Garrett, Robert ( 2015 )

PD-1184-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/9/2015 4:44:18 PM
Accepted 10/9/2015 4:55:13 PM
ABEL ACOSTA
NO. PD-1184-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
AT AUSTIN
_________________________
ROBERT GARRETT,
Petitioner/Appellant
v.
THE STATE OF TEXAS,
Respondent/Appellee
_________________________
On Appeal in Cause No. F10-52395-R
from the 265th Judicial District Court
Of Dallas County, Texas
And on Petition for Discretionary Review
from the Fifth District of Texas at Dallas
In Cause No. 05-13-00883-CR
_________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
_________________________
Counsel of Record:
Lynn Richardson Kathleen A. Walsh
Chief Public Defender Assistant Public Defender
State Bar Number: 20802200
Katherine A. Drew 133 N. Riverfront Blvd., LB 2
Chief, Appellate Division Dallas, Texas 75207-399
(214) 653-3550 (telephone)
(214) 653-3539 (fax)
kwalsh@dallascounty.org
October 9, 2015
LIST OF PARTIES
TRIAL COURT JUDGE
Mark C. Stoltz, Presiding Judge
APPELLANT
Robert Garrett
APPELLANT’S ATTORNEYS
AT TRIAL
Matthew Arnold, State Bar No. 00789129
3500 Maple Avenue, Suite 400
Dallas, TX 75219
ON APPEAL
Kathleen A. Walsh, State Bar No. 20802200
Assistant Public Defender
Dallas County Public Defender’s Office
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-4399
STATE’S ATTORNEYS
AT TRIAL
Jason Fine, State Bar No. 24055477
Patrice Williams, State Bar No. 24047116
ON APPEAL
G. Brian Garrison, State Bar No. 24065276
Assistant District Attorneys
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
ii
TABLE OF CONTENTS
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 1
QUESTION FOR REVIEW ..................................................................................... 2
Whether the court of appeals erred in determining that the
prosecutor’s “reprehensible” action in presenting false information
to the jury as to the content of an exhibit and what it stated as to
Appellant’s criminal history did not affect the jury’s assessment of
punishment.
ARGUMENT ............................................................................................................. 2
Pertinent facts. ................................................................................................. 3
A. The testimony ........................................................................................ 3
B. State's Exhibit 2...................................................................................... 6
A. The prosecutor's closing argument ........................................................ 8
The court of appeals’ conclusion that the jury would not have assessed
a different sentence had State’s Exhibit 2 been excluded is premised
on false assumptions ........................................................................................ 9
Conclusion ..................................................................................................... 11
PRAYER FOR RELIEF .......................................................................................... 12
CERTIFICATE OF SERVICE ................................................................................ 13
CERTIFICATE OF COMPLIANCE ....................................................................... 13
APPENDIX
iii
INDEX OF AUTHORITIES
Cases
Garrett v. State,
No. 05-13-00833-CR, 2015 Tex. App. LEXIS 8439 (Tex. App.—Dallas
August 12, 2015) (not designated for publication) .......................................passim
Rules
TEX. R. APP. P. 66.3 (f) ............................................................................................ 12
iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW Robert Garrett, Petitioner herein and Appellant before the
court of appeals, and respectfully submits this Petition for Discretionary Review.
STATEMENT REGARDING ORAL ARGUMENT
Appellant believes that the facts of the case and the issues raised are such
that oral argument will not significantly aid this Court’s consideration and
disposition of this Petition.
STATEMENT OF THE CASE
A jury convicted Appellant of the offense of indecency with a child and
assessed punishment at 9 years’ imprisonment and a $4,000 fine. (RR4: 100, 140-
41; CR: 110, 117).
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
On August 12, 2015, in a memorandum opinion, the Court of Appeals for
the Fifth District of Texas affirmed Appellant’s conviction. Garrett v. State, No.
05-13-00833-CR, 2015 Tex. App. LEXIS 8439 (Tex. App.—Dallas August 12,
2015) (not designated for publication). (See Appendix). No motion for rehearing
was filed. This Petition is timely if filed on or before October 12, 2015.1
1
Appellant’s motion for extension of time in which to file the Petition for Discretionary Review
was granted by this Court on September 14, 2015.
QUESTION FOR REVIEW
Whether the court of appeals erred in determining that the
prosecutor’s “reprehensible” action in presenting false information
to the jury as to the content of an exhibit and what it stated as to
Appellant’s criminal history did not affect the jury’s assessment of
punishment.
ARGUMENT
In his appeal, Appellant raised five points of error pertaining to the
admission of State’s Exhibit 2 and the prosecutor’s representations to the jury as to
the content of the exhibit and what it stated as to Appellant’s criminal history. As
stated in the court of appeals’ opinion, in his first issue, Appellant argued the
prosecutor’s misrepresentation of the content of the exhibit violated his right to due
process and due course of law. In his second and third issues, Appellant asserted
that his trial counsel’s representation was inadequate as counsel failed to object to
the prosecutor’s misrepresentation of the content of the exhibit, examine the
exhibit when offered as evidence, and investigate Appellant’s criminal history. In
his fourth and fifth issues, Appellant argued that the exhibit should have been
excluded because it was not authenticated or linked to him. Garrett, 2015 Tex.
