNA evidence linking this particular - [appellant] to the alleged rape of [the complainant].

THE STATE: So you're saying if there's no DNA evidence, there's no hairs, there's no rape, is that what you're saying?

HARTZENDORF: In this case, yes. I think it was consensual.

THE STATE: I'm saying as a general - I'm saying as a general principle, you're here to testify as an expert to rely on general principles and you're expounding a principle that says that if there's no DNA evidence, no hair evidence, there's no rape, is that what you're going to testify here today to?

HARTZENDORF: In regards to this case, sir?

THE STATE: Yes.

HARTZENDORF: Yes.

THE STATE: What - What factual basis, what literature do you rely on in forming this opinion?

HARTZENDORF: On my general nursing experience, sir.

THE STATE: Have you written any articles regarding your opinions for peer review to expound on this issue?

HARTZENDORF: No, sir.

THE STATE: Okay. Do you think it would be wise to write an article expounding this view so it could be reviewed by peers and so they could review your work?

HARTZENDORF: Wouldn't be a bad idea.

THE STATE: But you have not done that?

HARTZENDORF: No, sir.

THE STATE: And you never testified in regards to this theory before, is that correct?

HARTZENDORF: No, sir.

*****

THE STATE: As far as you know, is there any peer review articles that have been published that expound the view that say if there's no DNA evidence, if there's no physical evidence, then there's no rape?

HARTZENDORF: There could be possibly. I'm not aware of them.

THE STATE: I need to know of one that has been published. Are you aware of one that has been published?

HARTZENDORF: No.

*****

THE STATE: And as far as you know this is not a widely accepted belief among persons in your area to be promoting here today, is that correct?

HARTZENDORF: No.

The State recalled Eddleman to the stand and the following exchange occurred:

THE STATE: [Eddleman], you've heard the testimony form [Hartzendorf] in this particular case?

EDDLEMAN: Yes, sir.

THE STATE: Are you aware of any scientific theory that holds to the principle if there is no DNA evidence, if there is no hair evidence, then there is no rape?

EDDLEMAN: I'm not aware of any.

THE STATE: Okay. Are you aware of any peer review articles that have been published on this scientific theory, expounded by [Hartzendorf]?

EDDLEMAN: No, sir.

THE STATE: Are you aware of anyone else who has proclaimed this particular theory in court?

EDDLEMAN: I have not heard of this theory, no, sir.

THE STATE: Okay. And you are - as a S.A.N.E. nurse, you're required to keep up with all changes and noted documentations and peer review articles, as well?

EDDLEMAN: Absolutely, as well as being peer reviewed myself.

THE STATE: Okay. And to your knowledge, has anyone ever expounded this theory that the Defense is portraying here today?

EDDLEMAN: Not that I'm aware of.

Finally, the following colloquy occurred between the trial judge and defense counsel:

TRIAL JUDGE: But if I understood [Hartzendorf's] testimony correctly, she's here for the purpose of telling this jury her opinion that if there's no DNA evidence, then there's no sexual assault.

DEFENSE COUNSEL: No, Judge. I asked her about that right now. She -

TRIAL JUDGE: That's what she's -

DEFENSE COUNSEL: Right that's what she testified to, but she must have understood it.

TRIAL JUDGE: You didn't ask her any questions about the other examinations that were done by Ms. Eddleman.

DEFENSE COUNSEL: No, Your Honor. I was just trying to qualify her as an expert.

TRIAL JUDGE: All right. I'm going to sustain the objection.

In light of the above colloquies, we hold the trial judge held Hartzendorf's testimony was not admissible because "her opinion that if there is no DNA evidence then there's no sexual assault," was not reliable. Scientific evidence must meet three criteria to be reliable: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question. Id. at 133. In the instant case there was no showing that Hartzendorf's underlying scientific theory was valid. Hartzendorf conceded as much when questioned by the State. This was confirmed by Eddleman. Therefore, in light of the record before us, we cannot conclude that the trial judge abused his discretion in excluding Hartzendorf's testimony as an expert witness. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (trial judge's ruling on admissibility of expert testimony reviewed under an abuse of discretion standard). Accordingly, the judgment as to Count III of the indictment is affirmed.

CHARLES F. BAIRD

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this the 21st day of February, 2008.

1. Retired Justice Charles F. Baird was assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See Tex. Gov't Code Ann. º 74.003 (Vernon 2005).

an appellate issue is not "ripe for review" until the court of appeals has reached the merits of that issue). An Opinion ~not~ a Fact

2008-03-04T03:52:00.000-08:00

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NUMBERS 13-00-035-CR & 13-00-042-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CHARLIE MELVIN PAGE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 122nd District Court

of Galveston County, Texas.

OPINION ON REMAND

Before Chief Justice Valdez and Justices Rodriguez and Baird (1)

Opinion On Remand by Justice Baird

Appellant was charged in separate indictments with the offenses of sexual assault and impersonating a peace officer. The cases were combined into a single trial where a jury convicted appellant of both offenses and assessed punishment at seven years' and five years' confinement in the Texas Department of Criminal Justice-Institutional Division, respectively.

On direct appeal, we reversed the judgment on grounds that identity was not an issue in the case, and therefore, evidence of extraneous offenses was inadmissible, but the court of criminal appeals found that identity was at issue in the case, and accordingly, reversed our judgment and remanded the case to this Court. See Page v. State, 88 S.W.3d 755 (Tex. App.-Corpus Christi 2002), rev'd, 137 S.W.3d 75, 79 (Tex. Crim. App. 2004). On remand, we reversed the judgment of the trial court on grounds that the trial court abused its discretion in admitting extraneous offenses into evidence; however, the court of criminal appeals concluded that the facts of the charged offense and the extraneous offenses showed a pattern of conduct sufficiently distinctive to constitute a "signature," a distinctive and idiosyncratic manner of committing criminal acts, and thereby qualified as an exception to the general rule precluding the admission of extraneous-offense evidence. See Page v. State, 170 S.W.3d 829, 835 (Tex. App.-Corpus Christi 2005), rev'd, 213 S.W.3d 332 (Tex. Crim. App. 2006). On remand, we affirm.

I. Procedural History

A. Page I and II.

On direct appeal, appellant contended the trial court violated Texas Rules of Evidence Rules 403 and 404(b) in admitting extraneous offense evidence. See Tex. R. Evid. 403, 404(b). We addressed only the Rule 404(b) argument, held the trial judge erred in admitting the extraneous offense evidence, and reversed the trial court's judgment. We specifically stated in that opinion: "Having found the trial judge erred in admitting the extraneous evidence testimony of Cavender and Edenfield over appellant's timely Rule 404(b) objection, we do not address appellant's Rule 403 arguments." Page I, 88 S.W.3d at 768 (emphasis supplied). (2) In reversing our decision, the court of criminal appeals addressed only our analysis of appellant's Rule 404(b) argument. Page II, 137 S.W.3d at 79 (". . . Rule 404(b) permits the introduction of extraneous offenses that are relevant to the issue of identity.").

B. Page III and IV.

On remand, we considered only appellant's Rule 404(b) argument and held "the evidence of the Cavender and Edenfield incidents was not admissible under Rule 404(b), and therefore, the trial court abused its discretion in admitting this evidence." Page III, 170 S.W.3d at 835. We specifically did not address appellant's Rule 403 arguments. Id. n.5 ("Having determined the extraneous offense evidence was not admissible under Rule 404(b), we need not address appellant's Rule 403 argument.") (emphasis supplied). Despite the fact that we specifically refused to address appellant's Rule 403 argument, the court of criminal appeals in Page IV held: "The admission of the extraneous-offense evidence did not violate Tex. R. Evid. 403 or 404(b)."

II. Appellate Jurisdiction and Hierarchy

As noted above, even though we specifically refused to address appellant's Rule 403 arguments, the court of criminal appeals in Page IV nevertheless held that the admission of the extraneous offense evidence did not violate Rule 403.

We are at a loss as how the court of criminal appeals could render any decision related to Rule 403. For more than seventeen years, that court has recognized that arguments under Rule 404(b) and Rule 403 are separate and distinct, requiring specific objections and separate arguments on appeal. See Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1990) (holding objection under Rule 404(b) was insufficient to invoke Rule 403). And for an even longer period of time, the court of criminal appeals has recognized that its discretionary review jurisdiction is limited to "decisions" made by the court of appeals. Lee v. State, 791 S.W.2d 141, 142 (Tex. Crim. App. 1990) (explaining that an appellate issue is not "ripe for review" until the court of appeals has reached the merits of that issue).

Despite those longstanding holdings, the court of criminal appeals in Page IV reached the merits of an issue never addressed by this Court. Courts of appeals are intermediate appellate courts and, as such, are "duty bound" to apply the law as interpreted by the court of criminal appeals. Taulung v. State, 979 S.W.2d 854, 857 (Tex. App.-Waco 1998, no pet.). Consequently, we cannot disturb the express holding of Page IV that the admission of the extraneous offense evidence did not violate Rule 403, even though we believe that the court of criminal appeals was without jurisdiction to make that holding. See Tex. Const. art. V, ºº 5; Tex. Code Crim. Proc. Ann. art. 44.45 (Vernon 2006); Tex. R. App. P. 66.1.

III. Conclusion

The judgments of the trial court in cause numbers 98CR0911 and 98CR0913 are affirmed.

CHARLES F. BAIRD

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion On Remand delivered and filed this the

28th day of February, 2008.

1. Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas. See Tex. Gov't Code Ann. º 74.003 (Vernon 2005).

2.
In Page I and III, the Court noted that the author's policy of not referring to complainants by name could not be followed because of the circumstances presented by this case.

Another baird bites the dust of his own ruling to kingdom Come.........

2007-09-26T22:42:00.000-07:00

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Wednesday 26 September 2007
Home / Schiavo Case Resources / Schiavo Timeline
Schiavo Case Resources
Key events in the case of Theresa Marie Schiavo

Kathy Cerminara, Nova Southeastern University, Shepard Broad Law Center

Kenneth Goodman, University of Miami Ethics Programs

Acknowledgements and Citation FormatsGet adobe Acrobat

This copyrighted resource is a joint project of the University of Miami Ethics Programs and the Shepard Broad Law Center at Nova Southeastern University. This content may be reproduced for non-commercial, education purposes only, with (i) permission and (ii) appropriate attribution to the source. (For more information, read our copyright policy.) Please send comments, suggestions and corrections to Ken Goodman, UM Ethics Programs, at ethics@miami.edu. News media and others seeking comment from Florida Bioethics Network leaders should call 305-243-5723.

Timeline

December 3, 1963

Theresa (Terri) Marie Schindler is born in Pennsylvania.

November 10, 1984

Terri Schindler, 20, and Michael Schiavo, 21, are married at Our Lady of Good Counsel Church in Southhampton, Pennsylvania. The union is now among the "celebrity marriages" featured at About.com, a Website about marriage.

1986

The couple move to St. Petersburg, where Ms. Schiavo's parents had retired.

February 25, 1990

Ms. Schiavo suffers cardiac arrest, apparently caused by a potassium imbalance and leading to brain damage due to lack of oxygen. She was taken to the Humana Northside Hospital and was later given a percutaneous endoscopic gastrostomy (PEG) to provide nutrition and hydration. Police report

May 12, 1990

Ms. Schiavo is discharged from the hospital and taken to the College Park skilled care and rehabilitation facility.

June 18, 1990

Court appoints Michael Schiavo as guardian; Ms. Schiavo’s parents do not object.

June 30, 1990

Ms. Schiavo is transferred to Bayfront Hospital for further rehabilitation efforts.

September 1990

Ms. Schiavo’s family brings her home, but three weeks later they return her to the College Park facility because the family is “overwhelmed by Terri’s care needs.”

November 1990

Michael Schiavo takes Ms. Schiavo to California for experimental “brain stimulator” treatment, an experimental “thalamic stimulator implant” in her brain.

January 1991

The Schiavos return to Florida; Ms. Schiavo is moved to the Mediplex Rehabilitation Center in Brandon where she receives 24-hour care.

July 19, 1991

Ms. Schiavo is transferred to Sable Palms skilled care facility where she receives continuing neurological testing, and regular and aggressive speech/occupational therapy through 1994.

May 1992

Ms. Schiavo’s parents, Robert and Mary Schindler, and Michael Schiavo stop living together.

August 1992

Ms. Schiavo is awarded $250,000 in an out-of-court medical malpractice settlement with one of her physicians.

November 1992

The jury in the medical malpractice trial against another of Ms. Schiavo's physicians awards more than one million dollars. In the end, after attorneys’ fees and other expenses, Michael Schiavo received about $300,000 and about $750,000 was put in a trust fund specifically for Ms. Schiavo’s medical care.

February 14, 1993

Michael Schiavo and the Schindlers have a falling-out over the course of therapy for Ms. Schiavo; Michael Schiavo claims that the Schindlers demand that he share the malpractice money with them.

July 29, 1993

Schindlers attempt to remove Michael Schiavo as Ms. Schiavo’s guardian; the court later dismisses the suit.

March 1, 1994

First guardian ad litem, John H. Pecarek, submits his report. He states that Michael Schiavo has acted appropriately and attentively toward Ms. Schiavo.

May 1998

Michael Schiavo petitions the court to authorize the removal of Ms. Schiavo’s PEG tube; the Schindlers oppose, saying that she would want to remain alive. The court appoints Richard Pearse, Esq., to serve as the second guardian ad litem for Ms. Schiavo.

December 20, 1998

The second guardian ad litem, Richard Pearse, Esq., issues his report in which he concludes that Ms. Schiavo is in a persistent vegetative state with no chance of improvement and that Michael Schiavo’s decision-making may be influenced by the potential to inherit the remainder of Ms. Schiavo’s estate.
Pearse GAL Report

January 24, 2000

The trial begins; Pinellas-Pasco County Circuit Court Judge George Greer presides.

Testimony of Father Gerard Murphy

February 11, 2000

Judge Greer rules that Ms. Schiavo would have chosen to have the PEG tube removed, and therefore he orders it removed, which, according to doctors, will cause her death in approximately 7 to 14 days.
Trial Court Ruling

March 2, 2000

The Schindlers file a petition with Judge Greer to allow “swallowing” tests to be performed on Ms. Schiavo to determine if she can consume—or learn to consume—nutrients on her own.

March 7, 2000

Judge Greer denies the Schindlers’ petition to perform “swallowing” tests on Ms. Schiavo.

March 24, 2000

Judge Greer grants Michael Schiavo’s petition to limit visitation to Ms. Schiavo as well as to bar pictures. Judge Greer also stays his order until 30 days beyond the final exhaustion of all appeals by the Schindlers.

Greer Stay and Order Limiting Visitation

January 24, 2001

Florida’s Second District Court of Appeal (2nd DCA) upholds Judge Greer’s ruling that permits the removal of Ms. Schiavo’s PEG tube.

In re Schiavo, 780 So. 2d 176 (2nd DCA 2001), rehearing denied (Feb. 22, 2001), review denied, 789 So. 2d 348 (Fla. 2001). (Case No.: SC01-559)

DCA Ruling

February 22, 2001

The Schindler family’s motion for an Appellate Court rehearing is denied.

March 12, 2001

Michael Schiavo petitions Judge Greer to lift his stay, issued March 24, 2000, in order to permit the removal of Ms. Shiavo’s PEG tube.

March 29, 2001

Judge Greer denies Michael Schiavo’s motion to lift stay issued on March 24, 2000; Michael Schiavo can remove Ms. Schiavo’s PEG tube at 1 p.m. on April 20.

Greer Order

April 10, 2001

The 2nd DCA denies the Schindlers’ motion to extend Judge Greer’s stay, which is scheduled to expire April 20, 2001.

DCA Order

April 12, 2001

The Schindlers file a motion requesting that Judge Greer recuse himself.

The Schindlers petition the Florida Supreme Court to stay the removal of Ms. Schiavo’s PEG tube.

Motion for Stay Part 1

Motion for Stay Part 2

Court’s Request for Response from Schiavo

April 16, 2001

Judge Greer denies the Schindlers’ motion to recuse himself.

April 18, 2001

The Florida Supreme Court chooses not to review the decision of the 2nd DCA.

In re Schiavo, 789 So. 2d 248 (Fla. 2001). Case No.: SC01-559

Schindler family’s Notice to Appeal to Supreme Court

Schindlers’ Jurisdictional Brief Part 1

Schindlers’ Jurisdictional Brief Part 2

Order Denying Rehearing and Motion for Stay

April 20, 2001

Federal District Court Judge Richard Lazzara grants the Schindlers a stay until April 23, 2001, to exhaust all their possible appeals.

April 23, 2001

Justice Anthony M. Kennedy of the United States Supreme Court refuses to stay the case for a review by that Court.

April 24, 2001

By order of trial court Judge Greer, and upon issuance of a 2nd DCA mandate, Ms. Schiavo’s PEG tube is removed

April 26, 2001

The Schindlers file an emergency motion with Judge Greer for relief from judgment based upon new evidence, which includes a claim that a former girlfriend of Michael Schiavo will testify that he lied about Ms. Schiavo’s wishes; Judge Greer dismisses the motion as untimely. Also on this date, the Schindlers file a new civil suit that claims that Michael Schiavo perjured himself when he testified that Ms. Schiavo had stated an aversion to remaining on life support. Pending this new civil trial, Circuit Court Judge Frank Quesada orders Ms. Schiavo’s PEG tube to be reinserted.

April 30, 2001

Michael Schiavo files an emergency motion with the 2nd DCA to allow the removal of Ms. Schiavo’s PEG tube.

May 9, 2001

The 2nd DCA announces a date for the hearing of oral arguments regarding Michael Schiavo’s motion of April 30, 2001.

June 25, 2001

Arguments in 2nd DCA regarding Michael Schiavo’s motion of April 30, 2001.

July 11, 2001

The 2nd DCA remands the case back to Judge Greer. (1) The 2nd DCA informs the Schindlers that they must address both their desire to have new evidence heard and their perjury claim against Michael Schiavo within the original guardianship proceeding; further, the Schindlers are instructed to file a new motion for relief from judgment in the guardianship proceeding. (2) The 2nd DCA instructs Judge Greer to weigh the Schinders’ new evidence in making a new determination of what Ms. Schiavo would have wanted. (3) The 2nd DCA denies Michael Schiavo’s request to discontinue the PEG tube.

In re Schiavo, 792 So. 2d 551 (2nd DCA 2001).

DCA Order

August 7, 2001

After the 2nd DCA remands the case back to Judge Greer, he again finds that Michael Schiavo may remove Ms. Schiavo’s PEG tube on August 28.

August 10, 2001

Judge Greer denies the Schindlers' motion (1) to have their own doctors examine Ms. Schiavo, (2) to remove Michael Schiavo as her guardian, and (3) to disqualify himself from the proceedings.

August 17, 2001

Judge Greer delays the removal of Ms. Schiavo's PEG tube until October 9 in order to allow the Schindlers time to appeal.

October 3, 2001

The 2nd DCA delays the removal of the PEG tube indefinitely.

October 17, 2001

The 2nd DCA rules that 5 doctors should examine Ms. Schiavo to determine if she can improve with new medical treatment. The Schindlers and Michael Schiavo are to choose 2 doctors each, and the court is to appoint a doctor. The appeals court also affirms Greer’s denial of the motion to disqualify himself

In re Schiavo, 800 So. 2d 640 (2nd DCA 2001).

DCA Ruling

November 1, 2001

The 2nd DCA denies Michael Schiavo’s motion to rehear the case.

December 14, 2001

Michael Schiavo petitions the Florida Supreme Court to stay the October 17, 2001, ruling of the 2nd DCA. He states that he and the Schindlers will attempt to mediate the dispute in lieu of further litigation.

Michael Schiavo’s Notice of Appeal to the Florida Supreme Court

Michael Schiavo’s Motion to Stay DCA’s Ruling.

December 19, 2001

Attorneys meet with a mediator to determine which tests doctors should run on Ms. Schiavo.

January 10, 2002

State Supreme Court stays all legal proceedings pending mediation; it orders attorneys to report on the status of mediation in sixty days.

Supreme Court Order of Stay

February 13, 2002

Mediation between the Schindlers and Michael Schiavo fails.

Notice that Mediation Failed.

March 14, 2002

The Florida Supreme Court denies Michael Schiavo’s petition to review the 2nd DCA’s ruling allowing 5 doctors to examine Ms. Schiavo.

In re Schiavo, 816 So. 2d 127 (Fla. 2002) (Table, No. SC01-2678)

2-13-02 Michael Schiavo’s Jurisdictional Petition.

2-13-02 Michael Schiavo’s Petition to Stay ruling of 2nd DCA (10/17/01).

2-22-02 Court’s Order of Stay pending its final decision.

3-01-02 Schindler’s Jurisdictional Brief

3-13-01 Michael Schiavo’s Motion to Strike

3-14-01 Order Denying Schiavo’s Petition

3-14-01 Order to Strike

October 12-22, 2002

The trial court holds a new hearing on new potential medical treatments.

November 15, 2002

The Schindlers contend that Michael Schiavo might have abused Ms. Schiavo and this abuse led to her condition. They ask the court for more time to collect evidence, and to remove Michael Schiavo as guardian.

Petition to remove MS as guardian

November 22, 2002

Judge Greer rules that Ms. Schiavo’s PEG tube should be removed January 3, 2003.

In re Schiavo, 2002 WL 31817960 (Fla. Cir. Ct. Nov. 22, 2002)(No. 90-2908-GB-003)

Nov22 2002 TC trialctorder11-02.txt

December 13, 2002

Judge Greer stays his November 22 ruling: Ms. Schiavo should not have her PEG tube removed until an appeals court can rule on the case.

December 23, 2002

The 22nd DCA denies a motion Michael Schiavo filed seeking permission to remove the PEG tube.

June 6, 2003

The 22nd DCA, affirming Judge Greer’s November 2002 ruling, concludes that Michael Schiavo can remove Ms. Schiavo’s PEG tube on October 15.

In re Schiavo, 851 So. 2d 182 (2nd DCA 2003) (No. 2D02-5394), rehearing denied (July 9, 2003), review denied 855 So. 2d 621 (Fla. 2003).

6-06-03 Court Opinion

July 9, 2003

The 22nd DCA refuses to reconsider its decision.

