Stanley, Andria ( 2015 )

fonts tott-ts tents
Nos. PD-1017-15, PD-1018-15, PD-1019-15
ORIGINAL
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
ANDRIAMARIE STANLEY n RECEIVED IN
Petitioner C0URT 0F CR!^ APp6ALS
vs.
OCT 22 2015-
THE STATE OF TEXAS Abej Acosta C|@rk
Respondent
Petition in Cause Nos. D-l-DC 12-300267,
D-l-DC 12-300754, D-l-DC 12-300755 FILED IN
in the 390th District Court of CcWOF CRIMINAL APPfai
Travis County, Texas and n__ ^
0CJ2Z 2;;j
In the Third District Court
OfAppeals at Austin bel Acoste, Clerk
PETITION FOR DISCRETIONARY REVIEW
Submitted by:
Andria M. Stanley
ProSe
T.D.C.JJ 01861816
Mountain View Unit
2305 Ransom Road
Gatesville, Texas 76528
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Index of Authorities 3-5
Statement Regarding Oral Argument 6
Statement of the Case 6
Statement of Procedural History 6
Reasons for Review 7
Ground for Review One 8-14
The Court of Appeals erred in finding that the prejudicial and
inflammatory evidence erroneously admitted by the trial court
was harmless, of the Appellant's admission to Aggravated
Assault on the complainant in an agreed protective order
because Appellant's admission was obtained through
Ineffective Assistance of Counsel.
Ground for Review Two 15-17
The Court of Appeals erred in holding that the Appellant was
not harmed by a denial of a requested unanimity instruction on
the Burglary of a Habitation charge because the general
verdict led to a potential jeopardy violation between the
burglary conviction and substantive offenses.
Prayer for Relief 18
Certificate of Service 19
Certificate of Compliance 19
Appendix 20
INDEX OF AUTHORITIES
Constitutions:
U.S. Const, Amend. 5 11
U.S. Const, Amend. 6 14
Cases:
Almanzav. State, 686 S.W.2d 157 (Tex.Cr.App. 1984) 16
Arizona v. Fulminante, 499 U.S. 279 (1991) 12
Arlinev. State, 721 S.W.2d 348 (Tex.Cr.App. 1986) 16
Ex parte Butler, 522 S.W.2d 196 (Tex. 1975) 11
Ex parte Moody, 991 S.W.2d 856 (Tex.Cr.App. 1999) 13
Ex parte Sanchez, 703 S.W.2d 955 (Tex.1986) 10
Ex parte Strickland, 724 S.W.2d 132 (Tex.App. - Eastland 1987) 10
Ex parte Welborn,7S5 S.W.2d391 (Tex.Cr.App. 1990) 11
Francis v. State, 36 S.W.3d 121 (Tex.Cr.App. 2000) 15
Frangias v. State, 450 S.W.3d 125 (Tex.Crim.App. 2013) 10
Goodspeed v. State, 187 S.W.3d (Tex.Crim.App. 2005) 10
Harris v. State, 790 S.W.2d 568 (Tex.Cr.App. 1989) 12
Hemmingwayv. State, 483 So. 2d 1335 (Miss. 1986) 12
Hill v. Lockhart, 474 U.S. 52 (1986) 13
Hollowayv. State, 780 S.W.2d 787 (Tex.Cr.App. 1989) 14
In re Butler, 45 S.W.3d 268 (Tex.App.-Houston [1st Dist] 2001) 10
In re Marks, 365 S.W.3d 843 (Tex.App.- Ft. Worth 2012) , 10
Kimmelman v. Morrison, 477 U.S. 365 (1986) 8
Langs v. State, 183 S.W.3d 680 (Tex.Cr.App. 2006) 16
LaPointv. State, 750 S.W.2d 180 (Tex.Cr.App. 1986) 17
Maness v. Meyers, 419 U.S. 449 (1975) 11
Massiahv. United States, 311 U.S. 201 (1966) 14
McCarthy v. Ardstein, 266 U.S. 34 (1924) 11
Morales v. State, 910 S.W.2d 642 (Tex.App. Beaumont 1995) 13
Murphy v. State, 44 S.W3d 656 (Tex.App.-Austin 2001) 17
Navav. State, 415 S.W.3d 289 (Tex.Crim.App.2013) 9
Rowland v. Herren, 03-07-00247-CV
(Tex.App. -Austin 2-19-2010) (Unpublished) 10
Snowden v. State, 353 S.W3d815 (Tex.Cr.App 2011) 12
Strickland v. Washington, 466 U.S. 668(1986) 8-9, 14
Texas Dep 't ofPublic Safety Officers Ass 'n v. Denton,
897 S.W.2d 757 (Tex.1995) 11
Statutes, Codes and Rules:
Tex.Code Crim.Pro. 36.15 15
Tex.Penal Code § 30.02(a)(1) 15-16
Tex.Penal Code § 30.02(a)(3) 15-17
Tex.REvid. Rule 801(e)(2) 11
Tex.REvid. Rule 803(24) 11
STATEMENT REGARDING ORAL ARGUMENT
In the event this petition is granted, the Petitioner requests oral argument.
Argument would assist the court because this case presents novel issues this court
has not previously addressed, and the issues raised are issues of first impression
that could be better discussed in the context of oral argument.
STATEMENT OF THE CASE
This case concerns a conviction of four felony offenses—two counts of family
violence aggravated assault, aggravated kidnapping, and burglary of a habitation,
in which Appellant's admission in an agreed protective order was obtained through
Ineffective Assistance of Counsel. It also concerns the issue of whether a charge
submitted to the jury allowing a conviction on less than an unanimous verdict
constitutes a violation of the Double Jeopardy Clause.
STATEMENT OF PROCEDURAL HISTORY
(1) Date of opinion from Court ofAppeals: July 30, 2015
(2) Date of Motion for Rehearing: None was filed.
(3) Date Motion for Rehearing Disposed: N/A
GROUNDS FOR REVIEW
1. The admission of an agreed protective order in which Appellant was
persuaded by counsel to agree to findings that she had committed the acts for
which she would eventually be prosecuted, resulted from Ineffective
Assistance of Counsel at the contempt hearing. Because the lower courts
refused to find any harm in the admission of the protective order, the
conviction must be overturned.
2. The Court ofAppeals erred in finding that Appellant's requested unanimity
instruction for the burglary charge led to double jeopardy violation between
the burglary conviction and substantive offenses.
ARGUMENT
1. The Court of Appeals erred in overruling Appellant's objection to the
admission of the protective order on the basis of Ineffective Assistance of
Counsel. Furthermore, erring in holding that the admission of the agreed
protective order was harmless beyond a reasonable doubt.
At Appellant's trial, the state offered a copy of an agreed protective order
from a family law proceeding involving Appellant and her ex-husband, which
contained a finding that Appellant caused "serious bodily injury to [Witt]."
Appellant objects to the admission of the protective order asserting that Appellant's
attorney had rendered ineffective assistance of counsel by advising her to agree to
the protective order—and the findings of family violence.
The record before the Court of Appeals reflected a strategy which was
patently unreasonable because it was facially inconsistent—counseling Appellant
to admit to criminal conduct which would be the crux of a pending felony charge
in order to avoid discussion of "ancillary" matters—and clearly reflects counsel's
misunderstanding of precedent on the scope of the privilege against self-
incrimination. Was the challenged action sound strategy? There exists a reasonable
probability that, but for counsel's unprofessional errors, result of proceeding would
have been different. Kimmelman, All U.S. at 384, 106 S. Ct. 2574.
In Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), the Supreme Court articulates a two-prong test to be used when
analyzing a claim of Ineffective Assistance of Counsel. To have a conviction
8
reversed on the grounds of Ineffective Assistance of Counsel an Appellant must
show that:
1) Counsels representation fell below an objective standard of
reasonableness and
2) The deficient performance prejudiced the appellant.
Is a deficiency in attorney performance not a general requirement that the
defendant affirmatively proves prejudice?
The basic or significant part of Appellant's complaint is that counsel in her
family law contempt hearing was deficient for counseling her to agree, in essence,
to make a written admission of having committed aggravated assault as part of a
strategy in avoiding having to testify to extraneous and ancillary matters which
might have been admissible in a pending felony trial.
The court states that the Appellant must first demonstrate that counsel's
performance fell below an "objective standard of reasonableness under prevailing
professional norms... " Strickland, 466 U.S. at 687-88; Nova, 415 S.W3d at 307.
Then, "that the result of the proceeding would have been different absent counsel's
deficient performance." Strickland, 466 U.S. at 694; Nava, 415 S.W.3d at 308.
There is no question under Strickland that Appellant had the right to the
effective assistance of counsel at her contempt hearing, even though it pertained to
a civil case. Texas law provides that because contempt proceedings in family law
involve the possibility of incarceration, the right to the assistance of counsel
extends to family law enforcement proceedings. See, Ex parte Sanchez, 703
S.W.2d 955, 957 (Tex. 1986); in re Marks, 365 S.W.3d 843, 845 (Tex.App. - Ft.
Worth 2012); in re Butler, 45 S.W.3d 268, 271 (Tex.App. - Houston [1st Dist.]
2001); exparte Strickland, 724 S.W2d 132, 133-134 (Tex.App. - Eastland, 1987);
and, Rowland v. Herren, 03-07-00247-CV (Tex.App. - Austin 2-19-2010)
(Unpublished).
The Court of Appeals cites Frangias v. State, 450 S.W.3d 125,136
(Tex.Crim.App. 2013) ("[ITnless there is a record sufficient to demonstrate that
counsels conduct was not the product of an informed strategic or tactical decision,
a reviewing court should presume that trial counsel's performance was
constitutionally adequate unless the challenged conduct was so outrageous that no
competent attorney would have engaged in it.") (quoting Goodspeed, 187 S.W.3d
at 392). This case is distinct from those typical cases in which claim of ineffective
assistance of counsel is raised, and rejected, on direct appeal for lack of a sufficient
record. To the contrary, the record of attorney Trumpler's strategy was developed,
by the State, during the hearing outside the jury's presence. Trumpler's strategy is
unconvincing. First, it is disingenuous to label Trumpler's advice as "strategic".
Though claiming to be furthering his strategy of protecting appellant from an
impending charge of Aggravated Assault, Trumpler persuaded the appellant to sign
the protective order, which was admissible against her in the criminal trial as a
10
statement against interest. Tex.R.Evid.Rule 803 (24), as well as a statement by a
party opponent, Rule 801 (e)(2). This created admissible evidence against her,
something that any attorney familiar with the Rules of Evidence would have
recognized. Trumpler's decision to elicit an admission from appellant might have
been "strategy" under a broad understanding of the term, but it could not be
considered sound or objectively reasonable.
The Court of Appeals incorrectly argues against counsel's testimony
betraying a misunderstanding of the scope of the Fifth Amendment privilege. A
party in a civil proceeding unmistakably retains a Fifth Amendment privilege
against self-incrimination. Maness v. Meyers,419 U.S. 449, 464 (1975) (Fifth
Amendment may be asserted in any proceeding, civil or criminal, administrative or
judicial); Texas Dep 't ofPublic Safety Officers Ass 'n v. Denton,
897 S.W.2d 757, 760 (Tex. 1995); and, ex parte Butler, 522 S.W.29 196, 198 (Tex.
1975). In civil cases, the privilege against self-incrimination may be asserted
"wherever the answer might tend to subject to criminal responsibility him who
gives it." McCarthy v. Ardstein, 266 U.S. 34, 40 (1924); Denton, 897 S.W2d at
760. If Trumpler were unaware of appellant's continuing Fifth Amendment
privilege even to ancillary incriminating matters, then his strategy was executed
without a sufficient understanding of the law. Ex parte Welborn, 785 S.W2d 391,
393 (Tex.Cr.App. 1990).