App. LEXIS 8439 at *6-7. The court of appeals disposed of all of these issues by
conducting a harm analysis and concluding that given the nature of the evidence
before the jury, including the evidence support the verdict, and the punishment
2
assessed, the jury would not have assessed a different sentence had State’s Exhibit
2 been excluded. Id. at *11-12.
Pertinent facts.
A. The testimony.
During the punishment hearing, the defense presented testimony from
Appellant’s daughter, Prentice Garrett, who testified Appellant’s sexual contact
with H.A. was behavior that was totally inconsistent with what she knew about her
father and that she had a hard time believing that he did something like this. (RR4:
122-23). She also testified that Appellant never did anything like this to anyone
else and has always been protective with her, her sister, nieces and grandchildren.
(RR4: 122-24). During the State’s cross-examination of Ms. Garrett, the following
occurred:
BY MR. FINE:
Q. Ms. Garrett, what’s your mom’s name?
A. Sharyl, Sharyl Williams.
Q. Sharyl Williams?
A. Yes, sir.
Q. Were -- was your dad and your -- yeah, were your dad and mom living
together back in 1998? You would have been I guess seven years old?
A. Yes.
Q. Back in Georgia?
3
A. Yes.
Q. Do you remember when he was convicted of simple battery of your
mom?
A. I’m not going to say that I would remember anything like that. My
parents back when I was little, they would keep a lot of things from me. But
I’ve never heard that what you just told me.
Q. You guys lived back in ‘98 in DeKalb County, Georgia, right?
A. Huh?
Q. You guys would have lived in DeKalb –
A. Yes, DeKalb.
Q. What city is that?
A. Stone Mountain-Lithonia area is metro Atlanta, right outside.
MR. FINE: Your Honor, may I approach?
THE COURT: You may.
Q. (By Mr. Fine) Ms. Garrett, I’m going to have you look at what I’ve
marked as State’s Exhibit 2. I don’t want you to read it out loud, I just want
you to kind of look at that. Does that appear to be your dad’s signature?
A. I wouldn’t be able to identify but.
Q. Is that his name, Robert Garrett?
A. It says Robert Garrett.
Q. And Sharyl Williams, is that how your mother spells her name, S-H-A R-
Y-L.
A. Yes, sir.
4
Q. Okay. And back in March -- well, March 12th, 1999, you guys would
have been living in Georgia, your mom and dad were together then?
A. Yes.
Q. Is that your dad’s date of birth, 10-20-67?
A. Yes, sir.
Q. Does this appear to be a conviction for your dad against your mom from
what you could tell based on that information?
A. I’m guessing so.
MR. FINE: State offers State’s 2 at this time, Your Honor.
MR. ARNOLD: Your Honor, I’m going to object it’s not been authenticated.
THE COURT: Let me see it. Overrule the objection. It’s admitted.
MR. FINE: Permission to publish, Your Honor?
THE COURT: You may.
MR. FINE: This is a conviction, case 98-CR 5451-5 out of DeKalb County,
Georgia Superior Court for simple battery. It states: On the 26th day of
May 1998, the defendant, Robert Garrett, did intentionally make physical
contact with an assaultive provoking nature of the person Sharyl Williams.
There’s also a probation revocation order filed on May 14th, 2002 in the
same cause number.
Q. (By Mr. Fine) And so, Ms. Garrett, how long were your mom and dad
together, how many years?
A. Let’s see. I was born in ‘91, and they separated -- I was about 12 years
old. So around about 12 years, maybe more.
Q. And like you said, I mean, they would kind of keep things behind closed
doors, keep things from you from seeing certain things; is that fair to say?
5
A. Yeah, my parents -- like I say, my parents protect, like, they’re still kind
of like that. Something is wrong with my mom, she’s not going to tell me; if
something is wrong with my dad, he’s not going to say anything. It’s not to
lie to me. I know it’s because they want me to focus on what I’m doing, and
I stress easy. They’re parents, you know.
Q. Right. For instance, like, that would have been back when you were
seven or eight years old, that conviction for battery. You didn’t know about
that till today, right?
A. Right, right. I probably wouldn’t even have understood what it meant.
Q. Right. Because as a 7-year-old, you’re not expected to understand things
like your parents beating up each other, right?
A. Correct.
Q. Or being touched by someone inappropriately; is that fair to say?
A. No. That’s one thing I would know if someone touched me
inappropriately.
Q. I don’t mean it like that. I mean, you know, a normal 7-year-old girl
shouldn’t have to experience things like domestic violence and sexual
abuse; is that fair to say?
A. That’s fair.
(emphasis added) (RR4: 125-29).
B. State’s Exhibit 2.
State’s Exhibit 2 consists of 11 pages:
First page. The first page appears to be a summary of the proceedings in
Case No. 98-CR5451-5 and sets forth a plea of guilty to Count One only of a True
6
Bill alleging interference with government property and simple battery against a
defendant named Robert Garrett. (State’s Exhibit 2, p. 1).
