Christopher Lee Cole v. State ( 2015 )

ACCEPTED
05-14-01399-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
3/30/2015 12:25:44 PM
LISA MATZ
CLERK
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT
DALLAS, TEXAS RECEIVED IN
5th COURT OF APPEALS
DALLAS, TEXAS
3/30/2015 12:25:44 PM
CHRISTOPHER LEE COLE § LISA MATZ
Appellant § Clerk
§
VS. § APPEAL NUMBERS
§ 05-14-01398-CR
§ 05-14-01399-CR
STATE OF TEXAS § (ORAL ARGUMENT REQUESTED)
Appellee §
On Appeal from Criminal District Court Number Six
of Dallas County, Texas
No. F-13-53515
No. F-13-53516
Appellant’s Brief
RONALD L. GORANSON
2828 Routh Street
Suite 675
Dallas, Texas 75201
(214) 651-1122
(214) 871-0620 (fax)
State Bar No. 08195000
ATTORNEY FOR APPELLANT
COLE
Identity of Parties and Counsel
Appellant Christopher Lee Cole
Appellant’s Attorney Ronald L. Goranson
2828 Routh Street, Suite 675
Dallas, Texas 75201
(214) 651.1122
(214) 871-0620 (fax)
SBOT No. 08195000
Appellant’s Trial Attorney
Mr. Howard Blackmon
SBOT NO. 02395800
4144 North Central Expressway, Suite 250
Dallas, Texas 75204
Phone: (214) 821-1919
State of Texas Susan Hawk, District Attorney, Dallas County, Texas
Appellate Attorney Ms. Lori Ordiway
SBOT No. 12327300
Assistant District Attorney
133 N. RIVERFRONT BLVD, 10TH Floor
Dallas, Texas 75207
Tel. (214) 653-3644
Trial Attorneys By Mr. Blake Reyna
SBOT NO. 24051246
Assistant District Attorney
Frank Crowley Courts Building
133 North Riverfront
Dallas, Texas 75207
Phone: (214) 653-3600
Mr. Dimitri Anagnostis
SBOT NO. 24066767
Assistant District Attorney
Frank Crowley Courts Building
133 North Riverfront
Dallas, Texas 75207
Phone: (214) 653 - 3600
Appellant Cole’s Briefs 05-14-01398/399-CR Page ii
TABLE OF CONTENTS
STATEMENT OF THE CASE ……………………………………………1
ISSUES PRESENTED …………………………………………………….3
STATEMENT OF THE FACTS ……………………………..……………3
SUMMARY OF THE ARGUMENT ...……………………………………6
POINT OF ERROR 1
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE
JURY AS REQUIRED BY ART. 38.23 OF THE RULES OF
CRIMINAL PROCEDURE THAT IF THE JURY BELIEVED OR
HAD A REASONABLE DOUBT THAT THE EVIDENCE SEIZED
WAS OBTAINED IN VIOLATION OF THE CONSTITUTION OR
LAWS OF THE STATE OF TEXAS OR UNITED STATES, THE
JURY SHOULD DISREGARD THAT EVIDENCE.………….…. 7
POINT OF ERROR 2
THE EVIDENCE WAS INSUFFICIENT TO PROVE THE
ENHANCING PARAGRAPH IN EACH INDICTMENT………..17
CONCLUSION …………………………………………………..………20
CERTIFICATE OF SERVICE …………………………………..….……21
CERTIFICATE OF COMPLIANCE …………………………………….21
Appellant Cole’s Briefs 05-14-01398/399-CR Page iii
INDEX OF AUTHORITIES
CASES:
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994) 8
Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App.1985) 7, 8, 16
Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986) 8, 16
Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985) 9
Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984) 9
Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010) (citing Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)) 17
Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007) 17
Flowers v. State, 220 S.W.3d 919, 921 (Tex.Crim.App.2007) 17
Ford v. State, 444 S.W.3d 171 (Tex.App.-San Antonio 2014) 15
Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) 10
Gentile v. State, 848 S.W.2d 359, 360 (Tex.App.-Austin 1993, no writ) 18
Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012) 9
Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007) (citing Jackson, 443 U.S. at 318-19, 99
S. Ct. 2781) 17
Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) 8