11
The Court of Appeals incorrectly finds that the error is harmless. In
considering the potential prejudice, the court must consider a wide array of factors,
including the "nature of the error ... the probable implications of the error, and the
weight of the jury would have likely assigned to it in the course of its
deliberations." Snowden. The "appellate court should not determine the
harmfulness of an error simply by examining whether there exists overwhelming
evidence to support the defendant's guilt." Harris, 990 S.W2d 568, 587; see also
Snowden 353 S.W.3d at 819 (discussing Harris).
The Court of Appeals fails to acknowledge that the admission into evidence
of appellant's admission to assaulting the complainant plainly had a prejudicial
influence upon the jury simply by nature of the error. "[A] confession is like no
other evidence." Arizona v. Fulminante, 499 U.S. 279, 296 (1991). As one State
appellate court has dryly noted, "Confessions tend to have an adverse effect on
defendants in criminal prosecutions." Hemmingway v. State, 483 So. 2d 1335, 1336
(Miss. 1986) (emphasis added).
The Court of Appeals wrongly speculated that "counsels advice at the
protective order hearing was the product of an informed and strategic and tactical
decision which appellant agreed with and followed at the time but later criticized in
a self-serving attempt to exclude her admission. The lower court is trying to be
convincing that the appellant voluntarily and knowingly agreed knowing the harm
12
of such an admissible document.
The circumstances are closest by analogy to claims in which deficient
representation induces a defendant to waive the right to trial and plead guilty. See
and compare, Hill v. Lockhart, 474 U.S. 52, 58-59 (1986); and, Ex parte Moody,
991 S.W.2d 856, 858 (Tex.Cr.App. 1999). Under this type of ineffectiveness claim,
the prejudice inquiry is whether there is a reasonable probability that the defendant
would not have waived the right in the absence of counsel's recommendation.
Moody, 991 S.W2d at 858. Where a guilty plea based upon erroneous advice of
counsel is not made "voluntarily and knowingly". Morales v. State, 910 S.W2d
642 (Tex.App. Beaumont 1995).
The introduction of appellant's admission likely had a destructive influence
on the jury because it directly conflicted with her defensive theory at trial, that she
had met with her husband at his home to discuss the custody dispute over their
children, Witt became violent and a struggle ensued, during which both were
injured before appellant could escape to seek medical attention. Appellant
contested and disputed Witt's version of events, which were a fabrication for his
own assault upon her in which Witt beat her so severely that the metal of the
revolver had twisted. Witt's version of events left considerable room for the jury to
have doubted his veracity, including but not limited to the vast discrepancy
between Witt (6'1") and appellant (5'4", 120 lbs), and Witt's super-human ability
13
to break free of his multiple claims of bindings (zip ties, sheets, blankets, and
plastic wrap).
In respect to the Court of Appeals, the issue before the court is novel, of an
issue with no found precedent in which a comparable situation is addressed.
Where, as a result of counsels deficient advice in a different proceeding, a
defendant provides an inculpatory statement subsequently used against her at trial
on the merits. Granting this petition could assist in an issue of importance to the
jurisprudence of the State. Appellant would suggest that a full analysis under
Strickland would be inappropriate because Strickland addresses counsel's
representation throughout the entirety of the trial proceedings. Here, Trumpler did
not represent appellant in her full trial proceedings, but only in a proceeding which
resulted in the production of harmful evidence.
The prejudice from admitting a statement obtained in violation of the right to
counsel implicates the Sixth Amendment in a non-Strickland context. See e.g.,
Massiah v. United States, 311 U.S. 201 (1966); and, Holloway v. State, 780 S.W.2d
787 (Tex.Cr.App. 1989).
This court should conclude that the Court ofAppeals erred in finding that the
admittance of the order was harmless.
14
2. The denial of a requested Unanimity Instruction for the Burglary charge
led to a potential jeopardy violation.
An objection on the lack of an unanimity instruction on the Burglary
instruction was sufficient to preserve the issue for appellate review. See Francis v.
State, 36 S.W3d 121, 123 (Tex.Cr.App. 2000) (quoting Art. 36.15 that the defense
need only call the court's attention to the omission from the charge and that "no
other exception or objection to the court's charge shall be necessary to preserve
error ...")
In this case, the appellant was charged with four counts of a Burglary of a
Habitation.1 Appellant requested unanimity instructions on one or more of the
charges, which was denied.
The general verdict form permitted the jury to retain a non-unanimous verdict on
the Burglary based on either Tex. Penal Code §30.02 (a)(1) or §30.02 (a)(3).2
Under the circumstances at Appellant's trial, the lack of unanimity between
1 Counts 1 and 2 alleged Appellant entered the complainant's home with the intent to commit
the felony offenses of Aggravated Assault or Kidnapping and,
Counts 3 and 4 alleged Appellant entered the complainant's home and therein formed the
Intent to commit,Aggravated Assault or Kidnapping.
2 The statute provides in pertinent part:
(a) A person commits an offense if, without the effective consent of the owner, the
person:
(1) enters a habitation, or a building (or any portion of a building) not then open to
the public, with intent to commit a felony, theft, or an assault; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft,
or assault.
Tex. Penal Code §30.02 (a)(1) & (a)(3)
15
§ (a)(1) and § (a)(3), coupled with the jury charges on the substantive offenses
comprising the Burglary, opened the possibility that the jury's verdict violated
Appellant's right against Double Jeopardy.
This court has held that a defendant may not be convicted of both Burglary,
under §30.02 (a)(3) and the substantive felony underlying the Burglary. Langs v.
State, 183 S.W.3d 680, 686 (Tex.Cr.App. 2006). This is because the underlying
felony is a lesser-included offense to the Burglary and conviction on both
implicates the constitutional prohibition against punishing a defendant for greater
and lesser offenses. Ibid. By contrast, under §30.02 (a)(1), the Burglary and the
underlying substantive felony are two distinct offenses. Ibid.
The Court of Appeals rejected the claim of harm by the denial of Appellant's
jury unanimity instruction, stating that the "trial record must demonstrate that there
is some actual harm and not just a theoretical complaint." However, Appellant
objected to the omission instruction in the jury charge in a timely manner,
subjecting the harm analysis to the standard set out in Almanza v. State, 686
S.W.2d 157 (Tex.Cr.App. 1984); and, Arline v. State, 721 S.W.2d 348 (Tex.
Cr.App. 1986). "If the error in the charge was the subject of a timely objection in
the trial court, then reversal is required if the error is 'calculated to injure the rights
of the defendant,' which means no more than that there must be some harm to the
accused from the error." Almanza, 686 S.W.2d at 171. Some harm equates to "any
16
harm" regardless of degree. LaPoint v. State, 750 S.W2d 180, 191 (Tex.Cr.App.
1986); and, Murphy v. State, 44 S:W.3d 656, 666 (Tex.App.- Austin 2001).
The general verdict form for the Burglary charge permitted the jury to
convict Appellant for both the Burglary under § (a)(3), as well as the underlying
Aggravated Assault on which the Burglary was based. Appellant has experienced
some harm from the trial court's omission of the unanimity instruction for the
Burglary charge.
Because the jury charge in this case did not include the requested unanimity
instruction, Appellant experienced harm and the courts failure to correct that error
was another egregious error, requiring reversal.
17
PRAYER FOR RELIEF
Appellant prays that this court grant her petition for discretionary review and
upon reviewing the judgment below, reverse this cause and dismiss the prosecution
or remand for new trial.
Submitted by:
Andria M. Stanley
Pro Se
T.D.C.JJ 01861816
Mountain View Unit
2305 Ransom Road
Gatesville, Texas 76528
UNSWORN DECLARATION
I, Andria Marie Stanley, being presently incarcerated in the Department of
Criminal Justice. Mountain View Unit, do hereby declare under penalty of perjury
the foregoing brief to be true and correct and executed this date of
October 20, 2015.
Submitted by:
Andria M. Stanley
Pro Se
T.D.C.J.# 01861816
Mountain View Unit
2305 Ransom Road
Gatesville, Texas 76528
18
CERTIFICATE OF SERVICE
I hereby certify that on October 20, 2015, a copy of the foregoing Petition for
Discretionary Review was served on the following by certified mail, return receipt
requested:
Rosemary Lehmberg
Travis County District Attorney's Office
509 W 11th Street
Austin, Texas 78701
State Prosecuting Attorney
P.O. Box 13406
Austin, Texas 78711
Andria M. Stanley
CERTIFICATE OF COMPLIANCE
I hereby certify that this petition conforms to the requirements of TRAP 9, and
consists of 2,213 words per TRAP 9.4 (i)(2)(D).
Andria M. Stanley
19
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
ANDRIA MARIE STANLEY
Petitioner
vs. Nos. PD-1017-15, PD-1018-15,
PD-1019-15
THE STATE OF TEXAS
Respondent
APPENDIX-
PETITION FOR DISCRETIONARY REVIEW
INDEX:
1-23 Court of Appeals Opinion dated July 30, 2015 and Judgment
20
Petitions for Discretionary Review
LISA C. McMINN
P.O. Box 13046
Capitol Station
Austin, Texas 78711
State Bar of Texas
ADVANCED CRIMINAL LAW COURSE
July 22-25, 2013
Dallas, Texas
CHAPTER
Lisa C. McMinn has been the State Prosecuting Attorney since December 6, 2010. She first
joined the office as an assistant in October of 2005. From 1992 to 2005, Lisa worked as a staff
attorney for the Court of Criminal Appeals. She began her career at the Tarrant County District
Attorney's office, where she served from 1988-1992, as an assistant district attorney in both the
misdemeanor and appellate sections.
Lisa graduated from Baylor University in 1984, with a B.A. in Political Science. In 1987, she
received her J.D. from Baylor Law School.
Lisa is Board Certified in Criminal Appellate Law and is a regular lecturer on criminal appellate
law topics at CLE programs around the state. She is a member of the Texas District and County
Attorneys Association.
Petitions for Discretionary Review pursuant to Degrate v. State, 712 S.W.2d
755 (Tex. Crim. App. 1986), because they
Drafting a good petition for discretionary fail to address the court of appeals' opinion.
review (PDR) involves more than just Approximately 60 of the 100 PDRs filed are
repackaging your brief in the court of "frivved" on the merits, which means the
appeals. A PDR has a different purpose, is issues raised are deemed so non-meritorious
addressed to a different audience, and is by central staff that they do not require a
governed bydifferent rules.' Understanding "workup" by a staff attorney. The judges
these differences will greatly increase the can ask for a workup on a PDR that has been
odds that your PDR will be considered on its frivved, but if no workup is requested, the
merits and granted. PDR is summarily refused. Out of the
original 100 PDRs filed, only 15 survive the
I. Process screening process and get a full workup by a
staff attorney. Of those 15 PDRs worked up,
Upon filing in the Court of Criminal 5-7 are typically granted.