Second and Third pages. The second and third pages of the exhibit is a two
count Bill of Indictment; Count One alleges the offense of interference with
government property against Robert Garrett; Count Two alleges the offense of
simple battery against Robert Garrett. (State’s Exhibit 2, pp. 2-3).
Fourth page. The fourth page is a document entitled “First Offender
Information” signed by a defendant and his attorney. This document also contains
a certificate signed by the presiding judge which states that a defendant named
Robert Garrett pled guilty in open court to the charges in the Bill of Indictment and
sets forth various declarations acknowledging the voluntariness of the defendant’s
plea. (State’s Exhibit 2, pp. 4).
Fifth page. The fifth page contains admonishments to the defendant and his
written responses in Case No. 98-CR5451-5. (State’s Exhibit 2, p. 5).
Sixth and Seventh pages. The sixth page appears to be a judgment and
sentence for Count One of the Indictment in Case No. 98-CR5451-5. The seventh
page appears to be a mirror-image of the sixth page. (State’s Exhibit 2, pp. 6-7).
Eighth and Ninth pages. The eighth page is an Order from the court that
Count Two of Case No. 98-CR-5451-5 be “Nolle Prossed.” The ninth page appears
to be blank. (State’s Exhibit 2, pp. 8-9).
7
Tenth and Eleventh pages. The tenth page is a Probation Revocation Order
in Case No. 98-CR5451-5. The eleventh page is blank. (State’s Exhibit 2, pp. 10-
11).
C. The prosecutor’s closing argument.
So when you look at a two to 20 year offense and the
offense is indecency with a 7-year-old girl, with your stepdaughter,
you start at 20. And you then start factoring in things along the
lines, well, what can we give the defendant credit for, what do we
hold as aggravating factors against him? And that’s where you
come up with your verdict. That’s where you’re going to find the
correct number.
....
You have seen that from the testimony of Gabby, you’ve
seen that from the testimony of Gisela about how this man
basically just controlled her life. . . . This man is the one that beat
her and this is the man that beat Sharyl Williams, his first wife.
You can go back and look at State’s 2 and look at that, what he
was placed on probation and revoked on that probation.
So he’s a wife beater, he’s a child molester, he’s controlling, he’s
manipulative. . . .
. . . Because what this guy does behind closed doors, you
don't get any credit for that. What happens behind closed doors as
y’all have found out today, this man, Robert Garrett is a different
man behind closed doors and that’s what manipulative, conniving
evil human beings do. On the outside you look at them and they
don't wear a sign that says I’m a wife beater and I’m a child
molester. You only find that out when skeletons come out of the
closet.
....
And then the defense attorney gets up here and says show
some mercy, let’s have some mercy. . . . Mercy is something that’s
8
earned. You can’t just beg for mercy and expect to get it when you
molest your step-daughter, when you beat the women you’re
supposed to love, when you control them. You don’t just get up
here and say, oh please have mercy on me. You earn mercy. . . .
(emphasis added) (RR4: 136-40).
The court of appeals’ conclusion that the jury would not have assessed a
different sentence had State’s Exhibit 2 been excluded is premised on false
assumptions.
In reaching the conclusion that the jury would not have assessed a different
sentence had State’s Exhibit 2 been excluded, the court of appeals stated:
While the jury heard from the prosecutor that Garrett was a "wife
beater" and had been convicted of assaulting his first wife, the jury
also heard (I) the complainant's testimony that Garrett molested her at
least four times, she was fearful of Garrett, and she knew Garrett had
hit her mother and brother; (2) the complainant's mother's testimony
that Garrett physically assaulted her several times during their four-
year relationship; and (3) Garrett's daughter's testimony that the father
she knew was not violent. Further, State's Exhibit 2 was admitted into
evidence and available for the jury to review.
Garrett, 2015 Tex. App. LEXIS 8439 at *11-12. The court also discussed the
closing arguments by both defense counsel and the prosecutor, noting that “[t]he
jury followed neither defense counsel’s plea for the minimum two-year sentence
nor the prosecutor’s implied plea for the maximum twenty-year sentence.” Id. at
*11.
Although the court of appeals is correct in its characterization of the
testimony from the complainant and her mother, its reliance on the testimony from
Appellant’s daughter that the father she knew was not violent and the fact that
9
State’s Exhibit 2 was admitted into evidence and available for the jury to review is
clearly misguided. Any alleged mitigating effect from this evidence cannot be
taken seriously by either this Court or the court of appeals. It was during the
daughter’s testimony that the State introduced Exhibit 2 into evidence and used the
documents contained in the exhibit to create the false impression with the jury that
Appellant had been previously convicted of assaulting his first wife in an attempt
to impeach the daughter’s credibility regarding her testimony that she knew her
father to be a nonviolent person.
Furthermore, the court’s implication that the jury could dispel any false
impression regarding Appellant’s previous criminal record because “State’s
Exhibit 2 was admitted into evidence and available for the jury to review” is
simply ludicrous. Besides the fact that there is absolutely no evidence in the record
that the jury asked that Exhibit 2 be given to them for review during their
deliberations, even if they had asked for the exhibit and took the opportunity to
review it, it is hard to imagine that any of the jurors would understand what an
order stating that the charge of simple battery was “Nolle Prossed” would mean
without an attorney explaining it to them. Indeed, Appellant’s own trial attorney
either did not examine the documents contained in the exhibit when it was tendered
for admission, or if he did, clearly did not understand what the order meant.
