Dunlop, Christopher M. ( 2015 )

PD-1142-15 .
NO
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
CHRISTOPHER MICHAEL DUNLOP,
Petitioner
V.
THE STATE OF TEXAS,
Respondent
Petition in Cause No. 296-82462-2012
From the 296th District Court of Collin
County, Texas
And
Petition in Cause No. 05-14-00441-CR
The Court of Appeals for the
Fifth District of
D a l l a s , Texas
PETITION FOR DISCRETIONARY REVIEW
Christopher M. Dunlop
435 Merrimac court
Roselle, IL 60172
November 2, 2015 214-628-1729
Dunlop4041@GMail.Com
ProSe PETITIONER
ORAL ARGUMENTS REQUESTED
1
.
Identity of Parties and Counsel
Christopher M. Dunlop – Appellant The State of Texas – Appellee
Appellant Counsel ProSe Appellate Counsel
Christopher M. Dunlop John Rolater
435 Merrimac Ct. Collin County District
Roselle, IL 60172 Attorney’s Office
2100 Bloomdale Road, Ste 100
McKinney, TX 75071
Trial Counsel
Wes Wynne
Collin County District
Attorney's Office
2100 Bloomdale Road, Ste
100 McKinney, TX 75071
2
.
TABLE OF CONTENTS
INDEX OF AUTHORITIES…………………………………..……………………………….ii
STATEMENT REGARDING ORAL ARGUMENT ............................................................... 5
STATEMENT OF THE CASE ................................................................................................ 5
STATEMENT OF PROCEDURAL HISTORY .................................................................................. 6
REASONS FOR REVIEW ........................................................................................................ 3
STATEMENT OF FACTS........................................................................................................ 7
GROUND FOR REVIEW ONE ................................................................................................ 11
The appeals court erred in finding that the evidence was legally sufficient to
sustain a conviction where there was no physical evidence that anyone was
injured but the defendant himself. The suspicion of guilt was due to the
defendant inflicting harm upon himself, but the complaining witness testified
that she had drugged him. The appeals court erred because they only took
into account the police offices testimony that both the complaining witness
and the 911 callers written statements were consistent and therefore factual
when the appeals court did not compare the original 911 call with the 911
callers written statement which is completely different. If they would have
done that and considered all of the evidence they would have seen that the
complaining witnesses testimony of how they were left alone for over an
hour before they were even spoken to by the Plano police department then
they would have known that the complaining witnesses falsified the police
report as she stated on the stand.
GROUND FOR REVIEW TWO ............................................................................................. 11
The trial appeals court erred in not taking into account all of the evidence as stated
in GROUND FOR REVIEW ONE and noting that the defendant wordlessly cut his
own throat in front of the Plano officers because he had been involuntarily drugged
and not in his right mind as the complaining witness testified to drugging him
during the trial.
PRAYER FOR RELIEF ............................................................................................................ 14
3
NO
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
CHRISTOPHER MICHAEL DUNLOP,
Petitioner
V.
THE STATE OF TEXAS,
Respondent
Petition in Cause No. 296-82462-2012
From the 296th District Court of Collin
County, Texas
and
The Court of Appeals for the
Fifth District of
D a l l a s , Texas
The Court of Appeals for the
Fifth District of Texas
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS
TEXAS:
Christopher M Dunlop petit ions the Court to review the judgment affirming his
conviction for the Class A offence of Assault Causing Bodily Injury to a Family
Member.
4
STATEMENT REGARDING ORAL ARGUMENT
In the event this petition is granted, the Petitioner requests oral argument. Argument would
assist the Court because resolution of the grounds for review depends upon a detailed
exploration of the facts of the cases. Further, oral argument would provide this Court with an
opportunity to question the parties regarding their positions.