Appeals, PDRs are screened for compliance
with the rules of appellate procedure, A workup is generally 3-5 pages long. It
reviewed by staff attorneys, and voted on by consists of a summary the facts, court of
the judges. The Court's disposition of those appeals holding, and arguments in the
petitions is published on Wednesdays petition; a discussion of the applicable law;
throughout the year when the Court is in and a recommended disposition of the PDR.
session. The workup is attached to the PDR and
circulated to the judges. Prior to Monday
The Court of Criminal Appeals disposed of conference, the judges take a preliminary
1,520 PDRs in fiscal year 2012. Of those, vote on the PDRs that are "called up" for
104 were granted, 1,219 were refused, 142 that week. In addition to the vote to grant or
were struck for non-compliance, and 46 refuse, the judges can request discussion of a
were dismissed as untimely filed. particular case. Central staff attends
conference to answer any questions about
Anecdotal evidence from the Court shows the cases that have been marked for
that for every 100 PDRs that are timely discussion. After discussion of a case, a
filed, 25 are "non-compliant." Of those 25, revote may be taken in conference. If a case
approximately 14 do not comply with the is not discussed, it is disposed of based on
Rules of Appellate Procedure and are struck. the pre-conference vote tally. It takes at least
Most of the stricken PDRs have an four votes to grant a PDR.
insufficient number of copies or fail to
attach a copy or a complete copy of the II. Rules
court of appeals' opinion. The other 11 of
the non-compliant PDRs are refused The Rules of Appellate Procedure are
sometimes changed with very little notice to
practitioners. For the most up-to-date
All references to the rules are the Texas Rules of
Appellate Procedure.
2http://www.txcourts.gov/pubs/AR2012/cca/2-cca-
activitv.pdf
version of the Rules, consult the Supreme Court of Criminal Appeals to file a reply to
Court's website.3 the petition with the clerk of the Court of
Criminal Appeals.
The Rules of Appellate Procedure for briefs
and PDRs are different, especially with Where to file:
regard to deadlines, word or page limits,
contents, and motions for rehearing. The Rule 68.3
Rules listed below for the most part apply
only to PDRs. However, some rules that (a) The petition and all copies of the petition
apply to both PDRs and briefs are included. must be filed with the clerk of the Court of
Criminal Appeals.
When to File: (b) Petition Filed in Court of Appeals. —If a
petition is mistakenly filed in the court of
Rule 68.2 appeals, the petition is deemed to have been
filed the same day with the clerk of the
(a) First petition. The petition must be filed Court of Criminal Appeals, and the court of
within 30 days after either the day the court appeals clerk must immediately send the
of appeals' judgment was rendered or the petition to the clerk of the Court of Criminal
day the last timely motion for rehearing or Appeals.
timely motion for en banc reconsideration
was overruled by the court of appeals. Contents:
(b) Subsequentpetition. Even if the time
specified in (a) has expired, a party who Rule 68.4
otherwise may file a petition may do so
within 10 days after the timely filing of (a) Table ofcontents. The petition must
another party's petition. include a table of contents with references to
(c) Extension oftime. The Court of the pages of the petition. The table of
Criminal Appeals may extend the time to contents must indicate the subject matter of
file a petition for discretionary review if a each ground or question presented for
party files a motion complying with Rule review.
10.5 (b) no later than 15 days after the last (b) Index ofAuthorities. The petition must
day for filing the petition. ' include an index of authorities arranged
alphabetically and indicating the pages of
*Even if you miss the deadline and your the petition where the authorities are cited.
PDR is dismissed as untimely filed, you can (c) Statement regarding oral argument. The
file a motion for rehearing under Rule 79.1, petition must include a short statement of
requesting that the PDR be reinstated. why oral argument would be helpful, or a
statement that oral argument is waived. If a
Rule 68.9 reply or cross-petition is filed, it likewise
must include a statement of why oral
Reply. The opposing party has 15 days argument should or should not be heard..
after the timely filing of the petition in the
The statement about why argument
would be helpful doesn't need to be too
http://www.supreme.courts.state.tx.us/rules/TRAP/tr
long or involved. One or two sentences
ap-all.htm#slr9
are sufficient. Example: "Because this
case presents novel issues this Court has the motion for rehearing was
not previously addressed, oral argument overruled or otherwise disposed of.
would be helpful." More than likely, the
judges will grant or deny argument ♦Example: On January 1,2010,
based on their own views about whether the court of appeals reversed the
argument would be helpful, not on the conviction. Jones v. State,
wording of your statement. _S.W.3d_No. 02-10-0001-
CR (Tex. App. -Fort Worth,
(d) Statement ofthe case. The petition must delivered January 1, 2010). The
state briefly the nature of the case. This State's motion for rehearing was
statement should seldom exceed half a page. filed on January 13, 2010, and
The details of the case should be reserved overruled on January 28, 2010.
and stated, with the pertinent grounds or
questions. (f) Groundsfor review. The petition must
state briefly, without argument, the grounds
*The statement of the case on which the petition is based. The grounds
provides the Court with the must be separately numbered. If the party
context in which your issue has access to the record, the petitioner must
arose; very few facts are (after each ground) refer to the page of the
necessary at this point. record where the matter complained of is
Example: Appellant was found. Instead of listing grounds for review,
indicted for murder. At trial, the the petition may contain the questions
State sought a lesser- included- presented for review, expressed in the terms
offense instruction for criminal and circumstances of the case but without
conspiracy, which was granted unnecessary detail. The statement of
over Appellant's objection. The questions should be short and concise, not
jury convicted Appellant of argumentative or repetitious.
conspiracy and assessed his (g) Argument. The petition must contain a
punishment at 10 years. The direct and concise argument, with
court of appeals affirmed the supporting authorities, amplifying the
conviction, holding that reasons for granting review. See Rule 66.
conspiracy to commit murder is a The court of appeals' opinions will be
lesser-included offense of murder considered with the petition, and statements
and was properly submitted. in those opinions need not be repeated if
This petition challenges that counsel accepts them as correct.
holding. (h) Prayer for relief. The petition must state
clearly the nature of the relief sought,
(e) Statement ofprocedural history. (i) Appendix. The petition must contain a
The petition must state: (1) the date copy of any opinion of the court of appeals.
any opinion of the court of appeals
was handed down, or the date of any *Attach the entire opinion, including
order of the court of appeals concurring or dissenting opinions. An
disposing of the case without an incomplete copy of an opinion is not in
opinion; (2) the date any motion for compliance, even if it is only missing
rehearing was filed (or a statement one page. Many courts of appeals print
that none was filed); and (3) the date their opinions on both sides of the page.
If you put the opinion in the copier and counsel, statement regarding oral
forget to set it to "two-sided original" argument, table of contents, index of
you will get a copy with only odd- authorities, statement of the case,
numbered page and your petition will statement of issues presented, statement of
not be in compliance with the rules. jurisdiction, statement of procedural
history, signature, proof of service,
Form: certification, certificate of compliance, and
appendix.
Rule 9.4 (2) Maximum Length. The documents
listed below must not exceed the following
Except for the record, a document filed with limits:
an appellate court must —unless the court (A)-(C) omitted.
accepts another form in the interest of (D) A ... petition for discretionary
justice ~ be in the following form: review and response in the Court of
(a) Printing. A document may be produced Criminal Appeals, and a motion for
by standard typographic printing or by any rehearing and response in an appellate
duplicating process that produces a distinct court: 4,500 words if computer-
black image. Printing may be on both sides generated, and 15 pages if not.
of the paper. (E) A ... reply to a response to a petition
(b) Paper Type and Size. The paper on for discretionary review in the Court of
which the document is produced must be Criminal Appeals: 2,400 words if
white or nearly white, and opaque. Paper computer-generated, and 8 pages if not.
must be 8 1/2 by 11 inches.
(c) Margins. Papers must have at least one (3) Certificate of Compliance. A
inch margins on both sides and at the top computer-generated document must
and bottom. include a certificate by counsel or an
(d) Spacing. Text must be double spaced, unrepresented party stating the number of
but footnotes, block quotations, short lists, words in the document. The person
and issues or points of error may be single certifying may rely on the word count of
spaced. the computer program used to prepare the
(e) Typeface. A document produced on a document.
computer must be printed in a conventional (4) Extensions. A court may, on motion,
typeface no smaller than 14-point except for permit a document that exceeds the
footnotes, which must be no smaller than prescribed limit.
12-point. A typewritten document must be
printed in standard 10-character-per-inch Number of copies:
(cpi) monospaced typeface.
(f)-(h) omitted Rule 9.3
(i) Length.
(a) omitted
(1) Contents Included and Excluded. In (b)(1) Paper Copies of Document Filed in
calculating the length of a document, Paper Form. A party must file the original
every word and every part of the and 11 copies of any document addressed to
document, including headings, footnotes, ... the Court of Criminal Appeals ... and
and quotations, must be counted except the in the Court of Criminal Appeals, only the
following: caption, identity of parties and original must be filed of a motion for
extension of time or a response to the
motion.... *Under Rule 9.2(b), the mailbox rule
applies only to documents delivered to
Who to serve: the U.S. Postal Service. Castillo v.
State, 369 S.W.3d 196, 197 (Tex. Crim.
Rule 68.11 App. 2012).
In addition to the service required by Rule III. Audience and Purpose
9.5, service of the petition, the reply, and
any amendment or supplementation of a The PDR has a different audience and serves
petition or reply must be made on the State a different purpose than the brief in the court
Prosecuting Attorney.4 . of appeals.
How to file In the court of appeals
Rule 9.2 The court of appeals is required to write an
opinion addressing every issue raised and
(a) omitted necessary to the disposition of the appeal.
(b) Filing byMail.5 Rule 47.1. It has no choice in the matter.
(1) Timely Filing. A document received Even if your brief is badly written, the court
within ten days after the filing deadline is of appeals must still address it. Your
considered timely filed if: purpose in writing the brief is to set out the
(A) it was sent to the proper clerk by facts, standard of review, and substantive
United States Postal Service first class, law, and persuade the judges to rule in your
express, registered, or certified mail; favor.
(B) it was placed in an envelope or l
wrapper properly addressed and Many court of appeals justices have
stamped; and backgrounds in civil law. Long-serving
(C) it was deposited in the mail on or justices on the court of appeals will be better
before the last day for filing. versed in criminal law than those more
(2) Proof of Mailing. Though it may recently elected.
consider other proof, the appellate court
will accept the following as conclusive In the Court of Criminal Appeals
proof of the date of mailing:
(A) a legible postmark affixed by the The members of the Court of Criminal
United States Postal Service; Appeals are called judges, not justices. The
(B) a receipt for registered or certified judges on the Court of Criminal Appeals are
mail if the receipt is endorsed by the all former criminal defense attorneys,
United States Postal Service; or prosecutors or district judges. They are well
(C) a certificate of mailing by the United versed in criminal law. It is not necessary to
States Postal Service. set out the standard of review or applicable
law at great length in a PDR. Judges and
staff attorneys are likely to skip long
4P.O. Box 13046, Capitol Station, Austin, Texas, boilerplate paragraphs setting out the
78711.
standard of review.
5The Court ofCriminal Appeals does not currently
accept electronic filing of PDRs.