10
The court of appeals also found it significant that the jury assessed a
sentence somewhere in the middle of the range and did not assess the maximum
punishment as requested by the State and cites to cases in which harm was found
from the erroneous admission of evidence in which a sentence was assessed at
either the maximum or close to the maximum. Id. at *11-12. The problem with this
analysis is the fact that the jury in this case assessed a punishment somewhere in
the mid-range falsely believing that Appellant did in fact have a prior conviction
for assault. There is no doubt that the jury did in fact consider this conviction in
assessing punishment. During deliberations the jury sent out a note asking if
Appellant had served time for any other crimes. (CR: 101). The trial court’s
response was that “you have all the law and evidence you are to consider in this
case.” (CR: 101). The record shows that this was the only other crime the jury
learned about.
Conclusion.
Had the jury been aware of the fact that Appellant did not have a conviction
for assaulting his first wife, the factual circumstances of his background would
have appeared in a dramatically different light at the punishment hearing. The
record makes it clear that the jury considered this false evidence during its
deliberations in assessing punishment, thus, it cannot be said that the erroneous
11
admission of this evidence did not influence the punishment assessed. Because the
court of appeals held otherwise, this Court should exercise its supervisory powers.
TEX. R. APP. P. 66.3(f).
PRAYER FOR RELIEF
For the reasons herein alleged, Appellant prays this Court grant this petition
and, upon review, reverse the decision of the court of appeals.
Respectfully submitted,
/s/ Kathleen A. Walsh
Kathleen A. Walsh
Lynn Richardson Assistant Public Defender
Chief Public Defender State Bar No. 20802200
Dallas County Dallas County Public Defender’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, TX. 75207-4399
(214) 653-3550 (telephone)
(214) 653-3539 (fax)
12
CERTIFICATE OF SERVICE
I hereby certify that on the 9th day of October, 2015, a true copy of the
foregoing petition for discretionary review was served by electronic delivery to
the Appellate Division2 of the Dallas County Criminal District Attorney’s Office
at DCDAAppeals@dallascounty.org.; and was also served by electronic delivery to
Lisa C. McMinn, State Prosecuting Attorney, at Lisa.McMinn@spa.texas.gov.
/s/ Kathleen A. Walsh
Kathleen A. Walsh
CERTIFICATE OF COMPLIANCE
I hereby certify that the word count in this document, which is prepared in
Microsoft Word 2010, is 3,168.
/s/ Kathleen A. Walsh
Kathleen A. Walsh
2
G. Brian Garrison, the original State’s attorney on appeal, is no longer employed by the Dallas
County District Attorney’s Office.
13
APPENDIX
fi·LexisNexis·
No Shepard's Signa)TM
As of: October 7, 2015 3:53 PM EDT
Garrett v. State
Court of Appeals of Texas, Fifth District, Dallas
August 12, 20 15, Opinion Filed
No. 05-13-00883-CR
Reporter
2015 Tex. App. LEXJS 8439
ROBERT GARRETT, Appellant v. THE STATE OF TEXAS, Judgment affirmed.
Appellee
LexisNexis® Headnotes
Notice: PLEASE CONSULT THE TEXAS RULES OF
APPELLATE PROCEDURE FOR C ITATION OF
UNPUBLISHED OPINIONS. Evidence > Admissibility > Character Evidence
Evidence > Admissibility > Conduct Evidence > Prior Acts,
Prior History: [*I ] On Appeal from the 265th Judicial Crimes & Wrongs
District Court, Dallas County, Texas. Trial Court Cause No.
F-1052395-R. HNI Because a defendant is entitled to be tried for the
charged offense only and not his criminal propensities,
evidence of extraneous acts or crimes committed by the
Core Terms
defendant is generally inadmissible at the guilt-innocence
stage of trial. Tex. R. Evid. 404(b )(] ). However, such
issues, complainant's, simple battery, assault, extraneous, evidence may be admissible for purposes other tha111 character
molested, sentence, admissible, violent, a uthenticated,
conformity. Tex. R. Evid. 404(b)(2) .
convicted, hit
Evidence > Admissibility > Conduct Evidence > Prior Acts,
Case Summary Crimes & Wrongs
Criminal Law & Procedure > ... > Sexual Assault > Abuse of
Overview Children > General Overview
HOLDINGS: [ l]-Where defendant was convicted of
HN2 Under Tex. Code Crim. Proc. Ann. art. 38.37, evidence
indecency with a child, the trial court did not abuse its
of other crimes or acts committed by the defendant against
discretion in allowing the complainant to testify under Tex.
the chi ld who is the victim of the alleged offense is
R. Evid. 404(b) that defendant had been violent towards her
admissible to show, among other matters, the defendant's
fami ly because it showed why the complainant delayed in
and child's state of mind and any prior or subsequent
telling her mother that he had molested her; [2]-Defendant
relationship between them. Under Tex. R. Evid. 404(b),
was not harmed by the erroneous admission of the State's
evidence of extraneous offenses or acts may be admissible
exhibit at the punishment phase which mislead the j ury as to
to prove motive, identity, and the reason a sexual assau lt
defendant's criminal history; [3]-Given the nature of the
victim failed to report the assault promptly.