STATEMENT OF THE CASE
Appellant, Christopher M. Dunlop, was charged by indictment with the felony offense of assault
family violence by impeding the normal breathing or circulation of blood of Laura Free by
applying pressure to Laura Free's throat or neck. 1 After a jury trial, Mr. Dunlop was acquitted
of the 3rd degree felony offense of Assault by Impeding, but was convicted of the lesser-
included Class A offense of Assault Causing Bodily Injury to a Family Member. 2 Mr, Dunlop
was sentenced to 1 year incarceration in the county jail, but the sentence was suspended and Mr.
Dunlop was placed on community supervision for 2years. 3 This is a direct appeal from
that conviction and sentence.
______________________
1 (Clerk's Rat 11)
2 (Clerk's Rat 77)
3 (Clerk's Rat 78-80)
5
PROCEDURAL HISTORY
The judgment of Petitioner's conviction was entered on March 18, 20 I 4.
Petitioner's notice of appeal was timely filed on April 10, 20 I 4 , the Fifth District Court
of Appeals its affirmation of conviction on July 31, 2015. Motion for rehearing was not
filed in time due to appellant not being notified until 2 weeks after the verdict and was
unware of his rights that he could have still requested a hearing ProSe 15 days after his
counsels notification of the verdict.
REASONS FOR REVIEW
The Fifth Court of Appeals affirmed the conviction in this case despite the lack of any
physical evidence of wrongdoing and not considering the actual testimony of the
complaining witness herself stating the charges were falsified because the complaining
witness thought she and her daughter had killed the defendant by drugging him.
The Fifth Court of Appeals did not discharge its duty of review to conscientiously and
impartially apply the law of Jackson v. Virginia, 443 U.S.319 (1979) and Brooki v. State,
323 S.W.3d 893 (Tex. Crim. App. 20!0), to a fair consideration of all the evidence. See
Arcila v. State, 834 S.W.2d 357, 360-61 (Tex. Crim. App. 1992).
STATEMENT OF FACTS
In the early morning hours of July 11, 2012, Officers David Thornsby and Kevin Gendron
of the Plano Police Department responded to a domestic disturbance call from a residence
located at 3829 Carrizo Drive in Plano, Texas. 4 Upon arrival at the location, officers
made contact with the 911 caller, Kirstin Reigelsperger, who
4 (Rep.'s R. vol 3 at 128: 13-15); (Rep.'s R. vol 3 at 131: 6-10)
6
allowed them entry into the home. 5 As soon as the officers entered the residence, they
observed the suspect, Christopher M. Dunlop, wordlessly pick up a large kitchen knife,
place the knife to his own throat, and make a deep incision in his neck. 6 Mr. Dunlop
then went into a bedroom and shut and locked the bedroom 7 door. Officer Thomsby
immediately ordered both of the females (Laura Free, the complaining witness, and
Kirsten Reigelsperger, the 911 caller) to exit the house and go across the street to a
neighbor's yard. 8 Eventually, the officers gained entry into the bedroom and medical
treatment was started by Emergency Medical Technicians on Mr. Dunlop. 9 During the
estimated 30 minutes to an hour that Officers Thonsby and Gendron were attempting to
gain entry into the bedroom and tend to Mr. Dunlop's injury, no contact was made with
either Laura Free or Kirsten Reigelsperger by anyone from law enforcement. 10 In fact.
Officer Gendron had no contact or interaction whatsoever with the complaining witness,
Laura Free. 11 Once Mr. Dunlop had been stabilized and loaded onto a gurney for
transport to the hospital, Officer Thomsby resumed contact with Laura Free and Kirsten
________________
5(Rep.'s R. vol 3 at 136: 15-19); (Rep.'s R. vol 3 at 177: 23-178: 4)
6(Rep.'s R. vol 3 at 139: 2-10); (Rep.'s R. vol 3at 181: 21-23)
7(Rep.'s R. vol 3 at 139: 22-25)
8(Rep.'s R. vol 3 at 142: 3-4); (Rep.'s R. vol 3 at 169: 10-19); (Rep's R. vol 3at 186: 4-18)
9(Rep.'s R. vol 3 at 143: 19-144: 4)
10 (Rep.'s R. vol 3 at 157: 5-15); (Rep.'s R. vol 3 at 181:6-14) "
11(Rep.'s R. vol 3 at 186: 1-9)
7
Reigelsperger. 12 Officer Thomsby testified that Laura Free claimed that Mr.
