Van-Cleave, Jimmy Earl ( 2015 )

PD-1253-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/10/2015 4:24:47 PM
Accepted 11/12/2015 1:35:25 PM
ABEL ACOSTA
PD 1253-15 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
_______________________________________________
JIMMY EARL VAN-CLEAVE,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
_______________________________________________
On Petition for Discretionary Review from the
Fourteenth Court of Appeals in No, 14–14–00473–CR
affirming the conviction in cause number 9403197,
From the 179th District Court of Harris County, Texas
_______________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
_______________________________________________
ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas
JANI MASELLI WOOD
Assistant Public Defender
Harris County, Texas
TBN. 00791195
1201 Franklin Street, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
November 12, 2015 Fax: (713) 368-9278
Counsel for Appellant
November 10, 2015
IDENTITY OF PARTIES AND COUNSEL
Appellant: Jimmy Earl Van-Cleave
TDCJ# 682347
Robertson Unit
12071 FM 3522
Amarillo, TX 79601
Trial Prosecutor: Ms. Cara Burton
Appellate Prosecutor Ms. Carly Dessauer
Assistant District Attorney
Harris County, Texas
1201 Franklin, 6th Floor
Houston, Texas 77002
Defense Counsel at Trial: Ms. Jani Maselli Wood
Assistant Public Defender
1201 Franklin St., 13th Floor
Houston, TX 77002
Harris Wood, Jr.
701 North Post Oak Rd #245
Houston, Texas 77025
Presiding Judge: Hon. Kristen Guiney, Presiding Judge
184th District Court
Harris County, Texas
1201 Franklin, 18th floor
Houston, Texas 77002
Defense Counsel on Appeal: Jani Maselli Wood
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th Floor
Houston, Texas 77002
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Table of Contents
Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The offense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Mitigation Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The Van-Cleave Family. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Mr. Van-Cleave’s father. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
When weighing evidence for harm in constitutional error, this Court has
held that an appellate court should consider everything in the record.
Rich v. State, 160 S.W.3d 575 (Tex. Crim. App. 2005). The Court of
Appeals only considered evidence of the offense and failed to analyze
or consider the defense evidence in determining the constitutional errors
were harmless. Did the Court of Appeals err in failing to consider all
evidence from the trial in its harm analysis?. . . . . . . . . . . . . . . . . . . . . . . . . 13
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The Court of Appeals never evaluated the mitigation evidence offered
by Mr. Van-Cleave.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The integrity of the process was thwarted by Confrontation Clause
violations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
The inadmissible evidence undermined the entire theory of the defense.
.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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INDEX OF AUTHORITIES
PAGE
Cases:
Ex parte Van-Cleave,
AP-77,012, 2013 WL 2112369 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . 6, 7
Harris v. State,
790 S.W.2d 568 (Tex. Crim. App.1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
McCarthy v. State,
65 S.W.3d 47 (Tex. Crim. App.2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Rich v. State,
160 S.W.3d 575 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15
Van-Cleave v. State,
14-14-00475-CR, 2015 WL 5025653
(Tex. App.—Houston [14th Dist.] Aug. 25, 2015, no. pet. h.). . . . . . . passim
Wesbrook v. State,
29 S.W.3d 103 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15
Rules:
TEX. R. APP. P. 44.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested.
STATEMENT OF THE CASE
Mr. Van-Cleave was convicted of aggravated kidnaping on July 20, 1994. (C.R.
at 100). The Court of Criminal Appeals granted habeas relief as to punishment only
on May 15, 2013. See Ex parte Van-Cleave, AP-77,012, 2013 WL 2112369 (Tex. Crim.
App. May 15, 2013)(not designated for publication). This appeal is from the new
punishment hearing heard by the 179th district court in June 2014. (C.R. at 103).
After two days of testimony, the trial court sentenced Mr. Van-Cleave to life
imprisonment. (C.R. at 103).
STATEMENT OF THE PROCEDURAL HISTORY
In an unpublished opinion, the Fourteenth Court of Appeals affirmed Mr. Van-
Cleave’s conviction. Van-Cleave v. State, 14-14-00475-CR, 2015 WL 5025653 (Tex.
App.—Houston [14th Dist.] Aug. 25, 2015, no. pet. h.). A motion for rehearing was
filed and denied. After an extension of time, this petition is timely if filed on or
before November 11, 2015.
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GROUND FOR REVIEW
When weighing evidence for harm in constitutional error, this Court has
held that an appellate court should consider everything in the record.
Rich v. State, 160 S.W.3d 575 (Tex. Crim. App. 2005). The Court of
Appeals only considered evidence of the offense and failed to analyze
or consider the defense evidence in determining the constitutional errors
were harmless. Did the Court of Appeals err in failing to consider all
evidence from the trial in its harm analysis?
REASON FOR REVIEW
The Fourteenth Court of Appeals has decided an important question of
state or federal law in a way that conflicts with the applicable decisions
of the Court of Criminal Appeals in Rich v. State, 160 S.W.3d 575, 577-78
(Tex. Crim. App. 2005) and Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim.
App. 2000). TEX. R. APP. P. 66.3(c).