testimony, the evidence supporting the verdict, and the
nine-year punishment assessed, the appellate court could
Evidence > Admissibility > Procedural Matters > Rulings on
not find that the jury would ha ve assessed a different
Evidence
sentence had the State's exhibit been excluded; [4]-Defense
counsel's performance as to the State's exhibit did not Criminal Law & Procedure> ... > Standards of Review> Abuse
prejudice defendant. of Discretion > Evidence
Criminal Law & Procedure > Appeals > Reversible Error >
Outcome Evidence
2015 Tex. App. LEX IS 8439, *I
H N3 An appellate court reviews a trial court's decision to H N7 In the context of the erroneous admission of evidence
admit evid ence for abuse of discretion and will uphold the at punishment, harm is established if the record as a whole
decision so long as it falls within the zone of reasonable reflects a reasonable probability that the evidence might
disagreement and is correct under any theory of Jaw that have affected the punishment assessed.
finds support in the record. A decision that is erroneous will
result in reversal of the trial court's judgment only if, upon Criminal Law & Procedure > ... > Standards of Review >
a review of the entire record, the defendant was harmed, that Harmless & Invited Error > General Overview
is, only if the appellate court has grave doubt that the Criminal Law & Procedure > Appeals > Reversible Error >
outcome was free from the substantial effect of the error. General Overview
Criminal Law & Procedure> ... > Reviewability >Preservation Criminal Law & Procedure > ... > Counsel > Effective
for Revi.ew > Constitutional Issues Assistance of Counsel > Sentencing
Criminal Law & Procedure > Trials > Defendant's Rights > H N8 To obtain a reversal based on harm from counsel's
Right to Due Process deficient performance at punishment, an appellant must
ConstitUJtional Law > State Constitutional Operation show that a reasonable probability exists that, but for
counsel's unprofessional errors, the result of the punishment
ConstitUJtional Law > ... > Fundamental Rights > Procedural
Due Process > General Overview hearing wou ld have been different.
H N4 A defendant forfeits a claim on appeal that the state Criminal Law & Procedure > Appeals > Prosecutorial
due course of law clause provides more protection than the Misconduct > General Overview
federa l due process clause by fai ling to raise claim at trial.
H N9 A prosecutor's action in misleading the jury as to the
Criminal Law & Procedure > ... > Standards of Rev iew > evidence is indefensible.
Harmless & Invited Error > Evidence
Criminal Law & Procedure> Criminal Offenses> Classification
Criminal Law & Procedure > ... > Standards of Rev iew >
of Offenses > Felonies
Harmless & Invited Error > Prosecutorial Misconduct
Criminal Law & Procedure> Sentencing> Ranges
Criminal Law & Procedure > Sentencing > Imposition of
Sentence > Evidence Criminal Law & Procedure> Sentencing> Fines
Criminal Law & Procedure > Trials > Defendant's Rights > Criminal Law & Procedure > ... > Sexual Assault > Abuse of
Right to Due Process Children > Penalties
Crimina l Law & Procedure > Appeals > Prosecutorial
Misconduct > Use of False Testimony
H NJO Engaging in sexual contact with a chi ld is a second
degree felony punishable by imprisonment for any term of
H NS In the context of a due process violation stemming not more than twenty years or Jess than two years and an
from the prosecutor's use of false or misleading evidence at optional fine not to exceed $10,000. Tex. Penal Code Ann.
the punishment phase of trial, harm is established upon §§ 12.33, 21.1/(a)(/), {sfl (2011).
proof beyond a reasonable doubt that the error complained
of contributed to the verdict obtained. Criminal Law & Procedure > ... > Counsel > Effective
Assistance of Counsel > Sentencing
Criminal Law & Procedure > Trials > Defendant's Rights >
Criminal Law & Procedure > Juries & Jurors > Province of
Right to Due Process
Court & Jury > Sentencing Issues
Criminal Law & Procedure> ... > Reviewability >Preservation
for Revi.ew > Constitutional Issues HNll In determining whether counsel's deficient
performance prejudiced the appellant at punishment, the
H N6 A due process claim is not preserved for review on inquiry is whether there is a reasonable probabi lity that the
appeal unless it was raised at trial. Tex. R. App. P. 33. /(a) . jury's assessment of punishment would have been Jess
severe in the absence of defense counsel's deficient
Criminal Law & Procedure > ... > Standards of Rev iew > performance.
Harmless & Invited Error > Evidence
Criminal Law & Procedure > Sentencing > Imposition of Counsel: For Appellants: Kathleen Walsh, Katherine Drew,
Sentence > Evidence Lynn Richardson, Dallas, TX.
Page 2 of 6
2015 Tex. App. LEXIS 8439, *I
For Appellees: G. Brian Garrison, Susan Hawk, Dallas, TX. work. He and her mother were married twelve years, and
she did not recall any violence between them.
Judges: Before Justices Lang, Stoddart, and Schenck.