The Court of Criminal Appeals is a or has sanctioned such a departure by a
discretionary review court that can cherry lower court as to call for an exercise of the
pick the cases and issues it will address. Court of Criminal Appeals' power of
The judges can refuse your petition for any supervision.
reason. The refusal of a PDR does not
necessarily mean the Court agrees with the This is not an exclusive list. For example,
opinion below. Your purpose in filing the sometimes the Court grants review to
PDR is to convince the Court that your issue reconsider its own precedent. These reasons
is interesting enough or important enough to illustrate the types of issues the Court is
examine more closely and perhaps concerned with. In a nutshell, the Court is
reconsider the law. looking for issues that are important to the
jurisprudence of the State. The Court's
Judge Cochran's concurring opinion in primary role is not to correct every mistake
Bradley v. State, 235 S.W.3d 808 made by the courts of appeals. As the court
(Tex.Crim.App. 2007) explains, of last resort, its role is to be the caretaker of
"Converting a direct appeal claim into a Texas criminal law. As a result, it is more
discretionary review ground entails interested in legal issues than factual issues.
considerably more time, effort, and analysis The Court is less concerned that there may
than a minor tinkering with the original have been an injustice in a particular case
direct appeal brief. 'Instead, it involves a than that the opinion could set bad precedent
change of character, a recognition that this or create a conflict in the law. The Court is
Court wants to know why we should, as a not likely to grant review just because a
matter of sound discretion, expend our court of appeals "got it wrong" in one case.
scarce judicial resources to review the court On the other hand, if more than one court of
of appeals' reasoning about a particular legal appeals has gotten it wrong, if a court of
issue.'" appeals keeps getting it wrong, or if a court
of appeals got it really, really wrong, the
Rule 66.3, provides the reasons the Court of Court of Criminal Appeals may decide to
Criminal Appeals will consider in deciding correct the problem.
whether to grant review: (a) the court of
appeals' opinion conflicts with an opinion Familiarize yourself with the issues
from another court of appeals; (b) the court currently pending before the Court of
of appeals has decided an important question Criminal Appeals. The Court includes a
of state or federal law that should be settled listing of all the granted PDRs and grounds
by the Court of Criminal Appeals, (c) the for review. The issues are updated after
court of appeals has decided an important each PDR hand down. They are listed
question of state or federal law in a way that chronologically and alphabetically. The
conflicts with an opinion of the Court of State Prosecuting Attorney's website
Criminal Appeals or the Supreme Court; (d) provides summaries of the issues raised in
the court of appeals has declared all granted, pending PDRs. They are listed
unconstitutional or has misinterpreted a in alphabetical order.7
statute, rule, or regulation; (e) the justices of
the court of appeals have disagreed on a
material issue; or (f) the court of appeals'
opinion has so far departed from the usual
6http://www.cca.courts.state.tx.us/issues/ISSUES.pdf
and accepted course ofjudicial proceedings 7http://www.spa.state.tx.us/
If your issue is similar to one that has been Sometimes a single issue includes sub-
granted, point out the similarity to the Court. issues, especially when the court of appeals
Even if your issue is not exactly the same, it has alternative holdings. Because the
may be analogous to one already granted. Court's first impression of multi-ground
The Court likes to examine different facets PDR may be unfavorable, it might be wise
of the same issue. to present a broad ground for review with
subheadings within the body of the
The Court generally prefers to address legal argument-
issues such as the proper standard of review,
statutory construction, search and seizure, Legal issues
lesser-included offense issues, jeopardy
issues, jury unanimity issues, and jury A petition arguing that the court of appeals
charge issues. erred under the facts of a particular case in
an unpublished opinion is not likely to be
IV. Drafting granted. The PDR should demonstrate that
the issue is not limited to the facts of that
Because of their different purpose, PDRs are case alone but has potential to affect other
written differently than briefs filed in the cajgs^ Sufficiency of the evidence and
court of appeals. When filing a PDR, focus search and seizure are often fact intensive
on the following: issues. If you have a sufficiency issue,
emphasize the statutory construction aspect
Narrowing the issues of the case. If you have a search and seizure
issue, argue that the court of appeals applied
A defendant who is convicted and appeals the wrong standard of review or that this
the denial of a challenge for cause, the holding will have broad application.
admissibility of the confession, sufficiency
of the evidence, hearsay, jury charge error, Deerate
and the constitutionality of the statute should
not raise all of those issues in a PDR. The A PDR should address error in the court of
kitchen sink method is not effective. Judge appeals' opinion, not error in the trial court.
Cochran illustrates this point, stating, "I look Degrate v. State, 712 S.W.2d 755 (Tex.
upon one or two well-crafted grounds for Crim. App. 1986). Don't argue that the trial
review more favorably as it is most unusual court erred by granting the defendant's
that a court of appeals might be seriously motion to suppress. Point out the error in
wrong on numerous different issues of the court of appeals' opinion affirming the
statewide importance." King v. State, 125 trial court's granting of the motion to
S.W.3d 517, 518 n4 (Tex.Crim.App. suppress. A PDR arguing that the court of
2003)(Cochran, J., concurring). appeals erred by holding that the trial court
did not err is in danger of being "Degrated."
"Scattershot argument is ineffective. It The petition must address the court of
gives the impression of weakness and appeals' analysis by arguing that it
desperation, and it insults the intelligence of misapplied precedent, misconstrued a
the court." —Scalia and Garner, Making statute, applied the wrong, standard.of
Your Case review, conflicts with an opinion from
another court of appeals, etc.
About 10-12 % of all the non-compliant defendant's arrest after a traffic stop, the
PDRs are refused because of Degrate. main issue in the trial court may have
Those petitions are refused-not dismissed or centered on whether the defendant was
struck-so the attorney doesn't know the required to use a turn signal at a particular
reason the petition was refused and has no intersection. But the court of appeals may
opportunity to correct the error. Some hold that even if the stop was improper, the
attorneys are routinely "Degrated," because taint from the illegal stop was attenuated,
they keep making the same mistake over and rendering the confession admissible. The
over again. Some actually cut and paste issue on PDR will be the attenuation
their entire argument from the brief and re doctrine, not the turn signal issue.
label it a PDR.
Even if the issue is roughly the same in the
In King v. State, 125 S.W.3d 517 (Tex. trial court, court of appeals, and Court of
Crim. App. 2003), Judge Cochran's Criminal Appeals, nuances in issues emerge
concurring opinion discusses a PDR that as the case moves up the appellate ladder.
was presumably "Degrated." The Court of Issues become more focused and complex in
Appeals affirmed the trial court's ruling for the Court of Criminal Appeals.
a reason not explicitly relied on by the trial
judge. Judge Cochran points out how the For the most part, issues cannot be presented
ground for review and the accompanying in the PDR that were not raised in the court
argument provided no clue about the court of appeals because the Court of Criminal
of appeals analysis. All of the argument was Appeals only addresses "decisions" of the
focused on the trial judge's ruling. Judge courts of appeals. But there are exceptions
Cochran proposed a viable argument the to the rule. The first is preservation of error.
appellant could have made about the court Preservation of error is a systemic
of appeals' analysis that involved statutory requirement that the court of appeals should
construction. There was a good issue in the address on appeal, even if the issue was not
case, but the appellant didn't recognize or raised by the State. Ford v. State, 305
know how to present it. S.W.3d 530, 532-33 (Tex. Crim. App.
2009). If the court of appeals did not
Evolving issues address preservation, the Court of Criminal
Appeals can do so if the State's PDR raises
Judge Cochran's concurring opinion in King the issue. Ibid. "The State's failure to raise
illustrates why parties should not be too wed preservation to the court of appeals is no
to the exact formulation of the issue raised longer a bar to it raising it for the first time
in the court of appeals. As pointed out in this court in a petition for discretionary
above, you must discuss the court of review." Wilson v. State, 311 S.W.3d452,
appeals' holding, not the trial court's ruling. 474 (Tex. Crim. App. 2010).
Sometimes the sole issue in the PDR is the
standard of review the court of appeals The second exception is that the winning
appHecTto the trial court's ruling. party in the trial court need not argue issues
Sometimes the issue the court of appeals in the court of appeals that would uphold the
found dispositive may not have received trial court's ruling. "A trial court's ruling
much attention in the trial court. For should be affirmed if it is right for any
example, if the trial court denies a motion to reason. De La Paz v. State, 279 S.W.3d
suppress a confession resulting from the 336, 344 (Tex. Crim. App. 2009). The
10
State's failure to raise an issue in the court of Criminal Appeals from addressing it on
appeals does not prevent the Court of discretionary review if the State prevailed in
the trial court. Volosen v. State, 227 S.W.3d Grounds (or questions) for review
77, 80 (Tex. Crim. App.2007). "Regardless
of whether an appellee files a brief, a first- In the court of appeals, it doesn't matter how
level appellate court has the obligation to you word your point of error because the
conduct a thorough review of an appellant's court of appeals is required to address it.
claims, including any subsidiary issues that But in the Court of Criminal Appeals, the
might result in upholding the trial court's wording of the ground for review is your
judgment." Ibid. This doesn't mean the first opportunity to make a good (or bad)
Court of Criminal Appeals will grant such impression. Sometimes it's helpful to write
issues, but it has the authority to do so. the ground for review aftgr_you have
completed the argument portion of the PDR.
Both the preservation rule and the
"prevailing party" rule will usually benefit Don't make the ground for review too long,
the State because the State is usually the too argumentative, or too fulToTTacts'but
appellee. But defendants can rely on Ford make it specific enough so the reader has an
and Volosen in State's appeals where the idea of what the issue is.
defendant is the prevailing party.
It is not always necessary to say, "The court "Should the trial court's failure to execute a
of appeals erred by holding...." Those are certification of right to appeal after entry of
wasted words that do not focus on the issue. an appealable judgment result in Petitioner
Although the argument portion of your PDR being denied his right of appeal where he
must discuss what the_court of appeals did was convicted by a jury upon a plea of not
wrong in its analysis, your ground for guilty."
review can merely state the issue involved
withoutrunning afoul of Degrate. The "Did the Legislature intend to allow separate
following are examples of well-worded punishments for indecency with a child by
grounds for review that were recently both exposure and contact committed
granted: against the same victim when the exposure
precedes the contact?"
"In order to preserve error relative to a
limitation on voir dire examination of a Brevity
prospective juror, must a defendant object
after the trial court sustains the State's "Tediousness is the most fatal of all faults."
objection to a proposed question?" -Samuel Johnson.
"May a non-aggravated state jail felony The Court of Criminal Appeals disposes of
conviction, previously punished under the thousands of cases every year. Judges and
range for a second degree felony, be used staff attorneys read all day long. Their
for purpose of enhancing punishment to that attention span is short. Grab their attention
of a habitual criminal under TEX. PEN. quickly and don't make them pay attention
CODE § 12.42(d)?" for too long.
11
Unless your PDR has multiple grounds and/ Quotes
or complex issues, it should not get close to
the word count limit. If you have a single Long block quotes should be avoided. A big
issue with 4500 words of argument, you are single-spaced, double-indented quote is a lot
likely repeating yourself, over-complicating of concentrated ink in one area. The
the issue, or including too many unnecessary temptation is to skim it or skip over it.
facts or too much law. Paraphrase or cut the quote down to size by
eliminating the parts that aren't important to
' Outlining before you begin writing helps to your case. If you need to put the quote in
narrow the issue and organize your context, paraphrase that part and include
argument. An outline prevents you from only the best part of the quote. Or break up
skipping around or writing in a disjointed, long quotes into smaller chunks.
