Taurus Jenkins v. State ( 2015 )

ACCEPTED
12-15-00039-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
10/7/2015 12:19:24 PM
Pam Estes
CLERK
CASE NO. 12-15-00039-CR
IN THE TEXAS COURT OF APPEALS RECEIVED IN
12th COURT OF APPEALS
TYLER, TEXAS
TWELTH SUPREME JUDICIAL DISTRICT10/7/2015 12:19:24 PM
PAM ESTES
Clerk
TYLER, TEXAS
_____________________________________________________________
On Appeal from Cause No. CR-2014-0191 10/7/2015
159th Judicial District Court
Angelina County, Texas
______________________________________________________________
Taurus Leeanthony Jenkins, Appellant
vs.
The State of Texas
_____________________________________________________________
BRIEF FOR THE APPELLANT,
Taurus Leeanthony Jenkins
____________________________________________________________
Albert J. Charanza Jr.
CHARANZA LAW OFFICE, P.C.
P. O. Box 1825
Lufkin, Texas 75902
936/634-8568
936/634-0306 (FAX)
SBN: 00783820
ORAL ARGUMENT NOT REQUESTED
0
TABLE OF CONTENTS
Identity of All Parties.............................................................................................2
Index of Authorities...............................................................................................3
Statement of the Case............................................................................................5
Issues Presented.................................................................................................. 6
Statement of Facts................................................................................................6
Summary of Argument...................................................................................... 15
Appellant's Point of Error No. 1...........................................................................16
The Trial Court erred in its verdict. The evidence presented at trial is legally
insufficient to sustain the conviction
Appellant's Point of Error No. 2...........................................................................19
The Trial court erred in finding Jenkins guilty based on hearsay statements in
violation of the Confrontation Clause of the U.S Constitution
Appellant's Point of Error No. 3.......................................................................... 28
The Trial Court erred in finding the Appellant had been previously convicted of an
offense under Chapter 19 of the Texas Penal Code
Appellant's Point of Error No. 4...........................................................................29
The Trial Court erred in denying Appellant’s Motion for Directed Verdict
Prayer...................................................................................................................31
Certificate of Service..........................................................................................32
Certificate of Compliance...................................................................................32
1
IDENTITY OF ALL PARTIES
Pursuant to Tex.R.App.P. 55.2(a), the following is a list of parties to the trial
court’s judgment and the names and addresses of trial and appellate counsel.
1 Taurus Leeanthony Jenkins, Appellant
3900 FM 2251
Lufkin, Texas 75904
2. John Reeves, Counsel for Appellant at Trial
1007 Grant Street
Lufkin, Texas 75901
3. Albert J. Charanza, Jr., Counsel for Appellant an appeal
P.O. Box 1825. Lufkin, Texas 75902
(936) 634-8568
4. Katrina Carswell, Counsel for Appellant at Trial
Assistant District Attorney
P.O. Box 908
Lufkin, Texas 75902-0908
(936) 632-5090
5. April Perez, Counsel for Appellant on appeal
Assistant District Attorney
P.O. Box 908
Lufkin, Texas 75902-0908
(936) 632-5090
6. The Honorable Paul White, Presiding Judge
159th Judicial District Court, Angelina County, Texas
P.O. Box 908, Lufkin, Texas 75902
(936) 639-3913
2
INDEX OF AUTHORITIES
CASES: PAGE
Jackson v. Virginia, 443U.S. 307,99 S. Ct. 2781,61L.Ed.2d560 (1979). ......... ...... 16
Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010)…………………….16
Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007)………………………16
Brown v. State, 270 S.W.3d 564, 568 (Tex.Crim.App. 2008)………….………..…..16
Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991)......................... ...... 17
Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App. 2010). .......................... ...... 17
Carrizales v. State, 414 S.W.3d 737, 744 (Tex.Crim.App. 2013).……………….. 17
Gollihar v. State, 46 S.W.3d 243, 252-53 (Tex.Crim.App. 2001)……………... ... 17
Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006)………………... ....... 20
Lilly v. Virginia, 527 U.S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117(1999)………...20
Crawford, 541 U.S. at 68, 124 S.Ct. at 1374….. ......................................... …. ...... 21
Dixon v. State, 244 S.W.3d 472(Tex. App.—Houston [14th Dist.] 2007, pet.