Kothe v. State, 152 S.W.3d 54, 61 (Tex.Crim.App. 2004) 15
Madden v. State, 242 S.W.3d 504, 514 (Tex. Crim. App. 2007) 9
Oursbourn v. State, 259 S.W.3d 159, 177 (Tex.Crim.App.2008) 9
Payne v. State, 194 S.W.3d 689, 698 (Tex. App.--Houston [14th Dist.] 2006, pet. ref'd) 10
Pineda v. State, 444 S.W.3d 136, 143 (Tex.App.-San Antonio 2014) 15
Appellant Cole’s Briefs 05-14-01398/399-CR Page iv
Robinson v. State, 377 S.W.3d 712, 719-720 (Tex. Crim. App. 2012) 10, 14
Warner v. State, 245 S.W.3d 458, 461 (Tex.Crim.App.2008) 7
Watson v. State, 693 S.W.2d 938, 941 (Tex. Crim. App. 1985) 10
STATUTES/CONSTITUTIONS:
Art. 38.23 of the Code of Criminal Procedure 3, 6, 7, 8, 16
Rule 25.2 of the Texas Rules of Appellate Procedure 2
Art. 44.02 of the Texas Code of Criminal Procedure 2
Tex. Transp. Code § 547.302 11
Tex. Transp. Code § 547.322 11
Appellant Cole’s Briefs 05-14-01398/399-CR Page v
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT
DALLAS, TEXAS
CODY TYLER JONES §
Appellant §
§
VS. § APPEAL NUMBERS
§ 05-14-01398-CR
§ 05-14-01399-CR
STATE OF TEXAS § (Oral Argument Requested)
Appellee §
On Appeal from Criminal District Court Number Six
of Dallas County, Texas
No. F-13-53515
No. F-13-53516
Appellant’s Brief
Statement of the Case:
Appellant Christopher Lee Cole was charged with two possession of
controlled substance with intent to deliver cases. The cases were tried together.
Any errors will apply to both cases. Appellant requests that the cases be
considered together.
Appellant was charged by an indictment in F-13-53515 (Appeal #05-14-
01398-CR) with the offense of possession with intent to deliver more than 4 grams
but less than 200 grams of the controlled substance cocaine. (R 13/53515 at p.6)
Appellant Cole’s Briefs 05-14-01398/399-CR Page 1
(hereinafter R515, p. #). The indictment also alleged one prior felony conviction
for enhancement of the punishment.
In F-13-53516 (Appeal #05-14-01399-CR) he was charged with the offense
of possession with intent to deliver more than 1 gram but less than 4 grams of the
controlled substance methamphetamine. This indictment also included an
enhancing paragraph alleging the same prior conviction to enhance the
punishment. (See R 13/53516 at p. 6)(hereinafter R516, p. #).
The appellant pled not guilty and a jury trial on both guilt/innocence and
punishment was held on September 29, 2014 to October 1, 2014. On October 1,
2014 the jury found Appellant guilty on both charges, found the enhancing
paragraphs to be true and assessed a 15 year sentence in F-13-53515 (R 515, p. 63,
SF. Vol 4, p. 58) and a 7 year sentence in F-13-53516. (R 516, p. 58, SF- Vol 4, p.
58). The sentences were ordered to run concurrently. (SF – Vol 4, p. 61, R515, p.
63, R516, p. 58).
Written Notice of Appeal was filed on October 13, 2014. (R515, p. 67, R.
516, p. 68). This jurisdiction of this Court is invoked pursuant to Art. 44.02 of the
Texas Code of Criminal Procedure and Rule 25.2 of the Texas Rules of Appellate
Procedure. The cause is properly before this Court of Appeals.
Appellant Cole’s Briefs 05-14-01398/399-CR Page 2
Issues Presented:
1. The trial court erred in failing to instruct the jury as required by
Art. 38.23 of the Rules of Criminal Procedure that if the jury believed
or had a reasonable doubt that the evidence seized was obtained in
violation of the Constitution or laws of the State of Texas or United
States, the jury should disregard that evidence.
2. The evidence was insufficient to prove the enhancing paragraph in
each indictment.