August 22, 2003

The Florida Supreme Court declines to review the decision.

Schindler v. Schiavo, 855 So. 2d 621 (Fla. 2003) (Table, No. SC03-1242)

7-24-03 Notice of Schindlers Appeal

7-31-03 Michael Schiavo’s Motion to Vacate

Court Order denying Motion to Vacate

8-07-03 Schindler's Petition for a Supreme Court Review

8-13-03 Michael Shiavo’s Response to Petition for Review

8-18-03 Schindlers motion for a Stay

8-19-03 Court Orders Schiavo to make a Respond for the Motion for Stay

8-20-03 Shiavo’s Response to Motion for Stay

8-22-03 Court Order denying Review and Motion for Stay

August 30, 2003

Ms. Schiavo’s parents file a federal lawsuit challenging the removal of Ms. Schiavo’s PEG tube. Schiavos’ petition (D). Schindler v. Schiavo, Civil Action No. 8:03-CV-1860-T-26-T-TGW

September 17, 2003

Judge Greer orders the removal of the PEG tube to take place on October 15, 2003. He also rejects the Schindlers’ request that Ms. Schiavo be given therapy to learn how to eat without the tube.

9-17-03 Court Order

October 7, 2003

Governor Jeb Bush files a federal court brief in support of the Schindlers’ effort to stop the removal of the PEG tube.

October 10, 2003

Federal Court Judge Richard Lazzara rules that he lacks the jurisdiction to hear the federal case.

October 14, 2003

The 2nd DCA refuses to block Judge Greer’s order to remove the PEG tube.

October 15, 2003

Ms. Schiavo’s PEG tube is once again removed.

October 17, 2003

The Florida Circuit Court in Pinellas County and the First District Court of Appeal refuse to grant a request by "supporters" of the Schindlers to direct Gov. Bush to intervene in the case.

October 19, 2003

The Advocacy Center for Persons with Disabilities, Inc. files a federal court lawsuit that claims that the removal of Ms. Schiavo’s PEG tube is abuse and neglect.

Advocacy Center for Persons with Disabilities, Inc. v. Schiavo, No. 8:03-CV-2167-T-23EAJ

October 20, 2003

The Florida House of Representatives passes a bill, “Terri’s Law,” that allows the governor to issue a “one-time stay in certain cases.”

House Bill 35-E

October 21, 2003

The Florida Senate passes the bill; Governor Bush issues an executive order directing reinsertion of the PEG tube and appointing a guardian ad litem for Ms. Schiavo.

Executive Order

Statements by Some House members

Michael Schiavo files a state-court lawsuit arguing that “Terri’s Law” is unconstitutional and seeking an injunction to stop the reinsertion of the PEG tube; the court requests briefs on the Constitutional arguments about “Terri’s Law.”

Schiavo Injunction

Schiavo v. Bush. No. 03-008212-CI-20 (Cir. Ct. Pinellas County, Florida).

The federal court denies the motion for a temporary restraining order filed in the lawsuit of the Advocacy Center for Persons with Disabilities, Inc.

Advocacy Center for Persons with Disabilities, Inc. v. Schiavo, 2003 WL 23305833, 17 Fla. L. Weekly Fed. D 291 (M.D. Fla. Oct. 21, 2003).

US District Court Order

Ms. Schiavo’s PEG tube is reinserted.

October 22, 2003

David Demeres, Chief Judge for the Pinellas County Circuit Court, orders both the Schindlers and Michael Schiavo to agree within 5 days on an independent guardian ad litem as required under the Governor’s order. (“Terri’s Law” directs: “Upon issuance of the stay, the chief judge of the circuit court shall appoint a guardian ad litem for the patient to make recommendations to the Governor and the court.”)

Schiavo's Response

Schindlers' Response

October 28, 2003

President George W. Bush praises the way his brother, Governor Jeb Bush, has handled the Schiavo matter.
Transcript of Rose Garden Press Conference

October 29, 2003

Michael Schiavo files court papers in his state-court lawsuit, arguing that “Terri’s Law” is unconstitutional. The American Civil Liberties Union has joined Michael Schiavo.

Michael Schiavo petitioner brief

October 31, 2003

Judge Demers appoints Dr. Jay Wolfson as Ms. Schiavo’s guardian ad litem. Dr. Wolfson holds both medical and legal degrees; he is also a public health professor at the University of South Florida. He is supposed to represent Ms. Schiavo’s best interest in court, but he has no authority to make decisions for her.

10-31-03 GAL Appointment

November 4, 2003

Governor Jeb Bush asks Circuit Court Judge W. Douglas Baird to dismiss Michael Schiavo’s suit (filed October 21, 2003) that challenges “Terri’s Law.”

November 8, 2003

Judge Baird denies Governor Bush’s motion to dismiss the state-court suit.

November 10, 2003

Governor Bush appeals Judge Baird’s decision; the filing of the appeal has the effect of staying the removal of Ms. Schiavo’s PEG tube.

November 14, 2003

Judge Baird vacates the stay.

11-14-03 Order vacating stay.

November 14, 2003

In response to Judge Baird’s lifting the stay, the 2nd DCA issues an indefinite stay.

November 19, 2003

Governor Bush files a petition to remove Judge Baird.

11-19-03 Petition

November 21, 2003

Florida Sens. Stephen Wise and Jim Sebesta introduce legislation (S692) that would require persons in persistent vegetative states to be administered medically supplied nutrition and hydration in the absence of a living will, regardless of family beliefs about what those patients would have wanted. The measure is withdrawn from consideration on April 16, 2004.

Bill to require sustenence when no living will exists

December 1, 2003

University of South Florida Prof. Jay Wolfson, guardian ad litem, concludes in his report that Ms. Schiavo is in a persistent vegetative state with no chance of improvement.

Wolfson's Report

Governor Bush's response to Wolfson's report

December 10, 2003

The 2nd DCA refuses to remove Judge Baird, who is the presiding judge in the state-court lawsuit filed October 21, 2003.

Bush v. Schiavo, 861 So. 2d 506 (2nd DCA 2003) (No. 2D03-5244)

Court Opinion

January 5, 2004

The Schindler family petitions the Pinellas County Circuit Court to reappoint Jay Wolfson, the guardian ad litem.

1-05-04 Schindlers petition to reappoint GAL

January 8, 2004

Judge Demers rejects the request to reappoint the guardian ad litem, citing the pending court decisions over the constitutionality of “Terri’s Law” as reason to wait on any action.

1-08-04 Order denying reinstatement of GAL

February 13, 2004

The 2nd DCA reverses Judge Baird’s ruling (in the case filed October 21, 2003) that denied the Schindlers permission to intervene in Michael Schiavo’s Constitutional challenge to “Terri’s Law.” The 2nd DCA explains that Judge Baird did not follow proper procedure. The court also gives permission to Governor Bush to question several witnesses who Judge Baird previously had ruled could not offer any relevant testimony.

Bush v. Schiavo, 866 So. 2d 140 (Fla. 2nd DCA 2004) (on intervention); 866 So. 2d 136 (2nd DCA 2004) (on request to take depositions). (Case No. 2D03-5783).

bushschiavo2 13 04 opn.pdf

2-13-04 Opinion allowing parents to intervene

March 12, 2004

Judge Baird again rejects the Schindlers’ request to intervene in Michael Schiavo’s suit that questions the constitutionality of “Terri’s Law.”

March 20, 2004

Pope John Paul II addresses World Federation of Catholic Medical Associations and Pontifical Academy for Life Congress on "Life-Sustaining Treatments and Vegetative State: Scientific Advances and Ethical Dilemmas." His remarks spark widespread interest and controversy.
Pope's address

March 29, 2004

Nursing home workers discover 4 “fresh puncture wounds” on one arm and a fifth wound on the other arm; the workers state that a hypodermic needle appears to have caused the wounds. Attendants discovered the wounds shortly after the Schindlers visited Ms. Schiavo for 45 minutes. Toxicology reports indicate that no substance was injected into Ms. Schiavo. Clearwater police later conclude that the marks might have been made by a device used to move Ms. Schiavo and, in any case, that no evidence of abuse or other wrongdoing could be found.
St. Petersburg Timesreport (May 15, 2004)

March 29, 2004

Judge Greer denies a motion filed by the Schindlers seeking to have Michael Schiavo defend himself in a hearing; they allege that he is violating a 1996 court order that requires him to share a sufficient amount of Ms. Schiavo’s medical information. Michael Schiavo claims that he has shared an adequate amount of information through attorneys.

April 16, 2004

S692 is withdrawn from consideration in the Florida Legislature.
S692 History

April 23, 2004

The 2nd DCA rules that the Pinellas County trial court has jurisdiction to hear and is the proper venue for the case Michael Schiavo has filed against Governor Bush asserting that "Terri's Law" is unconstitutional.

2nd DCA Jurisdictional Ruling

May 6, 2004

Pinellas Circuit Judge W. Douglas Baird rules that "Terri's Law," sought and signed by Gov. Bush and approved by the Legislature on October 21, 2003, is unconstitutional. The governor appeals the ruling.

Judge Baird's order

June 1, 2004

The 2nd DCA grants a motion from attorneys for Michael Schiavo to send the case directly to the Florida Supreme Court and bypass a lower-court review. Meanwhile, attorneys for Gov. Bush file a motion asking that all appeals be halted until the issue of whether Michael Schiavo has the authority to fight the governor on his wife's behalf is resolved.

June 16, 2004

Florida's Supreme Court, pointing to "a question of great public importance requiring immediate resolution by this Court," accepts jurisdiction and sets oral arguments for August 31, 2004.

Florida Supreme Court order

June 30, 2004

2nd DCA affirms Judge Baird's March 12 ruling denying the Schindlers the ability to intervene in the lawsuit over the constitutionality of "Terri's Law."

July 19, 2004

The Schindlers file a motion in the Circuit Court for Pinellas County seeking relief from judgment in Schindler v. Schiavo. Based in part upon the recent statement by Pope John Paul II, they argue that the orders mandating withdrawal of the PEG tube from Ms. Schiavo and authorizing Michael to challenge the constitutionality of "Terri's Law" violate her "free exercise of her religious beliefs [and] her right to enjoy and defend her own life and, in fact, imperil her immortal soul."
Relief from judgment motion
Appendix to motion(seven exhibits)

July 27, 2004

National group of bioethicists files amicus brief "in support of Michael Schiavo as guardian of the person."

Bioethicists' amicus brief

August 31, 2004

The Florida Supreme Court hears oral arguments in the lawsuit over the constitutionality of "Terri's Law."

Streaming video of the proceedings, archived by WFSU at Florida State University

Transcript

St. Petersburg Times report

August 31, 2004

Circuit Judge George Greer, opposed for re-election by an attorney who was known to oppose Greer's rulings in the Schiavo case, is re-elected by a large margin.

St. Petersburg Times report

September 23, 2004

Florida's Supreme Court, unanimously affirming the trial court order, declares "Terri's Law" unconstitutional.
Supreme Court ruling

October 4, 2004

Governor Bush files a motion and then an amended motion for rehearing and clarification of the Florida Supreme Court opinion issued on September 23, 2004

Amended motion for rehearing and clarification

October 21, 2004

Florida Supreme Court denies Governor Bush's amended motion for rehearing and clarification, as well as a motion seeking permission to file a second amended motion for rehearing and clarification. The Court issues a mandate to transfer jurisdiction back to Judge Greer.

Order Denying Motion

October 22, 2004

In Pinellas County, at the trial-court level, Judge Greer denies the motion filed by the Schindlers on July 19, 2004. He also stays the removal of her PEG tube until December 6, 2004.
Order Denying Motion
Order Granting Stay

October 25, 2004

Governor Bush files a motion with the Florida Supreme Court asking that it recall the mandate it issued on October 22 because he will be filing a petition for certiorari regarding this case with the United States Supreme Court.
Motion to Recall Mandate

Appendix to Motion

October 27, 2004

Florida Supreme Court grants Governor Bush's motion asking that it recall the mandate issued on October 22. Proceedings in the trial and all appellate courts in the case of Bush v. Schiavo are stayed until November 29, 2004.

Order Recalling Mandate

November 22, 2004

In the guardianship proceeding in Pinellas County, the Schindlers appeal from Judge Greer’s October 22 order denying their motion for relief from judgment.
Brief Seeking Review

December 1, 2004

Governor Bush files a petition for certiorari, seeking review of the Florida Supreme Court’s decision regarding "Terri’s Law," with the U.S. Supreme Court.
U.S. Supreme Court Docket

December 29, 2004

2nd DCA, without opinion, denies the Schindlers' November 22 appeal from Judge Greer's order refusing to reopen the guardianship proceeding.

January 10, 2005

The Schindlers again ask Judge Greer to remove Michael Schiavo from his judicial appointed post of Ms. Schiavo’s guardian.

January 13, 2005

The Schindlers file two motions – one in the 2d DCA, asking it to reconsider its decision of December 29, 2004, and a second in the trial court guardianship proceeding, asking Judge Greer once again to prevent withdrawal of nutrition and hydration until the 2d DCA does so.

January 24, 2005

The United States Supreme Court refused to grant review of the case in which the Florida Supreme Court struck down “Terri’s Law” as unconstitutional.

February 7, 2005

Florida's Department of Agriculture and Consumer Services cites the Terri Schindler-Schiavo Foundation for failing to register with the state to solicit donations.

February 11, 2005

In Pinellas County, Judge Greer denies the Schindlers' motions, filed January 10 and 13, 2005. The order authorizing withdrawal of the PEG tube remains in effect, although implementation is stayed pending the outcome of currently pending appeals.

February 15, 2005

The Schindlers ask the 2nd DCA to stay the mandate issued when it refused to hear their most recent appeal.

February 16, 2005

Randall Terry, founder of the pro-life activist organization Operation Rescue, appears with the Schindlers at a news conference, vowing protest vigils against removal of the PEG tube.

February 18, 2005

The Schindlers again petition Judge Greer in Pinellas County for reconsideration of the order of February 11, 2005, in which the court upheld its judgment, made in the year 2000, that the PEG tube should be removed.

February 18, 2005

Florida Representatives Baxley Brown; Cannon; Davis, D.; Flores; Goldstein; Lopez-Cantera; Murzin; Quinones; Traviesa introduced H 701 in the Florida Legislature. H 701, mirroring S. 692 (introduced in October 2003 and withdrawn in April 2004), would require maintenance of medically supplied nutrition and hydration in incapacitated persons in most instances.
H.701

February 21, 2005

The 2d DCA denies the Schindlers’ motion of February 15, 2005, clearing the way for removal of the PEG tube when the current stay expires on February 22, 2005. Judge Greer schedules a hearing on the Schindlers’ motion of February 18, 2005, for February 23, 2005.

February 22, 2005

Judge Greer stays removal of the PEG tube until 5 p.m. on February 23, 2005 (after he hears argument on the motion filed by the Schindlers on February 18, 2005).

February 23, 2005

After a hearing, Judge Greer extends the stay preventing removal of the PEG tube until 5 p.m. on February 25, 2005, to permit time to issue an order detailing his decisions regarding matters discussed at the hearing. Officials from Florida’s Department of Children and Families (DCF) move to intervene in the case, but Judge Greer denies the motion to intervene at the hearing.
DCF Motion to Intervene

February 25, 2005

Judge Greer denies the motion before him and orders that, “absent a stay from the appellate courts, the guardian, Michael Schiavo, shall cause the removal of nutrition and hydration from the ward, Theresa Schiavo, at 1 p.m. on Friday, March 18, 2005.”
Order Denying Stay

February 26, 2005

The St. Petersburg Times reports that a Vatican cardinal spoke on Vatican Radio opposing removal of the PEG tube.
St. Petersburg Times article

February 28, 2005

The Schindlers file a number of motions with Judge Greer, addressing a range of issues. They also indicate that they will appeal the judge's decision of February 25, 2005. Judge Greer denies some of the motions but agreed to set a hearing date to consider others.
St. Petersburg Times article

March 7, 2005

The Schindlers appeal Judge Greer's February 25, 2005 order to the 2nd DCA.
Bioethicists from six Florida universities submit an analysis of H701.
Bioethicists' Analysis
Legal Analysis

March 8, 2005

U.S. Rep. David Weldon (R.-Fla.) introduces in the United States House of Representatives H.R. 1151, titled the Incapactitated Persons' Legal Protection Act. The bill would permit a federal court to review the Schiavo matter through a habeas corpus lawsuit.
H.R. 1151

March 9, 2005

The Florida House Health Care Regulation Committee considers H.701, voting to approve a Council/Committee Substitute 701 instead of the original version.
Council/Committee Substitute 701

March 10, 2005

Judge Greer issues order denying Florida's Department of Children and Families the right to intervene in the guardianship case.

March 14, 2005

The Judiciary Committee in the Florida House considers H.701, voting to approve another Committee substitute for the original bill. The South Florida Sun-Sentinel reports that the House and the Senate have agreed that this bill will come to a vote.
Second Committee Substitute 701

March 15, 2005

The Florida House Health & Families Council considers and approves the second committee substitute H.701.

The Florida Senate Judiciary Committee passes S.804, providing that medically supplied nutrition and hydration cannot be “suspended from” a person in a PVS if: (1) the purpose of the suspension is “solely to end the life of” a person in a PVS; (2) a conflict exists on the issue of suspension of medically supplied nutrition and hydration among the persons who could be proxy decisionmakers for that person under Florida law; and (3) the person in the PVS had not executed a written advance directive or deignated a health care surrogate.
Senate Bill 804

March 16, 2005

The 2d DCA affirms Judge Greer’s orders and refuses to stay the scheduled March 18 withdrawal of the PEG tube.
2d DCA Opinion

The U.S. House of Representatives, by voice vote, passes H.R. 1332, the Protection of Incapacitated Persons Act of 2005. This bill would amend federal law to provide for removal of certain cases to federal court from state court, rather than authorizing use of the federal habeas corpus remedy to obtain federal court review, as H.R. 1151 would have.
H.R. 1332

Rep. Joseph R. Pitts (R-Pa.) comments (on March 17) on H.R. 1332.
Text of Statement, from Congressional Record

March 17, 2005

The Florida House of Representatives approves H.701, after some amendments.
House-Engrossed H.701

The Florida Senate votes down S.804.
History of S.804

Florida’s Department of Children and Families (DCF) petitions the Florida Supreme Court for relief, and the Florida Supreme Court denies the petition.
DCF All Writs Petition
Florida Supreme Court order

The U.S. Senate passes a “private bill” applying to the Schiavo case but differing from H.R. 1332. The U.S. Senate website, at www.senate.gov, explains a “private bill” as follows: “A private bill provides benefits to specified individuals (including corporate bodies). Individuals sometimes request relief through private legislation when administrative or legal remedies are exhausted. Many private bills deal with immigration–granting citizenship or permanent residency. Private bills may also be introduced for individuals who have claims again the government, veterans benefits claims, claims for military decorations, or taxation problems. The title of a private bill usually begins with the phrase, "For the relief of. . . ." If a private bill is passed in identical form by both houses of Congress and is signed by the President, it becomes a private law.”
U.S. Senate Bill 653 ES
Orlando Sentinel article

The Schindlers ask the U.S. Supreme Court to hear the case, but the U.S. Supreme Court denies their petition.
Schindlers’ Petition to U.S. Supreme Court
U.S. Supreme Court Denial

Republican senators circulate a memo on the political advantages of supporting legislation to reinsert Ms. Schiavo's nutrition tube. On April 7, The Washington Post reported that "The legal counsel to Sen. Mel Martinez (R-Fla.) admitted [on April 6] that he was the author of a memo citing the political advantage to Republicans of intervening in the case ... Brian H. Darling, 39, a former lobbyist for the Alexander Strategy Group on gun rights and other issues, offered his resignation and it was immediately accepted, Martinez said."

The Republican Memo
The Washington Post report

March 18, 2005

The U.S. House of Representatives Committee on Government Reform issues five subpoenas: one commanding Michael Schiavo to appear before it and bring with him the “hydration and nutrition equipment” in working order; three commanding physicians and other personnel at the hospice to do the same; and one commanding Ms. Schiavo to appear before it. The subpoenas would require that the PEG tube remain in working order until at least the date of testimony, March 25, 2005. The subpoenas are included as appendices to the U.S. House All Writs Petition (see just below).

The Committee on Government Reform also moves to intervene in the guardianship litigation before Judge Greer and asks Judge Greer to stay his order requiring removal of the PEG tube. Judge Greer denies the motions.
U.S. House Motion to Intervene
U.S. House Motion for Stay

The Committee on Government Reform files an emergency all-writs petition with the Florida Supreme Court, effectively seeking reversal of Judge Greer’s denial of its motions. The Florida Supreme Court denies this petition.
U.S. House All Writs Petition

The House Committee on Government Reform asks the U.S. Supreme Court to review the Florida Supreme Court’s denial of its petition. Justice Kennedy, acting for the Court, denies the application for relief.
U.S. Supreme Court Docket, Case No. SC05-449

The PEG tube is removed in mid-afternoon. This is the third time the tube has been removed in accordance with court orders.

The Schindlers, as “next friends” of their daughter, file a petition for writ of habeas corpus in federal district court in the Middle District of Florida. That court dismisses the case for lack of jurisdiction and refuses to issue a temporary restraining order because “there is not a substantial likelihood that [the Schindlers] will prevail on their federal constitutional claims.”

Schindlers' Habeas Corpus Petition

March 19-20, 2005

The U.S. Senate delays its Easter recess and works on Saturday to reach a compromise with the House on a bill, S.686, closely resembling the special bill it passed on March 17. On Palm Sunday (which holiday is frequently noted in debate), it then passes S.686 and the U.S. House of Representatives returns from Easter recess for a special session to debate S.686.
U.S. Senate Compromise Bill S.686

March 20, 2005

House Democrats and Republicans hold news conferences.

March 21, 2005

Shortly past 12:30 a.m., the U.S. House of Representatives votes 203-58 to suspend its rules and pass S.686.
Congressional Debate on S.686

Roll call vote on S.686

President Bush signs S.686 at 1:11 a.m.