'stream of consciousness" style, and it
-prevents repetition. Getting to the point
A brief in the court of appeals usually has a "If you start with a bang, you won't end
lengthy statement of facts, setting out all the with a whimper." -T.S. Eliot
pertinent facts in the case. The PDR rules
don't even require a statement of facts and "Don't bury the lede."
suggest that the "details of the case" be
included in the argument. Rule 68.4 (d). Journalism professor, Tony Rogers, asks the
Set out the facts that relate to the issue students in his classes to write a newspaper
you're raising, but don't include account of a doctor giving a speech to a
unnecessary or irrelevant facts. If your business group about fad diets and physical
petition is limited to whether the State's fitness. Midway through the speech, the
notice of appeal was adequate, you don't doctor collapses from a heart attack and dies
need to recite the facts of the offense itself. on the way to the hospital. Invariably,
A petition with several pages of facts gives Rogers says, some of his students will begin
the impression that that issue is limited to its the story with "Dr. Wiley Perkins gave a
facts and is less likely to be granted. speech to a group of business people
yesterday about the problems with fad
Don't include details that are unnecessary, diets." The story of course, is not about the
such as the date of arraignment, what district speech, but about the doctor's death.
court the case was tried in, and the judge
who presided. Also, don't name all the It is easier to write the opening to a news
parties and witnesses unless necessary. story than a PDR because a news story is
When the reader sees a name or date, he only reporting facts. A PDR, however, has
assumes there's a need to remember it. The facts, law, the court of appeals' holding, and
purpose of a PDR is to get the judges a central issue. It is sometimes difficult to
interested. If they use up all their available start with your issue without providing some
attention on your overly long and detailed background. Nevertheless, it is important to
recitation of the facts, they won't have any tell the Court what your issue is and why it
left for your actual issue. is important early on. The reader's attention
span drops with each page, sometimes
exponentially beyond a certain number of
12
pages. If the reader can't find the heart of and understand how the authority you've
your argument, he may start skimming in an cited supports it.
effort to find it, in which case, he might
skim over something important. Or, worse Tone
yet, he may simply lose interest.
Credibility is important at any phase of a
Footnotes proceeding, but it is especially so when the
Court's decision to grant review is
Some writers include case cites or the text discretionary. Do not be overly critical of
of statutes in footnotes. Footnotes are also the court of appeals, even if you believe
used to make the reader aware of something their opinion was nonsensical. Avoid any
that is interesting but not essential to the suggestion that the court intentionally erred.
argument. A footnote is also a good place to If the court omitted facts from its analysis, it
dispel any qualms the Court might have is much more tactful to say it overlooked
about granting review in your case. rather than ignored them. Sometimes the
Footnotes are often used extensively in court of appeals may not adequately explain
briefs and opinions, where an exhaustive its rationale, but resist the urge to belittle the
approach to an issue is appropriate. But opinion. The judges on the Court of
they should be used sparingly in a PDR and Criminal Appeals are more likely to
be no longer than a few sentences unless empathize with the court of appeals justices
they contain the text of a statute. than with snarky appellate lawyers.
Authority V. Odds and Ends
One case is generally enough for each A. When to file a Motion for Rehearing
proposition of law. String cites are before filing a PDR:
unnecessary unless you are tracing the
history of a particular principle, showing Some judges prefer that the parties give the
how other jurisdictions treat an issue, or courts of appeals an opportunity to correct
showing how many courts of appeals are on their mistakes by filing a motion for
one side of an issue or the other. rehearing. Most of the time, a motion for
rehearing will be denied, but pointing out to
State the primary holding of the opinions the Court of Criminal Appeals that you gave
you cite and explain how they apply to your the lower court that opportunity could be
case. If your issue depends on a particular beneficial.
statute, quote the pertinent part of it. Don't
just cite a case or statute and expect the Motions for rehearing are always a good
judge or staff attorney to pick up a book or idea if the court of appeals incorrectly stated
go to Lexis or Westlaw to read it. Always crucial facts, misstated the law, or missed
use jump cites to pinpoint the page where recent, binding opinion from the Court of
the holding appears and always use Criminal Appeals or the U.S. Supreme
parentheticals setting out the holding when Court.
you use a "see" cite. The key is to make it
easy for the reader to follow your argument B. When your opponent files a PDR:
13
You have three options: file a reply, do Another example is if the trial court grants a
nothing, or file a cross-petition. new trial on two bases, the State appeals,
and the court of appeals holds that reason A
1. Reply: A reply to a party's PDR is due for granting a new trial was valid, and
15 days after the opposing party's petition is reason B was not. If the State files a PDR
timely filed in the court of appeals. Rule challenging the court of appeals' holding as
68.7 (b)v to reason A, Appellee should file a cross-
petition challenging the holding as to reason
2. Do nothing: As a general rule, a reply to B.3
a PDR is needed only if your opponent's
PDR misrepresents the law or the facts or The importance of the cross-petition was
there is a procedural problem with the case recently illustrated in Payne v. State, PD-
that would make it difficult for the Court of 1214-11, (Tex.Crim.App. 2013) (not for
Criminal Appeals to address the issue or publication) 2013 Tex. Crim. App. Unpub.
grant the relief sought. Very little is gained LEXIS 237. The victim's hearsay
by filing a reply that merely says the court statements were admitted at trial. The State
of appeals was correct. argued error was not preserved, the
statements were not hearsay, and their
3. "Cross-petition": Rule 68.2(b) admission was harmless. The Court of
provides for a "subsequent petition," stating, Appeals held that Appellant's objections
"Even if the time specified in (a) has were sufficient and the statements were
expired, a party who otherwise may file a inadmissible, but error was harmless.
petition may do so within 10 days after the Appellant's petition for discretionary review
timely filing of another party's petition." addressed the harm analysis. The State did
not file a cross-petition on preservation and
A cross-petition is often filed when the court error, but after the Court granted Appellant's
of appeals affirms the conviction, but PDR on the harm analysis, the State raised
reverses on punishment; reverses one those issues in its brief. The Court however,
conviction, but affirms another; or affirms declined to consider the State's arguments
the conviction, but deletes a deadly weapon on those topics because it did not file a cross
finding or restitution order. In these cases, petition. The Court assumed error was
both parties won in part and lost in part. preserved that that the statements were
One party may not care enough about the hearsay, and it reversed due to a faulty harm
loss to file a PDR unless the other party files
one. On PDR, the parties keep the same
designation they had in the court of appeals.
A cross-petition might also be called for If the State appealed to the court of appeals
even if you won the case outright in the and wins, the style in the Court of Criminal
court of appeals. File a cross-petition when Appeals is still State v. Doe and the
the court of appeals' ultimate holding is in defendant remains the Appellee, even if he
your favor, but it disagreed with you on an is the one filing the PDR. If the defendant
issue and your opponent files a PDR, which, appealed, he remains the Appellant
if decided in his favor, would change the throughout the process, even if the State
outcome of the case. loses in the court of appeals and files a PDR.
14
analysis. The State's motion for rehearing the lack of a certified bill of costs in the
arguing that the Court's should reconsider record when a specific amount of court costs
its policy of requiring a cross-petition to does not have to be included on the
raise such issues was denied. judgment."
"The Fourteenth Court of Appeals erred in
B. If your PDR is granted: deleting court costs on the written judgment
You must file a brief within 30 days after based upon the lack of a certified bill of
review is granted. Rule 70.1. This is costs in the record when appellant failed to
mandatory. You cannot simply rely on preserve his claim for appellate review and
your PDR. Rule 38.1 applies to your brief the issue is not ripe for review."
on the merits. "The Fourteenth Court of Appeals erred in
deleting the court costs on the written
C. If your opponent's PDR is granted: judgment based upon the lack of a certified
You must file a brief within 30 days after bill of costs in the record when there is no
the petitioner's brief is filed. Rule 70.2. requirement that the record include a
This is mandatory. Rule 38.2 applies to certified bill of costs."
your brief. Also, there is no motion for "The Fourteenth Court of Appeals erred in
rehearing from the granting of a PDR. Rule deleting the court costs on the written
79.2 (b). But if you think the PDR should judgment based upon the lack of a certified
not have been granted, you can argue that in bill of costs in the record when the evidence
your brief and suggest that the Court dismiss was otherwise sufficient to sustain the
the PDR as improvidently granted. assessed court costs."
"The Fourteenth Court of Appeals erred in
D. If your PDR is refused: deleting the court costs on the written
You have 15 days to file a motion for judgment based upon the lack of a certified
rehearing from the refusal of a PDR under bill of costs in the record when the district
Rule 79.1. You must certify that your clerk's office has no authority to create a
motion is based on "substantial intervening new document for the appellate record after
circumstances" or "other significant the notice of appeal has been filed."
circumstances." Rule 79.2(c). "The Fourteenth Court of Appeals erred in
deleting the court costs on the written
VI. Current Trends in PDR issues judgment based upon the lack of a certified
bill of costs in the record when the district
Court costs and fees clerk's office did supplement the appellate
record with a certified bill of costs."
"The Court of Appeals erred by creating an (Johnson, PD-0193-13)
exception to Mayer v. State, and holding that
withholding money from an indigent "Is an objection concerning repayment of
inmate's trust account to pay court- special prosecutor fees required to preserve
appointed attorney's fees does not violate error?" (Landers, PD-1673-12).
the statute." (Cates, PD-0861-12)
"May a final judgment revoking community
"The Fourteenth Court of Appeals erred in supervision assess an attorney fee incurred
deleting the specific amount of court costs at the imposition of community supervision,
on the judgment of conviction based upon if neither evidence nor a court finding
15
indicates the defendant has ever been able to attempted tampering with or fabricating
pay such a fee?" (Wiley, PD-1728-12) physical evidence." (Rabb, PD-1643-12)
Lesser included offenses Defenses
"Did the Legislature intend to allow separate "Is a defendant who, at trial, both flatly
punishments for indecency with a child by denies the elements of aggravated sexual
both exposure and contact committed assault of a child and recants his pre-trial
against the same victim when the exposure admission entitled to an instruction on the
precedes the contact?" medical-care defense based upon that pre
"Was the exposure in this case subsumed by trial admission?" (Villa, PD-0792-12)
the sexual contact?" (Loving, PD-13 34-12)
"Whether Section 22.021 of the Texas Penal
"Whether the Court of Appeals erred in Code is unconstitutional, under the Due
holding that criminal trespass should have Process Clause of the Fourteenth
been submitted as a lesser included offense Amendment, due to its failure to require the
to burglary of a habitation, when the State to prove that Defendant had a culpable
defendant's entire body did not enter the mental state ("mens rea") relating to the
habitation, such he could not have been alleged victim's age when engaging in the
guilty of a criminal trespass?" (Meru, PD- conduct alleged?
1635-12) Whether Section 22.021 of the Texas Penal
Code is unconstitutional, under the Due
"The Ninth Court of Appeals erred when it Process Clause of the Fourteenth
upheld the trial court's denial of Appellant's Amendment, due to its failure to recognize
request for an instruction on a lesser an affirmative defense based on Defendant's
included offense where evidence had been reasonable belief that the alleged victim at
presented at trial which supported the the time was 17 years of age or older?
submission of the lesser included in the jury Whether Section 22.021 of the Texas Penal
charge." (Wortham, PD-0765-12 Code is unconstitutional, under the Due
Course of Law provision of the
"Should the court of appeals have reformed Texas Constitution, Article I, Section 19,
the verdict to the lesser-included offense of due to its failure to require the State to prove
criminally negligent homicide rather than that Defendant had a culpable mental state
rendering a verdict of acquittal?" (Britain, ("mens rea") relating to the victim's age
PD-0175-13) when engaging in the conduct alleged?