STATEMENT OF FACTS RELATIVE TO GROUND RAISED
Mr. Van-Cleave received a new punishment hearing because at his first trial, no
mitigation evidence was offered. Ex parte Van-Cleave, AP-77,012, 2013 WL 2112369
(Tex. Crim. App. May 15, 2013). In the new punishment hearing, Mr. Van-Cleave
presented numerous witnesses as well as the State offering its own witnesses.
The offense
The complainant, Marcella Hoffman, testified that in 1994 while driving home
from her job at TWA Airlines at 1:00 a.m., while on the Peirce elevated, she noticed
a white truck and the occupants were looking at her. (2 R.R. at 10-13). Her trip home
to Spring was about 15-20 miles and as she was exiting Cypresswood, she was rear-
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ended. (2 R.R. at 13-16). She was about five minutes from home and called her
husband, a Houston police officer, on her cell phone after the accident. (2 R.R. at 16-
19, 43). She exited her vehicle to get the license plate of the truck that had hit her and
testified she was grabbed from behind. (2 R.R. at 20-22). She identified Mr. Van-
Cleave as the man who grabbed her. (2 R.R. at 24). He let go for a second and she
turned and attempted to stab him with a pen. (2 R.R. at 23). She was thrown to the
ground and knocked out. (2 R.R. at 23). When she regained consciousness, she was
in the truck and was being driven away. (2 R.R. at 24). The complainant tried to grab
the steering wheel along with trying to open the door to get away. (2 R.R. at 25-26).
She bit off Mr. Van-Cleave’s finger and opened the door and rolled out of the moving
vehicle. (2 R.R. at 26-28). She hit soft ground and sprained her leg as the truck ran
over her. (2 C.R. at 28-29, 32).
While the complainant was in the truck, her husband came upon the scene in
his patrol car. (2 R.R. at 29-30). The patrol car and the truck crashed. (2 R.R. at 30).
The driver’s license of Mr. Van-Cleave was in the vehicle and while at the scene, the
complainant identified him as the person who had kidnaped her. (2 R.R. at 31-32).
The complainant’s husband, Officer Hartman stated that upon receiving the
call from his wife, he grabbed his gun and ran out to the patrol car wearing only his
sweat pants and a t-shirt. (2 R.R. at 43). He came upon the scene and saw his wife’s
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car being driven by another man behind a white truck. (2 R.R. at 44-45). He put on
his lights and decided to stop the truck. (2 R.R. at 44-45).
The truck failed to yield and was being driven erratically. (2 R.R. at 47).
Officer Hartman saw a person “bail out of the truck” after the truck had hit the police
car. (2 R.R. at 47). The truck tried to ram the patrol car again but the patrol car
rammed the truck into some trees, instead. (2 R.R. at 47). Officer Hartman jumped
out of his patrol car and was unable to find his gun. (2 R.R. at 50-51). He banged on
the window of the truck and told the driver to show him his hands - but the driver ran
away out of the truck. (2 R.R. at 50-52).
Houston police officer Bill Taber was present when Mr. Van-Cleave was
brought to the police station. (2 R.R. at 57-59). Officer Taber was present when Mr.
Van-Cleave gave a written statement to the police admitting to the offense. (2 R.R.
at 69-73). The State also offered the testimony of Harris County Deputy Michael
Squyres who photographed numerous gang-related tattoos Mr. Van-Cleave had. (2
R.R. at 75-85).
Mitigation Evidence
Deputy Squyres stated Mr. Van-Cleave had belonged to the Aryan Circle but
had successfully completed the gang renunciation program offered at TDCJ. (2 R.R.
at 77-80). The program offered at TDCJ was considered a good program at TDCJ
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and something that “most definitely” should be encouraged to inmates, according to
Deputy Squyres. (2 R.R. at 86).
Captain Antonio Gallardo, a former Marine and current prison guard from
Abilene Texas came and testified for Mr. Van-Cleave. (3 R.R. at 4-5). Captain
Gallardo stated he had never testified for an inmate before. (3 R.R. at 5). While in
prison, Mr. Van-Cleave was a good worker and reliable and responsible. (3 R.R. at 5-
6). Captain Gallardo witnessed an event where another inmate tried to engage Mr.
Van-Cleave in a fight, and Mr. Van-Cleave turned and walked away. (3 R.R. at 6).
Frank AuBuchon, an expert on prison security classification systems testified
Mr. Van-Cleave had initially had some problems in prison but had been trouble free
for the last 7 years, with only one write up. (3 R.R. 9, 16). Mr. Van-Cleave had been
housed in general population with other inmates who follow the rules and “doing
their time.” (3 R.R. at 15).
The Van-Cleave Family
Mr. Van-Cleave had numerous family members testify to the horrifying
conditions he grew up with. Wanda Ray, his aunt explained how Jimmy’s parents
were abusive and had four children removed from the home. (2 R.R at 89-91, 103-
06). Mr. Van-Cleave’s mother would beat him with a coat hanger. (2 R.R. at 90).
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Mr. Van-Cleave’s sister, Vonie Sullivan, described the tragic childhood of Mr.
Van-Cleave. (2 R.R. at 95-100). He was picked on. (2 R.R. at 96). He was beaten.