Federal District Court Judge James D. Whittemore, Middle District of Florida (in Tampa), hears arguments on the Schindlers' motion that he order re-insertion of the PEG tube while the lawsuit they will assert pursuant to S.686 is litigated.
Schindlers' Complaint
Response to Motion for Injunction
Government's Statement of Interest

March 22, 2005

Federal District Court Judge Whittemore refuses to order re-insertion of the PEG tube.
Federal Court Order

The Schindlers appeal Judge Whittemore’s decision to the U.S. Court of Appeals for the Eleventh Circuit.
Schindlers’ 11th Circuit Appeal
Schindlers' Appeal Exhibits
Michael Schiavo’s Response
Government’s Statement of Interest

The Schindlers file an amended complaint in the federal district court, adding a number of new claims.
Schindlers'
Amended Complaint

A look at Capitol Hill politics in Schiavo case.
NPR "Morning Edition" broadcast

March 23, 2005

The U.S. Eleventh Circuit Court of Appeals, in a 2-1 vote, denies the Schindlers' appeal.
11th Circuit Opinion

United States Eleventh Circuit Court of Appeals, acting en banc (as a whole), refuses to rehear the Schindlers’ appeal, leaving intact the court’s ruling earlier in the day.
En Banc Rehearing Denial

House Democrats and Republicans hold news conferences.

The Florida Senate, by a vote of 21-18, again refuses to pass S.804. This bill was approved by the Senate Judiciary Committee on March 15, 2005.
Senate Bill 804
History of S.804

Florida Governor Jeb Bush reports that a neurologist, Dr. William Cheshire, claims that Ms. Schiavo is not in a persistent vegetative state. The governor asks the Florida Department of Children and Families (DCF) to obtain custody of Ms. Schiavo in light of allegations of abuse. Judge Greer holds a hearing on the matter.
DCF Motion to Intervene
Dr. Cheshire's Affidavit

The Schindlers file a petition for writ of certiorari with the U.S. Supreme Court.
Schindlers’ Supreme Court Petition
Respondents’ Brief

Judge Greer issues a restraining order prohibiting DCF from removing Ms.Schiavo from the hospice or otherwise re-inserting the PEG tube.

The Schindlers ask again for a restraining order in federal court.
Second Motion for Restraining Order
Memorandum in Support of Motion

Five members of the U.S. House of Representatives ask the U.S. Supreme Court to file a “friend of the court” brief.
U.S. Supreme Court Docket, Case No. 04A825

March 24, 2005

The U.S. Supreme Court refuses to hear the Schindlers’ case.
U.S. Supreme Court Order
The Schindlers file a Second Amended Complaint, adding several claims, in the federal court case. Count X, titled “Right to Life,” alleges a violation of the Fourteenth Amendment’s right to life because removing the PEG tube is “contrary to [Ms. Schiavo’s] wish to live.”
Second Amended Complaint

The trial court (Judge Whittemore) schedules a hearing for 6 p.m. and orders supplemental briefs on Count X.
Whittemore Order

Judge Greer denies DCF’s motion to intervene. DCF appeals Judge Greer’s order. Judge Greer vacates the automatic stay upon appeal. The 2d District Court of Appeal refuses to reinstate the stay. The Florida Supreme Court dismisses a motion on this matter because it “fails to invoke” the court’s jurisdiction.
DCF Motion in Florida Supreme Court (describing events)
Exhibits to Motion
Florida Supreme Court Order

March 25, 2005

Judge Whittemore denies the Schindlers’ second motion for an order re-inserting the PEG tube.
District Court 2d TRO Order

The Schindlers appeal Judge Whittemore’s order to the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit affirms. The Schindlers announce that they will pursue no more federal appeals.
Schindlers’ Brief
Responsive Brief
Second Eleventh Circuit Opinion

The Schindlers file an emergency motion attempting to convince Judge Greer to reinsert the PEG, at least temporarily until the Eleventh Circuit decides their appeal. The motion contends her family heard her try to verbalize "I want to live," according to news reports. (This motion and accompanying affidavits comprise Appendix 7 of the Schindlers’ Petition linked under March 26, just below.)

DCF appeals Judge Greer's March 23 denial of its first motion to intervene to the 2d DCA.
DCF Appeal

March 26, 2005

Judge Greer denies the Schindlers' motion of March 25, 2005.
Judge Greer's Order

The Schindlers appeal to the Florida Supreme Court to reverse Judge Greer's refusal to reinsert the PEG tube, but the Florida Supreme Court refuses to do so, citing a lack of jurisdiction.
Schindlers' Petition
Florida Supreme Court Order

News agencies report the arrest on March 25 of Richard Alan Meywes of Fairview, N.C., for offering $250,000 for the killing of Michael Schiavo and another $50,000 for the death of Judge Greer.
CNN Report

The Schindlers advise supporters demonstrating around the hospice to return home to spend the Easter holiday with their families. The protesters remain.

March 27, 2005

In an interview on CNN, Governor Bush says: "I cannot violate a court order. I don't have power from the U.S. Constitution, or the Florida Constitution for that matter, that would allow me to intervene after a decision has been made."

CNN Report

March 29, 2005

The Rev. Jesse Jackson leads a prayer service outside the hospice and speaks out against removal of the PEG tube.

The 2d DCA upholds Judge Greer's ruling refusing to let the DCF intervene.

Despite earlier indications that they would pursue no further federal appeals, the Schindlers petition the entire Eleventh Circuit Court of Appeals for permission to file a motion for rehearing en banc although the time to do so has expired. A grant of that petition would enable the Schindlers to ask for review of the Eleventh Circuit decision of March 24.

March 30, 2005

The Eleventh Circuit permits the Schindlers' filing and then, acting both through a panel and as a whole, denies the motion for rehearing.Panel Order

Order of Entire Eleventh Circuit

The U.S. Supreme Court refuses to review the Eleventh Circuit ruling.

U.S. Supreme Court Docket

March 31, 2005

Ms. Schiavo dies at 9:05 a.m. Her body is transported to the Pinellas Country Coroners’ Office for an autopsy.

Hospice of the Florida Suncoast issues a statement.
Text of Statement

Florida Gov. Bush issues a statement.
Text of Statement

Judge Greer authorizes Michael Schiavo to administer Ms. Schiavo's estate.
Greer Order

On this date in 1976, the New Jersey Supreme Court ruled that coma patient Karen Ann Quinlan could be disconnected from her respirator. She remained in a persistent vegetative state and died in 1985.

April 12, 2005

The Wall Street Journal Online/ Harris Interactive Health Care Poll finds that "most people disapprove of how President Bush, Governor Bush, and the Congress handled the issue." Harris Poll

April 15, 2005

In response to a motion from the media, Judge Greer orders DCF to release redacted copies of abuse reports regarding Ms. Schiavo. Newspapers report that DCF found no evidence of abuse after investigating the 89 reports filed before February 18, 2005. Thirty allegations are outstanding and still being investigated, but Judge Greer earlier had ruled that those allegations duplicated those previously filed.
Order and Reports

* Part I
* Part II
* Part III

May 17, 2005

More than six weeks after Ms. Schiavo's death, Lisa Wilson is the last of the hundreds of protesters outside Ms. Schiavo's hospice.St. Petersburg Times ( Report)

June 15, 2005

Dr. Jon Thogmartin, Florida's District Six Medical Examiner, releases the results of Ms. Schiavo's autopsy. He reports that the autopsy showed Ms. Schiavo's condition was "consistent" with a person in a persistent vegetative state. "This damage was irreversible," he said. "No amount of therapy or treatment would have regenerated the massive loss of neurons." No evidence of abuse was found, he said.
Autopsy Report and Supporting Documents

June 17, 2005

Florida Governor Jeb Bush asks a state prosecutor to investigate the circumstances of Ms. Schiavo's 1990 cardiac arrest, specifically the amount of time that elapsed between the time Ms. Schiavo collapsed and Michael Schiavo called 911.

June 20, 2005

Despite earlier statements that he intended to bury Ms. Schiavo's remains in Pennsylvania, Michael Schiavo buries them in Clearwater, Florida. The grave marker reads:

Schiavo
Theresa Marie

Beloved Wife

Born December 3, 1963
Departed This Earth
February 25, 1990
At Peace March 31, 2005

I Kept My Promise

Photo of Grave Marker; and AP Report

June 22, 2005
News organizations report that Randall Terry, leader of a pro-life group that demonstrated against removal of Ms. Schiavo's PEG tube, intends to run for Florida State Senate. In that race, he would challenge Sen. James E. King, Jr., who helped block the Florida Legislature's final efforts to force reinsertion of the PEG tube.

June 27, 2005
Prosecutors find no evidence of wrongdoing by Michael Schiavo after Ms. Schiavo's collapse in 1990. They write: "If the available facts are analyzed without preconceptions, it is clear that there is no basis for further investigation. While some questions may remain following the autopsy, the likelihood of finding evidence that criminal acts were responsible for her collapse is not one of them....We strongly recommend that the inquiry be closed and no further action be taken."
Memo from Prosecutors to State Attorney
Memo from State Attorney to Bush

July 7, 2005

Gov. Bush agrees to drop any further investigation into why Ms. Schiavo collapsed in 1990.
Bush Letter to State Attorney

July 8, 2005
According to The Associated Press, "The fledgling Ave Maria University [in Naples, Florida] has established a scholarship in the name of Terri Schiavo for students planning careers in the priesthood."

August 10, 2005
The New York Times reports that Senator Ron Wyden (D-Ore.), referred to Ms. Schiavo's case during a pre-confirmation-hearing meeting with President Bush's U.S. Supreme Court nominee, Judge John Roberts. Senator Wyden reportedly asked Judge Roberts whether he believed Congress should have taken the action it took. Although Judge Roberts reportedly refused to discuss the Schiavo case specifically, Senator Wyden recounts the judge's reply to a more general question as follows: "I am concerned with judicial independence. Congress can prescribe standards but when Congress starts to act like a court and prescribe particular remedies in particular cases, Congress has overstepped its bounds."
Times Report (archive access payment required)

August 11, 2005
The New York Times reports that the White House disagrees with Senator Wyden's account. "Ed Gillespie, the chief White House lobbyist for Judge Roberts's Senate confirmation, sent a letter . . . saying that the notes taken by a White House aide during the seesion reflected a different response: 'I am aware of court precedents which say Congress can overstep when it prescribes particular outcomes in particular cases.' " Senator Wyden stands by his earlier statement.
Times Report(archive access payment required)

August 16, 2005
A conservative Catholic group wants 18 academics purged from campus for perpetuating "a culture of death" by backing abortion rights or siding against Terry Schiavo's parents, The Associated Press reports.

October 18, 2005
A state judicial nominating commission announces that the lawyer who headed the DCF efforts to intervene in the Schiavo case is a finalist for two new state judgeships.
Orlando Sentinel Report (payment required)

December 7, 2005
Michael Schiavo establishes a political action committee — TerriPAC — to support or oppose politicians based on their positions regarding "government intrusion" in private lives.
TerriPAC Website
Tampa Tribune (Report)

January 21, 2006
Michael Schiavo marries his long-time girlfriend in a private ceremony in a church in Safety Harbor, some 15 miles northwest of Tampa.
St. Petersburg Times (Report)

Last updated 21-Aug-2006
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Page 1
Affirmed and Opinion filed March 30, 2000.
In The
Fourteenth Court of Appeals
____________
NO. 14-98-00201-CR
____________
HENRY ANTONIO MORA,
Appellant
V.
THE STATE OF TEXAS,
Appellee
On Appeal from the 232
nd
District Court
Harris County, Texas
Trial Court Cause No.
757,522
O P I N I O N
Appellant was charged by indictment with the offense of aggravated robbery. The
indictment also alleged a prior felony conviction for the purpose of enhancing the range of
punishment. A jury convicted appellant of the charged offense. Appellant then pled true to
the enhancement allegation and the trial court assessed punishment at 75 years confinement
in the Texas Department of Criminal Justice--Institutional Division. Appellant raises six
points of error. We affirm.
Page 2
2
I. Sufficiency Challenges
The first point of error contends the evidence is legally insufficient to sustain the
conviction. The third point of error contends the trial court erred in denying appellant’s
motion for instructed verdict. The fourth point of error contends the evidence is factually
insufficient because the evidence is insufficient to corroborate the accomplice witness
testimony. To address these points, a comprehensive review of the evidence is necessary.
A. Factual Summary
Ememeleina Arhaja, the wife of the complainant, testified that on the alleged date she
and the complainant had just cashed a check and were waiting at a bus stop. Arhaja noticed
two men who appeared suspicious, therefore, Arhaja and the complainant moved to a
different bus stop. The two men re-appeared at the second bus stop and robbed the
complainant, taking his wallet and a necklace. The robbers also took a chain from Arhaja.
To facilitate the robbery, appellant’s co-defendant displayed a firearm and used it to strike
the complainant. After the attack, the complainant ran to a store and Arhaja chased after the
robbers. Arhaja saw the robbers enter a car, which was occupied by two females, and flee.
Arhaja got a partial license plate number from the vehicle. Arhaja identified appellant’s co-
defendant from a photo spread, a video line-up and in court. Arhaja identified appellant from
a line-up, but was not able to identify appellant in court.
The complainant, Geronimo Perez, testified that he moved from the first to the second
bus stop because of two men who appeared suspicious. After arriving at the second bus stop,
the two men surprised the complainant when they used a firearm to strike the complainant
in the head, grabbed his wallet and took his chain necklace. The necklace bore the
complainant’s name.
The complainant identified appellant’s co-defendant as the individual
wielding the firearm. The complainant identified appellant in court.
Houston Police Department Officer Juan Huezoh was the first officer on the scene.
Page 3
3
He separated Arhaja and the complainant, took their descriptions of the robbers and got a
partial license plate number from Arhaja.
Houston Police Officer Cheryl Clement heard the broadcast regarding the description
of the vehicle and a partial license plate number. Shortly thereafter, Clement noticed a
vehicle fitting the description in a parking lot about three quarters of a mile from the site of
the robbery. Clement saw two black males and one black female standing near the car. The
vehicle was later moved and abandoned. Clement contacted the robbery division to get a
“hold” on the vehicle, meaning the car could be towed because there was reason to believe
it had been involved in the robbery.
The vehicle was towed to the Houston Police
Department storage lot for further investigation.
Subsequent to the impounding of the
vehicle, Arhaja went to the storage lot and identified the towed vehicle as the one she had
seen the two suspects enter when they fled the scene.
After running the license plate, the police went to an apartment complex and received
the names of Tazzie Gray, Daisy Gray, Nico Gray, and Alvaro Gomez. A photo spread was
prepared with the photo of Alvaro Gomez, also known as Orobio Gamboa Quintilliano,
appellant’s co-defendant. Both the complainant and Arhaja identified the co-defendant. An
arrest warrant was issued for the co-defendant and he was subsequently arrested along with
Tazzie Gray. The co-defendant subsequently gave a video taped statement concerning his
participation in the robbery.
The investigation then led Clement to Darlene Cheeks. After Cheeks was arrested,
and provided Clement with the name of appellant, Cheek’s boyfriend, Clement then arrested
appellant.
Clement later placed appellant and his co-defendant in separate line-ups and video-
taped them. Both line-ups were shown to the complainant and Arhaja. Both identified the
co-defendant.
Arhaja was able to identify appellant from a video line-up, but the
complainant was not.
Cheeks directed Clement to a firearm hidden in the impounded
Page 4
1
Two firearms were admitted into evidence. The firearm recovered from Gray was State’s exhibit
10 and the firearm recovered from the impounded vehicle was State’s exhibit 11. The admission of these
exhibits is the subject of part III of the opinion, infra.
4
vehicle. A firearm was also recovered from the apartment of Tazzie Gray when she was
arrested.
1
Jesus Chagoyenn, a goldsmith who owned a jewelry shop, identified appellant and his
co-defendant as the men from whom Chagoyenn purchased a chain and a ring, which he later
melted down. Chagoyenn testified he did not normally buy jewelry, but the two men stated
they needed money for gas.
Darlene Cheeks testified as an accomplice. In exchange for her testimony, she agreed
to plead guilty to several pending aggravated robberies and the State agreed the charges
would be reduced to robbery and she would be sentenced to eight years concurrent for all
cases.
Cheeks stated she had been romantically involved with appellant and she was
acquainted with the co-defendant who was the boyfriend of Tazzie Gray.
On May 4, 1997, the four went looking for someone to rob. They went to a
convenience store, which Gray entered, and saw the complainant and Arhaja cashing a check.
They followed the complainant and Arhaja to a bus stop. The two men got out of the car
while Cheeks and Gray remained in the car. After five or ten minutes, the men returned with
a wallet, a necklace and a ring. Cheeks testified the firearm used was State’s exhibit 11.
Cheeks also pointed out the jewelry store on Chimney Rock where the items had been sold.
Houston Police Officer A.A. Cavasos assisted with the investigation of the robbery.
He testified Chagoyenn told him that the chain he bought and subsequently melted down
bore the moniker of “Geronimo,” the first name of the complainant. Chagoyenn testified at
trial he did not remember that, nor did he remember telling the officer that.
Appellant’s co-defendant testified that he did not commit the robbery. Although the
co-defendant had earlier given a video-taped statement confessing to the robbery, he testified
Page 5
5
that he had smoked marijuana and crack cocaine the morning of the statement and that he
was forced to give the statement.
B. Standards of Review
We must next determine the appropriate standard of appellate review for resolving
these points of error. When we are asked to determine whether the evidence is legally
sufficient to sustain a conviction we employ the standard of Jackson v. Virginia and ask
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
In Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993), the Court of Criminal
Appeals stated: “A challenge to the trial court's ruling on a motion for an instructed verdict
is in actuality a challenge to the sufficiency of the evidence to support the conviction.”
Therefore, when considering a point of error contending the trial court erred in overruling
a motion for instructed verdict, the reviewing court “will consider the evidence presented at
trial by both the State and appellant in determining whether there was sufficient evidence.”
Id. In other words, the standard of appellate review of a ruling on a motion for instructed
verdict is the same standard in reviewing legal sufficiency of the evidence. See Margraves
v. State, 996 S.W.2d 290, 302 (Tex. App.—Houston [14
th
Dist.] 1999, pet. ref’d) (citing
Roper v. State, 917 S.W.2d 128, 130 (Tex. App.—Fort Worth 1996, pet. ref'd); Griffin v.
State, 936 S.W.2d 353, 356 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d)).
When we determine whether the evidence is factually sufficient, we employ the
standard announced in Clewis v. State and view all of the evidence without the prism of “in
the light most favorable to the prosecution” and reverse the conviction only if it is so contrary
to the overwhelming weight of the evidence as to be clearly wrong and unjust. 922 S.W.2d
126, 129 (Tex. Crim. App. 1996). In Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997),
the court stressed the importance of the three principles that must guide a court of appeals
Page 6
6
when conducting a factual sufficiency review. The first principle is deference to the jury. A
court of appeals may not reverse a jury’s decision simply because it disagrees with the result.
Rather the court of appeals must defer to the jury and may find the evidence factually
insufficient only where necessary to prevent manifest injustice. See id. at 407. The second
principle requires the court of appeals to provide a detailed explanation supporting its finding
of factual insufficiency by clearly stating why the conviction is manifestly unjust, shocks the
conscience or clearly demonstrates bias, and the court should state in what regard the
contrary evidence greatly outweighs the evidence in support of the verdict. See id. at 407.
The third principle requires the court of appeals to review all of the evidence. The court must
consider the evidence as a whole, not viewing it in the light most favorable to either party.
See id. at 408.
C. Legal Sufficiency
As the standard of appellate review is the same, we will jointly consider the first and
third points of error.
A person commits aggravated robbery if he knowingly and
intentionally threatens or places another in fear of imminent bodily injury or death in the
course of committing theft, with the intent to obtain or maintain control of the property, and
uses or exhibits a deadly weapon. See T
EX
.P
EN
.C
ODE
§29.03.
From the facts presented, after viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
Both the complainant and Arhaja identified appellant, and
Cheeks further testified appellant had been involved in the commission of the crime.
Although appellant contends the identification by the complainant and Arhaja is infirm, the
jury is the exclusive judge of the facts proved, the credibility of the witnesses, and the weight
to be given to the testimony. See T
EX
. C
ODE
C
RIM
. P
ROC
. art. 38.04. The jury may believe
or disbelieve all or any part of a witness's testimony. See Sharp v. State, 707 S.W.2d 611,
614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159
Page 7
7
(1988). The jury could rationally have believed the testimony of the complainant and Arhaja
in determining beyond a reasonable doubt that appellant was guilty of aggravated robbery.
The complainant was severely beaten and stated he feared for his life, recounting that when
the firearm was placed on his stomach, he “felt death.” The complainant’s money and
jewelry were taken without his consent. The evidence is legally sufficient to sustain the
conviction. The first and third points of error are overruled.
D. Factual Sufficiency
We now turn to the factual sufficiency challenge. Clewis directs us to set aside the
verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. See Clewis, 922 S.W.2d at 129. When performing this review, the
appellate court must be "appropriately deferential" to avoid substituting its judgment for the
fact finder's. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Clewis,
922 S.W.2d at 133. This requirement was reiterated in Cain’s instruction for us to defer to
the jury. 958 S.W.2d at 407.
Appellant was positively identified by both the complainant and Arhaja. He was
dating Cheeks, who admitted her involvement in the instant crime. The jeweler identified
appellant as one of two men selling him a chain and a ring, exactly the items Cheeks testified
were taken during the robbery. The test for factual sufficiency is whether the jury finding
of guilt was “so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust." Clewis, 922 S.W.2d at 129. Under this standard, we cannot conclude that in
light of the foregoing record evidence, the finding of guilt was clearly wrong or unjust.
Consequently, we hold the evidence is factually sufficient to support the jury’s verdict. The
fourth point of error is overruled.
II. Accomplice Witness Corroboration
The second point of error contends the “conviction for aggravated robbery is void
Page 8
8
because it was had upon accomplice witness testimony that was not corroborated at trial by
other evidence that tended to connect appellant to the crime[.]” The Texas Code of Criminal
procedure provides:
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 an offense.
T
EX
. C
ODE
C
RIM
. P
ROC
. art. 38.14. An accomplice witness is a discredited witness because
his or her testimony alone cannot furnish the basis for the conviction; no matter how
complete a case may be made out by an accomplice witness or witnesses, a conviction is not
permitted unless he or they are corroborated. See Walker v. State, 615 S.W.2d 728, 731
(Tex. Crim. App. 1981).
The test for weighing the sufficiency of corroborative evidence is to eliminate from
consideration the testimony of the accomplice witness and then examine the testimony of
other witnesses to ascertain if there is evidence which tends to connect the accused with the
commission of the offense. See Reed v. State, 744 S.W.2d 112, 125 (Tex. Crim. App. 1988).
If the testimony of Cheeks is eliminated, the identification of appellant as the robber
by both the complainant and Arhaja stands as the non-accomplice testimony against
appellant. The jury may believe or disbelieve all or any part of a witness's testimony. See
Sharp, 707 S.W.2d at 614. Arhaja’s eyewitness account and subsequent identification of
appellant as one of the robbers is sufficient evidence to connect appellant with the
commission of the instant offense. Point of error number two is overruled.
III. The Handguns
Points of error five and six contend the trial court erred in admitting into evidence
State’s exhibits 10 and 11, two different firearms, where the evidence showed that only one
firearm was used in the commission of the offense, because such evidence was not
Page 9
9
admissible under Texas Rules of Evidence 401, 402, or 403.
A. Preservation of Error
The State responds the error, if any, has been waived because appellant did not object,
thereby waiving any error, and further, the exhibits were never admitted into evidence. The
record belies these propositions. At trial, the following colloquy occurred:
The State: I would offer into evidence Judge State’s Exhibit Number
10 and State’s Exhibit Number 11. Let the record reflect that I’m tendering to
opposing counsel.
Mr. Alexander (counsel for co-defendant): That’s all right. Judge I
have the same objection as to 11 hadn’t been tied in, no predicate, no
relevance. At this point and time it’s prejudicial. It’s a gun waving at this
point. Judge I object to that.
The State: May I respond?
The Court: Mr. Gonzalez
Mr. Gonzalez (counsel for appellant): I’ll adopt his objection your
honor.
The Court: Let the record show. What says the State?
The State: Well the complainants have both stated that it was a black
gun with a longer barrel and it was a revolver. I’ve given the choice to the
complainants. They’ve looked at the gun and pointed it out. I believe I can
further in evidence –
The Court: That’s sufficient Counsel.
They’re both received and
admitted into evidence. State’s exhibit 10 and 11. (emphasis supplied)
Page 10
10
The record establishes the firearms were admitted into evidence and that appellant objected
to their admission. Therefore, the error, if any, has been preserved for appellate review.
B. Admissibility
Cheeks provided the police with State’s exhibit 11, which was hidden in the car
identified by Arhaja as the vehicle into which she saw the two suspects escape. Cheeks
stated State’s exhibit 11 was the firearm used in the commission of the offense.
Rule 401 defines relevancy for purposes of admission or exclusion under Rule 402.
“Relevant evidence” means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence. Rule 402 provides that “all relevant evidence is
admissible, except as otherwise provided by Constitution, by statute, by these rules, or by
other rules prescribed pursuant to statutory authority.
Evidence which is not relevant is
inadmissible.”
Evidence tending to affect the probability of the truth or falsity of a fact in issue is
logically relevant. See Montgomery v. State, 810 S.W.2d 372, 386 (Tex. Crim. App.
1991)(on rehearing). The court has broad discretion in determining the admissibility of
evidence, and its ruling will not be disturbed on appeal absent a clear abuse of discretion. See
Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991).
State’s exhibit 11 was identified as the firearm used in the robbery; therefore it is
directly relevant to the instant offense. Although appellant contends the State failed to show
this was the “robbery gun,” this does not affect the admissibility. Even if it was not the
robbery firearm, the introduction of a weapon submitted as being similar to the one used in
the commission of the crime is admissible as demonstrative evidence to aid the jury in
understanding oral testimony adduced at trial. See Simmons v. State, 622 S.W.2d 111,
113-14 (Tex. Crim. App. [Panel op.] 1981); Fletcher v. State, 902 S.W.2d 165, 167 (Tex.
Page 11
2
Texas Rule of Evidence 403 is essentially the same as its federal counterpart. Texas Rules of
Evidence Handbook 213 (3d ed. 1998).
11
App.—Houston [1st Dist.] 1995, pet. ref'd); Jackson v. State, 772 S.W.2d 459, 466 (Tex.
App.—Beaumont 1989, no pet.).
It is within the trial court's discretion to admit into
evidence a type of weapon or instrument similar to that used in the commission of an offense.
Simmons, 622 S.W.2d at 113. Therefore, State’s exhibit 11 was admissible under Rules 401
and 402.
C. Rule 403
The Court of Criminal Appeals favors “admission of relevant evidence and implies
a presumption that relevant evidence will be more probative than prejudicial.” See generally
T
EX
. R. E
VID
. 403. In Brimage v. State, 918 S.W.2d 466, 505 (Tex. Crim. App. 1994), cert.
denied, 519 U.S. 838, 117 S.Ct. 115, 136 L.Ed.2d 66 (1996), the Court of Criminal Appeals
held relevant evidence, which is not inflammatory or prejudicial and assists the jury in
deciding a case is admissible. The court has also held that Rule 403 requires exclusion of
evidence only when there exists a clear disparity between the degree of prejudice of the
offered evidence and its probative value. See Joiner v. State, 825 S.W.2d 701, 708 (Tex.
Crim. App.1992) and Brimage, 918 S.W.2d at 506.
In Old Chief v. United States, 117 S.Ct. 644, 650 (1997), the Court considered the
admissibility of evidence under Rule 403:
2
The principal issue is the scope of a trial judge's discretion under Rule 403,
which authorizes exclusion of relevant evidence when its "probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence." F
ED
. R. E
VID
. 403. Old
Chief relies on the danger of unfair prejudice.
The term "unfair prejudice," as to a criminal defendant, speaks to
the capacity of some concededly relevant evidence to lure the factfinder
into declaring guilt on a ground different from proof specific to the
Page 12
12
offense charged. See generally 1 J. Weinstein, M. Berger, & J. McLaughlin,
Weinstein's Evidence, ¶ 403[03] (1996) (discussing the meaning of "unfair
prejudice" under Rule 403). So, the Committee Notes to Rule 403 explain,
“'Unfair prejudice' within its context means an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an
emotional one.” Advisory Committee's Notes on Fed. Rule Evid. 403, 28
U.S.C.App., p. 860. (footnote omitted)(emphasis supplied)
The admission of State’s exhibit 11 was not the type of evidence to “lure the
factfinder into declaring guilt on a ground different from proof specific.” The weapon was
identified as the one used in the robbery, or at least similar to the one the complainant was
beat about the head with. The evidence was not more prejudicial than probative. Further,
the court's ruling on a rule 403 objection will only be reversed for a clear abuse of discretion.
See Matamoros v. State, 901 S.W.2d 470, 476 (Tex. Crim. App. 1995). Therefore, State’s
exhibit 11 was admissible under Rule 403.
D. Admissibility of State’s Exhibit 10
Because State’s exhibit 11 was identified as the firearm used in the robbery, State’s
exhibit 10 was not admissible as a similar weapon. See generally, Montgomery, 810 S.W.2d
at 386. Having found error in the admission of State’s exhibit 10, we must address whether
appellant was harmed by the trial court’s error.
In determining whether appellant was harmed, we apply the standard set out in Texas
Rule of Appellate Procedure 44.2(b) to non-constitutional errors. Under Rule 44.2(b),
appellant must show that a substantial right was affected. A substantial right is affected
when the error had a substantial and injurious effect or influence in determining the jury’s
verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A criminal
conviction should not be overturned for non-constitutional error if the appellate court, after
examining the record as a whole, has a fair assurance that the error did not influence the jury,
or had but a slight effect. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
Page 13
13
1998).
Appellant claims he was harmed not by the admission of either firearm individually,
but by the admission of two firearms. Appellant asserts that because two firearms were
admitted into evidence, the jury could have concluded that appellant also used a firearm
during the commission of the offense. The record does not support appellant’s assertion.
The State used both firearms twice during its case in chief. The first time, the State
showed both weapons to the complainant and asked if either weapon looked like the one used
in the offense. The complainant responded that State’s exhibit 10 looked like the firearm,
but the gun used in the offense had a shorter barrel than State’s exhibit 10. The complainant
was subsequently asked to identify “the man without the gun.”
The complainant then
identified appellant. The second time the State used both weapons was when the prosecutor
asked Officer Clement to testify as to how she recovered each weapon. Officer Clement did
not testify that both weapons had been used during the offense.
During Darlene Cheeks’ testimony, the State showed her State’s exhibit 11 and she
testified that the firearm belonged to appellant’s co-defendant. She further testified that
when appellant and the co-defendant left the car to commit the robbery, the co-defendant
carried the gun and when they returned to the car, the co-defendant was carrying the gun.
She never testified that appellant carried any weapon. During closing argument, the State
did not refer to either weapon. Further, the State did not lead the jury to believe that two
firearms had been used in the commission of the offense. Having examined the record as a
whole, we conclude the improper admission of State’s exhibit 10 did not influence the jury.
The fifth and sixth points of error are overruled.
The judgment of the trial court is affirmed.
Page 14
3
Former Judge Charles F. Baird sitting by assignment.
14
/s/
Charles F. Baird
Justice
Judgment rendered and Opinion filed March 30, 2000.
Panel consists of Justices Edelman, Wittig and Baird.
3
Do Not Publish — T
EX
.R.A
PP
.P. 47.3(b).