ref’d). ................................................................................................................. .22,24
Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). . .23
Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001).. ................ . ...... 25
Baldree v. State, 248 S.W.3d 224(Tex. App.—Houston [1st Dist.] 2007, pet.ref’d)25
Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990) ..................... ...... 24
3
Rohrscheib v. State, 934 S.W.2d 909, 910 (Tex. App.--Houston [1st Dist.] 1996, no
pet.).................................................................................................................... ...... 29
King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) ............................. ...... 29
Reece v. State, 878S.W.2d 320,325(Tex.App.--Houston [1st Dist.] 1994,no pet.).30
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.1991)……………..30
RULES:
TEX. CODE CRIM. PROC. ANN. art. 38.04 ........................................................... ...... 16
TEX. PENAL CODE 19.01 – 19.05………………………………………………. ... 28
TEX. PENAL CODE ANN. § 22.01(a) ................................................................... ...... 17
TEX. PENAL CODE ANN. § 22.01(b)(2)(A)….. .................................................. ...... 28
Tex. R. App. Pro. 44.2 (a) ................................................................................. ...... 17
TEX. R. EVID. 804(a) (3)................................................................................. ...... 19
TEX. R. EVID. 804(b)(1)(B). ......................................................................... ...... 18
TEX. R. EVID. 801(d) ...................................................................................... ...... 25
TEX. R. EVID. 802 ........................................................................................... ...... 25
TEX. R. EVID. 613(a). ..................................................................................... ...... 25
TEX. R. EVID. 404 (b) ..................................................................................... ........ 5
4
STATEMENT OF THE CASE
On April 1, 2014, Taurus Jenkins was indicted for Assault Family Violence that
was alleged to have occurred on August 13, 2013. (CR 18) On April 22, 2014,
Jenkins waived arraignment and the court entered its scheduling order. (CR 20-21)
The trial court entered its Standard Discovery Order which required the Defendant to
provide notice to the State of Texas regarding any request for notice of extraneous
offenses as required under Rule 404(b) Texas Rules of Evidence and Article 37.07,
Texas Code of Criminal Procedure. (CR 22) On August 14, 2014, Jenkins filed his
Waiver of Jury Trial and requested a bench trial. (CR 25) On September 24, 2014, the
State filed its initial Notice of Intention to Use Evidence of Prior Convictions,
Extraneous Offense and Bad Acts. (CR 30-31)
On October 3, 2014, the bench trial began. The trial continued on October 4,
2014 and concluded on October 14, 2014. (Vol. 1) On December 4, 2014, a revocation
hearing was held and a PSI was requested by the state. On December 9, 2014, an
Order of Bond Conditions was entered by the court. The State filed a Motion to
Revoke Bond based on a violation of bond conditions on January 2, 2015.
On January 26, 2015, the sentencing hearing was held. (CR-Vol. 3) The Court
found Jenkins guilty and sentenced him to six (6) years in the Texas Department of
Criminal Justice - Institutional Division. The trial court certified Jenkins’ right to
5
appeal and entered an Order of Appeal Bond Conditions. (CR 40-42) Jenkins filed his
Notice of Appeal on January 27, 2015. (CR-44) Jenkins filed his Motion for New
Trial on February 17, 2015. Appellate counsel was substituted on March 3, 2015.
(CR47-49)(CR-52) On March 25, 2015, the court held a hearing on the Motion for
New Trial was held and the motion was denied. (CR-63).
ISSUES PRESENTED
Appellant's Point of Error One – The Trial Court erred in its verdict. The evidence
presented at trial is legally insufficient to sustain the conviction
Appellant's Point of Error Two – The Trial court erred in finding Jenkins guilty
based on hearsay statements in violation of the Confrontation Clause of the U.S
Constitution
Appellant's Point of Error Three – The Trial Court erred in finding the Appellant
had been previously convicted of an offense under Chapter 19 of the Texas Penal
Code
Appellant's Point of Error Four - The Trial Court erred in denying Appellant’s
Motion for Directed Verdict
STATEMENT OF FACTS
Taurus Jenkins was indicted for Assault-Family Violence that allegedly
occurred on August 13, 2013. (CR 18) On April 22, 2014, Jenkins waived
arraignment and the court entered its standard scheduling order. (CR 20-21) On
August 14, 2014, Jenkins filed his Waiver of Jury Trial and requested a bench trial.
(CR 25)
6
On October 3, 2014, the bench trial began before Judge Paul White. (Supp Vol.
2) Scott Hamel, a retired Lufkin Police officer, testified he was dispatched to 1622
Knight Street the night of August 13, 2013.(Supp. Vol, 2 pg. 9) Hamel met with
Alissia Moore (Moore). Moore described the events that took place. Moore showed
Hamel a hole in the wall where she claimed her head was pushed. Moore identified a
glass that she claimed to have been hit. (Supp. Vol. 2. pg. 10) Photographs of the
scene were taken by Hamel and presented as State’s Exhibits 2-9. (Supp. Vol. 2 pg.
11) Hamel did not know what caused Moore’s injuries, Hamel could not recall if the
injury on Moore’s head was from the wall or from the glass. (Supp. Vol. 2 pgs.12-13)
Moore also had cuts on her hands. (Supp. Vol. 2 pg. 14) Hamel was not sure how
Moore’s injuries occurred; other than by Moore telling Hamel they were from the
assault. (Supp. Vol. 2 pg. 14)
Hamel read from his offense report that Moore had stated that “Jenkins had
grabbed the glass and smashed it over her head that cut her head and her hands” and
Jenkins pushed her head into the sheetrock. (Supp. Vol. 2. pg. 15) Hamel stated
Jenkins was not at the scene when he arrived. Hamel’s report mentioned a location on
Wood Street where Jenkins may be located. After all evidence was collected, Hamel
left Moore’s residence at 1622 Knight Street to look for Jenkins. Jenkins left the
Wood Street location before Hamel arrived. (Supp. Vol. 2. pg.16)
7
Hamel could not recall Moore’s appearance the day of the assault. Hamel could
not recall if Moore was crying that day. Moore was only answering questions asked by
Hamel and not volunteering any information. (Supp. Vol. 2 pg. 18) Hamel stated that
no evidence was collected from the hole in the wall in which a picture was taken.