On cross-examination, the prosecutor asked Prentice if she
Opinion by Justice Lang.
remembered Garrett being convicted of"simple battery" for
physically assaulting her mother. Prentice testified she did
Opinion by: DOUGLAS S. LANG
not know of the conviction. [*3] Then, the prosecutor
submitted to Prentice State's Exhibit 2. The prosecutor
Opinion asked Prentice if her parents lived together in 1998 in
DeKalb County, Georgia and if the documents in the exhibit
M EM ORANDUM OPINION had Garrett's and her mother's name on them and Garrett's
date of birth. Based on her affirmative answers, the
Opinion by Justice Lang prosecutor asked Prentice if State's Exhibit 2 "appeared to
be a conviction for your dad against your mom." Prentice
A jury convicted Robert Garrett of indecency with a child replied, 'Tm guessing so," at which point the prosecutor
and assessed punishment at nine years' confinement and a offered the exhibit into evidence. Defense counsel objected
$4000 fine. Garrett raises six issues on appeal. His first five that the exhibit had not been "authenticated." The trial court
issues arise from what he claims is the erroneous admission, overruled that objection, and the exhibit was admitted into
at the punishment stage of trial, of State's Exhibit 2, records evidence.
concerning Garrett's 1998 arrest in DeKalb County, Georgia
The prosecutor published the exhibit to the jury, representing
for "simple battery" and "interference with government
to the jury that it was the record of a conviction for "simple
property." In a sixth issue, Garrett complains of the
battery" and probation. However, State's Exhibit 2 actually
admission, at the guilt-innocence stage of trial, of extraneous
reflects that Garrett pied guilty to the "interference with
offense testimony that Garrett hit the complainant's mother government property" charge and the charge for "simple
and brother. We affirm the trial court's judgment.
battery" was dismissed. Then, Garrett was placed on deferred
adjudication probation. The true content of State's Exhibit 2
I. BACK GROUND was not brought to the attention of the trial court or the jury.
In closing argument, the prosecutor characterized [*4]
The compJainant is the daughter of Garrett's ex-gi rlfriend.
Garrett as both a "child molester" and "wife beater,"
At the time Garrett and the complainant's mother began
alluding to the "simple battery conviction" and testimony of
dating in 2006, the complainant was "like five [or] six"
Garrett's violent behavior towards the complainant's mother.
years old. About a year later, while the complainant and her
family were living with Garrett, he molested the complainant.
II. EXTRANEOUS OFFENSE TESTIMONY
The complainant [*2] did not tell anyone, and Garrett
molested her again. Garrett molested the complainant at We address first Garrett's sixth issue which complains of the
least twice more before the complainant finally told her admission, at the gui It-innocence stage, of the complainant's
mother in early 20 I 0. testimony that Garrett was violent. The record reflects that,
in response to defense counsel's objection to the complainant
At trial, the complainant testified she did not immediately explaining why she was scared of Garrett, the prosecutor
disclose the abuse to her mother because she was scared of stated the testimony was admissible under article 38.37 of
Garrett. Over objection by defense counsel, the complainant the Texas Code of Criminal Procedure because it "went to
said Garrett had hit her mother in the face, breaking her her state of mind and the relationship that she had with
glasses, arnd had hit her brother. [Garrett]." See TEx. CooE CRIM. PRoc. A NN. art. 38.37 (West
Supp. 2014). Garrett asserts article 38.37 applies only to
At punishment, complainant's mother corroborated extraneous acts committed by the defendant against the
complainant's testimony that Garrett was violent and testified complainant and, because the extraneous acts of assault to
that he hit her several times during their relationship. Garrett which the complainant testified were against her family
did not testify in his defense, but called his daughter from members, the testimony was not admissible under article
his first marriage, Prentice. Prentice testified the 38.37. Garrett further asserts the testimony was inadmissible
complainant's mother's testimony was "shocking" and under Texas Rule of Evidence 404(b) which generally
inconsistent with the father she knew. Prentice testified prohibits the admission of extraneous offense evidence. See
Garrett worked hard and travelled often because of his TEX. R. Evm. 404{b).
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2015 Tex. App. LEXIS 8439, *4
A. Applicable law and Standard of Review Garrett had been violent towards her mother and brother.
Although Garrett is correct that article 38.37, upon which
HNI Because a defendant is entitled to be tried for the the State relied at trial, does not allow the testimony, the
charged offense [*5] only and not his criminal propensities, testimony was admissible under rule ofevidence 404(b). See
evidence of extraneous acts or crimes committed by the TEX. R. Evw. 404(b); Devoe. 354 S. W3d at 469. The
defendant is generally inadmissible at the guilt-innocence testimony was offered not to show character conformity, but
stage of trial. See Moses v. State. 105 S.W.3d 622. 626 354 S.W.3d 457. 469 (Tex. Crim. Ave. 201]). However, 119; Wilson. 90 S.W.3d at 394. The trial court's ruling wi ll
such evidence may be admissible for purposes other than be upheld since it is correct under the Jaw despite being
character conformity. Moses. 105 S.W.3d at 626; see also different than the specific objection of the State. See Devoe.