would "baird" wholly undermine any meaningful harm analysis & encourage prosecutors to repeat the error?

2007-03-26T23:48:00.001-07:00

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NUMBER 13-01-584-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI B EDINBURG

DANIEL DALLAS HAWKINS, JR. Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 252nd District Court of Jefferson County, Texas

O P I N I O N

Before Justices Hinojosa, Yañez, and Baird[1]

Opinion by Justice Baird

Appellant was charged by indictment with the offense of possession of a controlled substance, namely cocaine. The indictment also alleged multiple prior felony convictions for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant=s plea of true, the jury found the enhancement allegations true, and assessed punishment at eighteen years confinement in the Texas Department of Criminal Justice--Institutional Division. Appellant raises six points of error. We affirm the conviction, but reverse and remand for a new trial on punishment.

Parts I, II, III, and IV of this opinion are not designated for publication.

I. Sufficiency of the Evidence.

The third point of error contends the trial judge erred in denying appellant=s motion for instructed verdict. The denial of such a motion is treated as a sufficiency challenge for the purposes of appellate review. Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993).

A. Standard of Appellate Review.

In determining whether the evidence is legally sufficient to sustain the conviction, we employ the standard of Jackson v. Virginia and ask Awhether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.@ Jackson v. Virginia, 443 U.S. 307, 319 (1979). The standard applies to both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 158 (Tex. Crim. App. 1991), overruled in part on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). In possession of controlled substance cases, two evidentiary requirements must be satisfied: first, the State must prove the defendant exercised actual care, control and management over the contraband; and, second, that he had knowledge that the substance in his possession was contraband. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App.1995). The mere presence of the accused at a place where contraband is located does not make him a party to joint possession, even if he knows of the contraband's existence. Oaks v. State, 642 S.W.2d 174, 177 (Tex. Crim. App. 1982). Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner, and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it. Travis v. State, 638 S.W.2d 502, 503 (Tex. Crim. App. 1982). When an accused is not in exclusive possession and control of the place where contraband is found, it cannot be concluded he had knowledge or control over the contraband unless there are additional independent facts and circumstances that affirmatively link him to the contraband. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995). Similarly, when the contraband is not found on the accused's person, or it is not in the exclusive possession of the accused, additional facts and circumstances must link the accused to the contraband. Menchaca v. State, 901 S.W.2d 640, 651 (Tex. App.BEl Paso 1995, pet. ref'd).

The affirmative links doctrine is the appropriate means of applying the Jackson rationality standard of appellate review. Jackson, 443 U.S. at 319; Martinets v. State, 884 S.W.2d 185, 188 (Tex. App.BAustin 1994, no pet.). Various factors may be considered when determining whether the evidence is sufficient to affirmatively link the accused with the contraband.[2] The number of the factors is not as important as the logical force the factors have in establishing the elements of the offense. Jones v. State, 963 S.W.2d 826, 830 (Tex. App.BTexarkana 1998, pet. ref'd); Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.BHouston [1st Dist.] 1994, pet. ref'd); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.BHouston [1st Dist.] 1994, pet. ref'd). While affirmative links may be proved by circumstantial evidence, proof amounting to a strong suspicion or even a probability will not suffice. Grant v. State, 989 S.W.2d 428, 433 (Tex. App.BHouston [14th Dist.] 1999, no pet.) (citing Dubry v. State, 582 S.W.2d 841, 844 (Tex. Crim. App. [Panel Op.] 1979)). Ultimately, the question of whether the evidence is sufficient to affirmatively link the accused to the contraband must be answered on a case by case basis. Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.BAustin 1991, pet. ref'd).

B. Factual Summary.

In the instant case, the record evidence reveals the following: On the date of the alleged offense, Beaumont Police Officer Scott Lisenby traveled to a residence in search of an individual. Lisenby knocked on the front door of the residence, and appellant opened the door holding a crack pipe and pusher.[3] Lisenby also noticed a large bulge in appellant=s right front pocket. Upon seeing Lisenby, appellant slammed the door, and Lisenby could hear appellant running through the residence. Unable to enter the residence because the door was locked, Lisenby proceeded around the residence, and saw appellant exit through the side door. Lisenby detained appellant in the threshold of that doorway. From that location, Lisenby looked into the residence and saw on a kitchen counter a crack pipe, pusher and a loaded gun. Lisenby handcuffed appellant. While securing the weapon, crack pipe and pusher, Lisenby observed a substance he believed to be crack cocaine.[4] Lisenby also searched appellant=s wallet and found a plastic bag containing what Lisenby believed to be cocaine residue.[5] Lisenby testified two other males were in the residence at the time of appellant=s arrest: one man was in the bedroom; the second was young and mentally handicapped, and was sitting on the couch. Both of these individuals denied ownership of the gun.

Melissa Taylor, a chemist with the Jefferson County Regional Crime Laboratory, analyzed the contents of State=s Exhibit 6, and determined the exhibit contained 0.008 grams of crack cocaine. Charlyn Voight, another chemist with the same laboratory, examined the crack pipe which testified positive for cocaine residue. She also examined the plastic bag seized from appellant=s wallet, State=s Exhibit 9, and testified the exhibit contained cocaine residue.

Appellant offered the following testimony during his case-in-chief: Ray Brown testified he was in the residence when Lisenby knocked on the door. Brown testified that he did not see a crack pipe and pusher in appellant=s hand when he opened the door. Further, Brown did not see a gun. Brown testified that after appellant opened the door, he Aclosed it right back and left out through the back door.@ Brown said there was no young mentally handicapped man in the house. Brown further testified that he did not see cocaine, a crack pipe, pusher or gun on the kitchen counter. On cross-examination, Brown admitted being on felony probation for delivery of cocaine.

Rita Jones testified that she too had been at the residence on the date alleged in the indictment. She stated there was no young mentally handicapped male at the residence. Jones testified that while in the residence, she did not see any cocaine, a crack pipe or a gun. As Jones was driving away, a police vehicle pulled up, two officers approached the residence, used their night sticks to knock on the front door, and said: AIf you don=t come open this door I=m going to kick it down.@ On cross-examination, Jones stated that she had heard that appellant used crack cocaine. Jones also admitted having a prior conviction for theft and being on probation for delivery of crack cocaine.[6]

C. Analysis.

As noted above, the question of whether the evidence is sufficient to affirmatively link the accused to the contraband must be answered on a case by case basis. Whitworth, 808 S.W.2d at 569. In the instant case, the following factors tend to affirmatively link appellant to the contraband: the contraband was in plain view; appellant was not the owner of the premises, but was an invited guest in the residence where the contraband was found; the contraband was conveniently accessible to, and found in close proximity to appellant; appellant possessed other contraband when arrested; when opening the door, appellant possessed paraphernalia to use the contraband; opening and then quickly closing the door upon seeing Lisenby indicated a consciousness of guilt; and, appellant attempted to flee out the side door of the residence.

On the other hand, the following factors do not affirmatively link appellant to the contraband: appellant was not found with a large amount of cash; there was no strong residual odor of the contraband; appellant=s physical condition did not indicate the recent consumption of crack cocaine; beyond the closing of the door upon seeing Lisenby and appellant=s attempted flight, there were no furtive gestures; beyond his close proximity and convenient access, appellant had no special connection to the contraband; the occupants of the premises, both Brown and Jones, provided testimony which conflicted with the Lisenby=s testimony, but otherwise did not provide testimony which conflicted with each other; appellant made no incriminating statements connecting himself to the contraband; the quantity of the contraband was very small; and, there is no evidence the residence was a suspicious place or that appellant was there under suspicious circumstances.

Under the affirmative links standard of review, the number of links is not as important as the logical force the factors have in establishing the elements of the offense. Jones, 963 S.W.2d at 830; Hurtado, 881 S.W.2d at 743; Gilbert, 874 S.W.2d at 298. When the factors which affirmatively link appellant to the contraband are viewed in the light most favorable to the prosecution, we hold a rational trier of fact could have found beyond a reasonable doubt that appellant exercised actual care, control and management over the contraband, and did so with the knowledge that the substance was contraband. King, 895 S.W.2d at 703. Consequently, we hold the trial judge did not err in denying appellant=s motion for instructed verdict. The third point of error is overruled.

II. Jury Arguments.

The first point of error contends the trial judge erred in several respects during the State=s jury arguments. We read appellant=s brief as raising two separate claims: first, certain arguments were improper because they were outside the record; and, second, other arguments were improper because they invaded the province of the jury.

A. Permissible Jury Argument.

To be permissible, the State's jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). It has long been established that a prosecutor cannot use closing argument to place matters before the jury that are outside the record and prejudicial to the accused. Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986). Arguments referencing matters that are not in evidence and may not be inferred from the evidence are usually "designed to arouse the passion and prejudices of the jury and as such are highly inappropriate." Borjan, 787 S.W.2d at 57. Counsel is allowed wide latitude in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Bigley v. State, 831 S.W.2d 409, 414 (Tex. App.BAustin 1992), aff'd, 865 S.W.2d 26 (Tex. Crim. App. 1993).

B. Arguments Outside The Record.

Appellant argues that five separate arguments were outside the record. We will address these seriatim.

i.

The following argument was made by the State after summing up the trial testimony: AI submit to you that that=s what goes on [at the residence]. They smoke crack. They sell crack. And that=s B@ Appellant=s objection was overruled by the trial judge. We find this argument was a reasonable deduction from the evidence in light of the testimony developed at trial, namely that both Brown and Jones were on community supervision for delivery of cocaine, and Jones having heard that appellant consumed cocaine. See id. Therefore, the trial judge did not err by overruling appellant=s objection.

ii.

The following argument was made by the State describing the conduct of appellant closing the door immediately upon seeing Lisenby: AWhat did he do next? Well, he ran to the back of the house and he threw the stuff down on the counter. . . .@ Appellant=s objection was overruled by the trial judge. We find this argument was a reasonable deduction from the evidence in light of Lisenby=s testimony that the crack pipe and pusher recovered from the counter were the same as those held by appellant when he opened the door. See id. Therefore, the trial judge did not err by overruling appellant=s objection.

iii.

The following argument was made by the State when apparently holding up State=s Exhibit 9, which was the plastic bag containing cocaine residue seized from appellant=s wallet: AAnd it=s a bag with some very little of -- if anything is left in here -- I see some residue in there.@ Appellant=s objection was sustained by the trial judge, who also instructed the jury to disregard the argument. The trial judge denied appellant=s motion for mistrial.

The State may use opinion argument if it is based on evidence, and not unsworn testimony. Allridge v. State, 762 S.W.2d 146 (Tex. Crim. App. 1988). As noted above, Charlyn Voight testified State=s Exhibit 9, contained cocaine residue. Therefore, we hold the State=s argument was permissible. Since the argument was proper, the trial judge did not err in denying appellant=s motion for mistrial. And even if the argument was improper opinion, any possible error was cured by the court's instruction to disregard. Bigley, 831 S.W.2d at 415.

iv.

Immediately after the trial judge denied appellant=s motion for mistrial following the argument complained of in part iii, supra, the prosecutor stated: ABut you all can look at [State=s Exhibit 9]. You can ask for it if you want to.@ Appellant objected and the trial judge overruled the objection stating: AHe can ask the jury to look at this.@ We hold this was a correct statement of the law. Article 36.25 of the Code of Criminal Procedure provides: AThere shall be furnished to the jury upon its request any exhibits admitted as evidence in the case.@ Tex. Code Crim. Proc. Ann. art. 36.25 (Vernon 1981). Therefore, the trial judge did not err in overruling appellant=s objection.

v.

The State mentioned in its argument a discussion that occurred at voir dire, but not during the trial. The trial judge sustained appellant=s objection, instructed the jury to disregard the argument, and denied appellant=s motion for mistrial. We hold this argument was improper because statements and comments made during voir dire do not constitute evidence. However, we further find that since the argument was not Aextreme or manifestly improper, violative of a mandatory statute, [nor] injected new facts harmful to the accused,@ the trial judge=s instruction to disregard the argument was sufficient to cure the error. Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992); Reed v. State, 991 S.W.2d 354, 362-63 (Tex. App.BCorpus Christi 1999, pet. ref=d). Consequently, the trial judge did not err in denying appellant=s motion for mistrial.

C. Arguments Invading Province Of The Jury.

Appellant cites three separate arguments as being improper because they invaded the province of the jury. We reject these claims for two reasons. First, appellant did not lodge an objection on this basis in the trial court. Therefore, this argument is not preserved for our review. Coffey v. State, 796 S.W.2d 175, 179 (Tex. Crim. App.1990) (a point of error that does not comport with the trial objection presents nothing for review). Second, the trial judge sustained each of these objections and instructed the jury to disregard the arguments. Consequently, any error stemming from the arguments was cured. Cooks, 844 S.W.2d at 727; Reed, 991 S.W.2d at 362-63. Consequently, the trial judge did not err in denying appellant=s motions for mistrial.