A lot. (2 R.R. at 96). Growing up, they lived in over 50 different places within 15
years. (2 R.R. at 96). They lived in hotels, the Salvation Army, and with different
family members. (2 R.R. at 96). During the times that her parents were separated, her
mother would have different men living in the house. (2 R.R. at 98). Ms. Sullivan was
repeatedly raped by her mother’s male friends. (2 R.R. at 97-98). Mr. Van-Cleave
often was in the bed with his sister while she was assaulted. (2 R.R. at 98). When Ms.
Sullivan was 11, she became pregnant by her mother’s boyfriend and had an abortion.
(2 R.R. at 98). Although Mr. Van-Cleave was hospitalized for psychiatric issues as a
child, his mother never followed through to ensure he got the necessary treatment.
(2 R.R. at 100).
Mr. Van-Cleave’s father
Mr. Van-Cleave’s father was a serial predator and molested not only his son,
but numerous other relatives. (2 R.R. at 105-10). Barbara Van-Cleave, a cousin,
personally witnessed Mr. Van-Cleave being molested as a child by his own father. (2
R.R. at 106-08). Mr. Van-Cleave’s sister was also molested by her father - starting
when she was 6. (2 R.R. at 97). Ms. Ray was raped by her brother, Mr. Van-Cleave’s
father, when she was 8. (2 R.R. at 91). Kathy Baugh, Mr. Van-Cleave’s niece barely
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escaped being molested by her aging grandfather when she was 9. (2 R.R. at 92-93).
Although she was just 9, when her grandfather asked her to straddle his naked body,
she knew something wasn’t right. (2 R.R. at 93).
Ms. Sullivan stated that having lived in that family, it made her angry and always
ready to fight. (2 R.R. at 99). Barbara Van-Cleave was also repeatedly abused, and had
similar anger issues. (2 R.R. at 107-08). Barbara described the impotence she felt as
a child continually being molested:
I think because as a child when you're growing in, you don't have
control, you don't have the say-so of what happens to you, these people
that are abusing you and neglecting you are the ones that are in control
and it sets up this cycle within you. You're told you can't tell, you're told
you get in trouble if you tell, and it's in you. It's inside you and then,
sometimes it comes out violently.
(2 R.R. at 108-09).
Numerous prison records were offered - three of which the Court of Appeals
found violated the Confrontation Clause:
Specifically, the three disciplinary reports we conclude were testimonial
in nature are the following descriptions: (1) fighting with another inmate
enters into a narrative track when it states that “[appellant] was ordered
by Lt. T. Brown to stop fighting and face the wall” and included that
“said inmate failed to obey the order”; (2) appellant's exposure of
himself adds that the act was committed “with intent to arouse the
sexual desire of himself”; and (3) possession of weapons describes them
as “two 6 inch toothbrush handles with razor blades melted into the
end” which were “intended to be used to injure another.” We conclude
the reports contain testimonial statements regarding appellant's conduct.
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Van-Cleave v. State, 14-14-00473-CR, 2015 WL 5092620, at *5 (Tex. App.—Houston
[14th Dist.] Aug. 27, 2015, no. pet. h.)
ARGUMENT
When weighing evidence for harm in constitutional error, this Court has
held that an appellate court should consider everything in the record.
Rich v. State, 160 S.W.3d 575 (Tex. Crim. App. 2005). The Court of
Appeals only considered evidence of the offense and failed to analyze
or consider the defense evidence in determining the constitutional errors
were harmless. Did the Court of Appeals err in failing to consider all
evidence from the trial in its harm analysis?
While the Court of Appeals held that the trial court committed constitutional
error - the only analysis for harm was solely focused on the facts of the offense, while
briefly noting that the State did not reference the prison infractions during closing:
The record supports that the trial court would have assessed a life
sentence irrespective of the disciplinary infractions, based on the
extremely violent facts of the present offense, committed while
appellant was on parole for sexual assault. After seven months' parole
for sexual assault and within hours of getting his first five-hour pass
from the halfway house in which he was living, appellant drove to
Galveston in a truck he had just received from his father. Appellant met
various women and went to multiple bars while in Galveston. After
leaving Galveston around midnight, appellant noticed complainant, who
was driving alone in her car. Appellant decided to rob her, take her car,
and, perhaps, “get some pussy, too.” Appellant followed the
complainant on the highway and caused an automobile accident
between his truck and complainant's car. Complainant called her
husband, a police officer, who instructed her to take note of the truck's
license plate number. Appellant asked complainant if she was injured,
and he appeared to have a nice demeanor until he saw that she was on
the phone. Complainant exited her car to obtain appellant's license plate
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number. Appellant put both hands around the complainant's neck and
tried to strangle her. Complainant was unable to breathe for a short time
and lost consciousness after being thrown to the ground.
Complainant regained consciousness on the floorboard of
appellant's truck; appellant told her she was not “going anywhere,
bitch.” Complainant attempted to grab the steering wheel in an attempt
to have appellant stop the vehicle enough that she could exit it as she
opened the door. Appellant pushed her away, reaching over with his left
hand to close the door. Complainant grabbed hold of his hand and bit
off part of his “pinkie” finger, spitting it on the floorboard of the truck.
When complainant's husband arrived at the scene, he noticed his
wife's car being driven by one male, and he found that suspicious.
Complainant's husband was in a Houston Police Department patrol car.