(Supp. Vol. 2. pg. 19, 22) Moore tried to call 911 call and as interrupted in the process
of making the call by Jenkins. (Supp. Vol. 2 pgs. 19-20) Hamel stated Jenkins refused
to return to the location where Hamel was located on Wood Street because he was
scared to go to jail. (Suppl. Vol. 2. pg. 21)
Jenkins was arrested after Hamel retired. Hamel was unaware that Moore had
signed an Affidavit of Non-Prosecution. (Supp. Vol. 2 pg. 22) Hamel did not recall if
Moore wanted to go forward with the charges. The charges were filed “by law” based
on the evidence. (Supp. Vol. 2 pg. 23) Moore did not admit to Hamel of having
thrown the glass at Jenkins. Hamel did not recall a second hole in the wall. (Supp.
Vol. 2 pg. 25) Hamel could not verify if there were any injuries on Jenkins due to the
fact that he did not see Jenkins that day. Hamel could not say if the broken glass on
the floor was from one or two glasses. (Supp. Vol. 2. Pg. 26)
Ronnie Harris, a communications supervisor for the Lufkin Police Department
who manages the 911 communication submitted a recording to the court. State’s
Exhibit 11, the 911 CD-audio was admitted. The 911 audio was played in court.
8
(Supp. Vol. 2 pgs. 27-30)
The State called Alissia Moore to the stand. The court advised Moore regarding
the consequences of perjury and a false statement to an officer due to an affidavit of
non-prosecution being filed if it were false. Moore was advised that she could remain
silent. (Supp. Vol. 2 pgs. 30-37) Moore requested counsel before testifying. (Supp.
Vol. 2 pg. 38) A one page offense report and a copy of her statement would be
provided to her attorney whom she consulted. (Supp. Vol. 2 pg. 46) Moore’s
Affidavit of Non-Prosecution was admitted as State’s Exhibit 12. (Supp. Vol. p. 47)
Moore testified that she dated Jenkins from June 2011 until March 14, 2014. (Supp.
Vol. 2 pgs. 48-49) The Court allowed the State to question Moore until she invoked
her right to counsel.
Connell Montgomery, Jr., Jenkins’ cousin, testified for the State. On August
13, 2013, Jenkins called Montgomery to pick him up from Moore’s residence. Jenkins
always called Montgomery to pick him up. Montgomery drove Jenkins to 1810 Wood
Street where they talked and drank a beer. Jenkins did not mention the reason why
Jenkins wanted to be picked up. Montgomery asked what was going on and Jenkins
just said “drama”. (Supp. Vol. 2 pgs. 51-52) Montgomery left to go to the store and
when he returned Jenkins was gone. Officer Hamel arrived and Montgomery did not
know where Jenkins was located. Hamel called Jenkins. (Supp. Vol. 2 pgs. 52-53)
9
State’s Exhibit 1, a Smith County judgment for Assault - Family Violence was
admitted and the trial ended for the day. (Supp. Vol. 2 pg. 31) No evidence presented
by defense counsel. (Supp.Vol.2 pg. 62)
On October 14, 2014, the bench trial resumed and the State recalled Alissia
Moore. Moore could not remember what happened on August 13, 2013; the day of the
alleged assault. (Vol. 2 pg. 4) Moore did not remember the police showing up at her
house. (Vol. 2 pg. 5) Moore did not remember speaking to officer Hamel. She did not
remember a hole in the wall or a broken glass. (Vol. 2 pgs. 5-6) Moore did not
remember calling the police. (Vol. 2 pg. 6) She remembered some things that
happened that day but nothing related to the alleged assault. (Vol. 2 pgs. 7-9) Moore
did not remember a glass being thrown. (Vol. 2 pg. 9) Moore provided an Affidavit of
Non-Prosecution to Defendant’s counsel on May 16, 2014. Her affidavit stated that
she did not want to go forward with the case, did not intend for Jenkins to be arrested
and did not intend for Jenkins to be charged with an offense. (Vol. 2 pg. 10) Moore
did not state that Jenkins had not assaulted her; however, if she had “known this was
the case I would have put it in this affidavit.” (emphasis added)
The State rested its case. Jenkins’ counsel moved for an acquittal based on
insufficient evidence to prove all the elements of the charge. The court questioned the
parties, under the confrontation clause, could the fact finder rely on a hearsay
10
statement from someone other than the complainant to support the charge? (Vol. 2
pgs. 12-13) The State took the position that if the complainant was available to testify,
then there was still an opportunity to confront the accuser. The Court denied the
motion for directed verdict. However, the court asked counsel to brief the issue in
regards to the Sixth Amendment Confrontation Clause and the evidence admitted
before he could decide guilt innocence. (Vol. 2, pg. 13-15) On December 4, 2014, the
court announced that there was sufficient evidence for a finding of guilt. The court
could not rely on Alissia Moore’s testimony and the court considered the hearsay
statements of Moore’s to the investigating officer were an exception to the hearsay
rule. (Vol. 4, p. 2) A Pre-Sentence Investigation (PSI) was requested. The court set
bond conditions for no contact with the Moore except to exchange her child and no
possession of a firearm. (Vol. 4, pgs. 4-6)
On January 26, 2015, the sentencing hearing was held. Jenkins pled true to the
punishment enhancement paragraph in the indictment. (Vol. 3 pgs. 5-6) No additions
or corrections to the PSI were presented. The State called Mark French, the
supervision officer charged with preparing the PSI on Jenkins. Jenkins asserted that
he was still not guilty of the charge. Jenkins had previously been on probation and
parole. French opined that Jenkins would not be successful on probation due to the
nature of the charge and Jenkins previously been incarcerated for similar charges.