The first point of error is overruled.

III. Evidentiary Rulings.

The second point of error contends the trial judge erred in admitting State=s Exhibits 9 and 12 after the State had rested. These two exhibits were discussed at length during the State=s case-in-chief. However, the prosecutor failed to offer the exhibits during that portion of the trial. Immediately after resting, but before appellant moved for an instructed verdict, the State moved to reopen Ato offer these exhibits that I didn=t actually tender into evidence before I rested.@ The trial judge opted not to rule upon that request until appellant=s motion for instructed verdict could be heard. The trial judge ultimately overruled that motion. Defense counsel then made an opening statement, tendered the testimony of Brown and Jones, and rested. The jury was then retired, and the charge was discussed. Then the prosecutor offered State=s Exhibits 9 and 12 into evidence. Defense counsel objected to the exhibits on the basis that the offer was untimely, and that the proper predicate and chain of custody had not been established. The trial judge overruled those objections, and admitted the exhibits. The jury returned and the trial judge immediately read the final version of the jury charge.

Article 36.02 of the Code of Criminal Procedure grants to the trial court the power to "allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice." Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 1989). The decision of whether to re-open a case lies within the sound discretion of the trial court. Zayas v. State, 972 S.W.2d 779, 792 (Tex. App.BCorpus Christi 1998, pet. ref'd). The substance of the evidence is an important factor in determining whether an abuse of discretion occurred. Wright v. State, 644 S.W.2d 525, 527 (Tex. App.BCorpus Christi 1982, no pet.).

Appellant argues permitting the State to reopen was an abuse of discretion because A[e]ven though [a]ppellant had a chance to cross-examine [Voight], his right to probe further into the admissibility of the evidence was thwarted.@ App. br. pg. 14. The State responds that the judge Awas not asked to allow additional testimony but only to tender into evidence two exhibits that were identified and exhaustively discussed through examination and cross-examination by at least two witnesses.@ State=s br. pg. 17. We agree. We hold the trial judge=s decision to permit the State to offer exhibits 9 and 12, and to admit those exhibits was within the zone of reasonable disagreement, and we will not intercede. Reyes v. State, 69 S.W.3d 725, 735 (Tex. App.BCorpus Christi 2002, pet. ref=d). Because there was no abuse of discretion, we overrule the second point of error.

IV. Comment On Weight Of Evidence.

The fourth point of error contends the trial judge commented on the weight of the evidence. Specifically, appellant complains of the following italicized portion of an instruction within the jury charge:

Our law provides that a person commits an offense if he knowingly or intentionally possesses a controlled substance.

Cocaine is a controlled substance listed in Penalty Group I of the Texas Controlled Substance Act. The offense is a felony if the quantity possessed, including any adulterants and dilutants, has an aggregate weight of less than 1 gram.[7]

Appellant argues that the instruction Aas to what a felony is and how much constitutes a felony@ is a comment on the weight of the evidence. App. br. pg. 19.

This precise argument has been rejected by this Court. In Smith v. State, the appellant complained the trial court erred by informing the jury of the degree of the offense. Smith v. State, 761 S.W.2d 546, 548 (Tex. App.BCorpus Christi 1988, no pet.). The court held that the degree of the offense is "merely a part of the general definition and description of that offense as could properly be set forth in the jury charge." Id. at 549. Consistent with the holding in Smith, we hold it was not error to include the above italicized instructions in the jury charge. The fourth point of error is overruled.

V. Improper Prosecutorial Argument On Parole.

The fifth point of error relates to the prosecutor=s argument at the punishment phase of the trial. As required by article 37.07 of the Code of Criminal Procedure, the trial judge instructed the jury on the law of parole. See Tex. Code Crim. Proc. Ann. art. 37.07, ' 4 (Vernon 1981 & Supp. 2003). And the prosecutor made the following complained of argument:

One very important thing to remember has already been alluded to by [defense counsel] and that is the page on the B about good time credit and parole. We can=t tell you how the Board of Prisons and Parole is going to handle this particular inmate and when he=s going to be released.

The only thing we can tell you for sure because it=s the only thing we know for sure is that he will do B whatever your sentence is, you know he will do at least a quarter. When his time B plus good time credit equals a quarter, okay, so it would be less than a quarter, but that=s what we know for sure, okay.

I hope that makes sense to you. It=s pretty clearly written and explained here. But that=s the one thing that we can tell you for sure, okay. That when his good time and credit B his good time and actual time reaches one quarter of whatever you send back is what he will actually serve before he=s released back into your community.

DEFENSE COUNSEL: Your Honor, I object to that. That is a misstatement of the law.

THE COURT: Sustained.

DEFENSE COUNSEL: Ask the jury to disregard that statement.

THE COURT: The jury is so instructed.

DEFENSE COUNSEL: And, again, your Honor, I move for a mistrial.

THE COURT: That=s denied [defense counsel].

THE PROSECUTOR: I am not sure what I misstated, your Honor.

THE COURT: You said that he would be released back into the community. That=s improper, [prosecutor].

THE PROSECUTOR: That was a misstatement. I did not mean to say that. That is when he will be come eligible to be released. I=m sorry for that. That=s when he becomes eligible. That=s what you know for sure, okay.

Our law could not be more clear that a prosecutor must avoid applying the parole law specifically to the defendant on trial. Perez v. State, 994 S.W.2d 233, 237 (Tex. App.BWaco 1999, no pet.); Taylor v. State, 911 S.W.2d 906, 911 (Tex. App.BFort Worth 1995, pet. ref'd). Consequently, we hold that the complained of portion of the prosecutor's argument was improper.

Generally, improper jury argument may be cured by an instruction to disregard, unless "in light of the record as a whole it was extreme or manifestly improper, violative of a mandatory statute, or injected new facts harmful to the accused." Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992); Reed v. State, 991 S.W.2d 354, 362-63 (Tex. App.BCorpus Christi 1999, pet. ref=d). Article 37.07, Sec. 4, subsections (c) and (d) address the mandatory nature of the statute. See Tex. Code Crim. Proc. Ann. art. 37.07, ' 4 (c), (d) (Vernon Supp. 2003). The final portion of the instruction required by subsection (c) states:

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

Tex. Code Crim. Proc. Ann. art. 37.07, '4(c) (Vernon Supp. 2002). Subsection (d) of that section provides: AThis section does not permit the introduction of evidence on the operation of parole and good conduct time laws.@ Tex. Code Crim. Proc. Ann. art. 37.07, ' 4(d). In light of the above italicized portions, we hold the State=s argument violated a mandatory statute. Therefore, we hold the trial court=s instruction to disregard the argument did not cure the error.

Having determined the error was not cured, we must conduct a harm analysis. Wead v. State, No. 13-00-015-CR, 2002 Tex. App. LEXIS 8058, at *11 (Tex. App.BCorpus Christi, Nov. 13, 2002, no pet.). To gauge the harm resulting from this type of error, we employ Rule 44.2(b). Perez, 994 S.W.2d at 237. Under that rule, error that does not affect a substantial right must be disregarded. A substantial right is effected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). If the error had no influence or only a slight influence on the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). However, if the reviewing court is unsure whether the error affected the outcome, the court should treat the error as harmful, i.e., as having a substantial and injurious effect or influence in determining the jury's verdict. Webb v. State, 36 S.W.3d 164, 182 (Tex. AppBHouston [14th Dist.] 2000, pet. ref=d). Neither party has the burden of proof under rule 44.2(b). Id. Rather, the appellate court will examine the record for purposes of determining harm. Id.

Applying this rule in the context of non-constitutional jury argument error, we apply the three factors recognized in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998): (1) severity of the misconduct; (2) measures adopted to cure the misconduct; and, (3) certainty of conviction absent the misconduct. Id. In the instant case, the misconduct was severe. As noted above, the argument violated a mandatory statute. Moreover, this was not an isolated incident, but a repeated reference of how the law of parole would be applied to appellant, and how much time he would serve Abefore he=s released back into your community.@

Additionally, we may consider the additional acts of misconduct when conducting our harm analysis. Peak v. State, 57 S.W.3d 14, 19 (Tex. App.BHouston [14th Dist.] 2001, no pet.) (cumulative effect of improper argument is part and parcel of assessing the severity of the prosecutorial misconduct) (citing United States v. Friedman, 909 F.2d 705, 709 (2nd Cir. 1990); Floyd v. Meachum, 907 F.2d 347, 355 (2nd Cir. 1990)). The remainder of the prosecutor=s argument was filled with improper comments. To our count, the trial judge had sustained four objections prior to the complained of argument. These improper arguments resulted from arguments outside the record, and on how parole was applied to appellant in an earlier case. Arguments outside the record are highly inappropriate. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990). Finally, even after the complained of argument, the prosecutor made yet another improper argument on a subject outside the record to which appellant objected and the trial judge instructed the jury to disregard.

We next consider the measures adopted to cure the misconduct. As noted above the trial judge instructed the jury to disregard. However, the instruction was nothing more than cursory, simply stating AThe jury is so instructed.@ Such a tepid instruction has limited curative effect. Compare Glauser v. State, 66 S.W.3d 307, 321 (Tex. App.BHouston [1st Dist.] 2000, pet. ref=d.) (recognizing Astrong instruction to disregard@). This is especially true in the context of this case where the prosecutor forced the trial judge to give four prior instructions before the complained of argument, and an additional instruction following the argument.

The State argues the fact that the prosecutor apologized for the argument militates toward a lack of harm. However, we reject this argument for two reasons. First, our law is clear that Aarguments of counsel cannot substitute for instructions by the court.@ Taylor v. Kentucky, 436 U.S. 478, 488‑89 (1978); Hutch v. State, 922 S.W.2d 166, 174 (Tex. Crim. App. 1996). Secondly, considering an apology as an integral part of a harm analysis would have the effect of permitting a prosecutor to both create and cure error. This would wholly undermine any meaningful harm analysis, and encourage prosecutors to repeat the error with impunity.

Finally, we consider the certainty of conviction absent the misconduct. However, since this argument occurred at the punishment phase, we must consider the certainty of the sentence. The instant offense was for possession of less than one gram of cocaine, specifically 0.008 grams. Normally, such an offense would be a state jail felony. However, appellant=s prior felony convictions caused the range of punishment to be that of a second degree felony. Tex. Pen. Code Ann. ' 12.42(a)(2) (Vernon Supp. 2003). The jury assessed punishment at eighteen years B the upper end of that range. In light of the very small amount of contraband in this case, we cannot say the severity of the punishment was certain without the prosecutor=s improper argument.

When the three factors of Mosley are fairly considered, we find the complained of argument was part of a studied pattern of improper remarks throughout the prosecutor=s summation resulting in severe misconduct. The curative action taken by the trial judge was tepid and ineffective in light of the severity of the misconduct. Finally, the near-maximum sentence militates toward a finding of harm. Consequently, we cannot say with confidence that the error stemming from the improper argument had no influence or only a slight influence on the punishment verdict. Johnson, 967 S.W.2d at 417. Therefore, we must treat the error as harmful. The fifth point of error is sustained.[8]

The trial court=s judgment of conviction is affirmed. However, because we sustain the fifth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2003).

CHARLES F. BAIRD

Justice

Publish only the introductory paragraph and part V., of this opinion.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed this

the 6th day of March, 2003.

[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

[2] Although not exclusive, the following is a list of the factors that may be considered:

1. Whether the contraband was in plain view or recovered from an enclosed place;

2. The accused was the owner of the premises or had the right to possess the place where the contraband was found;

3. The accused was found with a large amount of cash;

4. The contraband was conveniently accessible to the accused;

5. The contraband was found in close proximity to the accused;

6. A strong residual odor of the contraband was present;

7. The accused possessed other contraband when arrested;

8. Paraphernalia to use the contraband was in view, or found on the accused;

9. The physical condition of the accused indicated recent consumption of the contraband in question;

10. Conduct by the accused indicated a consciousness of guilt;

11. The accused attempted to flee;

12. The accused made furtive gestures;

13. The accused had a special connection to the contraband;

14. The occupants of the premises gave conflicting statements about relevant matters;

15. The accused made incriminating statements connecting himself to the contraband;

16. The quantity of the contraband; and,

17. The accused was observed in a suspicious area under suspicious circumstances.

Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App.BCorpus Christi 2002, no pet.).

[3] A pusher was described as a multipurpose tool to facilitate the consumption and retention of crack cocaine when smoked.

[4] This substance was admitted into evidence as State=s Exhibit 6.

[5] This was admitted into evidence as State=s Exhibit 9.

[6] On cross-examination, Jones further testified that she and appellant had been involved in a relationship. That union produced one child.

[7] All emphasis added unless otherwise indicated.

[8] Having sustained this point of error, we need not address the sixth point of error.

The Equal Protection Clause prohibits the discriminatory use

2007-03-26T23:36:00.000-07:00

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NUMBER 13-02-250-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

WALTER CHARLES GIBSON, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the Criminal District Court

of Jefferson County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Opinion by Justice Castillo

A jury convicted appellant Walter Charles Gibson, Jr. of the second-degree felony offense of possession of a controlled substance. It sentenced him to twenty years imprisonment in the Institutional Division of the Texas Department of Criminal Justice and imposed a $10,000 fine. We reverse and remand. Without filing a motion for rehearing, the State filed a petition for discretionary review, arguing that this Court made an error of fact concerning the proceedings in the trial court. On review of the record, we sua sponte withdraw our opinion of August 5, 2003 and substitute the following opinion. See Tex. R. App. P. 50. The following is now our opinion.

I. ISSUES ON APPEAL

Represented by appointed appellate counsel, Gibson claims the State exercised its peremptory challenges of two jurors solely on the basis of race. Counsel certifies that four additional issues requested by Gibson do not present an arguable basis for reversal. See Anders v. California, 386 U.S. 738, 744-45 (1967).

II. APPLICABLE APPELLATE RULES

Gibson timely filed a notice of appeal on April 8, 2002. The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. Generally, rules altering procedure do not fall within the prohibition in the Texas Constitution against retroactive application of laws that disturb vested, substantive rights. See Tex. Const. art. I, § 16; see also Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). Therefore, this Court applies the current rules of appellate procedure to this appeal. We may not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities. Tex. R. App. P. 44.3. We also are prohibited from affirming or reversing a judgment or dismissing an appeal if the record prevents the proper presentation of an appeal and can be corrected by the trial court. Tex. R. App. P. 44.4(a). Accordingly, we abated the appeal on July 21, 2003 and ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Gibson's right of appeal. See Tex. R. App. P. 25.2(a)(2). We received a supplemental record on August 4, 2003 that includes the trial court's certification of Gibson's right of appeal. We now turn to the merits.

III. BATSON ANALYSIS

By two issues, Gibson challenges the trial court's determination that the State's reasons for exercising peremptory challenges against juror 11 and juror 15 were race neutral. Gibson asserts that the trial court's ruling violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and was erroneous under Batson v. Kentucky, 476 U.S. 79 (1986). The record provides the complete voir dire examination and exercise of peremptory challenges by the parties. The trial court acknowledged Gibson's Batson motion and found that Gibson had timely raised his challenge by objecting before the jury was sworn. After a hearing, the trial court denied Gibson's motion.

At trial, the State presented three witnesses. One eye-witness, a police officer, testified he observed Gibson during a routine traffic stop of a car in which Gibson was a passenger. The officer said he saw Gibson hide a plastic baggie between his seat and the console. The State also presented a videotape of the traffic stop. (1) Two other official witnesses testified to the chain of custody of the plastic baggie and a laboratory analysis of the contents as being cocaine. Gibson testified in his own defense. He denied the cocaine belonged to him.

A. The Burdens

The Equal Protection Clause prohibits the discriminatory use of peremptory challenges based on race. Id. at 96; see Tex. Code Crim. Proc. Ann. art. 35.261(a) (Vernon 1989). (2) A three-step burden-shifting analysis applies to an accused's race-based Batson challenge. First, the accused must make a prima facie showing of racial discrimination, which is a burden of production, thereby raising an inference that the prosecutor peremptorily struck panelists because of their race. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). Second, in recognition of the fact that peremptory challenges constitute a jury selection practice that permits invidious discrimination, the burden of production shifts to the prosecution to respond with a neutral explanation for the strike. Id.; Young v. State, 826 S.W.2d 141, 145 (Tex. Crim. App. 1991). If the prosecution offers a neutral explanation, the third step requires the trial court to decide if the accused proved that the challenged strike was not neutral. Ford, 1 S.W.3d at 693; Young, 826 S.W.2d at 145. The ultimate burden of persuasion in this third step remains with the accused, who must show, by reference to the context of the voir dire or other relevant facts, that the explanation offered by the prosecutor is not neutral or is a pretext. Purkett v. Elem, 514 U.S. 765, 767-68 (1995); Guzman v. State, 85 S.W.3d 242, 254 (Tex. Crim. App. 2002); Ford, 1 S.W.3d at 693.

A preponderance-of-the-evidence standard supplies the burden of proof in a Batson challenge. Williams v. State, 767 S.W.2d 872, 874 (Tex. App.-Dallas 1989, pet. ref'd) (en banc). The exercise of a peremptory challenge in a disparate manner on the basis of a single factor may support a claim of discriminatory intent. Esteves v. State, 849 S.W.2d 822, 824 n.2 (Tex. Crim. App. 1993) (3); Earhart v. State, 823 S.W.2d 607, 624 (Tex. Crim. App. 1991). Where the prosecutor offers only one reason for a challenged strike, the accused may discharge the burden of persuasion on a claim of disparate treatment on the basis of race to rebut the State's facially neutral explanation by showing that the State struck a panelist of one race but did not strike a panelist of a different race who presented the same reason. See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999) (characterizing as "real rebuttal" in disparate-questioning Batson claim example "that no white venire member with similar views were ignored by the State."). A facially neutral explanation for striking a venire panelist may be suspect when the State does not strike persons with the same or similar characteristics. Doby v. State, 910 S.W.2d 79, 83 (Tex. App.-Corpus Christi 1995, pet. ref'd).

B. The Standard of Review

In an appeal involving a Batson challenge, we apply a clearly erroneous standard of review. Hill v. State, 827 S.W.2d 860, 865-66 (Tex. Crim. App. 1992) (plurality op.). A ruling is clearly erroneous when, after searching the record, we form the definite and firm conviction that a mistake has been made. Id. In reviewing the trial court's ruling on a disparate-treatment Batson claim, we do not determine whether the prosecutor's explanations were credible but, rather, whether the trial court's ruling was supported by the record and therefore not clearly erroneous. Purkett, 514 U.S. at 769; see Guzman, 85 S.W.3d at 255; see also Young, 826 S.W.2d at 146.

After a prosecutor gives nondiscriminatory reasons for striking minority panelists from the venire, the trial judge must determine whether the facially neutral explanations are contrived to avoid admitting acts of discrimination. Emerson v. State, 851 S.W.2d 269, 273 (Tex. Crim. App. 1993). This must be done because a prosecutor, although not intentionally discriminating, may try to find reasons other than race to challenge a minority juror, when race may be the primary factor in deciding to strike the juror. Id. The trial judge as supervisor of the voir dire is in a position to readily perceive discrepancies during the jury selection process. Id. Evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within the province of the trial court. Id. The trial judge may not, however, accept at face value the specific reasons given by the prosecutor. Id. Disparate treatment alone does not lead necessarily to the conclusion that the offered explanation was a pretext. Doby, 910 S.W.2d at 83. Rather, something more may be needed to overcome the presumption that the trial court's ruling was correct. Id.
C. The Scope of Review

We examine the record to determine if the State met its burden of production to provide a neutral explanation for its challenge of the venire panelist in question. Wright v. State, 832 S.W.2d 601, 604 (Tex. Crim. App. 1992); Williams v. State, 804 S.W.2d 95, 102 (Tex. Crim. App. 1991). We review the record, including the voir dire examination, the prosecutor's explanations, and the appellant's rebuttal and impeachment evidence, in a light most favorable to the trial court's ruling. Id.; see Guzman, 85 S.W.3d at 245 (reviewing record in "mixed motives" challenge). We accord great deference to the trial court's ruling. Jasper v. State, 61 S.W.3d 413, 421-22 (Tex. Crim. App. 2001); see Guzman, 85 S.W.3d at 255 (remanding for hearing to permit trial court to determine role of gender, offered by prosecutor as one of several reasons for strike, in exercise of peremptory challenge). We determine, in light of the record, if the accused rebutted the prosecution's neutral explanation in such a manner that it can be inferred that the prosecutor engaged in purposeful discrimination. Williams, 804 S.W.2d at 101.

In its initial analysis of disparate-treatment Batson claims, the court of criminal appeals held that an accused, in meeting the burden of persuasion, was not required to make comparisons of the panelists at the trial level to have the evidence considered on appeal. Young, 826 S.W.2d at 146. Next, the court of criminal appeals examined an assertion of disparate treatment where the appellant "did not present the trial judge with any comparison, general or detailed, of unchallenged white vernirepersons and the black venirepersons who were struck." Vargas v. State, 838 S.W.2d 552, 556 (Tex. Crim. App. 1992), op. withdrawn and substitute opinion issued, 1992 Tex. Crim. App. LEXIS 173 (Sept. 16, 1992) ("Vargas I "). (4) The court of criminal appeals reaffirmed in Vargas I its holding in Young that to have comparison evidence considered on appeal, a defendant is not required to either: (1) "request that the trial judge make [a] finding upon a comparison analysis"; or (2) "offer in evidence testimony from jury selection supporting such an analysis." However, the Vargas I court distinguished evidence outside the voir dire record from jury selection testimony:

The comparison "evidence" upon which appellant relies is at least partly based upon the juror information cards, which were not mentioned or offered into evidence by either side. It is not proper for an appellate court reviewing a trial court's decision on a matter to rely upon information that was not admitted as evidence at the Batson hearing in the trial court. Second, to allow an appellate court to rely upon such information undermines the standard of review for a Batson issue which gives great deference to the trial court.

