Segura, Randy Allen ( 2015 )

PD-0841-15
PD-0841-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/7/2015 11:50:51 AM
Accepted 7/9/2015 3:31:38 PM
NO. ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS CLERK
RANDY ALLEN SEGURA PETITIONER
VS.
THE STATE OF TEXAS RESPONDENT
On appeal from cause number 01-14-00955-CR in the
First Court of Appeals and cause number 1383638
in the 177th District Court of Harris County, Texas
PETITION FOR DISCRETIONARY REVIEW
KEN GOODE
P.O.Box 590947
Houston, Texas 77259
(409) 779-3631
State Bar # 08143200
Goodedkc@msn.com
July 9, 2015
STATEMENT REGARDING ORAL ARGUMENT
Petitioner waives oral argument.
IDENTIFICATION OF THE PARTIES
Randy Allen Segura Petitioner
TDCJ-ID
Huntsvitle, Texas
Skip Cornelius Defense Attorney
Houston, Texas
Rudy Duarte Defense Attorney
Houston, Texas
Keri Fuller Trial Prosecutor
Houston, Texas
Hon. Ryan Patrick Trial Judge
Houston, Texas
Ken Goode Appellate Attorney
Houston, Texas
Devon Anderson Appellate D.A.
Houston, Texas
TABLE OF CONTENTS
Statement of the Case ,
Statement of Procedural History
Ground for Review
WHETHER THE COURT OF APPEALS ERRED WHEN CONDUCTING
ITS EGREGIOUS-HARM REVIEW BY FAILING TO APPLYTHE
FACTORS REQUIRED BYALMANZAV. STATE TO THE QUESTION
OF THE IMPACT OF THE OMISSION OF A VOLUNTARINESS
INSTRUCTION UNDER ARTICLE 38.22 SECTION 6.
Argument
Prayer for Relief
Certificate of Word Count Compliance
Certificate of Service
INDEX OF AUTHORITIES
CASES
Almanza v. State,
686 S.W.2d 157,171 (Tex. Crim. App. 1985).
Ellison v. State,
86 S.W.2d 226, 228 (Tex. Crim. App. 2002).... 4
Oursbourn v. State,
259 S.W.3d 159,179-80 (Tex. Crim. App. 2008) 2
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes Now Randy Allen Segura, petitioner, and files this petition for
discretionary review and in support shows as follows:
STATEMENT OF THE CASE
Petitioner was charged by indictment with the offense of capital murder.
Petitioner pleaded not guilty, and proceeded to jury trial. Punishment was set at
life in prison after the jury found petitioner guilty as charged.
STATEMENT OF PROCEDURAL HISTORY
In an unpublished opinion dated June 30, 2015 the First Court of Appeals
affirmed the conviction and sentence.
No motion for rehearing was filed.
GROUND FOR REVIEW
WHETHER THE COURT OF APPEALS ERRED WHEN CONDUCTING
ITS EGREGIOUS-HARM REVIEW BY FAILING TO APPLY THE
FACTORS REQUIRED BY ALMANZA V. STATE TO THE QUESTION
OF THE IMPACT OF THE OMISSION OF A VOLUNTARINESS
INSTRUCTION UNDER ARTICLE 38.22 SECTION 6.
ARGUMENT
I.
On appeal petitioner argued that the trial court erred by not submitting an
Article 38.22 section 6 voluntariness instruction relating to his inculpatory
videotaped statement. Petitioner contended that although he did not request the
instruction, the trial court had a duty to submit the voluntariness instruction
because it was part of the "law applicable to the case/' See Oursbourn v. State,
259 S.W.3d 159, 179-80 (Tex. Crim. App. 2008). Petitioner further asserted that
the omission caused him egregious harm.
Petitioner argued that in the absence of a voluntariness instruction, it is
unlikely that the jury questioned the voluntariness of his confession, despite
evidence that at the time of the interrogation he (1) hadn't slept, (2) had taken
narcotics the night before, (3) was bipolar and schizophrenic, (4) had ADHD, and
(5) was off his prescribed medications.
Petitioner contended that the lack of an instruction left the jury with zero
guidance regarding how to evaluate the voluntariness of his custodial statement.
To be sure, petitioner pointed out that the jury was unaware that it had to apply a
reasonable doubt standard when determining the voluntariness of the
confession.
Petitioner also argued that in the absence of the instruction, the jury was
unaware that it could not consider the statement for any purpose if it found the
statement to be involuntary.