TEX. R. EVJo. 404(b)(2). For example, HN2 under article 354 S.W.3d at 469. We decide Garrett's sixth issue against
38.37 of the Texas Code of Criminal Procedure. evidence of him.
other crimes or acts committed by the defendant against the
child who is the victim of the alleged offense is admissible III. STATE'S EXHIBIT 2
to show, among other matters, the defendant's and child's
state of m ind and any prior or subsequent relationship Now, we address issues one through five, which raise as
between them. TEX. Cooe CRIM. PRoc. ANN. art. 38.37. error the admission of State's Exhibit 2 in the punishment
Further, under Texas Rule of Evidence 404(b)(2) , evidence phase. In his first issue, Garrett argues the prosecutor's
of extraneous offenses or acts may be admissible to prove misrepresentation of the content of the exhibit violated his
motive, identity, and the reason a sexual assault victim right to due process. [*7] 1 His second and third issues assert
failed to .report the assau lt promptly. See TEX. R. EVIo. his trial counsel's representation was inadequate as counsel
404(b); Brown v. State. 657 S.W.2d 117. 119 (Tex. Crim. failed to object to the prosecutor's misrepresentation of the
App. 1983); Wilson v. State. 90 S.W.3d 391. 394 (Tex. content of the exhibit, examine the exhibit when offered as
App.- Dallas 2002, rw pet.). evidence, and investigate Garrett's criminal history. In his
fourth and fifth issues, Garrett argues the exhibit should
HN3 An appellate court reviews a trial court's decision to have been excluded because it was not "authenticated" or
admit evidence for abuse of discretion and will uphold the
"Jinked" to him. The focus of Garrett's argument in these
decision so long as it falls within the zone of reasonable
issues is on harm; that is, the jury wou ld have assessed a
disagreement and is correct under any theory of law that
different punishment had the prosecutor not misrepresented
finds support in the record. Devoe. 354 S.W.3d at 469. A the record, trial counsel rendered effective assistance by
decision that is erroneous wi ll result in reversal of the trial
properly objecting, and the exhibit been excluded.
court's judgment only if, upon a [*6] review of the entire
record, the defendant was harmed, that is, only if the
A. Applicable law
appellate court has "grave doubt" that the outcome "was free
from the substantial effect of the error." See Barshaw v.
I. Due Process
State. 342 S.W.3d 91. 93-94 (Tex. Crim. App. 201]);
Alexander v. State. 740 S.W.2d 749. 765 (Tex. Crim. App. HNS ln the context of a due process violation stemming
1987). from the prosecutor's use of false or misleading evidence at
the punishment phase of trial, harm is established upon
B. Application of law to Facts "pro[of] beyond a reasonable doubt that the error complained
Applying the appropriate standard, we conclude no abuse of of .. . contribute[d] to the verdict obtained." See Ex parte
discretion occurred in allowing the complainant to testify Ghahremani. 332 S.W.3d 470. 477-78 (Tex. Crim. App.
Garrett also argues the prosecutor's conduct violated his right to due course of law under the Texas Constitution. However, he fails
to argue the Texas due course of law provision provides greater protection than the federal due process clause, and the case upon wh ich
he relies, Ex parte Ghahremani. 332 S.W.3d 470 (Tex. Crim. ApD. 2011), involved a due process claim only. See Ghahremani. 332
S.W.3d at 477; see also Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (HN4 defendant forfeited claim on appeal that state
due course of law clause provided more protection than federal due process clause by failing to raise claim at trial); Manns v. State, 122
S.W.3d 171, 192 n.97 (Tex. Crim. App. 2003) (analyzing claim that appellant improperly impeached with [*8] illegal.ly obtained
recorded statement solely under Fourth Am endm ent jurisprudence; although appellant relied upon Texas Constitution at trial, on appeal
he did not cite to that provision or explain how its protections differ from the Fourth Amendment).
Page 4 of 6
2015 Tex. App. LEXIS 8439, *7
2011 ). HN6 A due process claim, like many others however, Finally, in urging in closing argument a lengthy sentence,
is not preserved for review on appeal unless it was raised at the prosecutor characterized Garrett as both a "child
trial. See TEX. R. APP. P 33. ](a); Broxton v. State, 909 S. W.2d molester" and "wife beater," referring to the exhibit and the
912. 918 (Tex. Crim. App. 1985). testimony of the complainant and her mother that Garrett
had been violent towards the mother.
2. Authentication and Link of Records
In its brief on appeal, the State refers to the prosecution's
H N7 In the context of the erroneous admission of evidence statements that Garrett was convicted of "simple battery" as
at punishment, harm is established if the record as a whole a "mischaracterization." No explanation for the prosecutor's
reflects a reasonable probability that the evidence might action is attempted. HN9 Misleading the jury as to the
have affected the punishment assessed. See Alexander. 740 evidence is indefensible. See Ex parte Davis. 957 S.W.2d 9.
S. W.2d at 765. 13 CTex. Crim. App. 1997) (characterizing as "reprehensible"
prosecutor's actions in misleading the jury as to why certain
3. Ineffective Assistance of Counsel evidence was not tested and the quality of the investigation
conducted by the police). While we cannot condone what
H N8 To obtain a reversal based on harm from counsel's the State refers to as "mischaracterization" and find such
deficient performance at punishment, an appellant must action reprehensible, in determining harm, we must review
show that "a reasonable probabi lity [exists] that, but for the entire record and not only the action of the State as to the
counsel's unprofessional errors, the result of the punishment exhibit.
hearing would have been different." [*9) See Andrews v.