He turned on his lights and siren attempting to stop appellant's truck.
Appellant rammed the police vehicle and would not stop. Complainant
then rolled out of the truck. Appellant circled back and deliberately ran
over her leg. Complainant's husband's patrol car collided with the truck,
causing it to stop after appellant tried to ram the patrol car a third time.
Complainant's husband exited his patrol car and ordered appellant to
show his hands, at which time appellant abandoned his truck and ran for
cover. He was apprehended the following day after attempting to avoid
a police search.
In light of the evidence of appellant's criminal background, to
which he pleaded “true,” the facts of the present offense, and the trial
court's comments, we conclude beyond a reasonable doubt that the trial
court's admission of the disciplinary records did not contribute to
appellant's punishment. See TEX.R.APP. P. 44.2(a); Smith, 297 S.W.3d at
277. We overrule appellant's first issue.
Van-Cleave, 2015 WL 5092620, at *5-6. The Court of Appeals ultimate conclusion was
based upon the following: “In light of the evidence of appellant's criminal
background, to which he pleaded “true,” the facts of the present offense, and the trial
court's comments” the evidence was harmless. Id. Those three factors do not include
the entirety of the evidence.
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The Court of Appeals never evaluated the mitigation evidence offered by Mr.
Van-Cleave.
This Court has considered the type of review necessary for constitutional error:
In the case of the erroneous admission of evidence, we have said that
the appellate court should consider everything in the record, including
any testimony or physical evidence admitted for the jury’s consideration,
the nature of the evidence supporting the verdict, the character of the
alleged error and how it might be considered in connection with other
evidence in the case, the jury instructions, the State’s theory and any
defensive theories, closing arguments, voir dire, and whether the State
emphasized the error.
Rich v. State, 160 S.W.3d 575, 577-78 (Tex. Crim. App. 2005). As detailed in the
statement of facts, supra, Mr. Van-Cleave presented compelling evidence of his
reformation. The prison disciplinary infractions which happened subsequent to the
offense were clearly in the court’s mind. As the Court of Appeals explained, “[t]he
records were admitted at the close of evidence, and the trial court then stated it would
review the records during a brief recess.” Van-Cleave, 2015 WL 5092620, at *5.
“An appellate court should not focus on the propriety of the outcome of the
trial. Instead, the appellate court should calculate as much as possible the probable
impact of the error on the jury in light of the existence of other evidence.” Wesbrook
v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000)(internal citations omitted).
Despite this Court’s instructions in Wesbrook, the Court of Appeals only looked at the
appropriateness of the verdict of guilt:
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The record supports that the trial court would have assessed a life
sentence irrespective of the disciplinary infractions, based on the
extremely violent facts of the present offense, committed while
appellant was on parole for sexual assault.
Van-Cleave, 2015 WL 5092620, at *5.
The integrity of the process was thwarted by Confrontation Clause violations.
When evaluating harm under TEX. R. APP. P. 44.2(a), the emphasis should not
be on “the propriety of the outcome of the trial.” Harris v. State, 790 S.W.2d 568, 587
(Tex. Crim. App.1989). This Court has directed reviewing courts to determine if the
error affected “the integrity of the process leading to the conviction.” Id. “The
reviewing court should calculate, as nearly as possible, the probable impact of the
error on the jury in light of the other evidence.” McCarthy v. State, 65 S.W.3d 47, 55
(Tex. Crim. App.2002) (citations omitted).
The inadmissible evidence undermined the entire theory of the defense.
The Court of Appeals focused solely on the offense without considering all the
evidence presented during trial. There is no indication the Court of Appeals weighed
how this affected the entirety of the defense - that Mr. Van-Cleave was not the same
person who committed the offense back in 1994.
This evidence did affect the court because it undermined the entirety of the
defense that Mr. Van-Cleave was a changed man. All the mitigation presented was
thwarted by evidence which was admitted entirely unchallenged by cross-examination.
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By allowing evidence in violation of the Confrontation Clause which undermined the
defense, the trial court erred and harmed Mr. Van-Cleave’s defense.
Review should be granted.
PRAYER FOR RELIEF
For the reasons states above, Mr. Van-Cleave prays that this Court grant his
petition for discretionary review.
Respectfully submitted,
ALEXANDER BUNIN
Chief Public Defender
Harris County Texas
Jani Maselli Wood
_______________________________
JANI J. MASELLI WOOD
Assistant Public Defender
Harris County, Texas
Jani.Maselli@pdo.hctx.net
TBN. 00791195
1201 Franklin Street, 13th Floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
Attorney for Appellant
Jimmy Earl Van-Cleave
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CERTIFICATE OF SERVICE
Pursuant to Tex. R. App. Proc. 9.5, this certifies that on November 10, 2015,
a copy of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and
the Harris County District Attorney’s Office through texfile.com at the following
address:
Carly Dessauer
Assistant District Attorney
1201 Franklin Street, 6th Floor
Houston, TX 77002
Dessauer_Carly@dao.hctx.net
Lisa McMinn
Lisa.McMinn@SPA.texas.gov
Jani Maselli Wood
_________________________________
JANI J. MASELLI WOOD
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CERTIFICATE OF COMPLIANCE
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this
petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).
1. Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this
petition contains 2963 words printed in a proportionally spaced typeface.
2. This petition is printed in a proportionally spaced, serif typeface using
Garamond 14 point font in text and Garamond 14 point font in footnotes produced
by Corel WordPerfect software.
3. Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.
Jani Maselli Wood
____________________________
JANI J. MASELLI WOOD
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Appendix A
Opinion Van-Cleave v. State
Van-Cleave v. State, Not Reported in S.W.3d (2015)
2013 WL 2112369, at *1 (Tex.Crim.App. May 15, 2013) (not
2015 WL 5092620 designated for publication).
Only the Westlaw citation is currently available.
SEE TX R RAP RULE 47.2 FOR DESIGNATION AND At the outset of his second punishment hearing, appellant
SIGNING OF OPINIONS. pleaded “true” to an enhancement paragraph alleging a prior
conviction for sexual assault. During the hearing, the State
DO NOT PUBLISH — TEX.R.APP. P. 47.2(B). presented evidence describing the present offense and proving
that appellant was on parole for the sexual-assault conviction
Court of Appeals of Texas, when he committed the present offense. Appellant presented
Houston (14th Dist.). mitigating testimony revealing a difficult upbringing and
testimony from two witnesses—prison guard, Antonio
Gallardo, and correctional consultant, Frank AuBuchon.
Jimmy Earl Van–Cleave, Appellant Gallardo testified regarding supervising appellant working in
v. prison. AuBuchon testified about appellant's behavior during
The State of Texas, Appellee his incarceration; according to AuBuchon, appellant
NO. 14–14–00473–CR | Memorandum Opinion filed misbehaved and had disciplinary issues initially but later
August 27, 2015 demonstrated good conduct in prison. At the close of
evidence, the State offered appellant's prison disciplinary
records containing descriptions of numerous infractions early
On Appeal from the 179th District Court, Harris County, in his incarceration. The trial court overruled appellant's
Texas, Trial Court Cause No. 9403197 objection and admitted the records.
Attorneys and Law Firms In closing argument, the State did not dispute that appellant
displayed an ability “to clean up his act” while incarcerated,
Jani J. Maselli Wood, for Appellant. but argued that he was not capable of behaving appropriately
in the “free world.” The State emphasized that appellant had
Carly Dessauer, Devon Anderson, for Appellee. been on parole for only seven months when he committed the
Panel consists of Justices Boyce, McCally, and Donovan. present offense.
MEMORANDUM OPINION The record reflects that, before deciding appellant's sentence,
the trial court took a brief recess stating it would review
appellant's prison disciplinary records which had just been
admitted. The trial court did not mention appellant's
disciplinary records when orally pronouncing the life
John Donovan, Justice sentence. The trial court stated that, but for appellant's
“absolutely horrific and tragic” childhood, he may have
*1 Appellant, Jimmy Earl Van–Cleave, appeals the trial developed very differently, but the court could not ignore “the
court's sentence of life in prison on appellant's conviction for extreme violence” and his “criminal background.”
aggravated kidnapping. In two issues, appellant argues that
the trial court erred in admitting appellant's prison II. Analysis
disciplinary records containing evidence of extraneous
offenses. We affirm. Appellant presents two numbered issues but argues that the
trial court erred by admitting appellant's prison disciplinary
records for three reasons: (1) the extraneous offenses
I. Background contained therein were not proven beyond a reasonable doubt;
(2) the descriptions of the offenses were testimonial in nature,
On July 20, 1994, appellant was convicted of aggravated such that their admission violated appellant's Sixth
kidnapping and sentenced to life in prison. Appellant was Amendment right to confrontation; and (3) the State failed to
granted habeas corpus relief as to punishment only on the provide proper notice of its intent to use the records.
ground that he received ineffective assistance of counsel
because there was no offer of mitigating evidence during the
punishment phase. See Ex Parte Van–Cleave, No. AP–77012, A. Reasonable–Doubt Argument
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Van-Cleave v. State, Not Reported in S.W.3d (2015)
*2 In one portion of his first issue, appellant argues that the records. See Delgado, 235 S.W.3d at 252. The fact
extraneous offenses contained in the disciplinary records that, for prison disciplinary purposes, the
never could be proven beyond a reasonable doubt because the preponderance-of-the-evidence standard applies
preponderance-of-the-evidence standard applied when would not necessarily preclude the fact-finder in this
determining whether there was a disciplinary infraction. case from deciding the reasonable-doubt standard
was also satisfied. “A judge in a bench trial is
We review a trial court's admission of evidence under the presumed to have applied the correct law to the
abuse-of-discretion standard. Moses v. State, 105 S.W.3d 622, facts.” Coonradt v. State, 846 S.W.2d 874, 876
627 (Tex.Crim.App.2003). A trial court abuses its discretion (Tex.App.— Houston [14th Dist.] 1992, pet. ref'd);
when its decision “lies outside the zone of reasonable see also Fields, 1 S.W.3d at 688 (citing McMillan v.
disagreement.” Murchison v. State, 93 S.W.2d 239, 249 Pennsylvania, 477 U.S. 79, 91 (1986) (“[s]entencing
(Tex.App.—Houston [14th Dist.] 2002, pet. ref'd) (citing courts have traditionally heard evidence and found
Montgomery v. State, 810 S.W.3d 372, 391 facts without any prescribed burden of proof at
(Tex.Crim.App.1990)). all.”)).