Whether Section 22.021 of the Texas Penal
"In the alternative, the Court of Appeals Code is unconstitutional, under the Due
reversibly erred by failing to reform the Course of Law provision of the Texas
judgment to reflect a conviction for the Constitution, Article I, Section 19, due to its
lesser included offense of attempted failure to recognize an affirmative defense
manufacture:" (Canida, PD-0003-13) based on Defendant's reasonable belief that
the alleged victim at the time was 17 years
"The Court of Appeals reversibly erred by of age or older?" (Fleming, PD-1250-12)
failing to reform the judgment to reflect a
conviction for the lesser included offense of
16
"The Court of Appeals erred by affirming
the trial court when it, over objection, failed
to include in the court's charge to the jury on
guilt/innocence the affirmative defense that
the actor was not more than three years older
than the victim at the time of the offense."
(Sanchez, PD-1289-12)
"When the evidence established only that
appellant "felt threatened" before he raised
his gun and began firing, must the trial court
instruct on sudden passion?
Had the trial court erroneously failed to
instruct on sudden passion, did a sentence
above 20 years automatically demonstrate
harm, even after the jury rejected appellant's
claim that he "felt threatened" by finding
against self-defense?" (Wooten, PD-1437-
12)
"Was appellant entitled to a jury instruction
on "voluntary act?" (Farmer, PD-2620-12)
17
\
18
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00390-CR
NO. 03-13-00391-CR
NO. 03-13-00392-CR
Andria Stanley, Appellant
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NOS. D-l-DC-12-300267, D-l-DC-12-300754, & D-l-DC-12-300755
THE HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Andria Stanley of four felony offenses—two counts of
familyviolence aggravated assault, see Tex. Penal Code § 22.02(a)(1), (2), aggravatedkidnapping,
see id. § 20.04, and burglary of a habitation,see id. § 30.02(a)(1)—all arising out of a visit she made
to her ex-husband's home in the middle of the night. The jury assessed appellant's punishment at
confinement in the Texas Department of Criminal Justice for 50 years and 20 years for the assault
offenses, see id. §§ 12.32, 12.33, 22.02(b)(1), 50 years for the kidnapping offense, see id. §§ 12.32,
20.04(c), and 50 years for the burglary offense, see id. §§ 12.32, 30.02(d). On appeal, appellant
complains about the admission of evidence and the denial of a requested jury charge instruction.
Finding no reversible error, we affirm the judgments of conviction for the first count of family
violence aggravated assault (Count I in appeal number 03-13-00390-CR), the aggravated
i
* '
kidnapping (appeal number 03-13-00391-CR), and the burglary of a habitation (appeal number
03-13-00392-CR). However, through our own review of the record, we have found non-reversible
clerical error in the written judgment of conviction for the second count of family violence
aggravated assault (Count III in appeal number 03-13-00390-CR1). We modify that judgment to
correct the error and affirm that judgment of conviction as modified.
DISCUSSION2
In two points of error, appellant asserts that the trial court erred by (1) admitting an
agreed protective order from a family law proceeding involving appellant and her ex-husband, and
(2) failing to include her requested instruction regarding jury unanimity on the burglary of a
habitation in the jury charge.
Admission of Protective Order
At the time the instant offenses were committed, appellant and her ex-husband, Jason
Witt, were involved in post-divorce family law proceedings concerning the custody of their two
children. At appellant's trial, the State offered a copy of an agreed protective ordered entered in
those proceedings, State's Exhibit #71, which contained a finding that appellant "caused serious
bodily injury to [Witt]." Appellant objected tothe admission ofthe protective order, asserting that
her family law attorney provided ineffective assistance of counsel by advising her to agree to the
1 The State abandoned Count II of the indictment, which also alleged family violence
aggravated assault, during trial priorto closing its case-in-chief.
2 Because the parties are familiar with the facts ofthese cases, their procedural histories, and
theevidence adduced at trial, we limit recitation of them in this opinion to those necessary to advise
the parties ofthe Court's decisions and the basic reasons for them. See Tex. R. App. P. 47.1, 47.4.
protective order in the family law proceedings. The trial court overruled appellant's objection and
admitted the order as a statement against interest as well as an admission of a party opponent. See
Tex. R. Evid. 803(24) (providing that statement against penal interest not excluded by hearsay rule),
801(e)(2) (providing that admission by party opponent is not hearsay).
We review a trial court's decision to admit or exclude evidence for an abuse of
discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Sandoval v. State,
409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). A trial court abuses its discretion only
if its determination "lies outside the zone of reasonable disagreement." Martinez v. State,
327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim.
App. 2007); Sandoval, 409 S.W.3d at 281. We consider the ruling in light of what was before the
trial court at the time the ruling was made and uphold the trial court's decision if it lies within the
zone of reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009);
Sandoval, 409 S.W.3d at 281. If the trial court's evidentiary ruling is correct on any theory of law
applicable to that ruling, we will uphold that decision. De La Paz v. State, 279 S.W.3d 336, 344
(Tex. Crim. App. 2009); Sandoval, 409 S.W.3d at 297.
To establish ineffective assistance of counsel, an appellant must demonstrate by a
preponderance of the evidence bothdeficient performance by counsel andprejudice suffered bythe
appellant.3 Strickland v. Washington, 466 U.S. 668,687 (1984); Nava v. State, 415 S.W.3d 289,307
3 For the sake of our discussion,we will assumewithout decidingthat appellantwas entitled
to the effective assistance of counsel under Strickland at the protective order hearing, a civil
proceeding separate from the criminal proceeding. See Strickland v. Washington, 466 U.S. 668,687
(1984) (setting forth standard of review for analyzing claim of ineffective assistance ofcounsel in
criminal case).
(Tex. Crim. App. 2013). The appellant must first demonstrate that counsel's performance fell below
an objective standardof reasonableness under prevailing professional norms. Strickland, 466 U.S.
at 687-88; Nava, 415 S.W.3d at 307. The appellant must then show the existence of a reasonable
probability—one sufficient to undermine confidence in the outcome—that the result of the
proceeding wouldhavebeendifferentabsentcounsel's deficient performance. Strickland, 466U.S.
at 694; Nava, 415 S.W.3d at 308. Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700;
see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).
Appellate reviewof counsel's representation is highlydeferential; we must "indulge
in a strong presumption that counsel's conduct was not deficient." Nava, 415 S.W.3d at 307-08;
see Strickland, 466 U.S. at 686. To rebut that presumption, a claim of ineffective assistance must
be "firmly founded in the record," and"the record must affirmatively demonstrate" the meritorious
nature of the claim. See Menefield v. State, 363 S.W!3d 591, 592 (Tex. Crim. App. 2012);
Goodspeedv. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Moreover, "[t]he mere factthat
another attorney might have pursued a different course ofaction... does notsuffice toprove a claim
of ineffective assistance of counsel." Exparte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App.
2012);5eeMwnozv.5tote,No.03-12-00809-CR,2014WL6208654,at*5(Tex.App.—Austin Nov.
14, 2014, pet. refd) (mem. op., notdesignated for publication); Harris v. State, 125 S.W.3d 45, 54
(Tex. App.—Austin 2003, pet. ref d, untimely filed).
At trial, appellant called the attorney who represented her in the family law
proceedings to testify, outside the jury's presence, about his advice to her that she agree to the
protective order in lieu of testifying at the protective order hearing.4 Her attorney testified that he
advised her to agree to the protective order in lieu oftestifying at the hearing based on "[his] concern
that she would state something inadvertently on the record that would harm her greatly in her
criminal case." He said that he "didn't want any more information being put on the record in a case
related to anything related to this relationship because I didn't want it to be used against her in the
criminal case." In her objection at trial and in her argument on appeal, appellant maintains that this
was faulty legal advice because she could have invoked her Fifth Amendment right against
self-incriminationas to any topics that might adverselyaffect her criminal case. However, her family
law counsel averred that he and appellant had been "very close friends for a long period of time"
before he began representing her in the family law matters. He expressed his understanding that the
family law judge presiding over the protective order hearing would have granted appellant's
invocation of the Fifth Amendment right regarding the events forming the basis of the instant
criminalcharges, but indicated that "there were ancillarymatters that possibly could have affected
what went on." Appellant's family law attorney stated:
At that point, honest to goodness, my only concern to her was to avoid her
stepping in land mines that she set for herself, which she has a tendency to do, and
4 At the time of the instant offenses, a hearing regarding final arrangements for custody and
child support was pending. Also pending was a contemptproceedingrelating to appellant's failure
to comply with the family law court's previously entered order. Upon learning that his client had
been assaulted and shot, Witt's family law attorney filed an application for a protective order. All
of these issues were taken up at the final hearing. In her brief, appellant conflates the contempt
hearing and the protective orderhearing. However, it is clearfrom the record that these hearings,
relating to mutually exclusive issues, were separate and distinct, although scheduled on the same
date, and the legal advice at issue related only to the protective order hearing.
I didn't want something to happen to her in the criminal case [sic] that affected her
here. That was my biggest concern.
Because my concern was that she would say something that would harm her
in this criminal case in some way, shape or form. Because I had recently just gone
over the whole family law case. It's voluminous. It's a huge file.
I read everythingin that file and there [were] a lot of things that were said and
done during the course of the family law case that concerned me, and my concern
was she's going to do something like this again on the witness stand and it's going
to hurt her in the criminal case.
Appellant asserts in her brief that counsel's testimony "betrays a misunderstanding
of the scope of the Fifth Amendment privilege." This argument assumes that the ancillary matters
counsel referenced were matters to which she could have invoked her Fifth Amendment right and
remained silent. However, while appellant's family law attorney repeatedly expressed his concern
about appellant testifying about matters that could be used against her in the criminal proceeding,
hedid notexpress thatthese were matters exposing herto criminal liability orcriminal responsibility
to which she could have invoked her rightto remain silent. This is an assumption appellant makes,
which is not founded in the record. See Villa v. State, All S.W.3d 455,463 (Tex. Crim. App. 2013)
("[Counsel's alleged deficiency must be affirmatively demonstrated in thetrialrecord."). In fact,
the tenor of counsel's testimony suggested otherwise.
Furthermore, in testifying aboutthe circumstances underwhichhe advised appellant
to agree to the protective order, counsel indicated that it was ultimately appellant's decision:
I strongly suggested that she sign it. Ididn'tforce hertodo anything, butI said inmy
legal opinion I think you need to sign this, I think the Court isgoing togrant it either
way, and I think that it's in your best interest to sign this to keep from getting into
any ancillary matters that may hurt you in your criminal case.
Counsel also recounted the fact that appellant insisted on making some changes to the order before
signing it.
Based on the testimony of appellant's family law attorney regarding his personal
acquaintance with appellant, his familiarity with the family law case, and his knowledge of the
relationship between appellantand her ex-husband, the trial court could have reasonably concluded
that counsel's advice to her at the protective order hearing was the product of an informed strategic
and tactical decision, which appellant agreed with and followed at the time but later criticized in a
self-serving attempt to exclude her admission. Based on the record before it, the trial court could
have reasonably found that counsel's performance did not fall below an objective standard of
reasonableness under prevailing professional norms—that is, that appellant failed to demonstrate
deficient performance on the part ofher family lawcounsel. SeeFrangias v. State, A50 S.W.3d 125,
136 (Tex. Crim. App. 2013) ("[U]nless there is a record sufficient to demonstrate that counsel's
conduct was not the product of an informed strategic or tactical decision, a reviewing court should
presume that trial counsel's performance was constitutionally adequate 'unless the challenged
conduct was so outrageous that no competent attorney would have engaged in it.'") (quoting
Goodspeed, 187 S.W.3d at 392). Accordingly, we conclude that the trial court did not abuse its
discretion in admitting the protective order into evidence at appellant's trial.