For its part, the lower court held that the "state of the evidence strongly
supports the guilty verdict." The lower court noted that in final argument, the
State "spent the majority of its argument focusing on the evidence collected at
the two crime scenes rather than appellant's recorded statement/'
The lower court thus held that petitioner "had not shown egregious harm."
II.
Petitioner asserts that the lower court's egregious-harm review was flawed.
The court focused on the possible harm to petitioner because of the admission of
his videotaped confession, rather than on the impact of the omission in the jury
charge of a voluntariness instruction.
The lower court should have determined whether petitioner suffered
egregious harm by analyzing the impact of the omission of the voluntariness
instruction, not by analyzing the impact of the admission of the videotaped
statement See Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002).
In short, the lower court's analysis did not properly apply the factors
required by Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) to the
question of the impact of the omission of the voluntariness instruction.
The lower court's opinion is at odds with precedent from this court, thus
warranting review.
PRAYER FOR RELIEF
WHEREFORE, petitioner prays that his ground for review be
granted.
Respectfully submitted,
/S/
KEN GOODE
P.O.Box 590947
Houston, Texas 77259
(409) 779-3631; SBN 08143200
Goodedkc(5)msn.com
CERTIFICATE OF WORD COUNT COMPLIANCE
Relying on the word count function in the word processing software used to
produce this document I certify that the number of words used in this petition for
discretionary review is 700.
/S/
KEN GOODE
CERTIFICATE OF SERVICE
1 certify that a true and correct copy of the foregoing was delivered to the
State and the State Prosecuting Attorney this 7th day of July 2015 by first class
mail.
/S/.
KEN GOODE
Opinion issued June 30, 2015.
In The
Court of
For The
jf tr*t JBtetrict of
NO. 01-14-00955-CR
RANDY ALLEN SEG1JRA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1383638
MEMORANDUM OPINION
A jury convicted appellant, Randy Allen Segura, of capital murder. Because
the State did not seek the death penalty, the trial court assessed punishment at
confinement for life. In his sole issue on appeal, appellant contends the trial court
erred in refusing to submit a jury charge regarding the voluntariness of his
inculpatory videotaped statement. We affirm.
BACKGROUND
The evidence in the light most favorable to the verdict is as follows. Otis
"Jimmy" James was 83 years old and lived alone at his home in Highland, Texas.
James used a walking stick because he had trouble walking, and his recliner was a
"lift-chair" that he used to help him get up from his seat.
James owned the property next to his home and rented it out to appellant's
grandmother, Cheryl Nunez. Appellant and his brother, Dustin Segura, also stayed
with their grandmother at James's rent house. There were no problems between the
two families; everyone got along well. Dustin Segura had a .22 caliber rifle in his
room at his grandmother's house, which he used for protection and hunting.
Appellant knew about the gun and knew where it was located.
The evidence shows that on April 8, 2013, appellant entered James's home
through the unlocked back door. James was sitting in his recliner and watching
television in the living room. Appellant began firing his brother's gun at James
from the kitchen and continued firing as he moved down the hall toward James's
location in the living room. Appellant shot James eight times in the face and neck.
James was unarmed, and raised his hands to protect his face. After the shooting,
appellant took James's car keys and $184 from his pockets and fled in James's
white pick-up truck.
Deputy A. King with the Harris County Sheriffs Office (HCSO) was the
first officer to arrive on the scene. He accompanied EMS inside the home to treat
James, and they confirmed that James was dead. King secured the scene, separated
several witnesses who were at the scene—appellant's grandmother, brother, and
friend, as well as several of James's relatives—and waited for homicide detectives
to arrive. In talking to the witnesses, he learned that James's white pick-up truck
was missing and alerted other officers to be on the lookout for the truck.
Deputy T. Kirkley with the HCSO crime scene unit arrived with Deputies
M. McElvany, T. Rawls, and R. Hamlet to process the scene. The officers noticed
that the back door was open, and there was no forced entry. They found two shell
casings in the kitchen area and then three more in the living room. The location of
these casings was consistent with a shooter entering through the back door and
firing as he approached the living room where James sat in his recliner. All of the
casings found in the home were .22 calibers. It also appeared that someone had
rummaged through the house because mattresses were pushed off the beds and
drawers had been pulled out and left open.
Outside of the home, officers found appellant's social security card, birth
certificate, and juvenile identification card. They also saw tire marks on the street
from someone backing out of the driveway quickly.