Statement of Facts:
Evidence for the State on Guilt or Innocence
Dallas Police Officer David Roach testified that on March 12, 2013 he was
parked in his patrol car with officer Mills on Bexar Street in South Dallas. (SF Vol
3, p. 22). He noticed a vehicle pass that had a defective license plate light. (SF Vol
3, p. 23) The officers conducted a traffic stop. Officer Roach approached the
passenger side of the vehicle and observed a person he later identified as Appellant
light up a cigarette. (SF Vol 3, p. 25). Officer Roach asked Appellant if the
cigarette was a “blunt.” The officer stated that a “blunt” was “a common term for
marijuana cigarette.” (SF Vol 3, p. 26) Appellant answered “Yeah, I was just
about to hand it to you.” (SF Vol 3, p. 26) the officer said “Go ahead” and
Appellant handed the officer the cigarette. The officer testified that the cigarette
Appellant Cole’s Briefs 05-14-01398/399-CR Page 3
appeared to contain marijuana. (SF Vol 3, p. 26). The officer then asked the
Appellant to exit the vehicle where he was handcuffed and arrested for possessing
marijuana. (SF Vol 3, p. 26).
Officer Roach then stated that he asked the Appellant if there was anything
he needed to know about before the officer searched Appellant. Appellant
responded that there was a pill bottle with “some s**t in it.” The officer searched
the Appellant and found a clear pill bottle inside the right front pocket of
Appellant’s jacket. (SF Vol 3, p. 29). Inside the pill bottle were several baggies
that contained a crystal like substance and a white powder. (SF Vol 3, p. 29). He
testified that there were smaller empty bags also found, and that the size of the
bags and number of bags indicated the drugs were intended for resale. (SF Vol 3,
pp. 32-33). Field tests indicated the substances found were cocaine and
methamphetamine. (SF Vol 3, pp. 34-35). On cross-examination the officer
testified that the traffic stop was recorded, the recording was uploaded into the
Dallas Police system, but that it could not be found. (SF Vol 3, pp. 46-47)
On Redirect, he denied that he intentionally dumped the recording. (SF Vol 3, p
60)
Kelly Conrad testified that she was a chemist for the Southwestern Institute
of Forensic Sciences. (SF Vol 3, p. 60). She identified the baggies that were seized
from the Appellant. State’s Exhibit # 5 contained 7.4 grams of cocaine, including
Appellant Cole’s Briefs 05-14-01398/399-CR Page 4
adulterants. (SF Vol 3, pp. 69-70). State’s Exhibit #6 contained 2.24 grams of
methamphetamine. (SF Vol 3, p. 70).
Officer Tyler Mills testified that he was the driver of the police car with
Officer Roach. (SF Vol 3, p. 76) He stated that they noticed a car with a defective
license plate light and stopped it for a traffic offense. (SF Vol 3, p. 76) He stated
that he approached the driver and Officer Roach approached the passenger side.
(SF Vol 3, p. 76). He stated he heard Officer Roach ask the passenger if that was a
“blunt” in the passenger’s hand and the passenger (identified as Appellant Cole)
answered “Yeah, I was just about to give it to you.” (SF Vol 3, p. 77). After the
Appellant was arrested, he did another search and found a large hefty bag
containing a green leafy substance he identified as marijuana in the Appellant’s
front waist area (SF Vol 4, pp. 78-80). He testified that the number of baggies
found indicated an intent to sell the various drugs. (SF Vol 4, p. 80).
Irving Police Department Narcotics Detective Stephen Junker testified that
the different types of packaging and the different types of drugs indicated an intent
to sell. (SF Vol 4, pp. 95-96, 97-98, 100, 101, 103-104, 105).
Evidence for the State on Punishment
Dallas County Deputy Sheriff Fernando Hernandez stated that he took the
Appellant’s fingerprints. (SF Vol 4, p. 12). He compared the prints to conviction
records for two felonies. State’s Exhibit #9 was for a conviction in F-05-58330 for
Appellant Cole’s Briefs 05-14-01398/399-CR Page 5
unlawful delivery of cocaine resulting in a 6-year sentence. (SF Vol 4, p. 17).
This was the conviction alleged in the enhancing paragraph of each indictment. (R
515, p. 6; R516, p. 6). The state also introduced conviction records showing a
concurrent six year sentence for possession with intent to deliver cocaine in F-07-
52879 (State’s Exhibit #10, SF Vol 4, p. 18); a 10 month state jail felony sentence
for delivery of marijuana, (State’s Exhibit 11, SF Vol. 4, pp. 19-20); a concurrent
10 month state jail felony conviction for delivery of marijuana (State’s Exhibit 12,
SF vol4, p 20); a180 day state jail sentence for unauthorized use of a motor vehicle
(State’s Exhibit 13, SF Vol 4, p. 20) and a 45 day county jail sentence for evading
arrest (State’s Exhibit 14, SF Vol 4, p. 21). The officer used the fingerprint records
of all the records of conviction (except Exhibit 10) to compare with the Appellant’s
fingerprints, but he was never asked if they matched.