Id. The court of appeals had relied on the juror information cards to identify disparate treatment by the prosecutor. Id. The court of criminal appeals held that "[a]n appellate court may not reverse a trial court's finding based upon information that was not introduced into evidence or elicited before the trial judge during the voir dire." Id. at 557. Accordingly, the court went on to find that "the appellate record also reveals that some evidence of the kind relied upon by Appellant for comparison with the racially neutral explanations given by the prosecutor does appear in the record of jury selection." Id. The court remanded the case to the court of appeals for "reconsideration of Appellant's Batson complaint in a manner not inconsistent with this opinion." Id. On remand, the court of appeals did not consider the juror information cards in comparing the prosecutor's facially neutral explanation for treating two panelists of different races differently. Vargas v. State, 859 S.W.2d 534, 535 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd) ("Vargas II "). Rather, the court of appeals looked to the voir dire record to conclude:

There is nothing other than racial motive in this record, however, to explain the fact that a black paralegal, [juror A], was struck, while a white paralegal seated near the top of the venire, [juror B], was not struck.

Id. In reversing the trial court for Batson error, the court of appeals cited a concurring opinion in Vargas I :

If occupation were really at the heart of the prosecutor's objections to [juror A], then surely he would have struck [juror B] first. As [juror B] and [juror A] had the same offending occupation, the only remaining difference between [juror A] and [juror B] is race. Thus the prosecutor's reason for striking [juror A] was not racially neutral but pretextual to avoid admitting discrimination. Therefore, there is enough evidence in the record to prove the prosecutor exercised at least one of his peremptory challenges in violation of Batson.

Id. (quoting Vargas I, 838 S.W.2d at 560, Baird, J., Miller J., and Overstreet, J., concurring). The end result of Vargas I and Vargas II was that an accused could rely on a comparison analysis on appeal and was not required, to preserve a disparate-treatment Batson claim, to either: (1) request that the trial court consider a comparison analysis; or (2) offer evidence in support of the comparison analysis unless the information on which the appellant sought to rely was not presented to the trial court through testimony during jury selection. Vargas I, 838 S.W.2d at 557.

Next, the court of criminal appeals re-examined the error-preservation question in Ford. Ford, 1 S.W.3d at 693. Without discussing either Young or Vargas, the court of criminal appeals held in 1999 that an accused, to preserve a disparate-treatment Batson issue on appeal, must claim at trial that the prosecution disparately treated similarly situated panelists. Id. (citing Purkett, 514 U.S. at 769-70).

Thus, Gibson's Batson challenge requires that we determine the extent to which Purkett controls our analysis of the claimed error as well as the extent to which Ford overrules Young and Vargas. We turn to the record.

D. The Record

1. The Prima Facie Case

At the close of jury selection, the following colloquy took place between the trial court and defense counsel:

THE COURT: Now, you have a Batson challenge, [Defense Counsel]. Would you tell me the jurors that you challenge or believe the State struck for racial reasons? I'd like the number only, please, and I will take judicial notice that the Defendant is - the Defendant's race.

[DEFENSE COUNSEL]: Your Honor, that would go to Juror Number 6, 11, 14 and 15.

THE COURT: Thank you, sir.

Will the State give me a race neutral reason why you struck Juror Number 6. . . ?

[PROSECUTOR]: Judge, I struck [Juror 6] among other reason because he's a substance abuse counselor.

THE COURT: Okay.

[PROSECUTOR]: And he told us as much during voir dire.

The State contends on appeal that Gibson did not meet his burden of showing a prima facie case of discrimination in the prosecutor's exercise of the State's peremptory challenges, arguing that the record does not reflect either Gibson's race or that of the venire panelists. We disagree. A record of the relative races of the defendant and the challenged venire panelists is no longer required. See Hutchinson v. State, 86 S.W.3d 636, 639 n.2 (Tex. Crim. App. 2002) (noting that Batson challenges in criminal cases are not limited to venire panelists who share defendant's race).

Further, participants in voir dire have an opportunity to make visual observations. Wamget v. State, 67 S.W.3d 851, 858 (Tex. Crim. App. 2001) (per curiam) (quoting Mejia v. State, 616 A.2d 356, 362-63 & n.8 (Md. 1992)). Both sides are equally aware of the criteria involved in a race-based Batson challenge. Wamget, 67 S.W.3d at 858. Thus, when a party does not challenge the other side's factual conclusion, made on the record, that a particular venire panelist is a member of a racial group against whom the use of a discriminatory peremptory strike is alleged, the fact is deemed established. Id. Here, the State did not object at trial that Gibson had not met his burden to prove a prima facie case of racial discrimination in the State's peremptory challenges of the four identified jurors. Nor did the State object that the identified jurors are not members of a cognizable racial group. On this record, we find it deemed that the challenged jurors are members of a cognizable racial group. See Wamget, 67 S.W.3d at 858; see also Fletcher v. State, 848 S.W.2d 761, 763 (Tex. App.-Corpus Christi 1993, no pet.) (finding that prosecutor's statement regarding challenged juror's criminal history supported racially neutral explanation in absence of appellant's objection or controverting evidence).

Nonetheless, the trial court did take judicial notice of Gibson's race. Then, the trial court required the State to provide race-neutral explanations for striking the four jurors identified by defense counsel as the subjects of Gibson's race-based Batson motion. On hearing the explanations, the trial court denied Gibson's motion. Once the State offers an explanation for striking a contested panelist, and the trial court rules on the ultimate question of intentional discrimination, the issue of whether the defendant made a prima facie case of discrimination is moot and not subject to appellate review. See Malone v. State, 919 S.W.2d 410, 412 (Tex. Crim. App. 1996). By asking the prosecutor for race-neutral explanations for striking the challenged jurors, the trial court implicitly found that Gibson satisfied his burden of proving a prima facie case of race-based peremptory challenges. See id. Accordingly, we do not address the State's argument that Gibson did not meet his burden of showing a prima facie case of discrimination. See id.

2. The State's Explanations

Gibson's first issue addresses the prosecutor's peremptory challenge of juror 11 In response to questioning by the trial court, the State provided its reason for striking juror 11:

[PROSECUTOR]: Judge, I struck [Juror 11] because she had spoken up and said that she would require more than one witness to testify.

THE COURT: All right.

[DEFENSE COUNSEL]: Your Honor, in response to that, [Juror 7] stated the same thing, that he would need more evidence than one witness though he was not struck by the State.

THE COURT: All right. Can you answer that, please?

[PROSECUTOR]: I can, Judge. He qualified his answer - And we can go back to the record. But he qualified his record at one point and said, but if there is more evidence I would be okay. And, in fact, there is more evidence in this case.

I can't state strongly enough, Judge - I don't want to - We want to give Mr. Gibson a fair trial and if there's anything here that's not fair -

THE COURT: Well, that's what I'm trying to find out. You struck Number 11 for the reason you stated and did not strike Number 7 for the reason you stated; is that correct?

[PROSECUTOR]: That is correct with the caveat I just added.

* * *

THE COURT: Okay, I'm going to deny the Batson challenge. . . . He's given race neutral reasons. Yes, sir.

[DEFENSE COUNSEL]: Just as a request to clarify your ruling. Their reason for striking [Juror 11], that he needed more evidence and the similar and same reason [Juror 7] was not struck, is that - has he given a sufficient race neutral reason to strike [Juror 11]?

THE COURT: In my judgment he has. They're pre-emptory [sic] challenges and he's given a race neutral reason.

When challenged by defense counsel about the prosecutor's different treatment of juror 7 and juror 11, the State did not object that the two jurors are members of the same racial group. The prosecutor had the same opportunity to visually observe the two jurors during voir dire and correct any conclusions reached by defense counsel. See Wamget, 67 S.W.3d at 858. Accordingly, on this record we deem it established that juror 7 is a member of a different racial group than juror 11. See id. To decide otherwise would require a conclusion that the trial court, for no apparent reason, questioned the prosecutor regarding disparate treatment of two jurors who are members of the same racial group. We decline the State's invitation to do so.

3. The Voir Dire Context

The voir dire record shows several colloquies between the prosecutor and juror 11 and juror 7, beginning in the following context:

[PROSECUTOR]: . . . Let's talk about that. I took - Stephanie, my wife and I took a car trip this weekend. We took her car and she had a bunch of her stuff in the car and she had - we brought some magazines with us. That's what we like to do when we travel, okay. And I brought a couple of salt water fishing magazines and she's got these Women's Day magazines, all right. And they're around the car, you know. I intended to bring that Salt Water Sportsman with me, okay. I wanted to have that to read. That's what I like to read, okay. I didn't intend to have the Women's Day magazines with me, all right.

Did I knowingly possess those Women's Day magazines?

UNKNOWN JURORS: Yes.

[PROSECUTOR]: Of course I did. Of course I did. What about if I were to borrow her car and those magazines are still in there and I pick up some of my buddies for lunch, okay. They start ripping me on these magazines; what are you doing with these sewing magazines and stuff like that. Yet, I'm still in possession of those magazines; correct?

UNKNOWN JUROR: Yes.

[PROSECUTOR]: Of course I am.

One other thing, there is a belief on the street I think that if you can get rid of something - The first thing you said about possession was that if it was on your person. There is a belief that if you can -

[DEFENSE COUNSEL]: Your Honor, I'm going to object to a belief that's on the street unless it's submitted into evidence.

THE COURT: Overruled.

[PROSECUTOR]: There's a belief that if you can get something away from your person that somehow you don't possess that item anymore, okay.

[PROSECUTOR]: And under the individual facts and circumstances of a case, that may be so - maybe so.

[PROSECUTOR]: [Juror 11].

[JUROR 11]: Yes.

[PROSECUTOR]: You had a reaction to what I just said. So, what do you think?

[JUROR 11]: What is the question?

[PROSECUTOR]: About if - about the act of trying to get something or hiding something - getting rid of something.

[JUROR 11]: It's still yours. You have it. You still have it. It's still in your possession.

* * *

[PROSECUTOR]: Have any of y'all been held up before or assaulted? Unfortunately, a lot of things like that happen with only one witness. Of course, it's perfectly within the law.

Anybody on the first row think that, even though you believe him beyond a reasonable doubt, you want something else?

Anybody.

[JUROR 7]: I do.

[PROSECUTOR]: You feel like you would?

[JUROR 7]: I could believe in a man's testimony, if he's a policeman, but still people make mistakes. And I have to have a little more evidence.

[PROSECUTOR]: Okay. That's fine. I appreciate your honesty.

[PROSECUTOR]: Okay. Anybody on the second row feel like [Juror 7], you need some additional evidence?

[UNKNOWN JUROR]: I probably would.

[PROSECUTOR]: You think you would?

[UNKNOWN JUROR]: Yeah.

[PROSECUTOR]: [Juror 11]?

[JUROR 11]: Because he was not a eye-witness; correct?

[PROSECUTOR]: No. He's an eye-witness. He's an eye-witness.

[JUROR 11]: Okay. He's an eye-witness?

[PROSECUTOR]: Yes, ma'am. We'll talk about that in just one second.

[JUROR 11]: Oh, okay.

[PROSECUTOR]: We're not going to talk about it right now.

Thus, juror 7, juror 11, and an unknown juror responded to the prosecutor's question regarding their need for additional evidence if only one witness testified. They were the only panelists to do so. The record does not show any additional voir dire on the issue of eye-witness testimony.

Later in the voir dire, defense counsel elicited the following information from juror 7:

[DEFENSE COUNSEL]: Okay. [Juror 7], you stated that you may need more evidence than the testimony of one officer?

[JUROR 7]: Yes.

[DEFENSE COUNSEL]: If the Judge were to - At the end of this and you were picked and the Judge were to give you what is called the Charge and these are all of the items; that mere presence alone is not - is not sufficient to convict somebody and whatever law you're supposed to apply in this case; would you follow that law? Say you had no more evidence than what the officer stated or would you say, no, I'm going to need more evidence before I can vote?

[JUROR 7]: Well, you know what I'm saying, people make mistakes and sometimes in the process of doing things you make mistakes. And if he's got more evidence to show and if I can see it. But if there's no more evidence and I have to take just the word of a policeman or anyone person, I have my doubts.

[DEFENSE COUNSEL]: Okay, but would you put the State to it's [sic] burden to prove beyond a reasonable doubt?

[JUROR 7]: Yes.

[DEFENSE COUNSEL]: So you would follow the law in this case?

[JUROR 7]: Yes, I would.

A later exchange between defense counsel and juror 7 regarding a defendant's right to remain silent also occurred:

[DEFENSE COUNSEL]: And [Juror 7] again, you would require the Defendant to speak?

[JUROR 7]: Yeah, I believe he needs to speak up for hisself and explain his part. I want to hear all stories.

Neither the State nor the defense challenged any of the panelists for cause. The record shows that no individual voir dire took place. Juror 7 took a seat on the jury that convicted Gibson. Juror 11 did not.

E. Analysis

The facially neutral explanation offered by the prosecutor in Purkett was the following:

I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to me to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly, unkempt hair. Also, he had a mustache and a goatee type beard. And juror number twenty-four also has a mustache and goatee type beard. Those are the only two people on the jury . . . with the facial hair . . . . And I don't like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.

Purkett, 514 U.S. at 766. The Supreme Court reversed the court of appeals for focusing "on the reasonableness of the asserted nonracial motive . . . rather than the genuineness of the motive" in analyzing whether the prosecution met the burden shifted to it by the accused's prima facie showing of discriminatory peremptory challenges. Id. at 769.

Here, the State said it struck juror 11 for speaking up about needing more evidence than one witness. Gibson then challenged the "genuineness" of that explanation, not its "reasonableness," by pointing out that the prosecutor had not struck juror 7 for the same reason. In response, the explanation the State gave for not striking juror 7 was: "He qualified his answer - And we can go back to the record. But he qualified his record at one point and said, but if there is more evidence I would be okay. And, in fact, there is more evidence in this case." Thus, we find Purkett inapposite here. The record shows that Gibson challenged the "genuineness" of the prosecutor's facially neutral explanation, not its "reasonableness." See id. at 769.

We also distinguish Gibson's challenge at trial from the facts in Ford. Ford, 1 S.W.3d at 693. The voir dire record in Ford showed confusion in the prosecutor's recollection between what the two compared jurors had said. Id. However, as noted by the court of criminal appeals, the appellant in Ford did not complain at trial that the prosecution treated similarly situated panelists differently on the basis of race. Id. at 692. By contrast, in response to the prosecutor's facially neutral explanation for striking juror 11, Gibson presented to the trial court that the prosecutor had not struck juror 7, who had responded to the prosecutor's question regarding a need for additional evidence in the same way as juror 11. When the prosecutor responded that juror 7 had "qualified his answer" and was therefore rehabilitated, Gibson repeated to the trial court, "Their reason for striking [Juror 11], that he needed more evidence and the similar and same reason [Juror 7] was not struck, is that - has he given a sufficient race neutral reason to strike [Juror 11]?"

Further distinguishing this case from the facts in Ford, the record here shows that no confusion between what the two jurors had said was possible. Neither of the two jurors responded exactly in the manner recalled by the prosecutor. Further, to the extent juror 7's answer to defense counsel's questions can be interpreted to mean juror 7 qualified his response by saying he would be okay if the State presented more evidence, juror 11's response similarly can be interpreted to mean she qualified her answer by saying she would be okay if the sole witness was an eye-witness.

The record shows that Gibson presented to the trial court a comparison of the prosecutor's treatment of juror 11 and juror 7. The only thing further Gibson could have done with regard to his objection that the prosecutor treated juror 11 and juror 7 differently would have been to put the voir dire record itself into evidence. We read Ford as silently overruling Young and the first component of Vargas. Compare Ford, 1 S.W.3d at 693 (requiring presentation to trial court of Batson claim based on comparison analysis to preserve issue) with Young, 826 S.W.2d at 146 (holding that appellant could raise disparate-treatment Batson challenge for first time on appeal) and Vargas I, 838 S.W.2d at 556 (holding that appellant was not required to: (1) request that trial court consider comparison analysis; or (2) offer evidence in support of comparison analysis unless information on which appellant relies was not presented to trial court through testimony during jury selection). The appellant in Ford had not presented the disparate-treatment Batson claim to the trial court. Ford, 1 S.W.3d at 693. Consequently, Ford did not reach the issue of whether an appellant who does preserve the issue may rely on the voir dire record on appeal to demonstrate the comparison. Id. We do not read Ford as silently overruling the second component of Vargas by requiring the challenger to put a record of the voir dire questioning into evidence to discharge the burden of persuasion in a claim of disparate treatment of similarly situated panelists.

We decline to extend Ford beyond the facts in that case, that is, beyond the requirement that the accused must challenge at trial a prosecutor's facially neutral explanation for a strike by pointing to a similarly situated panelist not struck by the State. See Ford, 1 S.W.3d at 693. We find that by pointing out and then reiterating to the trial court that the prosecutor had stuck a juror of one race but did not strike another juror of a different race for "the similar and same reason," Gibson discharged his burden of persuasion. See Chamberlain, 998 S.W.2d at 236 (giving example of "real rebuttal" in disparate-questioning claim). We hold that Gibson, having discharged his burden of persuasion at trial, is entitled to rely on the record of voir dire testimony on appeal to prove he rebutted the prosecution's neutral explanation in such a manner that it can be inferred that the prosecutor engaged in purposeful discrimination. (5) See id.

In addition to the voir dire record, the record on appeal shows that the State presented only one witness to link Gibson to the cocaine, an eye-witness police officer. Even interpreting juror 7's remarks as indicating he would be okay if the State produced more evidence than one witness, in fact the State did not produce more than one witness to link Gibson to the cocaine. Thus, the record does not support the prosecutor's statement during voir dire that the State had more evidence than a single witness as his explanation for not striking juror 7. Moreover, after informing juror 11 during voir dire that the only witness was an eye-witness, the prosecutor did not ask any follow-up questions about the effect of that fact on her reservation about one witness. Finally, the voir dire record shows that juror 7, in response to defense counsel's question, indicated he would require a defendant to testify. However, the record also shows that juror 11 agreed with the prosecutor on an issue specifically relevant to the State's drug possession case against Gibson. Accordingly, the record shows that both jurors answered questions about voir dire subjects other than the one-witness issue in a manner favorable to the State. (6) Therefore, to the extent "something more" than disparate treatment may be required to rebut the prosecutor's facially neutral explanation, this record presents more than prosecutorial confusion in attributing one venire panelist's response to another, as was the case in Ford. See Ford, 1 S.W.3d at 693; see also Doby, 910 S.W.2d at 83. The record shows that the State struck a juror of one race for indicating one specific reservation and did not strike a juror of another race who expressed the same specific reservation. The record does not support the State's only explanation for treating the two panelists differently.

As in Vargas, the State had to bypass juror 7 to strike juror 11. See Vargas II, 859 S.W.2d at 535. If a need for additional evidence was really at the heart of the State's objection to juror 11, then surely the State would have struck juror 7 first. See id. Juror 7 and juror 11 had voiced the same reservation about one witness. As discussed above, the record shows that the only remaining difference between juror 7 and juror 11 is race. See id. Thus, the prosecutor's reason for striking juror 11 was not racially neutral. See id. The record on appeal contains enough evidence to prove the prosecutor exercised at least one peremptory challenge in violation of Batson. See id. We find, in light of this record, that Gibson met his burden to rebut by a preponderance of the evidence the prosecution's neutral explanation. See Williams, 804 S.W.2d at 101. We have formed the definite and firm conviction that a mistake has been made. See Hill, 827 S.W.2d at 865-66.

F. Conclusion

We hold that the trial court's denial of Gibson's Batson challenge is not supported by the record and is, therefore, clearly erroneous. See Wright, 832 S.W.2d at 605. We sustain Gibson's first issue. Further, Batson error is not subject to a harm analysis. Sparks v. State, 68 S.W.3d 6, 12 (Tex. App.-Dallas 2001, pet. ref'd). Finally, the exclusion of even one panelist from the jury on an unconstitutional basis invalidates the entire jury selection process. Whitsey v. State, 796 S.W.2d 707, 716 (Tex. Crim. App. 1989) (op. on reh'g) (plurality op.). Accordingly, we do not reach Gibson's remaining issues. See Tex. R. App. P. 47.1. We reverse and remand for a new trial.

ERRLINDA CASTILLO

Justice

Chief Justice Valdez not participating.

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 6th day of October, 2003.

1. The videotape is not part of the record.

2. The prohibition against discrimination in the exercise of peremptory challenges also applies to litigants who exercise a strike based on the juror's: (1) gender (J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994); Fritz v. State, 946 S.W.2d 844, 847 (Tex. Crim. App. 1997)); and (2) ethnicity and nationality (Hernandez v. New York, 500 U.S. 352, 355 (1991); Wamget v. State, 67 S.W.3d 851, 857 (Tex. Crim. App. 2001) (per curiam)). Guzman v. State, 85 S.W.3d 242, 245 (Tex. Crim. App. 2002). Gibson asserts racial discrimination.

3. We note that the court of criminal appeals regards footnotes in its opinions as dictum, not holdings of the court. Edwards v. State, 813 S.W.2d 572, 582 n.1 (Tex. App.-Dallas 1991, pet. ref'd) (en banc) (Baker, J., dissenting) (citing Young v. State, 826 S.W.2d 141, 145 n.5 (Tex. Crim. App. 1991)).

4. In an apparent publication error, the substitute opinion is not published. However, we note that the published version differs from the unpublished version in only one significant respect, which is to delete language from the published version that affirmed the case, contrary to the actual holding, which reversed and remanded the case to the court of appeals. As a consequence, the published version, despite its withdrawal, has been cited more than one hundred and eighty times to date. We do so as well.

5. Batson and its progeny require the trial court to note and give weight to subtle clues that disclose the prosecutor's intent. Somerville v. State, 792 S.W.2d 265, 269 (Tex. App.-Dallas 1990, pet. ref'd). Our holding today should not be read as concluding that the prosecutor in this case engaged in conscious disparate treatment.

6. We note that a prosecutor, in the exercise of the State's duty to uphold the integrity of the jury system, may challenge for cause a potential "State's juror" venire panelist who cannot be fair and impartial to the defendant. Guerra v. State, 771 S.W.2d 453, 467 (Tex. Crim. App. 1988). Here, the prosecutor did not articulate bias in favor of the State as a reason for striking juror 11 or as a reason for not striking juror 7.