Dunlop had pulled her hair to the point that a chunk of her hair had come out of the
backside of her scalp, and that she had been choked. 13 Officer Thomsby also
stated that Laura Free had complained of pain in her head and neck area. 14 In his
observations of Laura Free, Officer Thomsby stated that he observed no bruising
or redness or scratches on her person the night of the incident. 15 As part of his
investigation, Officer Thornsby also had Ms. Free fill out a Voluntary Witness
Statement (State's Exhibit 57) 16, an Assault Supplement Packet (State's Exhibit
57) 17, and a page detailing "background information" contained within the Assault
Supplement Packet (State's Exhibit 59) 18..
When Laura Free appeared before the court, she stated her intention to assert her
Fifth Amendment privilege. 19 The state's prosecutor, Wes Wynne, offered Ms.
Free testimonial (use) immunity. 20 Judge John Roach, Jr. appointed counsel to
advise Ms. Free in regard to her 5th Amendment rights and the Grant of Use
_________________
12 (Rep.'s R. vol 3 at 144: 14-22)
13 (Rep.'sR.vol3 at l62: 2-8)
14 (Rep.'s R. vol 3 at 145: 18-22)
15 (Rep.'s R. vol 3 at 156: 1-4)
16(Rep.'s R, vol 3 at 146: 10-19)
17 (Rep.'s R. vol 3 at 142: 21-25)
18 (Rep.'s R. vol 3 at 148: 25-149:10)
19 (Rep.'s R. vol 3 at 201: 13-16)
20 (Rep.'s R. vol 3 at 203: 24-204: 19);(Clerk's R. at 65-66)
8
Immunity offered to her by the prosecution. 21 Ultimately, Ms. Free accepted the
Grant of Use Immunity and opted to testify. 22 Prior to the trial, Ms. Free had also
filled out an Affidavit of Non-Prosecution, and she flatly stated that she did not
want to see Mr. Dunlop prosecuted for this offense as he did nothing wrong and she was
afraid for having drugged him. 23
Ms. Free's trial testimony was contradictory to the and verbal statements she had provided
to the police on July 11, 2012. In regard to written hair-pulling, Ms. Free
testified that the hair-pulling in question was done in a playful, sexual manner and
denied that it caused any pain, or if it caused pain, she stated it was the type of pain
she had encouraged and wanted. 24 When pressed about the "chunk ofhair"that
had reportedly been ripped out, she stated that only 4-5 strands of hair may have
been pulled out, but that they also may have just fallen out on their own. 25 Ms.
Free admitted that she had drugged Mr. Dunlop that night, without his knowledge,
by pouring Hydrocodone cough syrup initially into a Four Loko, then later into a
pot of coffee Mr. Dunlop was drinking. 26 She stated that she and her daughter,
Kristen, decided to pour the rest of the bottle of hydrocodone cough syrup into Mr.
21(Rep.'s R. vol 3 at 205: 8-14); (Rep/s R. vol 3 at 206: 1-15)
22 (Rep.'s R. vol 3 at 228: 13-23); (Clerk's R. at 67)
23(Rep.'s R. vol 4 at 21: 9-14)
24 (Rep.'s R. vol 4 at 32: 17-33:9); (Rep.'s R. vol 4 at 84: 3-20)
25 (Rep.'s R. vol 4 at 33: 10-24) (Rep.'s R. vol 4 at 34: 23-35: 24)
9
Dunlop's coffee because the first attempt at drugging him had no effect. 27 Ms.
Free claimed to have fabricated the story about Mr. Dunlop assaulting her because
she believed Mr. Dunlop had actually died from his injuries, 28 and because she was
worried that she would now be forced to pay all the bills at the residence. 29 Ms.