Texas Code of Criminal Procedure article 37.07 provides: We hold that the trial court correctly applied the law
and could have concluded beyond a reasonable
[E]vidence may be offered by the state and the doubt that appellant committed the offenses
defendant as to any matter the court deems contained in the prison disciplinary reports because
relevant to sentencing, including but not it had before it the contents of the records and
limited to the prior criminal record of the AuBuchon's testimony corroborating some of the
defendant, his general reputation, his incidents in the reports confirming appellant was not
character, an opinion regarding his character, a model prisoner early in his term. See Coonradt,
the circumstances of the offense for which he 846 S.W.2d at 876. Additionally, error in the
is being tried, and, notwithstanding Rules 404 admission of the prison disciplinary reports would be
and 405, Texas Rules of Evidence, any other harmless for the reasons set forth in Section B. See
evidence of an extraneous crime or bad act Martinez v. State, 313 S.W.3d 358, 369
that is shown beyond a reasonable doubt by (Tex.App.—San Antonio 2009, pet. ref d)
evidence to have been committed by the (concluding that the omission of a reasonable-doubt
defendant or for which he could be held instruction in a jury charge regarding unadjudicated
criminally responsible. offenses was not harmful error when the entirety of
the evidence is reviewed).
Tex.Code Crim. Proc. Ann. art. 37.07, § 3(a) (West,
Westlaw through 2015 R.S.). B. Contention Regarding Confrontation Clause
*3 In another portion of his first issue, appellant
During the punishment phase, extraneous-offense contends that the disciplinary reports contain
evidence may be offered for any relevant purpose testimonial statements and thus their admission
where the “State can offer proof that would allow a violated his Sixth Amendment right to confront
reasonable fact-finder to conclude, beyond a witnesses. See U.S. Const. art. VI. The
reasonable doubt, that the defendant could be held Confrontation Clause of the Sixth Amendment bars
criminally responsible for that act.” Delgado v. the admission of a non-testifying witness's
State, 235 S.W.3d 244, 252 (Tex.Crim.App.2007); testimonial statements, unless the witness is
Fields v. State, 1 S.W.3d 687, 688 unavailable and the defendant had a prior
(Tex.Crim.App.1999) (requiring the fact-finder may opportunity to cross-examine the witness. See Smith
not consider extraneous-offense evidence unless it is v. State, 420 S.W.3d 207, 223 (Tex.App.—Houston
satisfied beyond a reasonable doubt that the prior [1st Dist.] 2013, pet. ref'd) (citing Crawford v.
acts are “attributable to the defendant.”) Washington, 541 U.S. 36, 59 (2004)). A statement is
generally considered “testimonial” if it is a solemn
declaration made for the purpose of establishing
The fact-finder in this case was the trial court. To some fact. Id. (citing Crawford, 541 U.S. at 51). We
admit the extraneous-offense evidence, the trial court review de novo a determination of whether a
must believe beyond a reasonable doubt that the statement is testimonial because such a legal ruling
appellant “could be held criminally responsible” for is determined by the standard of an objectively
the offenses contained in the prison disciplinary reasonable declarant standing in the shoes of the
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Van-Cleave v. State, Not Reported in S.W.3d (2015)
actual declarant. See Lilly v. Virginia, 527 U.S. 116, defendant's violation of jail rules, cell transfers, and
137 (1999); Wall v. State, 184 S.W.3d 730, 742–43 fighting, is not inadmissible hearsay; rather, the jail
(Tex.Crim.App.2006). records qualify as records made in the regular course
of business.” Jackson v. State, 822 S.W.2d 18,
30–31 (Tex.Crim.App.1990) (en banc); see Tex.R.
The disciplinary records contain the following Evid. 803(6). Evidence that falls within a firmly
descriptions of offenses: rooted exception to the hearsay rule does not violate
the Confrontation Clause, and the business-records
On the date and time listed above, and at 12 Bldg. B exception provides such a foundation. See Russeau
Pod 63 Cell, [appellant] did assault [another inmate] v. State, 171 S.W.3d 871, 880
without a weapon, by spitting on him. Moreover, the (Tex.Crim.App.2005). However, the disciplinary
assault did not result in any injuries. reports should not contain testimonial statements,
unless the strictures of the Confrontation Clause
On the date and time listed above, and at Z-wing have been satisfied.Id. at 881. Otherwise, such
l-row, [appellant] did expose his penis to [Officer] testimonial statements amount to the very type of
with intent to arouse the sexual desire of himself. evidence the Confrontation Clause intended to
prohibit: “unsworn, ex parte affidavits of
government employees.” Id. The Russeau court
On the date and time listed above, and at cell Z–122, ruled that the trial court erred in admitting the
[appellant] did intentionally damage the food slot defendant's disciplinary records containing
door on his cell front door, by banging the door inadmissible testimonial statements because the
numerous times until it broke off the hinges said Confrontation Clause's requirements had not been
property belonging to [The State]. met. Id. at 880. In Russeau, the defendant's
disciplinary offenses included “threatening physical
harm and even death to others, refusing to work or
On the date and time above, and at H–119, cooperate, breaking out of his cell at night, exposing
[appellant] did possess contraband, namely 2 pair of himself and masturbating in front of jailers and other
shorts, which is in excess of the amount authorized, inmates, verbally abusing jailers and other inmates,
such amount being 1 pair of shorts. fighting with other inmates, and possessing
contraband, including improvised weapons.” Id. In
concluding that the disciplinary report contained
On the date and time above, and at cell M–210, inadmissible testimonial hearsay, the Russeau court
[appellant] did possess a weapon intended to be used found particularly persuasive “the detailed and
to injure another person, namely two 6 inch graphic” nature of the report that recounted
toothbrush handles with razor blades melted into the appellant's numerous offenses. Id.
end.