Moreover, even assuming the trial court erred in admitting the protective order into
evidence,we would nevertheless conclude that the error did not constitute reversible error. See Tex.
R. App. P. 44.2(b). The erroneous admission ofevidence isnon-constitutional error. Kirby v. State,
208 S.W.3d 568, 574 (Tex. App.—Austin 2006, no pet.); see Coble v. State, 330 S.W.3d 253, 280
(Tex. Crim. App. 2010); Casey, 215 S.W.3d at 885. Non-constitutional error is reversible only if
it affects the substantial rights of the defendant. See Tex. R. App. P. 44.2(b); Barshaw v. State,
342 S.W.3d 91, 93 (Tex. Crim. App. 2011). We will not overturn a criminal conviction for
non-constitutional error if, after examining the record as a whole, we have fair assurance the error
did not influencethe jury, or influenced the jury only slightly. Barshaw, 342 S.W.3d at 93; Kirby,
208 S.W.3d at 574.
In assessing potential harm, our focus is not on whether the outcome of the trial was
proper despite the errorbut on whether the errorhad a substantial or injurious effector influence on
the jury's verdict. Barshaw, 342 S.W.3d at 93-94. We review the entire record to ascertain the
effect or influence on the verdict of the wrongfully admitted evidence. Id. at 93; see Coble,
330 S.W.3d at 280 (in conducting harm analysis "we examine the entire trial record and calculate,
as much as possible, the probableimpactof the errorupon the rest of the evidence"); see alsoMoon
v. State, AA S.W.3d 589, 595 (Tex. App.—Fort Worth 2001, pet. ref d). We consider all the
evidence that was admitted at trial, the nature of the evidence supporting the verdict, the character
of the alleged error, and how the evidence might be considered in connection with otherevidence
in the case. Barshaw, 342 S.W.3d at 94. We may also consider the jury instructions, the parties'
theories of the case, closing arguments, voir dire, and whether the State emphasized the error. Id.;
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
In his testimony at trial, appellant's ex-husband described the events of that night,
providing details ofappellant's unauthorized entry into his home and the ensuing attack. He testified
that he awoke during thenightto sounds in hisbedroom. He saw a figure andthenwas struck inthe
head with awooden baton-like object. Heattempted todefend himself, struggling with hisassailant.
His attacker yelled, and Witt recognized the voice as appellant. Appellant then fired a gun atWitt,
and he turned on the lights and saw appellant standing with a gun in her hand. Holding the gun on
him, appellant demanded that he make concessions in their ongoing custody battle. Witt recounted
how appellant then forced him at gunpoint to lie face down on the bed and bound his hands behind
his back andbound his feet at the ankles. She next wrapped him up in the bed sheets, sat him up on
the bed, and wrapped plastic wrap around his head. Panicked, Witt began to struggle and fell tothe
floor. As he lay on the floor, appellant struck him repeatedly on the back of the head with the
wooden object. As he struggled, Witt managed to free one hand and his feet. He then attempted to
get the gun, which was at the end of the bed, as did appellant. As they struggled for the gun,
appellant fired the gun at Witt, striking him in the face. They continued to struggle over the gun, and
eventually Witt gained control ofthe gun. He struck appellant with the barrel ofthe gun, pushed her
out ofhis bedroom, and managed to secure and lock his bedroom door. He then locked himself in
his bathroom and called 911.
Witt's testimony was corroborated by physical evidence recovered from his home
(including abroken wooden baton and roll ofplastic wrap, both with appellant's and Witt's DNA
on them) and from appellant (blood containing Witt's DNA on the bottom ofone ofthe shoes she
wore that night), photographic evidence depicting Witt's injuries (which included agunshot wound
to his cheek as well as contusions and lacerations to his face and head, some of which required
staples and sutures, and ligature marks on his wrists), medical evidence from treating hospital
physicians, police officers' testimony regarding Witt's condition and demeanor when they arrived
at his home (including his initial refusal to come out ofhis locked bathroom until he was convinced
it was in fact the police, and the fact that he was covered in blood when he eventually emerged), as
well as the testimony of appellant's mother regarding admissions appellant made upon her return
from Austin (that she went to visit Witt, that she had her mother's gun with her, that the gun "went
off," and that Witt "might have been hit"). The prosecutors did not mention the protective order in
closing argument, nor did the State overly emphasize the protective order otherwise.
After examining the record as a whole, including the strength of the State's case, we
have fair assurance that the admission of the protective order, if it was error, did not influence the
jury or had but a slight effect. Therefore, any error in admitting the order was harmless.
We overrule appellant's first point of error.
Denial of Requested Jury Charge Instruction
In her second point of error, appellant complains about the trial court's failure to
include her requestedjury charge instruction concerning unanimity on the burglary of a habitation
charge and argues that she was harmed by the omission of such an instruction. The burglary
10
indictment in this case chargedappellantwith burglary of a habitation in four separate paragraphs,5
alleging (in relevant part) that appellant did then and there
with intent to commit the felony offense of Aggravated Assault, enter a habitation,
without the effective consent of Jason Witt, the owner thereof. . .
intentionally or knowingly enter a habitation, without the effective consent of Jason
Witt, the owner thereof, . . . and attempted to commit or committed the felony of
Aggravated Assault,...
with intent to commit the felony offense of Kidnapping, enter a habitation, without
the effective consent of Jason Witt, the owner thereof,. . . [or]
intentionally or knowingly enter a habitation, without the effective consent of Jason
Witt, the owner thereof, . . . and attempted to commit or committed the felony of
Kidnapping,.. . .6
s The four paragraphs were originally contained in the indictment as separate counts.
However, prior to the start of trial, the State abandoned—without objection from appellant—the
count language in order to present four alternative paragraphs. See Martinez v. State,
225 S.W.3d 550, 554 (Tex. Crim. App. 2007) ("When the State wishes to charge multiple offenses
in a single indictment, it is required by statute to set out each separateoffense in a separate"count."
Then separate "paragraphs" within a single count may allege different methods of committingthe
same offense." (citing Tex. Code Crim. Proc. art. 21.24(a), (b))); Owens v. State, 96 S.W.3d 668,673
(Tex. App.—Austin 2003, no pet.) ("As a general rule, a 'count' is used to charge the offense itself
and a 'paragraph' is that portion of a count which alleges the method of committing the offense.").
6 Each of the paragraphs also contained an allegation that Witt was a family member with
whom appellant had had a datingrelationship, see Tex. Fam. Code §§ 71.0021(b) (defining "dating
relationship" as "a relationship between individuals whohaveor havehada continuing relationship
of a romantic or intimate nature"), .003 (defining "family" to include "individuals who are former
spouses of each other [or] individuals who are the parents of the same child"), as well as a deadly
weapon allegation, see Tex. Code Crim. Proc. art. 42.12, § 3g(a)(2) (providing for affirmative
finding upon showing that defendant used orexhibited deadly weapon during commission offelony
or immediate flight therefrom), which we omit here because they are not relevant to the complaint
appellant raises in this point of error.
11
See Tex. Penal Code § 30.02(a)(1) (providing that offense of burglary is committed by entering
habitation without consent of owner with intent to commit felony, theft, or assault), (3) (providing
that offense of burglary is committed by entering habitation and then committing or attempting to
commit felony, theft, or assault).
At trial, appellant asked for language to be included in the jury charge instructing the
jurors that in order to convict appellant of burglary of a habitation, they must unanimously agree as
to how she committed the burglary. Concluding that the jury did not have to unanimously agree on
the manner and means by which appellant committed burglary of a habitation, the trial court denied
appellant's requested instruction.
We review alleged jury charge error in two steps: first, we determine whether error
exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.
Price v. State, 457 S.W.3d 437,440 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743-44
(Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the jury
charge error was preserved in the trial court. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985) (op. on reh'g) (setting forth analysis for determining whether jury charge error requires
reversal). If the jury charge error has been properly preserved by an objection or request for
instruction, reversal is required if the appellant has suffered "some harm" from the error. Vega
v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); see Barrios v. State, 283 S.W.3d 348, 350
(Tex. Crim. App. 2009) ("If there was error and appellant objected to the error at trial, reversal is
required if the error 'is calculated to injure the rights of the defendant,' which we have defined to
mean that there is 'some harm.'").
12
Texas law requires a unanimous jury verdict in all criminal cases. See Tex. Code
Crim. Proc. art. 36.29(a); Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). More
specifically,"the jury must be unanimous in finding everyconstituent element ofthe chargedoffense
in all criminal cases." Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014) (citing Pizzo
v. State, 235 S.W.3d 711,714 (Tex. Crim. App. 2007)). Unanimity in this context means that each
and every juror agrees that the defendant committed the same, single, specific criminal act. Ngo,
175 S.W.3d at 745; see Cosio, 353 S.W.3d at 771 (unanimous verdict "means that the jury must
'agree upon a single and discrete incident that would constitute the commission of the offense
alleged'") (quotingStuhlerv. State,2l% S.W.3d706,717 (Tex. Crim. App. 2007)). "[T]hejury must
be instructed that it must unanimously agree on one incident of criminal conduct (or unit of
prosecution), based on the evidence, that meets all of the essential elements of the single charged
offense beyond a reasonable doubt." Saenz v. StateyASl S.W.3d 388, 390 (Tex. Crim. App. 2014)
(quoting Cosio, 353 S.W.3d at 776).
However, the requirement of jury unanimity is not violated by a jury charge that
presents the jury with the option of choosing among various alternative manner and means of
committing the same statutorily defined offense. Jourdan, 428 S.W.3d at 94; Pizzo, 235 S.W.3d at
715. "A jury must unanimously agree about the occurrence of a single criminal offense, but
they need not be unanimous about the specific manner and means of how that offense was
committed." Young v. State, 341 S.W.3d417, 423 (Tex. Crim. App. 2011);see Landrian v. State,
268 S.W.3d 532, 535 (Tex. Crim. App. 2008) ("The jury must agree that the defendant committed
one specific crime. That does not mean, however, that the jury must unanimously find that the
13
defendant committed that crime in one specific way or even with one specific act." (internal citations
omitted)); Miranda v. State, 391 S.W.3d 302, 310 (Tex. App.—Austin 2012, pet. ref d) ("Jury
unanimity is required with respect to all essential elements of the offense at issue; however, the jury
need not unanimously agree on the specific method of committing a single offense.").
"'[M]anner or means' describes how the defendant committed the specific statutory
criminal act." Ngo, 175 S.W.3d at 745. The State is permitted to plead alternate manner and means
of committing the same offense. Landrian, 268 S.W.3d at 535-36. '"Therefore, different modes
of commission may be presented in a jury instruction in the disjunctive when the charging
instrument, in a single count, alleged the different means in the conjunctive.'" Jourdan, 428 S.W.3d
at 94 (quoting Pizzo, 235 S.W.3d at 715). "Determining whether a statute creates multiple offenses
(which requires unanimity as to one offense) or merely a single offense that may be committed by
one of multiple manner and means (which do not require unanimity) 'is a function of legislative
intent, and in examining statutory language for legislative intent, we inquire into the 'gravamen' of
the offense.'" Irielle v. State, 441 S.W.3d 868, 874 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(quoting Jourdan, 428 S.W.3d at 95-96).