State. 159 S.W.3d 98. 101. 103 (Tex. Crim. App. 2005). Garrett was charged with HNJO engaging in sexual contact
[* ll ) with the complainant, a second degree felony
B. Application of Law to Facts punishable by imprisonment for any term of not more than
twenty years or less than two years and an optional fine not
As to Garrett's due process claim raised in his first issue, we to exceed $10,000. See Tex. PENAL Cove ANN. §§ 12.33,
conclude it was not preserved for our review as his sole 21.JJ(a)(]), f.J1l (West 2011). In closing argument, defense
objection to State's Exhibit 2 at trial was that the documents counsel asked the jury to "show some mercy" to Garrett,
were not "authenticated." See Broxton. 909 S.W.2d at 918. consider his steady employment and "his whole life," and
Accordingly, we decide his first issue against him. assess the minimum sentence. The prosecutor, characterizing
"child molestation" as the "worst" of the second-degree
Issues four and five address the alleged erroneous admission felonies, asked the jury to start at the top of the punishment
of State's Exhibit 2 because it was not properly authenticated. range and "then start factoring in things . .. we [can] give
As stated above, State Exhibit 2 reflected Garrett was [Garrett] credit for . . . [and things] we [can] hold as
charged with "simple battery" and "interference with aggravating factors against him." The jury followed neither
government property," but the "simple battery" charge was defense counsel's plea for the minimum two-yea r sentence
dismissed when Garrett pleaded gui lty to the "interference nor the prosecutor's implied plea for the maximum
with government property" charge. However, the record is twenty-year sentence. Instead, it assessed a nine year
clear that the jury was misled as to the content of the exhibit sentence and $4000 fine.
and what it stated as to Garrett's criminal history. Garrett's
While the jury heard from the prosecutor that Garrett was a
daughter was led to testify that the exhibit "appeared to
"wife beater" and had been convicted of assaulting his first
reflect" Garrett was convicted of assau lting her mother.
wife, the jury also heard (I) the complainant's testimony
Then, when admitted as evidence, the prosecutor published
that Garrett molested her at least four times, she was fearful
the exhibit to the jury saying:
of Garrett, and she knew Garrett had hit her mother [*12)
and brother; (2) the complainant's mother's testimony that
This is a conviction, case 98-CR-5451 -5 out of DeKalb
Garrett physically assaulted her several times during their
County, Georgia Superior Court for simple battery. It
four-year relationship; and (3) Garrett's daughter's testimony
states: On the 26th day of May 1998, the defendant,
that the father she knew was not violent. Further, State's
[* IO) Robert Garrett, did intentionally make physical
Exhibit 2 was admitted into evidence and available for the
contact with an assaultive provoking nature of the
jury to review.
person Sharyl Williams. There's also a probation
revocation order fi led on May 14, 2002 in the same Given the nature of the testimony before the jury, including
cause number. the evidence supporting the verdict, and the punishment
Page 5 of 6
2015 Tex. App. LEXIS 8439, *12
assessed, we cannot conclude the jury would have assessed probabi lity that the jury's assessment of punishment . . .
a different sentence had State's Exhibit 2 been excluded. would have been less severe in the absence of defense
Cf, e.g., Chapman v. State. 150 S.W.3d 809. 818-19 (Tex. counsel's deficient performance."). Accordingly, his second
App.- Houston U4th Dist.12004. pet. refd) (in aggravated and third issues are also decided against him.
sexual assault case, admission of outcry testimony of
extraneous offense was harmful where punishment ranged IV. CONCLUSION
from five years to ninety-nine years or life and jury assessed
eighty-eight year sentence); Aleman v. State. 49 S.W.3d 92. Having decided Garrett's six issues against him, we affirm
96 (Tex. App.- Beaumont 2001. no pet.) (in display of the trial court's judgment.
harmful material to minor case, admission of three driving
while intoxicated judgments was harmful where prosecutor /Douglas S. Lang/
relied on them to urge maximum sentence and jury assessed
DOUGLASS. LANG
maximum punishment of one year confinement in jai l and
$4000 fine). We decide Garrett's fourth and fifth issues
JUSTICE
against him.
Do Not Publish
As to issues two and three, respecting Garrett's ineffective
assistance of counsel claim, because the issues [*13] arise TEX. R. APP. P. 47
from the admission into evidence of State's Exhibit 2 and
we have concluded Garrett was not harmed by the admission J UDGMENT
of the exhibit, we necessarily conclude defense counsel's
performance as to the exhibit did not prejudice Garrett. See Based on the Court's opinion of this date, we AFFIRM the
Lair v. State, 265 S.W.3d 580. 595 (Tex. App.- Houston U st trial court's judgment.
Dist. I 2008. pet. refd) (HNll in determining whether
counsel's deficient performance prejudiced appellant at Judgment entered this 12th day of August, 2015.
punishment, inquiry is "whether there is a reasonable
Page 6 of 6