While officers were at the murder scene, they received word that James's
truck had been located about nine miles down the highway. The truck had crashed
on an embankment and was now located on an overpass. In the rear of the truck
was a tire from the truck that had been bent beyond use, and the spare tire was on
the truck.
Scott Harp, who lived near the area in which the truck was located, had
heard a crash, and soon after saw a man in dressed in dark clothes walking with
what looked like an assault rifle. William Wright, who was working nearby, also
saw a man in dark clothes walking with what looked like an assault rifle. Both
men called the police, which is what led to the discovery of James's truck. When
the police sirens were close, Wright saw the man in the dark clothes take off
running and he heard the man drop something in a nearby dumpster. Deputy A.
Wright located the gun the man had been carrying on top of the dumpster, as
indicated by Wright.
After canine units and helicopters exhausted all efforts looking for the
suspect, who police believed to be appellant, officers towed the truck back to the
station to be processed. Inside the vehicle, officers found several more spent .22
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caliber casings that matched the casings from the crime scene at James's home,
Additionally, appellant's DNA and fingerprints were found inside James's vehicle
and on the hubcap that had been removed from the damaged tire. An analysis of
the gun showed that it was a ,22 caliber, AR-15, Stellar Mossberg and that all
casings found from both crime scenes were fired from this gun. The gun belonged
to appellant's brother.
Deputy C. Pool was assigned as lead investigator and, after speaking with
witnesses at both the house and the truck and reviewing the evidence obtained,
such as appellant's identification near the murder scene, concluded that appellant
was the suspect for whom they were searching.
On April 9, the day after the murder, officers located appellant walking
down the railroad tracks in Highlands, arrested him, and brought him to the station
to be interviewed. Pool noticed that the appellant looked exhausted and hungry, as
if he had been up all night. Before beginning the interview, Pool bought appellant a
hamburger and fries and allowed him to eat. Pool read appellant his statutory
rights, which appellant voluntarily waived, agreeing to speak with officers. Pool
and the other officer who conducted the interview were both unarmed; appellant
was not threatened, coerced, or promised anything in exchange for his statement.
In his recorded statement, appellant told officers that he was high on meth
the day before and had not slept. He also said that he was bipolar, borderline
schizophrenic, had ADHD, and had been off of his medications for some time.
Appellant admitted to stealing James's car keys and money, but said that he did not
remember shooting him. The officer believed that appellant showed signs of
deception when he stated that he did not remember.
Before trial, appellant filed a motion to suppress his recorded statement,
alleging, among other things, that "the Defendant was not competent and did not
understand his legal rights and could not have voluntarily consented to any search
or questioning by any police officer or his agent." After a pretrial hearing on
appellant's motion to suppress, the trial court denied the motion and the recorded
statement was admitted at trial.
VOLUNTAJttNESS INSTRUCTION
In his sole point of error, appellant contends the £ttrial court erred by failing
to give the jury an article 38.22 section 6 voluntariness instruction relating to
appellant's inculpatory videotaped statement." See TEX. CODE GRIM. PROC. ANN.
art. 38.22, § 6 (West Supp. 2014). Appellant did not request such an instruction, but
contends that the trial court nonetheless had a duty to submit the charged because it was
part of the "law applicable to the case." See Oursbourn v. State, 259 S.W.Sd 159, 179-80
(Tex. Grim. App. 2008). Appellant further contends that the trial court's failure to submit
the voluntariness charge caused him egregious harm. See Druery v. State, 225 S.W.3d
491, 504 (Tex. Grim. App. 2007) (citing Almanza v. State, 686, S.W.2d 157, 171 (Tex.
Grim. App. 1984)) (holding that, when defendant fails to request section 6 voluntariness
charge, appellate court reviews effect of omission under egregious harm standard).
Section 6 sets out the procedures for litigating voluntariness claims in all
cases in which a question is raised as to the voluntariness of a statement of an
accused. Oursbourn, 259 S.W.Sd at 174; State v. Terrazas, 4 S.W.Sd 720, 724
(Tex. Grim. App. 1999). Claims of involuntariness under Article 38.22 can be, but
need not be, predicated on police overreaching, and they can involve "sweeping
inquiries into the state of mind of a criminal defendant who has confessed."
Oursboum, 259 S.W.Sd at 172.