Free testified that not only had she fabricated the details of her written Voluntary
Witness Statement, she had also lied about her description of the night's events
when she was verbally questioned by the police on July 11, 2012. 30
In regard to the allegation of hair pulling, in her written statement Ms. Free wrote
that Mr. Dunlop "grabbed me by the back of the hair and yanked my head
backward ripping out a fistful of my hair. 31 During her trial testimony, however,
she denied that Mr. Dunlop ripped out a fistful of her hair,but she confirmed that
Mr. Dunlop had yanked her hair and yanked her head backwards,and that she felt
pain when he ripped her hair out. 33 In regard to the allegation of assault by
strangulation, in her voluntary statement Ms. Free wrote, "he put his hands around
my neck and squeezed; but I could still breathe, it was just a bit harder." 34 In her
trial testimony, Ms. Free initially stated that Mr. Dunlop never put his hands on her
_______________________
27(Rep.'s R. vol 4at37: 25-39: 24)
28(Rep.'s R. vol 4 at 49: 18-24)
29(Rep.'s R. vol 4 at 50: 3-22)
30 (Rep.'s R. vol 4 at 51: 4-52: 14)
31State's Exhibit 58, Voluntary Witness Statement, page 3)
32(Rep.'s R. vol 4 at 64: 16-25)
33(Rep.'s R. vol 4 at 72: 17-18); (Rep.'s R. vol 4 at 73: 3-5)
34(State's Exhibit 58, Voluntary Witness Statement,page 3)
10
neck. 35 Later, she clarified that Mr. Dunlop had put his hands on her clavicle area,
trying to calm her down, but all she felt was the "heat from hands near my neck,
but I could not state with certainty there was ahand on my neck.” 36 When
specifically asked whether her breathing was impeded, Ms. Free again stated that
Mr. Dunlop did not have his hands around her neck. 37 "They were near my neck,
and he never squeezed and impeded my air flow." 38 When the prosecutor
questioned Ms. Free about the Assault Supplement Report she had filled out on the
night of the incident, 39 Ms. Free again denied that Mr. Dunlop put his hands around
her neck, and she further denied any pain associated with her neck or neck area." 40
On cross-examination, Ms. Free stated that she had lied to the police about the
assault allegations concerning Mr. Dunlop because she and her daughter had
drugged Mr. Dunlop, because they believed he was deceased or about to die, and
because she feared she would be stuck in a lease she could not afford on her own." 41
She also stated that she had lied in the Victim's Assistance portion of the Assault
Supplement Packet in order to qualify for victim's assistance money, and to
_________________________
35 (Rep.'s R. vol 4 at 65: 3-4)
36(Rep.'s R. vol 4 at 66: 1-10)
37(Rep.'s R. vol 4at66; 25-67: 7)
38(Rep.'s R. vol 4 at 66: 18-20)
39(State's Exhibit 59,Assault SupplementReport)
40(Rep.'s R. vol 4 at 72: 17-73:24); (Rep.'s R. vol 4 at 86: 14-24
41 (Rep.'s R. vol 4 at 79: 24-81:20); (Rep.'s R. vol 4 at 94: 19-95:5).