11
(Vol. 3 pgs. 8-9)
During cross examination, French admitted Jenkins had pled guilty for his
previous cases but not in this case. The PSI report included support letters, including
one from the alleged victim, Alissia Moore. (Vol. 3 pgs. 9-10) Jenkins had been
working and his employer was happy with him. Jenkins had been able to support his
children. (Vol. 3 pgs. 10)
The defense called Phillys Chapman, Jenkins mother. Chapman responded to
theft allegations made by Cynthia Thomas referenced in the PSI. Chapman stated that
she knew Jenkins had helped Thompson move when she left the state. Jenkins and
another guy helped Chapman move her property to a storage unit in February 2014.
(Vol. 3 pgs. 12-14) Cynthia Thomas called Chapman asking for her kennel and
lawnmower. Thomas property was at Chapman’s house. Thomas was more than
welcome to come anytime and get her property but Thompson never came. (Vol. 3
pgs. 12-14) Phillys Chapman did not understand why Thomas left Jenkins in charge of
“her stuff”. When Chapman talked to Thomas, Chapman informed her again that her
lawnmower and kennel were at her house and that she was welcome to come pick
them up. Chapman testified that Jenkins was a good person although he had a little
temper that had gotten better. (Vol. 3 pg. 18) Jenkins always worked and help around
the house. Chapman stated that Jenkins knew right from wrong and was a
12
responsible person. (Vol. 3 pgs. 18-20)
Taurus Jenkins testified to explain the material in the PSI report. (Vol. 3 pgs.
24- 45) Jenkins completed his probation successfully for on his previous cases and his
completed his two year TDCJ-sentence in 2009. Jenkins had not been in trouble since
the present charge in 2013. (Vol. 3 pgs. 25- 26) Jenkins explained that he and another
guy helped Cynthia Thomas move her property to a storage unit because her son
would not help her. Thomas was moving to North Carolina and needed to store her
property. Jenkins stated that Thomas had given him, her daughter and other people
some of her property that the landlord had placed on the road. Thomas gave Jenkins
the kennel and the lawnmower. (Vol. 3 pg. 27) When Cynthia Thomas came back
from North Carolina she wanted all of her stuff back. All the unaccounted items were
in the storage unit at that time. (Vol. 3 pgs. 27-31). Jenkins supported Alicia Moore’s
child and had been in his life since he was one years old. Jenkins obtained his
welding certificate and had a good paying job. (Vol. 3 pgs. 31-32)
During cross-examination, Jenkins stated that the gun he talked about in his text
message was a pellet gun that Cynthia Thomas had given him. Jenkins never turned
over the text messages to support his defense because Officer Jackson said that he was
calling Cynthia Thomas’ daughter to verify that she recovered her property. (Vol. 3
pgs. 32-33)
13
Jenkins denied ever hitting Alissia Moore. Jenkins stated the hole in the wall
was already there. (Vol. 3 pg. 34) When asked about a Smith County assault charge in
Smith County, he took blame for what he did and he completed his probation. Jenkins
dropped out of school because he didn’t have enough guidance and his father was
locked up for murder since he was 9 or 10 years old. Jenkins’ mother worked and
raised him. Jenkins believed probation would be good for him. Even though Jenkins
did not live with Alicia Moore, he still supported her son. (Vol. 3 pgs. 35-37)
The Court asked the Jenkins about a letter that he wrote were he stated
“Angelina County not the same if it ain’t about money. I don’t make sense, what
happened to loyal and committed in the judistrict system”. Jenkins stated he was
upset at the time he wrote the letter. (Vol. 3 pg. 37-39) Jenkins testified he was not
present at the house when Moore talked to the police and he would not know what she
had told them. (Vol. 3 pg. 40) Jenkins admitted that he threw a glass at Moore after
she threw one at him. (Vol. 3 pg. 42)
Byron Coutee was called to testify. Byron is Jenkins cousin and they worked
together. Byron was willing to be a mentor to Jenkins. (Vol. 3 pg. 43-46) The court
found Jenkins guilty and assessed punishment of six (6) years in the Texas
Department of Criminal Justice System - Institutional Division.
On March 25, 2015, a hearing on the Motion for New Trial was held. Jenkins
14
raised the issue of insufficient evidence and requested the court to read its docket
sheet into the record. The court referenced a hearing on October 6, 2014 in addition to
the record of trial. On November 18, 2014, the court sent a letter to the attorney’s
regarding his decision in the case. Jenkins’ motion for directed verdict was denied.
(Supp. Vol. 1)
SUMMARY OF THE ARGUMENT
The trial court erred by considering the hearsay statements from Officer Hamel
to support its finding of guilt. The best evidence is the testimony of an eye witness.