Obviously here the actions of the State in withholding exculpatory evidence were intentional

2007-03-23T03:53:00.000-07:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0521-05

EX PARTE JAMES S. MASONHEIMER, Appellee

ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

AND STATE'S CROSS-PETITION FOR DISCRETIONARY REVIEW

FROM THE ELEVENTH COURT OF APPEALS

TAYLOR COUNTY

Meyers, J., filed a concurring opinion.

CONCURRING OPINION

In this case, the conduct of the State was questionable, but we are stuck with the old standard from twenty-five years ago when the Supreme Court addressed this question in Oregon v. Kennedy, 456 U.S. 667 (1982). As we know, that case is not very clear on how to analyze whether a prosecutor's actions were intended to goad the defendant into requesting a mistrial. In response to the difficulties in applying the Oregon v. Kennedy standard, we came up with a new standard in Ex Parte Bauder, 921 S.W.2d 696 (Tex. Crim. App. 1996). In that case, we held that prosecution after the granting of a defense-requested mistrial is jeopardy-barred not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial, but also when the prosecutor was aware of, but consciously disregarded, the risk that his conduct would lead the defendant to request a mistrial. Id. at 699. Even though the State never lost a Bauder case, they still petitioned us numerous times to do away with Bauder. So we did, in Ex Parte Lewis, No. PD-0577-05, 2007 Tex. Crim. App. LEXIS 33 (Tex. Crim. App. January 10, 2007), holding that Bauder was too expansive, and the Double Jeopardy provision in the Texas Constitution should be treated the same as the Fifth Amendment's Double Jeopardy Clause. Now we are back to the Oregon v. Kennedy standard and the same problems with attempting to apply it.

My reading of Oregon v. Kennedy is that if the State's intentional actions goad the defendant into requesting a mistrial, then retrial is jeopardy-barred. Rather than considering whether the State actually wanted a mistrial, we look to see if the improper conduct of the State was intentional. In most cases, the circumstances leading a defendant to request a mistrial are accidental, such as a State's witness blurting out unelicited, inadmissible testimony. However, if we look at the State's actions and see that the prosecutors are intentionally doing things that they should anticipate would lead a judge to grant a mistrial if the defendant requested one, then it does not matter whether the State actually wanted a mistrial. The prosecutors may say that they did not want a mistrial, but if their actions were intentional rather than accidental or careless, and they should have known that a mistrial would be granted, then the Oregon v. Kennedy standard is met and retrial is jeopardy-barred. Rather than trying to determine the subjective intent of the prosecutor, we can objectively look at the actions of the State to determine if the actions were intentional.

Obviously here the actions of the State in withholding exculpatory evidence were intentional. Appellee was goaded into requesting the mistrial by this improper, intentional conduct, and therefore I agree with the majority that retrial is jeopardy-barred. With these comments, I join the majority opinion.

Meyers, J.

Filed: March 21, 2007

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In the case where a prosecutor proceeds to trial in violation of Brady, the prosecutor still subjects the defendant to the identical risk of mistrial,

2007-03-23T03:02:00.000-07:00

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-521-05

EX PARTE JAMES S. MASONHEIMER, Appellee

ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

AND STATE'S CROSS-PETITION FOR DISCRETIONARY REVIEW

FROM THE ELEVENTH COURT OF APPEALS

TAYLOR COUNTY

Hervey, J., delivered the opinion of the Court in which Meyers, Price, Johnson, Keasler, and Holcomb, JJ., joined. Meyers, J., filed a concurring opinion. Keller, P.J., filed a dissenting opinion. Womack, J., filed a dissenting opinion in which Keller, P.J., joined. Cochran, J., filed a dissenting opinion.

O P I N I O N

Almost six years ago, appellee was charged with murder. The State seeks to try him a third time after the first two proceedings were terminated prior to final judgment at appellee's request. Viewed in the light most favorable to the trial court's ruling, the evidence supports a finding that appellee's mistrial motions, which resulted in the termination of the first two proceedings prior to verdict, were provoked primarily by the State's intentional failure to disclose exculpatory evidence (1) with the specific intent to avoid an acquittal at the first proceeding. Appellee did not discover all of the undisclosed exculpatory evidence until the second proceeding. We hold that, under the unique facts of this case, a third prosecution is jeopardy-barred under the state and federal constitutions.

In September 2001, appellee was indicted for murdering his daughter Lucy's boyfriend. Appellee claimed that he killed the victim in self-defense and in defense of Lucy. The Court of Appeals' opinion summarizes the evidence that appellee intended to present at his first trial in support of these defenses:

During a pretrial hearing before the first trial, [appellee's] attorneys advised the court and the prosecution that they planned to show that [appellee] shot [the victim] in self-defense and in defense of Lucy. (Citation omitted). Defense counsel argued that he was entitled to show past bad acts of [the victim] as evidence of why Lucy was "terrified" of [the victim] and why [appellee] had a reasonable belief that use of deadly force was necessary that day [when appellee shot the victim five times in the back with a .38 revolver in the driveway of Lucy's home]. Defense counsel told the trial court that he planned to show that Lucy wanted to end her relationship with [the victim]; that [the victim's] behavior had grown increasingly aggressive toward Lucy due to his use of anabolic steroids; that [the victim] had grown increasingly jealous; that [the victim] had choked Lucy; that [the victim] had wire-tapped her telephone; that [the victim] had made threats to kill Lucy and her family if she left him; that Lucy had asked [appellee] and his wife to stay with her the night before the shooting because [she] was afraid of [the victim].

State v. Masonheimer, 154 S.W.3d 247, 250 (Tex.App.-Eastland 2005).

Appellee's first trial in December 2002 was before a jury. Soon after appellee's first trial began, the defense discovered during its cross-examination of a State's witness, Timothy Marshall, that the State had failed to disclose a statement that Marshall made to the police shortly after the offense (the Marshall statement). In this statement, Marshall, who was a neighbor of Lucy's, told the police that appellee told him minutes after the shooting that the victim "had threatened his daughter and it was either him or her." Appellee moved for a mistrial, but the trial court granted appellee a continuance and ordered the State to reexamine its file for exculpatory evidence that should be disclosed to the defense. (2) The trial court later granted another defense-requested mistrial "in the interest of justice" because a death in the family of one of the prosecutors caused the trial court to extend the continuance. Appellee's first trial, therefore, ended in a defense-requested mistrial in part because of the State's failure to disclose the Marshall statement. Soon after this, the lead prosecutor (Harper) left the district attorney's office to become a County Court-at-Law Judge.

Joiner, the assistant prosecutor in the first trial, became the lead prosecutor in the second trial. During a pretrial conference prior to the second trial, Joiner disclosed to the defense a statement from Lucy's ex-husband Billy Glenn Williams (the Williams statement) that also had not previously been disclosed to the defense. The Court of Appeals' opinion summarizes the Williams statement:

At a pretrial conference prior to the second trial, defense counsel expressed his concern that all exculpatory evidence had not been provided by the State. Although the new lead prosecutor represented to the trial court that all exculpatory evidence had been provided, he agreed to provide defense counsel with a statement given by Billy Glenn Williams, Lucy's ex-husband. In that statement, Billy Williams related that Lucy had asked him to keep their children during the afternoon of the day before [the victim] was shot; that, when he called Lucy around 6 p.m., she "broke down and told me about the trouble she had been having with [the victim]"; that Billy told her to go to the police and get a restraining order; that Lucy told him that she thought [the victim] had put dirt in her car's gas tank; and that Lucy was upset when they finished the telephone conversation.

Masonheimer, 154 S.W.3d at 252. (3)

Appellee subsequently pled nolo contendere to the murder charge without an evidentiary stipulation, requiring the State to present evidence establishing appellee's guilt. See Article 1.15, Tex. Code Crim. Proc. (4) During this proceeding (or second "trial") before the trial court in April 2003, Joiner disclosed to the defense more previously undisclosed evidence. This undisclosed evidence was a statement from one of the victim's friends (Upchurch), which prompted another mistrial motion by appellee. The Court of Appeals' opinion summarizes this evidence (the Upchurch statement):

Upchurch was the first witness called by [appellee] in support of its [mistrial] motion. Upchurch, a friend of [the victim's], testified that he had helped remove [the victim's] belongings from the apartment after [the victim's] death. Upchurch took five old Coke machines to a store in Baird to be sold on consignment. The owners of the store, Mark and Tricia Duque, had known [the victim] and had sold Coke memorabilia for him in the past. Upchurch said that he, Mark, and Tricia had opened one of the Coke boxes and discovered several "syringes with orange caps" and small card-board boxes. Upchurch asked Tricia, a practicing nurse, what the boxes were, "and she said steroids." Upchurch told Tricia to throw the syringes and boxes away because he did not want [the victim's] ex-wife to know that [the victim] had kept steroids.

Masonheimer, 154 S.W.3d at 253. (5)

In July 2003, the trial court held a hearing on appellee's mistrial motion. Testimony was presented at this hearing that the lead prosecutor (Judge Harper) in the first trial and his investigator (Clappart) were aware of the Upchurch statement prior to the first trial. See also id. Clappart testified that he and Harper interviewed Upchurch before the first trial, and, during that interview, Upchurch made the above-summarized statement. Clappart also testified that he made notes of his interviews with the Duques and that he believed that he gave these notes to Harper. None of this information, including Clappart's notes, were in the State's file. Clappart did not believe that Joiner (the second prosecutor) knew about the Upchurch statement. Harper testified that he did not recall receiving the information contained in the Upchurch statement.

Q. [APPELLEE'S COUNSEL]: Well, do you understand that both [sic] John Upchurch has testified that you were there and you're the one he was directing this information to; Steve Clappart has also testified you were there and that you were the one that the information was directed to; that after-that he was making notes, he thinks, at the time; that when he had conversations with these other two people that confirmed the Upchurch version, that he went back and told you that that's what the people had said, and he thinks he gave you his notes about that. Does that jog your memory?

A. [HARPER]: That Steve gave me his notes?

Q. Yeah. Or at least told you about it. It's his opinion he gave you the notes. He can't specifically say he gave you notes; he told you about it.

A. I don't recall that, but if that's true, then, yes, it should have been given to you.

* * *

Q. Assuming again the scenario that I'd asked you to assume earlier in the testimony of what Mr. Upchurch and Mr. Clappart have testified to, and based upon your testimony and your notes, assuming that is the meeting-

A. That-

Q. -the one thing we know is, either Mr. Clappart and John Upchurch are lying to the Court, or you intentionally didn't write those things down. Would you agree with that?

[JOINER]: Objection, Your Honor. Speculation.

Q. Well, what other option do you see?

A. I know that Mr. Joiner visited with witnesses independently, I know that Mr. Clappart visited with witnesses independently, I know that on occasion I visit with witnesses independently. I don't know if they visited and they discussed that or not. I know that on this occasion this is what we talked about.

Q. Are you just baffled about how all this happened, Judge?

[JOINER]: Object, Your Honor. Argumentative.

[APPELLEE'S COUNSEL]: I don't mean to be argumentative.

[TRIAL COURT]: Overruled.

Q. Are you just baffled about how we got in this position with Upchurch and Clappart saying they told you, you admitting that it-we should have had it on discovery, and everybody conceding we didn't get it.

A. That's correct. You-if-You should have gotten it. Even if I did not know about it, Mr. Burke, we're presumed to know the information that our officers have taken notes, police officers; even if we in good conscience didn't know about it, as I understand the law, we're supposed to give it to you. That's what I'm saying.[ (6)]

Joiner testified at the hearing on appellee's mistrial motion that he first became aware of the Upchurch statement when he interviewed Upchurch during the second trial in April 2003. Joiner immediately disclosed this information to the defense. Joiner admitted that the Marshall, Williams, and Upchurch statements should have been disclosed to the defense prior to the first trial in December 2002. See also Masonheimer, 154 S.W.3d at 253 ("To his credit, Joiner admitted that all three statements should have been disclosed as Brady material prior to the first trial"). The State made no claim that it had no obligation to disclose this evidence prior to the first trial. (7)

Appellee's current counsel, who was also appellee's counsel in the first trial, testified in narrative form at the hearing on appellee's mistrial motion:

[APPELLEE'S COUNSEL]: We proceeded to [the first] trial in December 2002. At that time Burt Burnett was also assisting my son and I in preparation of the case. There are untold numerous times while we were working on this case the month prior to trial that I would say to them, "How in the world is the State going to prove that [appellee] is the one who shot [the victim] without introducing his statement?" meaning [appellee's]. I had the feeling, based upon some things that had transpired, that they were not going to put on [appellee's] statement. We could never answer that question: How are they going to prove it? Because they had given us all of the exculpatory evidence, and of course they wouldn't have to give us that; I kept saying, "There must be somebody that either saw it or told them that, that-that he told them he did."

We get into the trial, and the third witness, Timmy Marshall, when he makes the statement, which the Court has in Defense Exhibit No. 4, in response to Judge Harper's question, that "He said he shot him" and was going to continue on but then was interrupted,[ (8)] and I leaned over and told either Mr. Burnett or my son, "Now we know the answer to my question."

After Mr. Marshall finished testifying, we started asking him questions, found out he'd given a statement, got a copy of his statement. That's the first time that we had ever seen Defendant's Exhibit No. 14. With a very hurried reading in Court, I then asked for a recess, and we began what later led to hearings and everything else about their failure to furnish us with that in conformity with the judge's order of discovery that it contained exculpatory statements that had not been afforded us. A mistrial was subsequently declared in that case before we did anything further.

* * *

Now, in response to what they told us about-or didn't tell us, on Timothy Marshall's statement. And in response to my question, how are they going to prove it up, it was my professional opinion, after practicing law for some thirty-seven years, that only an idiot would have proved up murder through [Police Chief] Bob Jones, that Bob Jones was going to give us some awfully good testimony, which he did, and in front of the jury I think that would have been devastating to them. The same thing is true with why they wouldn't want to introduce [appellee's] statement. They weren't going to do it that way, either. And I kept telling the boys, "They got something, folks. They've got something," and then we find it was Tim Marshall, during the trial, on a statement that we were entitled to, that they tried to keep from us, I think.

The State argued to the trial court at the hearing on appellee's mistrial motion that there is no evidence that it "did this to goad them into asking for a mistrial, or that [it] knew that if they found this out that it would goad them into a mistrial." The State further claimed that the posture of this case was a "plea hearing" and that the appropriate remedy was not a mistrial but to allow "the Defense to withdraw their plea, they can choose the factfinder they want, they can choose the plea they want, and we can try this case." (9)

Appellee claimed, among other things, that "the decision was made to come in and waive a jury and to enter a plea of no contest before this Court by the Defense based upon erroneous and false information." Appellee also claimed that the second proceeding was a trial and not "just a big plea hearing." Appellee asserted that he still had "a defense of self-defense before the Court" and that the second proceeding should not be characterized "like we just came into court, signed a stipulation and confession, and here we go on punishment, and that's certainly not what we've been listening to for the first two days of trial." Appellee further claimed that the State's failure to disclose the exculpatory evidence was done in "bad faith" and that the "only remedy at law at this time this Court can grant to protect [appellee's] due process rights afforded him by the Constitution of the U.S. and the Texas State Constitution is to grant a mistrial."

[APPELLEE'S COUNSEL]: The problem is, see, they tell us now, but they've known since October of 2002 that there were steroids found. They don't tell us till a day in after we've selected a trier of fact.

I don't agree with Mr. Joiner. He wants to make this sound like this just a big plea hearing. This is a trial. It was made clear to us before we started that this Court was going to hear evidence on guilt-innocence. This court still has to determine whether or not there's sufficient evidence beyond a reasonable doubt to sustain his finding of guilt, assuming that's where this Court would be headed. We still have a defense of self-defense before the Court. So I don't characterize this like we just came into court, signed a stipulation and confession, and here we go on punishment, and that's certainly not what we've been listening to for the first two days of trial. It's been guilt-innocence type of evidence.

They say that they're not withholding it? And the Court will recall this. We only got Mr. Marshall's statement last time after we had twelve people seated in this room and I was about to start his cross examination and asked him whether or not he had given a statement to the D.A.'s office, to which he responded "Yes." At that time I walk around counsel table and get it from [Harper] and find that it has these statements about that this man told Mr. Marshall the man had been threatening his daughter and it was either him or her. They all admit that's exculpatory now. Yeah, they sure enough gave it to me, but not in accordance with Brady. They gave it to me at their own convenience.

The Williams statement was only given after a pretrial that this Court had when my father asked the Court to look at the State's file, and it was determined that wasn't necessary but the D.A., Mr. Joiner, was going to go through the file and just make sure there wasn't anything else in there, and then he hands over Mr. Williams' statement. This is again after the first trial we had we were alleging they were withholding exculpatory evidence, and now we all agree, by their own testimony, that sure enough, some statements that are held in Mr. Marshall's-or, excuse me, in Mr. Williams' written statement are also exculpatory and could be considered mitigating or favorable to the Defense.

And then, yes, we got the information Tuesday afternoon, regarding the steroids from Mr. Joiner, but, Judge, you heard the testimony from [Clappart]: He knows that's exculpatory, he thinks he told Mr. Harper, remembers doing that, can't find any notes, believes it should have been given over to us, believes it would have been favorable, knows that we were asserting steroids in this case, and yet nobody says a darn thing. They knew that prior to the first trial.

If that doesn't show some bad faith on the part of somebody from the district attorney's office I don't know what does. We were in here voir diring a jury panel of people in this courtroom, bringing up steroids, and these people withholding evidence that they know they found steroids? Evidence that now they're willing to stipulate before this Court? When I started this motion I said we don't have a big enough rug to keep sweeping this under, and I submit that that's true today. We just have stuff getting piled up now on top of the rug after the testimony yesterday.

The only remedy at law at this time this Court can grant to protect this man's due process rights afforded him by the Constitution of the U.S. and the Texas State Constitution is to grant a mistrial. Thank you.

After hearing the parties' arguments, the trial court granted appellee's request for another mistrial. The trial court also made an oral finding on the record that the Marshall, Williams, and Upchurch statements "are all exculpatory evidence under Brady v. Maryland" and that the State's failure to disclose this exculpatory evidence prior to the first trial was "reckless conduct."

[TRIAL COURT]: I find that in this case the statements and the evidence that was withheld concerning Mr. Marshall's statement, Mr. Williams' statement, and the evidence given by Mr. Upchurch, are all exculpatory evidence under Brady v. Maryland. I find that the evidence was-particularly the Upchurch evidence, was a surprise during this trial, and the Marshall evidence was a surprise during the first trial. I find the evidence is favorable to the Defense and certainly material and relevant to the defense that they are raising, which is that of self-defense or defense of a third party.

I also find that it's a violation of due process and a violation of the Texas Constitution and U.S. Constitution for this information not to have been provided to the defendant before the very first trial, not this trial but the first trial.

I find, therefore, that the only remedy available to this Court is that of a mistrial. The Court now declares a mistrial in this case. The case remains on the Court's docket.

Court's in recess.

Let's get back on the record just a moment, please. I also find that the conduct of the State in not providing this information about which they knew to the Defense in a timely manner constituted reckless conduct.

Appellee subsequently filed a pre-trial writ of habeas corpus "seeking relief from double jeopardy." This motion sought to bar any further prosecution of appellee. Although this motion asserted that any further prosecution of appellee was barred by the double-jeopardy provisions of the state and federal constitutions, it relied almost exclusively on our state constitutional double-jeopardy provision and the trial court's finding that the State engaged in "reckless conduct" in failing to disclose the Brady material before appellee's first trial. The trial court held a hearing on appellee's pretrial writ of habeas corpus, (10) during which appellee relied almost exclusively on this Court's decision in Bauder v. State (11) in support of his claim that any further prosecution of him is jeopardy-barred under our state constitution. Appellee also argued that "this hadn't been any prosecution seeking justice" and that "[f]rom day one their investigation, everything they've done, has just been set out not for a fair trial, but to get a conviction in this case."

[DEFENSE]: I'll make another copy of [Bauder].

Bauder is a case that we believe to be on point. and [sic] I think the State of Texas would probably concede that fact. They have a brief here that breaks it down at length in some form or fashion, but it is Bauder v. State, May 8th of 1996, and it's the Court of Criminal Appeals sitting en banc, where they apply standards for jeopardy as well as exculpatory evidence and jeopardy barred prosecutions thereon.

A point I'd like to make before I sit down here in a minute and let the State argue-because I've read the State's brief responding to our Application for Habeas Corpus wherein they say that the Bauder holding is that you've got to find a conscious disregard on the part of the-on the part of the prosecutor. Well, then in their brief they go on, and I think it's-anybody that's been to law school, conscious disregard typically equals recklessness. That's what we believe that to be akin to, and that's certainly the way this case sets it out. But what I think is very important in Bauder, if you go on an [sic] read the entire case, they do hold conscious disregard in the first, but then go on to state-and I want to cite this in the second paragraph of the holding-(reading) making the Constitutional rights of a criminal Defendant to turn upon such a fuzzy and imponderable distinction as whether the prosecutor actually intended the trial to be terminated or being aware that his conduct creates a risk that a mistrial is reasonably certain to occur, consciously disregards that risk seems far too insensitive a criterion for decisions in these cases. In short, we don't believe the purpose of the Constitutional right here in issue really has anything to do with the Prosecutor's specific intent.

Now, I know this Court has already held, and I think we're bound by that, on April 24th that they acted recklessly, but I think we can even take it a step further. If the Court hadn't held as such, Bauder, I don't think, requires us to have a specific finding. If you read Bauder that way, it makes it-and it makes sense. How in the world are we supposed to figure out what these people are doing?

Now, you can look at their course of conduct. I may have my opinion. Mr. Masonheimer certainly has his opinion in regards to what these folks have been doing all along, but I think trying to put us in the position to convince this Court that they acted with some specific mens rea would be ridiculous, and I think that's what Bauder stands for.

This is a case, Judge, that the facts are these: There was a specific discovery order where Brady material was ordered to be disclosed. There were pretrial hearings where the State has represented that they gave us all the exculpatory evidence. We know now that they withheld evidence that this Court has determined to be exculpatory, three pieces particularly. We have stopped the proceedings both times prior to judgment. This is not a case where a new trial is in effect, but we're prior to judgment during an evidentiary hearing. We had a mistrial granted based on the fact that these three pieces of evidence were not given and that they were exculpatory, being favorable, being relevant, being material to our Defense, and then we have a finding that the conduct on the part of the District Attorney's office was reckless.