42 (State's Exhibit 59, Assault Supplement Report)
11
allow her to terminate the lease." 43 Ms. Free stated that she concocted her
fabricated story during the time period of"at least an hour" when she and Kirsten
Reigelsperger were left unattended by the police." 44
Ms. Free was shown all the photographs of her neck and body that were taken by
the police the night ofthe incident." 45 Ms. Free confirmed that there was no
discoloration or bruising depicted in any of the photographs." 46 Ms. Free stated that
she lied about Mr. Dunlop assaulting her because of the"fear factor" of getting
into trouble herself due to having drugged him." 47 She also stated that when she
gets angry or upset, she tends to embellish and lie about the facts." 48
Christopher Dunlop elected not to testify during the case in chief." 49 After closing
arguments and deliberation the jury returned a verdict of Guilty on the lesser-
included offense of misdemeanor assault. 50 However, the Charge of the Court
submitted to the jury required a finding as to the manner and means of the
misdemeanor assault, specifically, "by applying pressure to Laura Free's throat and
_________________________
43(Rep.'s R. vol 4 at 81: 12-82: 10)
44(Rep.'sR.vol4at82: 11-23)
45 (State's Exhibits 2-4, 6-8,12 and 13)
46(Rep.'s R. vol 4 at 89: 19-92: 18)
47(Rep.'s R. vol 4 at 87: 1-5)
48(Rep.'s R. vol 4 at 108:11-14)
49(Rep.'s R. vol 4 at 97: 13-21)
50(Rep.'s R. vol 4 at 147: 15-19)
12
neck." 51 Punishment was assessed by the court at 1 year in county jail probated for
2 years; completion of a batterer's intervention prevention program; completion of
a psychological exam; no consumption of alcohol: no contact with Laura Free or
her children; 100 hours of community service; and 30 days term and condition time
with authorization for off-work hours. The court also made an affirmative finding
of family violence. 5
GROUND FOR REVIEW NO. 1. RESTATED
THE APPELLATE COURT ERRED IN
FINDING THAT THE EVIDENCE IS
LEGALLY SUFFICIENT TO JUSTIFY A
FINDING OF GUILTY OF THE OFFENSE OF
ASSAULT FAMILY VIOLENCE.
GROUND FOR REVIEW NO. 2. RESTATED
COMPLAINING WITNESS TESTIFIED OF
FALSIFYING POLICE REPORT BECAUSE
HER AND HER DAUGHTER DRUGGED THE
DEFENDANT AND THOUGHT THEY
KILLED HIM.
_______________________
51 (Clerk”s R.at 74)
52 (Rep.'s R. vol 4 at 158: 5-17)
13
PRAYER FOR RELIEF
For the reasons stated, the Petitioner was denied a fair trial in Cause No. 296-
82462-2012. Therefore, Appellant prays that this Court grant his petition for
discretionary review and upon reviewing the judgment entered below, reverse this
Cause and dismiss the prosecution
or remand it for a new trial.
Very Respectfully submi tted,
Chris Dunlop
435 Merrimac ct
Roselle, IL 60172
ProSe
14
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Case # 05-14-00441-cr
Case Information
Location Court Of Criminal Appeals
Date Filed 10/30/2015 12:57:18 AM
Case Number 05-14-00441-cr
Case Description
Assigned to Judge
Attorney
Firm Name Individual
Filed By Christopher Dunlop
Filer Type Not Applicable
Fees
Convenience Fee $0.00
Total Court Case Fees $0.00
Total Court Filing Fees $0.00
Total Court Service Fees $0.00
Total Filing & Service Fees $0.00
Total Service Tax Fees $0.00
Total Provider Service Fees $0.00
Total Provider Tax Fees $0.00
Grand Total $0.00
Payment
Account Name Visa
Transaction Amount $0.00
Transaction Response
Transaction ID 12423208
Order # 007609784-0
Petition for Discretionary Review
Filing Type EFile
Filing Code Petition for Discretionary Review
Filing Description
Reference Number
Comments
Status Rejected
Fees
Court Fee $0.00
Service Fee $0.00
Rejection Information
Rejection Time Rejection Comment
Reason
The petition for discretionary review does not contain a certification of compliance
with T.R.A.P. 9.4(i)(3). The petition for discretionary review does not contain the
11/02/2015
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=a838b0a9-9bf8-42ad-bbaf-81164b1a4eed[11/2/2015 12:22:45 PM]
Envelope Details
identity of Judge, Parties and Counsel in compliance with[Rule 68.4(a)]; it does not
Other 12:20:57
PM contain the identity of the trial court judge. The petition for discretionary review does
not contain a copy of the court of appeals opinion [Rule 68.4(j)]. You have ten days
to tender a corrected petition for discretionary review.
Documents
Lead Document Petition_for_Drescretionary_Review-10-30-15.pdf [Original]
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