In this case, Alissia Moore, the complainant and only witness, did not remember the
events of August 13, 2013. Jenkins trial counsel made an oral Motion for Directed
Verdict which was denied. Jenkins appellate counsel attempted to correct the error of
the trial court by filing a Motion for New Trial and addressed the legal insufficiency
of the evidence which was denied. The fact that the court considered the hearsay
statements of Officer Hamel to support the finding of guilt was and egregious error
and Jenkins is entitled, under the U.S. and Texas constitutions, to an acquittal.
A conviction should only stand on direct evidence from witnesses with personal
knowledge. Hamel did not have personal knowledge and Malone, who had personal
knowledge, did not remember any facts to support the conviction. It was not Jenkins
fault that Malone could not remember the events. It is a problem for the State of
15
Texas in the sufficiency of their evidence in this case. Jenkins conviction should not
stand under the law to have a conviction based on hearsay.
APPELLANT'S POINT OF ERROR NUMBER ONE
The Trial Court erred in its verdict. The evidence presented at trial is legally
insufficient to sustain the conviction
Standard of Review – Insufficient Evidence
When reviewing the sufficiency of the evidence to support a conviction, the
court views all of the evidence in the light most favorable to the verdict to determine
whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App.
2010). In conducting a legal sufficiency analysis, the appellate court will "determine
whether the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to the
verdict." Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007) (citations
omitted). Our review of "all of the evidence" includes evidence that was properly and
improperly admitted. Id. The trier of fact is the sole judge of the weight and
credibility of the evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.04; Brown v.
State, 270 S.W.3d 564, 568 (Tex.Crim.App. 2008), cert. denied, 556 U.S. 1211, 129
S. Ct. 2075, 173 L. Ed. 2d 1139 (2009). When the record on appeal supports conflicting
16
inferences, the court presumes that the fact finder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Clayton, 235 S.W.3d at 778; see
also Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991).
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App. 2010).
Application of the law to the facts of this case
The State is required to prove beyond a reasonable doubt every element of
the charged offense. See Carrizales v. State, 414 S.W.3d 737, 744 (Tex.Crim.App.
2013). The court measures the sufficiency of the evidence by the elements of the
offense as defined in a hypothetically-correct jury charge. Gollihar v. State, 46
S.W.3d 243, 252-53 (Tex.Crim.App. 2001) Under the hypothetically-correct jury
charge, Jenkins committed the offense of Assault – Family Violence if: (1) Taurus
Jenkins, (2) intentionally, knowingly or recklessly (3) causes bodily injury to
Alissia Monique Moore by breaking a glass over her head and (4) Moore was a
family member as described by Section 71 of the Texas Family Code. TEX. PENAL
CODE ANN. § 22.01(a). (Indictment, CR 18)
Jenkins was convicted of Assault –Family Violence based on the hearsay
statements of Alissia Moore proffered by Officer Hamel reading from his offense
17
report. Alissia Moore (Moore) was present during the first two days of trial.
Moore testified that she did not remember the events on August 13, 2013 when
Officer Scott Hamel responded to an assault call. (Vol. 2 pgs. 5-9) Since Moore
was available to testify and subject to cross-examination, it was error for the court
to consider the hearsay statements of Moore from Officer Hamel. If Moore did not
remember the events, then the State is left with no evidence. Additionally, Moore
could not remember what happened on August 13, 2013. (Vol. 2 pg. 4) Moore did
not remember the police showing up at her house. (Vol. 2 pg. 5) Moore did not
remember speaking to Officer Hamel. She did not remember a hole in the wall or a
broken glass. (Vol. 2 pgs. 5-6) Moore did not remember calling the police. (Vol. 2
pg. 6) Moore remembered some things that happened that day but nothing related
to the assault. (Vol. 2 pgs. 7-9) Moore did not remember a glass being thrown.
(Vol. 2 pg. 9)
Since Moore did not remember did not remember a hole in the wall or a
broken glass or a glass being thrown. (Vol. 2 pgs. 5-6, 9) This is the sworn
evidence testimonial evidence in the case. Officer Hamels testimony did not
support the allegations in the indictment. Officer Hamels reading from his offense
report, which supported the indictment, was inadmissible hearsay.
A declarant is considered to be unavailable as a witness if the declarant
18
testifies to not remembering the subject matter. Tex. Evid. R. 804(a)(3) Under
Tex. Evid. R. 804(b)(1)(B), “The following are not excluded by the rule against
hearsay if the declarant is unavailable as a witness in criminal case:
(i) was given as a witness at a trial or hearing of the current or a different
proceeding; and
(ii) is now offered against a party who had an opportunity and similar
motive to develop it by direct, cross-, or redirect examination; or
(iii) was taken in a deposition under - and is now offered in accordance with
- chapter 39 of the Code of Criminal Procedure.
Moore was called as a State witness. Moore was available during the trial, testified
and was subject to cross-examination. Moore cannot be considered unavailable
under Rule 804(a). It was error of the trial court to consider the hearsay statements
of Moore which the State had previously introduced through to Officer Hamel’s
offense report. The statements in the offense report did not fall within an
exception to the hearsay rule under Rule 804 so the statements were inadmissible.
The trial court had no sworn evidence from Moore to support its decision of
finding Jenkins guilty and it was reversible error to find Jenkins guilty.