In accordance with Bauder and in accordance where [sic] the Constitution of the United States and the Texas State Constitution via the 14th Amendment, I think this Court is in a position where they are required to grant our Application for Habeas Corpus and find that double jeopardy has attached in this case, and that's what we're going to ask the Court to do.

* * *

What it's about is you have a case, Brady, that says, "You're supposed to-you have an affirmative duty, Mr. Joiner or Mr. Harper, or Mr. Clappert as your agent, to make sure that all exculpatory or mitigating evidence is turned over to the Defense prior to time of trial." We have a pretrial order telling them that, just in case they don't know it, and then when you show up at trial and they don't give it, and they get caught[ (12)] December the 6th, and then you show up in April, and we have a pretrial, and they say, "We've given everything to you," and sure enough, we find again there's another statement they haven't given us, and then we show up April 27th and find out that there's steroids they haven't given us or evidence thereof. We keep violating Brady, and when you violate Brady, you violate the due process rights of this man, and you violate the double jeopardy clause of the Constitution, and that's-it's simple. It's a simple analysis, really, in this case.

So, no, I'm not here to punish them. I'm here to do, I guess, what they should be doing, which is justice. This hadn't been any prosecution seeking justice. From day one their investigation, everything they've done, has just been set out not for a fair trial, but to get a conviction in this case. They've gone to lengths that I can't believe, and when they get disagreements between their own employees or agents and former employees, I think that shows you how serious this matter has become, but it shouldn't prejudice our client. That's not what it's all about.

We understand the record to reflect that the State argued that further prosecution of appellee is not jeopardy-barred because the trial court should have continued the second trial instead of terminating it since the Marshall, Williams, and Upchurch statements had been disclosed to appellee before the second trial was terminated. Appellee's counsel responded that it took "two trials, numerous pretrial hearings, [and] two motions for mistrial" to get this evidence and that the State's tardy disclosure of this evidence did not prevent appellee "from being tried time and time again."

[APPELLEE'S COUNSEL]: The other thing is, is when they start talking about due process and that we haven't focused on it, Your Honor, you've already found this was a violation of due process at the time you granted the mistrial, but due process focuses on the Defendant under this circumstance, not the State. You know, they keep coming-they tell us, "Don't worry about it. Now they've got our entire file." Great! What's it taken us to get their entire file? It's taken us two trials, numerous pretrial hearings, two motions for mistrial, and sure enough, maybe we've got it now. All I know is every time we get ready for trial and start putting on evidence, what do you know, we find more exculpatory evidence. We're trying to protect this man from being tried time and time again.

At the conclusion of the hearing on appellee's pretrial writ of habeas corpus, the trial court made an oral finding that "double jeopardy has attached" and ordered the case dismissed with prejudice. The trial court later signed an order dismissing the case with prejudice based on its finding that "the instant offense is barred by the Double Jeopardy Clause of the United States and Texas Constitutions."

The State appealed, and the Court of Appeals decided that further prosecution of appellee is not jeopardy-barred under either the state or federal constitutions. See Masonheimer, 154 S.W.3d at 251. The Court of Appeals decided that there is no evidence that the "new lead prosecutor in the second trial" acted "intentionally, a critical mens rea" for federal constitutional purposes under Oregon v. Kennedy or "recklessly, a critical mens rea" under Bauder. See Masonheimer, 154 S.W.3d at 251. Appellee filed a petition for discretionary review, and the State filed a cross-petition for discretionary review.

After the Court of Appeals decided this case, this Court overruled Bauder in Ex parte Lewis, S.W.3d (Tex.Cr.App. No. PD-0577-05, delivered January 10, 2007). In Lewis, this Court adopted, as a matter of state constitutional law, the federal constitutional standard set out in Oregon v. Kennedy (13) for determining whether a retrial is barred after a defense-requested mistrial. Lewis, slip op. at 64. The issue, therefore, is whether the record supports the trial court's ruling that any further prosecution of appellee is jeopardy-barred under the Oregon v. Kennedy standard. And, since appellee won in the trial court, we must view the evidence in the light most favorable to the trial court's ruling. (14)

In considering whether the State acted "intentionally" under the Oregon v. Kennedy standard, the Court of Appeals considered only the mens rea of the "new lead prosecutor." See Masonheimer, 154 S.W.2d at 251, 254. Appellee claims in his first ground for review that the State encompasses the entire prosecutorial team (not just the "new lead prosecutor") in determining whether the State acted "intentionally." We agree that, in determining whether the State acted "intentionally" under the Oregon v. Kennedy standard, it is necessary to also consider the mens rea of the lead prosecutor in the first trial. See Giglio v. United States, 405 U.S. 150, 154 (1972) ("The prosecutor's office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government.").

The Oregon v. Kennedy decision was intended to "delineate the bounds" of the "narrow exception" to the general rule that there is no jeopardy bar to a retrial after a defense-requested mistrial. See Oregon v. Kennedy, 456 U.S. at 673. The Oregon v. Kennedy standard delineating these bounds is usually read to mean that a retrial after a defense-requested mistrial is jeopardy-barred only when the prosecutorial "conduct giving rise to the successful motion for a mistrial was intended to provoke [or goad] the defendant into moving for a mistrial." See Oregon v. Kennedy, 456 U.S. at 676, 679; Lewis, slip op. at 1. (15)

In support of this specific proposition, Oregon v. Kennedy cites to footnote three in United States v. Tateo. (16) See Oregon v. Kennedy, 456 U.S. at 673 n.4. In Tateo, the defendant claimed that a retrial was barred after his conviction was set aside on collateral attack because of prejudicial comments that the trial court made in the prior trial. See Tateo, 377 U.S. at 463-64. In rejecting this claim, the Court noted that if "Tateo had requested a mistrial on the basis of the judge's comments, there would be no doubt that if he had been successful, the Government would not have been barred from retrying him." See Tateo, 377 U.S. at 467 (emphasis in original). The Tateo Court then stated in footnote three of its opinion that "[i]f there were any intimation in a case that prosecutorial or judicial impropriety justifying a mistrial resulted from a fear that the jury was likely to acquit the accused, different considerations would, of course, obtain." See Tateo, 377 U.S. at 468 n.3. The Court's opinion in Oregon v. Kennedy makes another citation to footnote three in Tateo as an example of the "narrow exception" to the general rule that there is no jeopardy bar to a retrial after a defense-requested mistrial. See Oregon v. Kennedy, 456 U.S. at 673.

Another case that Oregon v. Kennedy cites for the proposition that retrial is barred when the prosecution intentionally goads a defendant into moving for a mistrial is United States v. Dinitz. (17) See Oregon v. Kennedy, 456 U.S. at 673. In Dinitz, the defendant claimed that a retrial was jeopardy-barred after he successfully moved for a mistrial because of actions that the trial court took against one of his lawyers. See Dinitz, 424 U.S. at 602-06. The Court rejected this claim, in part, because the trial court's actions were not done "to prejudice [the defendant's] prospects for an acquittal." See Dinitz, 424 U.S. at 611. The Oregon v. Kennedy case appears to cite with approval a similar statement from another plurality opinion stating that "where a defendant's mistrial motion is necessitated by judicial or prosecutorial impropriety designed to avoid an acquittal, reprosecution might be barred." See Oregon v. Kennedy, 456 U.S. at 678-79; see also Ex parte Peterson, 117 S.W.3d 804, 826 n.7 (Tex.Cr.App. 2003) (Hervey, J., dissenting).

Keeping in mind that we are required to view the evidence in the light most favorable to the trial court's ruling that prosecuting appellee a third time is jeopardy-barred, we are constrained to decide that the extensive portions of the record set out in this opinion support a finding that appellee's mistrial motions were necessitated primarily by the State's "intentional" failure to disclose exculpatory evidence that was available prior to appellee's first trial with the specific intent to avoid the possibility of an acquittal. (18) Under Oregon v. Kennedy, this deliberate conduct, accompanied by this specific mens rea, bars a retrial. See Oregon v. Kennedy, 456 U.S. at 673, 678-79; Dinitz, 424 U.S. at 611; Tateo, 377 U.S. at 678 n.3; United States v. Wallach, 979 F.2d 912, 915-16 (2nd Cir. 1992) (there is some force to the argument that Oregon v. Kennedy protects a defendant from a retrial after a defense-requested mistrial where prosecutorial misconduct [resulting in the mistrial, not a reversal on appeal] is undertaken with the intention of denying the defendant an opportunity to win an acquittal); State v. Marti, 784 A.2d 1193, 1196-97 (N.H. 2001) (Oregon v. Kennedy would bar retrial after defense-requested mistrial when "prosecutor engaged in misconduct with the specific intent to avoid an acquittal which the prosecutor believed was likely to occur in the absence of the misconduct"); State v. Lettice, 585 N.W.2d 171, 181 (WI. 1998) (same); State v. Colton, 663 A.2d 339, 345-46 (CT. 1995) (same); (19) see also Thanos v. State, 625 A.2d 932, 937-38 (Md. 1993) (double jeopardy does not bar retrial after defense-requested mistrial unless State intentionally commits misconduct with the specific intent of forcing defendant to move or consent to mistrial or with the specific intent of prejudicing defendant's prospects for an acquittal if trial continued to verdict); Hagez v. Maryland, 749 A.2d 206, 217-29 (Md. Spec. App. 2000) (Oregon v. Kennedy may prohibit a retrial after a defense-requested mistrial [not a reversal on appeal] resulting from State's deliberate conduct prompted by a desire to "sabotage" a probable acquittal) and at 229-31 (Moylan, J., concurring); West v. State, 451 A.2d 1228, 1231-36, 1233 (Md. Spec. App. 1982) (retrial after defense-requested mistrial is jeopardy-barred under Oregon v. Kennedy when "prosecutorial or judicial impropriety justifying a mistrial resulted from a fear that the jury was likely to acquit the accused") (quoting footnote three in Tateo); (20) Tabbs v. State, 403 A.2d 796, 812 (Md. Spec. App. 1979). We are persuaded that, in a case like this, a defendant suffers the same harm as when the State intentionally "goads" or provokes the defendant into moving for a mistrial. (21) Under the unique circumstances of this case, we decide that a third prosecution of appellee is jeopardy-barred under state and federal constitutional double-jeopardy principles.

The judgment of the Court of Appeals is reversed, and the judgment of the trial court is affirmed. (22)

Hervey, J.

Delivered: March 21, 2007

Publish

1. The trial court found that the State should have disclosed this evidence under Brady v. Maryland, 373 U.S. 83 (1963), before appellee's first trial. The issue of whether the undisclosed evidence meets Brady is not before the Court because this issue was not raised as a ground on discretionary review. This opinion, therefore, assumes without deciding that the undisclosed evidence meets Brady. We do note that the defense, the State, the trial court and the Court of Appeals all seem to agree that the undisclosed evidence meets Brady.

2. The trial court ordered the State to disclose to the defense any evidence that was "clearly exculpatory" and to turn over to the court for an in camera inspection "anything borderline that the State has any doubts about at all about whether or not it's exculpatory evidence."

[THE COURT]: I'm going to order a couple of things. I'm going to order the State to reexamine its file, and if, you know, there's anything borderline that the State has any doubts about at all about whether or not it's exculpatory evidence, then the State will submit that to me in camera, then I'll look at it. If you should discover something that is clearly exculpatory, obviously you know to give that to the Defense as soon as possible.

3. The Court of Appeals agreed that the Williams statement should have been disclosed to the defense because it would "rebut any prosecution evidence showing that [the victim] was a peaceful man" and it would "rebut any contention by the prosecution that Lucy's testimony concerning [the victim's] stalking behavior was recently fabricated to help her father develop a theory of self-defense." See Masonheimer, 154 S.W.3d at 252.

4. The second proceeding on appellee's nolo contendere plea, however, was not an ordinary plea proceeding as reflected by the record in the hearing on appellee's pretrial writ of habeas corpus:

[APPELLEE'S COUNSEL]: Judge, as you're well aware, we convened this case for the second time on April the 21st where [appellee] entered a plea of no contest to this Court, and on that day, as you will very well recall, you admonished both the State, as well as [appellee], of what you expected to take place in that evidentiary hearing. You admonished the State that they would be required-since this wasn't a very typical plea-type case; it wasn't when we were pleading guilty. We pled no contest, and you admonished the State that they would be required to provide sufficient evidence to sustain a finding of guilt. You also told the Defense that we would be entitled at that time, after the State rested, to put on evidence of any defenses, if we had those, in that case, and everybody was well aware of that, I think, before we began.

5. Appellee's counsel claimed at the mistrial hearing that evidence of the victim's steroid use was an important issue to the defense. See Masonheimer, 154 S.W.3d at 250. Appellee's counsel asserted that "we had been told that [the victim] had told some people that he used steroids and that that information had been passed on to [appellee] prior to the shooting. We had no direct evidence of his steroid usage other than what [the victim] had represented to others." Appellee presented, at the mistrial hearing, the testimony of a physician who was treating the victim for depression shortly before the shooting. This physician testified that he was not aware that the victim may have been using steroids and that any use of steroids by the victim could have caused "aggression, anger, irritability." Harper testified that he knew before the first trial that any use of steroids by the victim was "very critical" to the defense.

Q. [APPELLEE'S COUNSEL]: So you knew that, at least from our standpoint, we thought that the use of steroid was very critical?

A. [HARPER]: At some point in the pretrial part of it, yes, I did.

* * *

Q. But you do concede that the stash of steroids, that if you had known that, that would certainly be vitally critical to our defense?

A. When I note-found notice of it, when Mr. Joiner told me about it, he told me he was giving it to you, this was recent, I agree that that should have been given to you, yes.

6. Harper also testified that he did not believe that the Marshall statement "might be exculpatory or favorable to the defendant."

Q. [APPELLEE'S COUNSEL]: Can you understand how that statement-"he was threatening"-to the man that first comes up, with the body lying in the street, and says, "What happened?" and he says "He was threatening my daughter, and it was him"-or however-or "him or me," whatever those words are, you don't understand how that might be exculpatory or favorable to the defendant?

A. [HARPER]: I did not.

7. Appellee's counsel also argued at the mistrial hearing:

I believe that based on the testimony of the State's own witnesses, and what I mean by that is [Upchuch, Clappart, Harper, and Joiner], they all believe that these three pieces of evidence at this time they knew about would be favorable to the Defense and sure enough they didn't give them to us. [Clappart and Joiner] all even went a little further to state that they agree that those are three pieces of evidence that, in accordance with [Brady], would be considered exculpatory evidence.

8. At the mistrial hearing, appellee's counsel suggested through his direct examination of Harper that Harper intentionally cut Marshall off during his direct examination of Marshall at the first trial when Marshall was about to testify that appellee told him minutes after shooting the victim that the victim had threatened him.

[APPELLEE'S COUNSEL]: Do you recall in [the first trial] Mr. Marshall, in response to your question, "Did you ask [appellee] anything? his answer was, "Yes, sir. I asked him if he did it. He said yes." And he started to continue on, "He said that he threatened-" and you interrupted him, raised your hand and interrupted him and asked another question. Do you recall that?

A. [HARPER]: [The reporter's record from the first trial] reads-it-the only way I can do it is the way it reads.

The reporter's record from appellee's first trial appears to reflect that Harper interrupted Marshall when he was about to testify that appellee told him that the victim had threatened him:

Q. [HARPER]: Did you ask [appellee] anything?

A. [MARSHALL]: Yes, sir. I asked him if he did it. He said yes. He said that he threatened-

Q. How was his demeanor?

9. Since some of the witnesses through whom the steroid evidence would have been presented apparently were unavailable, the State also offered to stipulate that the victim was in possession of steroids. The trial court responded that the defense "might have elected to have a jury trial instead of going to court" had the State timely disclosed this evidence.

[THE STATE]: Your Honor, our remedy would be to say, you know, we'll stipulate that these are steroids. Aside from what they're-I guess they're saying that these were deliberately kept out. It's our position that they were not deliberately kept out and that we will do what we can to erase the harm by not being able to contact these witnesses by saying we will stipulate that if you contacted them, they would say it was steroids, which is what the evidence that we have is what they would say. There was no evidence of testing, say-you know, we'll say they were steroids. Give them the benefit of the doubt, I guess.

[TRIAL COURT]: Of course, their argument is they've been harmed because, had they had this information before Monday, they might have elected to have a jury trial instead of going to the Court.

[STATE]: I understand, Your Honor.

[TRIAL COURT]: That's their position on that.

10. At the beginning of this hearing, appellee's counsel reminded the trial court that the second trial "wasn't a very typical plea-type case" and that the trial court indicated that it would permit appellee "to put on evidence of any defenses" at this second trial, suggesting that appellee might avoid conviction or that his defensive evidence could be considered in mitigation of punishment.

[APPELLEE'S COUNSEL]: Judge, as you're well aware, we convened this case for the second time on April the 21st where Mr. Masonheimer entered a plea of no contest to this Court, and on that day, as you will very well recall, you admonished both the State, as well as the Defendant, of what you expected to take place in that evidentiary hearing. You admonished the State that they would be required-since this wasn't a very typical plea-type case; it wasn't when [sic] we were pleading guilty. We pled no contest, and you admonished the State that they would be required to provide sufficient evidence to sustain a finding of guilt. You also told the Defense that we would be entitled at that time, after the State rested, to put on evidence of any defenses, if we had those, in that case, and everybody was well aware of that, I think, before we began.

11. 921 S.W.2d 696, 699 (Tex.Cr.App. 1996).

12. Emphasis supplied.

13. 456 U.S. 667 (1982).

14. See State v. Kelly, 204 S.W.3d 808, 818-19 (Tex.Cr.App. 2006).

15. This apparently would apply even when the prosecutorial misconduct (though accompanied by an intent to provoke a mistrial) was not so seriously prejudicial as to compromise the defendant's valued right to have his guilt-innocence determined before the first trier of fact. But see Oregon v. Kennedy, 456 U.S. at 676 and cases cited. For example, under a strict application of the "intending to goad the defendant into moving for a mistrial" language in Oregon v. Kennedy, a retrial would be jeopardy-barred after the defense-requested mistrial provoked by the comment in Oregon v. Kennedy (State referring to defendant as a "crook") as long as the State intended to provoke this defense-requested mistrial even though its comment obviously did not compromise the defendant's valued right to have his guilt-innocence determined by the first jury.

16. 377 U.S. 463, 468 n.3 (1964).

17. 424 U.S. 600 (1976).

18. The trial court could have also reasonably found that the State believed that the undisclosed evidence may have made the difference between a conviction and an acquittal. Under these circumstances, appellee's valued right to have his guilt-innocence determined by the jury in the first trial and, "perhaps, end the dispute then and there with an acquittal" was something of a "hollow shell" even though this may not have become apparent until the middle of the second trial. See Oregon v. Kennedy, 456 U.S. at 673. In Dinitz, 424 U.S. at 608, the Court stated:

The distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant's request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause. Even when judicial or prosecutorial error prejudices a defendant's prospects of securing an acquittal, he may nonetheless desire "to go to the first jury and, perhaps, end the dispute then and there with an acquittal." (Citation omitted). Our prior decisions recognize the defendant's right to pursue this course in the absence of circumstances of manifest necessity requiring a sua sponte judicial declaration of mistrial. But it is evident that when judicial or prosecutorial error seriously prejudices a defendant, he may have little interest in completing the trial and obtaining a verdict from the first jury. The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant's mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause-the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions.

19. These latter three cases (Marti, Lettice, and Colton) decided that Oregon v. Kennedy would bar retrial under these circumstances even when there was no defense-requested mistrial and the defendant's conviction was reversed on appeal. The rule applied in this case, however, is limited to retrial after a defense-requested mistrial. This rule arguably would not apply to a retrial after a reversal of a defendant's conviction on appeal because, in such a situation, the defendant's valued right to have guilt-innocence determined by the first trier of fact has not been compromised. See Oregon v. Kennedy, 456 U.S. at 676.

20. In West, 451 A.2d at 1235, the Court stated that what "is encompassed by intentional misconduct . . . is not the mere general intent to do the act but, additionally, the special intent to attain some specific end thereby." West provides two situations where retrial after a defense-requested mistrial is jeopardy-barred under Oregon v. Kennedy. See West, 451 A.2d at 1235. The second, more familiar, situation is a mistrial when the prosecution intentionally commits some erroneous act with the specific intent to provoke or goad the defendant into moving for a mistrial to avert a probable acquittal. See id. The first, less familiar, situation is a mistrial when the prosecution attempts not to get caught intentionally committing some erroneous act (e.g., not disclosing evidence) with the specific intent to avoid a probable defeat. See id. The evidence in this case supports this latter situation. Also, recall that the State claimed at the mistrial hearing that there is no evidence that it "did this to goad [the defense] into asking for a mistrial, or that [it] knew that if [the defense] found this out that it would goad them into a mistrial." (Emphasis supplied).

21. See Adam M. Harris, Note, Two Constitutional Wrongs Do Not Make A Right: Double Jeopardy and Prosecutorial Misconduct Under The Brady Doctrine, 28 Cardozo L. Rev. 931, 944-52 (November 2006) (if Oregon v. Kennedy bars a retrial where a prosecutor commits an act of misconduct with the intention of provoking a mistrial motion by the defendant, it should also bar a retrial where a prosecutor commits grave misconduct with the intent to avoid an acquittal he believes is likely, because the defendant suffers the same harm in both cases), and at 946 ("Under the rule set out in [Oregon v. Kennedy], the prosecutor violates the Double Jeopardy Clause when he has a specific intent to cause a mistrial, purportedly to avoid an acquittal. [Footnote omitted]. In the case where a prosecutor proceeds to trial in violation of Brady, the prosecutor still subjects the defendant to the identical risk of mistrial, with the intent of securing a conviction. [Footnote omitted]. There should be no distinction between these two situations.").

22. We believe that this renders moot the claim presented in the ground for review in the State's cross-petition for discretionary review that Brady does not apply to a nolo contendere plea under the Supreme Court's decision in United States v. Ruiz, 536 U.S. 622 (2002). We do not believe that this would apply to the not "very typical plea-type" second proceeding in this case.