*4 In contrast, our court's review of a similar
On the date and time above, and at bldg hallway, situation involving testimonial hearsay and prison
[appellant] did engage in a fight without a weapon disciplinary records found that a sterile recitation of
with [another inmate]. [Appellant] was ordered by the defendant's offenses and the punishments
[Officer] to stop fighting and face the wall and received contained no testimonial content and thus
[appellant] failed to obey the order. did not violate the Confrontation Clause. See Ford v.
State, 179 S.W.3d 203, 209 (Tex.App.—Houston
[14th Dist.] 2005, pet. ref'd). The accounts
On the date and time above, and at a-turnout door, considered in Ford were the following:
[appellant] refused to turn out for his work
assignment without a legitimate reason. February 5th, 2004, the defendant was charged
fighting. Seven days loss of privileges, found
guilty, October 15, 2003, extortion. June the
11th, 2003, extortion, ten days loss of
The Court of Criminal Appeals has held that a privileges. April the 21st, 2003, assault on an
defendant's jail records, introduced at the inmate. April 21st, 2003, horseplaying,
punishment phase of trial, “chronicling the altercation, five days' loss of privileges.
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Van-Cleave v. State, Not Reported in S.W.3d (2015)
February the 24th, 1998, 25 days loss of Court of Appeals has held the following language
privileges for fighting. February the 18th, went beyond “boilerplate” language and contained
1998, fighting. February the 18th, 1998, subjective observations from non-testifying
fighting. And again February the 18th, 1998, witnesses:
fighting.
...was disrupting in Ms. Richmond's class. He
Id. at 208. was sent out to security. Youth refused to go.
Student was counseled by staff and refused to
comply. Mr. Henderson tried counseling with
In a subsequent case, our court contrasted Ford with ... [Youth]. He refused all counseling. Youth
Russeau to further delineate between testimonial and then moved away from staff trying to run. I
non-testimonial statements. See Grant v. State, 218 grabbed ... [Youth] to place him in a standing
S.W.3d 225, 231 (Tex.App.—Houston [14th Dist.] PRT .... balled his fists up and swung at staff.
2007, pet. ref'd). Relying on Ford, our court Mr. Henderson took ... [Youth] and placed
explained that the “presence or absence of a him into a part. At this time Mr. Spearman ...
subjective narration of events related to [the came to assist. I then went down and secured
defendant's] guilt or innocence” establishes the his legs.
difference between testimonial and non-testimonial
statements: *5 Smith, 420 S.W.3d at 225.
[I]n Ford, we conceptualized the difference ...
as dependent in part on the extent to which the While some of the incident reports in the present
statements are a sterile recitation of facts or a case align closely with Ford 's sterile model, we
subjective narration of events related to conclude that three reports include testimonial
appellant's guilt or innocence. In Ford, the descriptive phrases and brief narrative accounts
statements in the disciplinary reports were resembling those found in Smith. See id.
objective statements that particular Specifically, the three disciplinary reports we
punishments were assessed for the identified conclude were testimonial in nature are the following
disciplinary infractions by the appellant; they descriptions: (1) fighting with another inmate enters
were not narratives by witnesses against the into a narrative track when it states that “[appellant]
appellant relating to his guilt or innocence of was ordered by Lt. T. Brown to stop fighting and
the infractions described. Consequently, the face the wall” and included that “said inmate failed
statements were nontestimonial. In contrast, to obey the order”; (2) appellant's exposure of
the statements in Russeau contained subjective himself adds that the act was committed “with intent
narrations of the very actions by the appellant to arouse the sexual desire of himself”; and (3)
that constituted the offenses for which he is possession of weapons describes them as “two 6
punished. Thus, the presence of a subjective inch toothbrush handles with razor blades melted
narration of events related to the appellant's into the end” which were “intended to be used to
guilt or innocence is a significant difference injure another.” We conclude the reports contain
between the statements at issue in Russeau and testimonial statements regarding appellant's conduct.
Ford. See Smith, 297 S.W.3d at 276–77.
Id.
The extraneous phrases in the written observations
The Court of Criminal Appeals has adopted this that make it more probable that the appellant was
rationale for delineation of testimonial versus guilty of the offense charged are testimonial in
non-testimonial nature of records in similar nature. See id. We determine that the detail used to
circumstances. See Smith v. State, 297 S.W.3d 260, describe appellant's guilt of the extraneous offenses
277 (Tex.Crim.App.2009). The Smith court held that is testimonial hearsay and is inadmissible without
“boilerplate” language which does not contain any appellant's prior opportunity to cross-examine the
such testimonial statements, narratives of specific pertinent witness or a showing that the witness was
events, or written observations is admissible. Id. at unavailable. See id. Thus, we hold that the trial court
276; see also Segundo v. State, 270 S.W.3d. 79, erred in admitting three of appellant's disciplinary
108–07 (Tex.Crim.App.2009). Likewise, the First reports which included testimonial hearsay.