Id. at 172-73 (internal citations omitted). Although "youth, intoxication, mental
retardation, and other disabilities are usually not enough, by themselves, to render
a statement inadmissible under Article 38.22, they are factors a jury, armed with a
proper instruction, is entitled to consider." Id. As such, a defendant is entitled to a
general voluntariness instruction if he has raised a question of the voluntariness of
his statement and a reasonable jury could find that the facts, disputed or
undisputed, rendered the defendant unable to make a voluntary statement. Id. at
176.
Appellant contends that he "raised a voluntariness questions as to whether
[he] was in a vulnerable mental state when he waived his legal rights and gave the
videotaped statement" by presenting evidence that he told the police that he had
not slept, had taken a lot of "meth" the night before, was bipolar and borderline
schizophrenic, had ADHD, and was off his medications.
The State argues that "[e]ven if Article 38.22, section 6 was the 'law
applicable' to this case, the appellant never requested that specific instruction
during the charge conferencef,]" and "has not shown egregious harm." We agree
with the State.
Under the egregious-harm standard, reversible error in the omission of a
required jury instruction without objection occurs only when a defendant has been
denied a fair and impartial trial. Id. at 182. Jury-charge error is egregiously
harmful if it affects the very basis of the case, deprives the defendant of a valuable
right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.Sd 706, 719
(Tex. Grim. App. 2007) (citing Hutch v. State, 922 S.W.2d 166, 171
(Tex.Crim.App.1996)). "Egregious" harm is present when the case for conviction
was actually made clearly and significantly more persuasive by the error. Saunders
v. State, 817 S.W.2d 688, 692 (Tex. Grim. App. 1991).
When conducting an egregious-harm review, we consider the entirety of the
jury charge itself, the evidence, including the contested issues and weight of the
probative evidence, the arguments of counsel, and any other relevant information
revealed by the trial record as a whole. Stuhler, 218 S.W.Sd at 719. We place no
burden of proof or persuasion to show egregious harm on either the defendant or
the State. See Warner v. State, 245 S.W.Sd 458, 464 (Tex. Grim. App. 2008).
Before we can find egregious harm, the record must show that the defendant has
suffered actual, rather than merely theoretical, harm from the jury-charge error. See
Almanza, 686 S.W.2d at 174. We determine whether appellant suffered egregious
harm by analyzing the impact of the omission of the voluntariness instruction, not
by analyzing the impact of the admission of the videotaped statement See Ellison
v. State, 86 S.W.3d 226, 228 (Tex. Grim. App. 2002). With these principles in
mind, we determine whether appellant was egregiously harmed by the omission of
the section 6 "general" voluntariness instruction.
Here, appellant makes no other complaint about the jury charge, which is
correct. The state of the evidence strongly supports the guilty verdict. Appellant's
social security card, birth certificate, and Texas juvenile identification card were
found at the victim's address. His fingerprints and DNA were found in the
victim's stolen truck. Two witnesses saw a man wearing dark clothes walking in
the vicinity of the victim's stolen truck while carrying a rifle. One of those
witnesses, William Wright, heard the man throw the gun in a dumpster. Police
recovered the gun from the dumpster; it belonged to appellant's brother and
appellant had access to it. The shell casings found in both the truck and the
victim's home had been fired from that gun. Appellant was arrested walking on
the railroad tracks in Highlands the next day; he was wearing black shorts and a
black shirt and had not slept the night before. There was also evidence of a
jailhouse phone call that appellant made, in which he discussed events that
occurred after he stole appellant's truck. Regarding arguments, the defense was
the first to mention appellant's statement, and in doing so argued that the State had
no evidence that appellant admitted to the murder, only that appellant admitted to
the robbery. The State responded, pointing out that appellant did not claim, in his
statement, as he tried to do at trial, that someone else committed the murder.
Indeed, the State spent the majority of its argument focusing on the evidence
collected at the two crime scenes rather than appellant's recorded statement.
After considering "the entirety of the jury charge itself, the evidence,
including the contested issues and weight of the probative evidence, the arguments
of counsel, and any other relevant information revealed by the trial record as a
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whole[,]" see Stuhler, 218 S.W.Sd at 719, we hold that appellant has not shown
egregious harm, and thus, has not been denied the right to a fair and impartial trial.
Accordingly, we overrule appellant's sole issue on appeal.
CONCLUSION
We affirm the trial court's judgment
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
Do not publish. TEX. R- APP. P. 47.2(b).
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