APPELLANT'S POINT OF ERROR NUMBER TWO
The Trial Court erred in finding Jenkins guilty based on hearsay statements
in violation of the Confrontation Clause of the U.S. Constitution
Standard of Review – Constitutional Confrontation Clause issue
19
The proper standard of review on the issue before us is a hybrid one: both
deferential and de novo. "Although we defer to a trial court's determination of
historical facts and credibility, we review a constitutional legal ruling, i.e.
whether a statement is testimonial or non-testimonial, de novo." Wall v. State, 184
S.W.3d 730, 742 (Tex. Crim. App. 2006); see also Lilly v. Virginia, 527 U.S. 116,
136, 119 S. Ct. 1887, 1900, 144 L. Ed. 2d 117 (1999) (stating courts should
independently review whether out-of-court statements violate the Confrontation
Clause). De novo review is appropriate because the legal ruling of whether a
statement is testimonial under Crawford is determined by the standard of an
objectively reasonable declarant standing in the shoes of the actual declarant.
Wall, 184 S.W.3d at 742-43. "On that question, trial judges are no better equipped
than are appellate judges, and the ruling itself does not depend upon demeanor,
credibility, or other criteria peculiar to personal observation." Id. at 743.
The court questioned the parties, under the confrontation clause, could the
fact finder rely on a hearsay statement from someone other than the complainant
to support the charge? (Vol. 2 pgs. 12-13) The State took the position that if the
complainant was available to testify, then there was still an opportunity to
confront the accuser. The Court denied the motion for directed verdict. However,
the court asked counsel to brief the issue in regards to the Sixth Amendment
20
Confrontation Clause and the evidence admitted before he could decide guilt
innocence. (Vol. 2, pg. 13-15) On December 4, 2014, the court announced that
there was sufficient evidence for a finding of guilt. The court could not rely on
Alissia Moore’s testimony and the court considered the hearsay statements of
Moore’s to the investigating officer were an exception to the hearsay rule. (Vol.
4)
The trial court erred in finding Jenkins guilty and considering the hearsay
testimony of Officer Hamel to support his decision. Hamel did not see or observe the
alleged crime. Only Moore could testify as to the events and facts to support the charge.
The fact that the State waited to take the case to trial for fourteen months after arrest and
six months after arraignment should be held against the State. The burden shifts to the
State, as the proponent of Moore's hearsay statements, to demonstrate that it was
admissible, notwithstanding the constitutional prohibition of testimony from witnesses
against the accused whom he has been afforded no opportunity to confront in open court.
Applicable Law
The Confrontation Clause of the Sixth Amendment to the United States
Constitution provides: "In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI.
In Crawford v. Washington, the Supreme Court held that it was a violation of the
21
Sixth Amendment to admit testimonial statements of a witness who did not
appear at trial unless that witness was unavailable to testify and the defendant had
a prior opportunity for cross-examination. Crawford, 541 U.S. at 68, 124 S.Ct. at
1374. Generally speaking, a statement is "testimonial" if it is a solemn declaration
made for the purpose of establishing some fact. Id., 541 U.S. at 51, 124 S. Ct. at
1364. The Crawford Court chose to "leave for another day any effort to spell out
a comprehensive definition of 'testimonial.'" Id. However, the Court identified
certain classes of "core" statements which could be regarded as testimonial,
including: (1) "statements that were made under circumstances which would lead
an objective witness reasonably to believe that the statement would be available
for use at a later trial," and (2) statements taken by police officers "in the course
of interrogations." Id., 541 U.S. at 51-52, 124 S. Ct. at 1364. The Court noted that
its use of the term "interrogation" in this context was "in its colloquial, rather than
any technical legal sense." Id., 541 U.S. at 53, 124 S. Ct. at 1365 n.4.
The following principles guide in determining whether statements are
testimonial in nature: (1) testimonial statements are official and formal in nature,
(2) interaction with the police initiated by a witness or the victim is less likely to
result in testimonial statements than if initiated by the police, (3) spontaneous
statements to the police are not testimonial, and (4) responses to preliminary
22
questions by police at the scene of the crime while police are assessing and
securing the scene are not testimonial. Dixon v. State, 244 S.W.3d 472, 482 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d) The Supreme Court has provided
additional guidance for determining whether an out of court statement contains
testimonial hearsay. See Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266,
2273-78, 165 L. Ed. 2d 224 (2006). The Court explained:
Statements are non-testimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.
126 S. Ct. at 2273-74.
In this case, Malone’s hearsay statements to Hamel were testimonial and not made
during an ongoing emergency. Taurus Jenkins was not present on the scene. Moore
showed Hamel a hole in the wall where her head was pushed into. Moore identified a
glass that she claimed she had been hit with. (Supp. Vol. 2. pg. 10) Hamel stated that
he did not know what caused Moore’s injuries, Hamel could not recall if the injury on
Moore’s head was from the wall or from the glass. (Supp. Vol. 2 pgs.12-13) Moore
also had cuts on her hands. (Supp. Vol. 2 pg. 14) Hamel was not sure how Moore’s
injuries occurred; other than by Moore telling Hamel they were from the assault.