Evidence for The Defense on Punishment
Catherine Cole testified that she was the Appellant’s mother. (SF Vol 4, p.
25). She testified about his background and the difficulties he had while growing
up. (SF Vol 4, pp. 26-30)
Summary of the Arguments:
1. Appellant contends that the record shows that there was an issue of fact
about the constitutionality of the seizure of evidence that required the jury
instruction required by Art. 38.23 of the Code of Criminal Procedure. The
Appellant Cole’s Briefs 05-14-01398/399-CR Page 6
Appellant properly requested such an instruction. Appellant was harmed by the
trial court’s failure to give the instruction.
2. Although the State called a fingerprint examiner to compare the fingerprints
of the Appellant with those in a judgment of conviction, the State never asked the
witness if the known fingerprints of the Appellant matched those in the records of
the alleged enhancing conviction. Other than the name, there was no other
identifying information submitted to connect the Appellant to the prior conviction.
Point of Error Number 1
The trial court erred in failing to instruct the jury as required by Art.
38.23 of the Rules of Criminal Procedure that if the jury believed or
had a reasonable doubt that the evidence seized was obtained in
violation of the Constitution or laws of the State of Texas or United
States, the jury should disregard that evidence.
Standard of Review
In analyzing a jury-charge issue, the court’s first duty is to decide if error
exists. See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on
reh'g). If error is found then the court considers whether an objection to the charge
was made. Warner v. State, 245 S.W.3d 458, 461 (Tex.Crim.App.2008) (“The
failure to preserve jury-charge error is not a bar to appellate review, but rather it
establishes the degree of harm necessary for reversal.”). The degree of harm
necessary for reversal depends upon whether the error was preserved. Hutch v.
Appellant Cole’s Briefs 05-14-01398/399-CR Page 7
State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996). Error properly preserved by a
timely objection to the charge will require reversal “as long as the error is not
harmless.” Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994);
Almanza, 686 S.W.2d at 171. The Court of Criminal Appeals has interpreted this
to mean that any harm, regardless of degree, is sufficient to require reversal. Arline
v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986).
Argument
Article 38.23 provides that evidence obtained in violation of the Constitution
or laws of the United States or Texas may not be admitted in a criminal case.
TEX.CODE CRIM. PROC. art. 38.23(a) (“No evidence obtained by an officer or
other person in violation of any provisions of the Constitution or laws of the State
of Texas, or of the Constitution or laws of the United States of America, shall be
admitted in evidence against the accused on the trial of any criminal case.”). The
statute also provides that a jury instruction should be submitted if a fact issue is
raised about whether such a violation has occurred. Id. (“In any case where the
legal evidence raises an issue hereunder, the jury shall be instructed that if it
believes, or has a reasonable doubt, that the evidence was obtained in violation of
the provisions of this Article, then and in such event, the jury shall disregard any
such evidence so obtained.”). The jury instruction requires the jury to disregard
evidence that it finds was obtained in violation of the United States or Texas
Appellant Cole’s Briefs 05-14-01398/399-CR Page 8
Constitution or laws. Id. To be entitled to an Article 38.23 jury instruction, three
predicates must be met: (1) the evidence heard by the jury must raise an issue of
fact, (2) the evidence on that fact must be affirmatively contested, and (3) the
contested factual issue must be material to the lawfulness of the challenged
conduct. Oursbourn v. State, 259 S.W.3d 159, 177 (Tex.Crim.App.2008).
The Texas Court of Criminal Appeals has held that, to get an instruction on
illegally obtained evidence, there must be a fact issue that the defense has
affirmatively contested; in such a circumstance, cross-examination is insufficient
to qualify as an affirmative contest. Madden v. State, 242 S.W.3d 504, 514 (Tex.
Crim. App. 2007); see Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App.
2012). Although the court has not explicitly held that the defense must introduce
the evidence to affirmatively contest that issue, logically, most circumstances will
require the defense to introduce the evidence. However, in every other type of jury
instruction--defenses, affirmative defenses, and party liability--there is no
requirement that the instruction's proponent be the party that introduces the
evidence. If the record contains sufficient evidence raising a certain issue, the
instruction on that issue should be given, regardless of which party tendered the
evidence. See, e.g, Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985);
Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984) (“it makes no
difference whether such evidence or testimony was produced by the prosecution or
Appellant Cole’s Briefs 05-14-01398/399-CR Page 9
the accused”); see also Watson v. State, 693 S.W.2d 938, 941 (Tex. Crim. App.