The gravamen of a burglary offense is the unauthorized entry with the requisite
mental state or further requisite act. See DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App.
1988) ("The gravamen of the offense of burglary clearly remains entry of a building or habitation
without the effective consent of the owner, accompanied by either the required mental state, under
§§ 30.02(a)(1) and (2)... or the furtherrequisite acts or omissions, under § 30.02(a)(3)."); see also
Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006) (unlawful entry is gravamen of
14
burglary because offense is complete once unlawful entry is made). Burglary of a habitation may
be committed three different ways. See Tex. Penal Code § 30.02(a)(l)-(3) (offense of burglary is
committed by (1) entering habitation with intent to commit felony, theft, or assault; (2) remaining
concealedin habitation with intent to commit felony, theft, or assault; or (3) entering habitation and
then committing or attempting to commit felony, theft, or assault); see also Shaw v. State,
557 S.W.2d 305, 306 (Tex. Crim. App. 1977), overruled in part on other grounds by Almanza,
686 S.W.2d at 174. These different ways are not separate burglary offenses; they are alternative
means of committing the single offense of burglary. Washington v. State, No. 03-11-00428-CR,
2014 WL 3893060, at *3-4 (Tex. App.—Austin Aug. 6,2014, pet. refd) (mem. op., notdesignated
for publication); Martinez v. State, 269 S.W.3d 777, 783 (Tex. App.—Austin 2008, no pet.).
Tracking the indictment in this case, the application paragraphs of the jury charge
concerning the burglary offense instructed the jurors that they could convict appellant of burglary
ofa habitation if they found that she entered the home ofJason Witt, a family member, without his
effective consent:
with intent to commit the felony offense of aggravated assault;
and attempted to commit or committed the felony of aggravated assault;
with intent to commit the felony offense of kidnapping;
and attempted to commit or committed the felony of kidnapping.
The charge, in other words, submitted the four burglary allegations, relating to the different sections
ofthe burglary of a habitation statute, disjunctively. Thus, the jury charge set forth the single,
15
specific statutory offense ofburglary ofa habitation and included four alternative manner and means
of committing that offense. Alternate manner and means of committing the same offense may be
submitted to the jury without violating the right to a unanimous jury verdict. See Martinezv. State,
129 S.W.3d 101, 103 (Tex. Crim. App. 2004) ("The unanimity requirement is not violated by
instructing the jury on alternate theories of committing the same offensef.]").
At trial, appellant asserted that the failure to include the jury unanimity instruction
denied her the opportunity to have a unanimous verdict on the burglary of a habitation, which was
"a violation of [her] rights under the U.S. Constitution and the Texas Constitution due course of
law." In this case, however, whether appellant entered Witt's home with the intent to commit
aggravated assault or kidnapping, or entered Witt's home and committed (or attempted to commit)
aggravated assault or kidnapping, only a single unlawful entry into the home was committed.
Therefore, the jury charge instructing the jury to find appellant guilty if it found eitherthat she had
unlawfully entered the victim's habitationwith intent to commit a felony or that she had unlawfully
entered the victim's habitation and then committed or attempted to commit a felony did not deprive
appellant of her constitutional right to a unanimous verdict. The unauthorized entry with intentto
commit a felony or the unauthorized entry and the commission (or attempted commission) of a
felony were simply alternative methods of committing the same burglary offense. Hence, the trial
court did not err by denying appellant's requested jury unanimity instruction as no such unanimity
was required.
On appeal, appellant maintains that the failure to instruct the jury that its verdict
required unanimous agreement astothe manner and means ofcommitting theburglary ofhabitation
16
possibly subjected her to double jeopardy because the predicate offense in two of the paragraphs of
the burglary charge (the aggravated assault) was also charged in a separateindictment.7 SeeLangs
v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006) (defendant may not be punished for both
underlying felony and burglary ifburglary allegation is that defendant entered home without consent
of owner and then committed underlying felony within home; conversely, substantive felony and
burglary by entering home without consent of owner and with felonious intent to commit that
substantive felony are two distinct offenses not constituting double jeopardy violation). Although
acknowledging that the subsections of the burglary statute are merely alternative manner and means
of committing burglary, appellant argues that "under the circumstances" of this case, the lack of
unanimity between the statutory subsections, "opened the possibility" that the jury's general verdict
resulted in a double jeopardy violation.
However, even had the trial court included the requested unanimity instruction, the
double jeopardy "possibility" would not have been resolved. The verdict form for the burglary
charge required the jury to return a general verdict: "We, the Jury, find the defendant, [appellant],
(guilty or not guilty) of the offense of Burglary of a Habitation." Even had the court included
7 Initially, we note that the record does not reflect that appellant raised her double jeopardy
concerns at trial—during the charge conference when requesting the unanimity instruction on the
burglary offense or at any other time during trial. See Tex. R. App. P. 33.1(a)(1)(A) (to preserve
error, party must not only present timely request or objection to trial court but must also state
grounds for request or objection "with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context"); Buchanan v. State,
207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (general or imprecise objection suffices to preserve
error"onlyif the legal basis for the objection is obvious to the courtand to opposing counsel"); see
also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014), cert, denied, 135 S. Ct. 1158
(2015) (point of error on appeal mustcomport with objection made at trial). Arguably, appellant's
complaint on appeal was not properly preserved for appellate review.
17
appellant's requested unanimity instruction and required the jury to be unanimous as to the manner
and means by which appellant committed the burglary, there would be no way of knowing from the
general verdict which manner and means the jury was unanimous about. There is no requirement
that the jury designate which of the alternate manner and means of committing the specific offense
the jurors found to have been proven. Thus, appellant's requested jury unanimity instruction did not
address, and certainly did not eliminate, the double jeopardy concern appellant now raises for the
first time on appeal. Even with the requested instruction, the "possibility" that the jury's general
verdict resulted in a double jeopardy violation still existed. With or without the requested
instruction, appellant was in the same position regarding a potential double jeopardy violation.
For that reason, even assuming the denial of the requested instruction was error,
which we conclude it was not, we reject appellant's claim that she suffered "some harm" because
the trial court denied her jury unanimity instruction. Once again, if jury charge error has been
properly preserved by an objection or request for instruction, as in this case, reversal is required if
the appellant has suffered "some harm" from the error. Vega, 394 S.W.3d at 519. "This means that
the trial record must demonstrate that there is some actual harm and not just a theoretical complaint."
Cornet v. State, All S.W.3d 446, 449 (Tex. Crim. App. 2013). Appellant's contention that she was
harmed by the omission of the requested jury unanimity instruction is based solely on the
hypothetical possibility of a double jeopardy violation—a wholly theoretical complaint. Because
the jury charge submitted four alternative burglary theories, only one of which posed a possible
double jeopardy violation, the record fails to demonstrate actual harm. SeeLangs, 183 S.W.3d at
687 ("[W]hen separate theories foranoffense areissued to thejurydisjunctively, a double jeopardy
18
violation is not clearly apparent on the face of the record if one of the theories charged would not
constitute a double jeopardy violation and there is sufficient evidence to support that valid theory.
The fact that the jury's verdict could have relied on a theory that would violate the Double Jeopardy
Clause, is not sufficient to show a constitutional violation 'clearly apparent on the face of the
record.'"); Wilson v. State, No. 05-11-01195-CR, 2012 WL 5504025, at *3 (Tex. App.—Dallas
Nov. 14, 2012, pet. ref d) (not designated for publication) ("When both theories of burglary
described above are submitted to the jury disjunctively, a double jeopardy violation is not clearly
apparent on the face ofthe record if there is sufficient evidence to support the theory that would not
constitute a double jeopardy violation.").
We overrule appellant's second point of error.
Clerical Error in Judgment
On review of the record, we observe that the written judgment of conviction for the
second count of family violence aggravated assault in this case (Count III in appeal number
03-13-00390-CR) contains a clerical error. The judgment states that the "Statute for Offense" is
"22.02(a)(1) Penal Code." The statute for the family violence aggravated assault offense as alleged
in Count III of the indictment in this case, however, is section 22.02(a)(2) of the Penal Code. This
Court has authority to modify incorrect judgments when the necessary information is available to
do so. See Tex. R. App. P. 46.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993).
Accordingly, we modify the incorrectjudgment ofconviction for the secondcount offamilyviolence
aggravated assault (Count III in appeal number 03-13-00390-CR) to reflect the correct Penal
Code section.
19
«
4 •• .
CONCLUSION
Having overruled appellant's two points of error, we affirm the judgments of
conviction for the first count of family violence aggravated assault (Count I in appeal number
03-13-00390-CR), the aggravated kidnapping (appeal number 03-13-00391-CR), and the burglary
of a habitation (appeal number 03-13-00392-CR). To correct non-reversible clerical error in the
judgment of conviction for the second count of family violence aggravated assault (Count III in
appealnumber03-13-00390-CR), we modifythatjudgment asnoted above and affirmthatjudgment
of conviction as so modified.
Cindy Olson Bourland, Justice
Before Chief Justice Rose, Justices Goodwin and Bourland
03-13-00390-CR Affirmed; Modified and, as Modified, Affirmed
03-13-00391-CR Affirmed
03-13-00392-CR Affirmed
Filed: July 30, 2015
Do Not Publish
20
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED JULY 30, 2015
NO. 03-13-00390-CR
Andria Stanley, Appellant
The State of Texas, Appellee
APPEAL FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY
BEFORE CHIEF JUSTICE ROSE, JUSTICES GOODWIN AND BOURLAND
AFFIRMED; MODIFIED AND, AS MODIFIED, AFFIRMED ~
x
OPINION BY JUSTICE BOURLAND
This is an appeal from the judgments of conviction entered by the trial court. Having reviewed
the record and the parties' arguments, the Court holds that there was no error in the trial court's
judgments requiring reversal. Accordingly, the Court affirms the trial court's judgment of
conviction for Count I. However, there was error in the judgment of conviction for Count III
that requires correction. Therefore, the Court modifies the trial court's judgment of conviction
for Count III to reflect that the "Statute for Offense" is "22.02(a)(2) Penal Code." The judgment,
as modified, is affirmed. Because appellant is indigent and unable to pay costs, no adjudication
of costs is made.
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED JULY 30, 2015
NO. 03-13-00391-CR
Andria Stanley, Appellant
The State of Texas, Appellee
APPEAL FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY
BEFORE CHIEF JUSTICE ROSE, JUSTICES GOODWIN AND BOURLAND
AFFIRMED - OPINION BY JUSTICE BOURLAND
This is an appeal from the judgment of conviction entered by the trial court. Having reviewed
the record and the parties' arguments, the Court holds that there was no reversible error in the
trial court's judgment of conviction. Therefore, the Court affirms the trial court's judgment of
conviction. Because appellant is indigent and unable to pay costs, no adjudication of costs
is made.
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED JULY 30, 2015
NO. 03-13-00392-CR
Andria Stanley, Appellant
The State of Texas, Appellee
APPEAL FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY
BEFORE CHIEF JUSTICE ROSE, JUSTICES GOODWIN AND BOURLAND
AFFIRMED -- OPINION BY JUSTICE BOURLAND
This is an appeal from the judgment of conviction entered by the trial court. Having reviewed
the record and the parties' arguments, the Court holds that there was no reversible error in the
trial court's judgment of conviction. Therefore, the Court affirms the trial court's judgment of
conviction. Because appellant is indigent and unable to pay costs, no adjudication of costs
is made.