(Supp. Vol. 2 pg. 14) Hamel read from his offense report that Moore had advised that
23
“Jenkins had grabbed the glass and smashed it over her head that cut her head and her
hands” and Jenkins pushed her head into the sheetrock. (Supp. Vol. 2. pg. 15)
In Davis, the court held that statements made by a victim of domestic
violence during a 9-1-1 call were not testimonial. 126 S. Ct. at 2277. In its
analysis, the Court considered the following characteristics of the exchange: (1) the
caller was describing events as they were actually happening, rather than past
events, (2) any reasonable listener would recognize that the caller was facing an
ongoing emergency, (3) the nature of the questions and answers, viewed
objectively, was such that the elicited statements were necessary to be able to
resolve the present emergency, rather than simply to learn what had happened in
the past, and (4) the caller was frantically answering the 9-1-1 operator's questions
over the telephone, in an environment that was not tranquil or safe. 126 S. Ct. at
2276-77. The Court noted that the initial interrogation conducted during a 9-1-1
call is ordinarily not designed primarily to establish or prove some past fact, but to
describe current circumstances requiring police assistance. Dixon v. State, 244
S.W.3d 472, 481-82 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d)
The trial court erred by considering the hearsay statements of Malone
before she testified. The appellate court reviews the trial court's exclusion of
testimony under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141,
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153-54 (Tex. Crim. App. 2001). We will uphold the trial court's decision unless it
lies outside the "zone of reasonable disagreement." Id. Hearsay is a statement,
other than one made by the declarant while testifying at trial, that is offered to
prove the truth of the matter asserted. TEX. R. EVID. 801(d). Hearsay statements
are inadmissible except as provided by statute or other rule. TEX. R. EVID. 802.
When a prior statement is not offered as primary evidence, but to impeach the
witness's credibility, it is not hearsay. Baldree v. State, 248 S.W.3d 224, 230-31
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Rule 613 provides that a
witness may be examined "concerning a prior inconsistent statement made by the
witness, whether oral or written, and before further cross-examination
concerning, or extrinsic evidence of, such statement may be allowed." TEX. R.
EVID. 613(a). As a predicate, the witness must be told the contents of the
statement, the person to whom it was made, and the time and place it was made.
Id. The witness must be given an opportunity to explain or deny the statement. Id.
If the witness unequivocally admits to having made the prior statement, extrinsic
evidence will not be admitted. Id. This manner of impeachment was not followed
an it was reversible error for the court to consider Malone’s hearsay statements to
Officer Hamel.
25
In this case, considering the above factors, Officer Hamel’s hearsay statements
of Malone was the only evidence to support the charge and Jenkins counsel did not
have the benefit of Malone’s testimony to question Hamel’s veracity of accuracy of
the statement at the time the hearsay statements were offered into evidence. Hamel
did not observe the offense. Hamel’s hearsay testimony was clearly cumulative of
Malone who appeared in the trial at a later time. The absence of evidence from
Malone corroborating or contradicting the Hamel's testimony on the material point of
whether Jenkins caused Malone’s injuries or she injured herself is a critical issue in
the case. To allow the hearsay testimony of Malone was error and considering the
hearsay statements to support the verdict is reversible error. Cross-examination was
permitted but limited in this case. The overall State’s case was weak and another
factor that weighs in favor of Jenkins. Jenkins should not be convicted on hearsay
rom an offense report. A conviction should only stand on direct evidence from
witnesses with personal knowledge. Hamel did not have personal knowledge and
Malone, who had personal knowledge, did not remember any facts to support the
conviction. It was not Jenkins fault that Malone could not remember the events. It is
a problem for the State of Texas in their evidence in this case. Therefore, Jenkins
conviction cannot stand under the law to have a conviction based on hearsay.
Invited Error
26
Any confrontation error that might have occurred in this case was the product of
the State's proffer of Officer Hamel’s hearsay testimony of Moore’s statements before
Moore testified. Moore's later testimony was clear that she did not remember the events
alleged in the indictment. The State "induced" admission of the hearsay evidence of
Moore’s statements by proffering statements from Officer Hamel’s offense report. Only
after Officer Hamel testified was Jenkins entitled to cross-examine Moore, who was
present on two trial dates and called by the State. The State should be prohibited from
securing a conviction on evidence that violated the Texas Rules of Evidence when the
State was the party proffering the witnesses testimony to support a conviction.
The State chose to call Hamel before Moore. Jenkins did nothing to justify the
invocation of any reasonable notion of estoppel or invited error of proffering
inadmissible statements to the court. Once Jenkins lodged his objection to the
sufficiency of evidence at the close of the State’s case, the State argued that the hearsay
testimony offered by Hamel was sufficient to support a conviction for a witness that
could not remember any facts to support the charge. It appears that the State
intentionally called Officer Hamel first to proffer Moore’s statements to the fact finder
and then called Moore who invoked her right to consult with an attorney; after being
warned against making a false statement. Moore’s subsequent testimony, as a witness
for the State, was presented. Moore was not incompetent and available to testify. The
27
State proffered Moore’s testimony that she did not remember any of the essential facts to
support the elements for a conviction. Moore’s truthful testimony was “I don’t
remember”. If a witness does not remember, then the lack of evidence is placed on the
State as the proponent of the testimony. Jenkins did nothing to delay the case or cause
Moore to “not remember”. The fact that the State elected to not prosecute the case for 14
months may be a factor in the witness not recalling the facts of the case. Jenkins should
not be prejudiced with a conviction based on inadmissible evidence.