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Van-Cleave v. State, Not Reported in S.W.3d (2015)
complainant if she was injured, and he appeared to
have a nice demeanor until he saw that she was on
Having found constitutional error as to the three the phone. Complainant exited her car to obtain
offenses described, we “must reverse [the] appellant's license plate number. Appellant put both
punishment unless [we] determine beyond a hands around the complainant's neck and tried to
reasonable doubt that the error did not contribute to strangle her. Complainant was unable to breathe for
the ... punishment.” Tex.R.App. P. 44.2(a); see also a short time and lost consciousness after being
Smith, 297 S.W.3d at 277 (citing Chapman v. thrown to the ground.
California, 386 U.S. 18, 24 (1967)). We hold that
beyond a reasonable doubt the admission of *6 Complainant regained consciousness on the
appellant's disciplinary records did not contribute to floorboard of appellant's truck; appellant told her she
his punishment. was not “going anywhere, bitch.” Complainant
attempted to grab the steering wheel in an attempt to
The State did not reference appellant's prison have appellant stop the vehicle enough that she
disciplinary infractions during its closing argument. could exit it as she opened the door. Appellant
Rather, the State emphasized the callous nature of pushed her away, reaching over with his left hand to
the present offense, noting that appellant reoffended close the door. Complainant grabbed hold of his
after only seven months' parole and within hours of hand and bit off part of his “pinkie” finger, spitting
receiving a five-hour pass from the halfway house in it on the floorboard of the truck.
which he was living.
When complainant's husband arrived at the scene, he
Furthermore, the trial court made no reference to noticed his wife's car being driven by one male, and
appellant's prison conduct in pronouncing his he found that suspicious. Complainant's husband was
sentence. The records were admitted at the close of in a Houston Police Department patrol car. He
evidence, and the trial court then stated it would turned on his lights and siren attempting to stop
review the records during a brief recess. When appellant's truck. Appellant rammed the police
announcing appellant's sentence, the trial court made vehicle and would not stop. Complainant then rolled
no mention of the prison disciplinary reports. The out of the truck. Appellant circled back and
trial court expressed only that “at the end of the day, deliberately ran over her leg. Complainant's
though, the Court cannot ignore the extreme violence husband's patrol car collided with the truck, causing
and your criminal background,” and it took into it to stop after appellant tried to ram the patrol car a
account appellant's plea of true on the enhancement third time. Complainant's husband exited his patrol
paragraph and found it to be true. car and ordered appellant to show his hands, at
which time appellant abandoned his truck and ran for
The record supports that the trial court would have cover. He was apprehended the following day after
assessed a life sentence irrespective of the attempting to avoid a police search.
disciplinary infractions, based on the extremely
violent facts of the present offense, committed while In light of the evidence of appellant's criminal
appellant was on parole for sexual assault. After background, to which he pleaded “true,” the facts of
seven months' parole for sexual assault and within the present offense, and the trial court's comments,
hours of getting his first five-hour pass from the we conclude beyond a reasonable doubt that the trial
halfway house in which he was living, appellant court's admission of the disciplinary records did not
drove to Galveston in a truck he had just received contribute to appellant's punishment. See
from his father. Appellant met various women and Tex.R.App. P. 44.2(a); Smith, 297 S.W.3d at 277.
went to multiple bars while in Galveston. After We overrule appellant's first issue.
leaving Galveston around midnight, appellant
noticed complainant, who was driving alone in her C. Contention Regarding Defective Notice
car. Appellant decided to rob her, take her car, and, In his second issue, appellant contends that the trial
perhaps, “get some pussy, too.” Appellant followed court erred in admitting the disciplinary records
the complainant on the highway and caused an because the State failed to provide proper notice of
automobile accident between his truck and its intent to use extraneous offense. Appellant asserts
complainant's car. Complainant called her husband, the State's notice reflected that every prison
a police officer, who instructed her to take note of disciplinary offense occurred in Walker County, a
the truck's license plate number. Appellant asked county in which appellant argues he was never
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Van-Cleave v. State, Not Reported in S.W.3d (2015)
incarcerated. Although appellant lists this assertion
as an issue at the outset of his brief, he cites no
authority or record references to support this
assertion. An appellant's brief must contain
“argument for the contentions made, with
appropriate citations to authorities and to the
record.” Tex.R.App. P. 38.1(i). Failure to properly
brief an issue presents nothing for us to review; we
are not required to make appellant's arguments for
him. See Lucio v. State, 351 S.W.3d 878, 896
(Tex.Crim.App.2011) (citing Busby v. State, 253
S.W.3d 661, 673 (Tex.Crim.App.2008) ).
Accordingly, we overrule appellant's second issue.
We affirm the trial court's judgment.
All Citations
Not Reported in S.W.3d, 2015 WL 5092620
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