APPELLANT'S POINT OF ERROR NUMBER THREE
The Trial Court erred in finding the Appellant had been previously convicted
of an offense under Chapter 19 of the Texas Penal Code
The indictment stated that “the defendant had been previously convicted of
an offense under Chapter 19 of the Texas Penal Code, against a member of the
defendant’s family, as described by Section 71 of the Texas Family Code, to wit:
on the 21st day of March, 2005, in the County Court at Law No. 2 of Smith County,
Texas in cause number 28641204.” State’s Exhibit 1, a Smith County judgment for
Assault - Family Violence was admitted to prove the element of a prior conviction
to enhance the charge from a misdemeanor to a felony. (Supp. Vol. 2 pg. 31) The
indictment referenced Chapter 19 of the Texas Penal Code which involves murder,
capital murder, manslaughter, or criminally negligent homicide. TEX. PENAL
CODE 19.01-19.05. In order to enhance a misdemeanor assault charge to a felony
28
assault charge based on the evidence in this case, the State must plead and prove a
violation of TEX. CODE CRIM. PROC Article 22.01(b)(2)(A) under Chapter 22.
Jenkins prior conviction from Smith County was not for an offense under Chapter
19 but Chapter 22 of the Texas Penal Code. The court therefore reversibly erred in
finding Jenkins guilty of a felony offense. If the appellate court finds sufficient
evidence, then Jenkins should have only been convicted for a misdemeanor and the
case should be reversed and remanded for a new punishment hearing.
APPELLANT'S POINT OF ERROR NUMBER FOUR
The Trial Court erred in denying Appellant’s Motion for Directed Verdict
Standard of review on evidentiary rulings
A motion for directed verdict is an attack on the legal sufficiency of the
evidence. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990);
Rohrscheib v. State, 934 S.W.2d 909, 910 (Tex. App.--Houston [1st Dist.] 1996, no
pet.). When conducting a legal-sufficiency review, the court views the evidence in
the light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Rohrscheib, 934
S.W.2d at 910. Although a legal-sufficiency analysis entails a consideration of all
evidence presented at trial, we may neither re-weigh the evidence nor substitute
29
our judgment for the jury's. King, 29 S.W.3d at 562. The trier of fact is the sole
judge of the credibility of witnesses and may believe or disbelieve all or any part of
a witness's testimony. Reece v. State, 878 S.W.2d 320, 325 (Tex. App.--Houston
[1st Dist.] 1994, no pet.).
Appellate courts uphold the trial court’s evidentiary rulings on appeal absent an
“abuse of discretion.” When it is clear that what was perceived by the trial court as
common experience is really no more than the operation of a common prejudice, not
borne out in reason, the trial court has abused its discretion. In either event the
appellate court should recognize that the trial court erred to admit the proffered
evidence, and proceed to determine harmfulness under Tex. R. App. Pro. 44.2.
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (opinion on
rehearing).
Argument and the law
There was no evidence to support the conviction consistent with the fact that
Moore could not remember the events. After the State rested, Jenkins’ counsel moved
for a Directed Verdict and acquittal based on insufficient evidence to prove all the
elements of the charge. The court questioned the parties and ultimately denied the
defense motion. The court should have granted the motion due to a lack of sufficient
testimonial evidence to support the charge. (Vol. 2 pgs. 12-13)
Additionally, it is clear that Moore did not want to prosecute the crimes due to no
30
assault having occurred by Jenkins. Moore provided an Affidavit of Non-Prosecution
to Defendant’s counsel on May 16, 2014. Her affidavit stated that she did not want to
go forward with the case, did not intend for Jenkins to be arrested and did not intend
for
Jenkins to be charged with an offense. (Vol. 2 pg. 10) Moore did not state that
Jenkins had not assaulted her; however, if she had “known this was the case I would
have put it in this affidavit.” Moore testified that she would have admitted that
Jenkins did not assault her if she needed to provide that detail in her request that the
charges be dismissed.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Appellant, respectfully prays
that this Honorable Court of Appeals grant all relief sought, reverse his sentence and
grant him a new punishment hearing and such other relief to which it may be entitled.
Respectfully submitted,
/S/ Albert J. Charanza, Jr.
Albert J. Charanza Jr.
Charanza Law Office, P.C.
P.O. Box 1825
Lufkin, Texas 75902
936/634-8568 (office)
936/634-0306 (fax)
State Bar No. 00783820
ATTORNEY FOR THE APPELLANT
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CERTIFICATE OF SERVICE
The undersigned attorney certifies that a true and correct copy of the foregoing
Brief for The Appellant was served upon State's attorney, P.O. Box 908, Lufkin, TX
75902 on October 6, 2015.
/S/ Albert J. Charanza, Jr.
Albert J. Charanza Jr.
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this document contains 6,146 words,
counting all parts of the document except those excluded by Tex. R. App. P. 9.4(i)(1).
The body text is in 14 point font and the footnote text is in 12 point font.
/S/ Albert J. Charanza, Jr.
Albert J. Charanza Jr.
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