1985); Payne v. State, 194 S.W.3d 689, 698 (Tex. App.--Houston [14th Dist.]
2006, pet. ref'd). When a disputed, material issue of fact is successfully raised, the
terms of the statute are mandatory, and the jury must be instructed accordingly.
Madden, supra, at 510. Evidence to justify an Article 38.23(a) instruction can
derive from any source, no matter whether strong, weak, contradicted,
unimpeached, or unbelievable. Robinson v. State, 377 S.W.3d 712, 719-720 (Tex.
Crim. App. 2012); Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004).
The evidence must raise a “factual dispute about how the evidence was obtained.”
[Robinson, supra at 719; Garza, supra at 85.
Facts Showing Error
Appellant filed a pretrial Motion to Suppress. (R515, p. 35, R 516, p. 43).
The motion alleged that the evidence seized was “obtained as a result of an
unlawful stop, detention, search and seizure …” Id. Prior to the selection of the
jury there was a hearing on Appellant’s Motion to Suppress. (SF Vol 2, pp 4-20).
Essentially Officer Roach stated that the vehicle in which Appellant was riding
was stopped because there was a defective tail light on the rear license plate. (SF
Vol 2, p. 6): “We observed the vehicle to not have an operating rear license-plate
Appellant Cole’s Briefs 05-14-01398/399-CR Page 10
1
light during nighttime hours when the headlights were on.”). Appellant’s trial
counsel questioned the officer about a recording made of the stop that was no
longer available:
Q. Is there a camera equipment or dash cam in the vehicle?
A. Yes, there was.
Q. When does that start filming; when the emergency lights come on?
A. That's correct, yes.
Q. Your vehicle would be following the vehicle in which Mr. Cole was
riding in, and how close contact did you come? You know, what was the
distance between the cars?
A. Initially, when we got behind it and stopped the vehicle -- we were
parked, it was moving, so we had to catch up initially. When the traffic stop
was occurring, maybe 10, 15 feet behind the rear bumper.
Q. It would have been captured on dash cam whether or not the light was
burned out?
A. Yes, it was captured.
Q. We don't have dash-cam video?
1
Tex. Transp. Code § 547.302: “(a) A vehicle shall display each lighted lamp and illuminating
device required by this chapter to be on the vehicle:
(1) at nighttime; and
(2) when light is insufficient or atmospheric conditions are unfavorable so that a person or
vehicle on the highway is not clearly discernible at a distance of 1,000 feet ahead.”
Tex. Transp. Code § 547.322 : “(f) A taillamp or a separate lamp shall be constructed and
mounted to emit a white light that:
(1) illuminates the rear license plate; and
(2) makes the plate clearly legible at a distance of 50 feet from the rear.
(g) A taillamp, including a separate lamp used to illuminate a rear license plate, must emit a
light when a headlamp or auxiliary driving lamp is lighted.”
Appellant Cole’s Briefs 05-14-01398/399-CR Page 11
A. I have seen the video. I am told the video is no longer in our system.
I’m not sure where it’s at.
Q. So for trial there is no dash cam?
A. That's correct.
Q. For this hearing, there is no dash cam that could provide critical evidence
whether or not the light was off?
A. Yes. (SF Vol 2, pp. 14-15)
During the trial before the jury, the testimony was essentially identical to the
testimony at the pre-trial hearing on the motion to suppress. Officer Roach stated
that the vehicle was stopped because of a defective license plate light. (SF Vol 3,
p. 23). He was cross-examined about the failure to preserve the recording of the
traffic stop:
Q. When the -- I'll call them "emergency lights."
A. Okay.
Q. -- are activated, that activates the dash cam?
A. Yes, it does.
Q. So we should have a video of the rear of the car that Mr. Cole was riding
in?
A. Yes.
Q. But we don't?
A. Once the emergency lights were activated, it records the traffic stop just
like he said. Once that's done and the arrest is made and all that stuff is
done, we take the vehicle down back to the station and download it and fill
out a piece of paper to save that video evidence for trial.
Appellant Cole’s Briefs 05-14-01398/399-CR Page 12
Me and Mills both filled out the paperwork and submitted it through
the proper channels to get it saved. Why there is no video here right now, I
have no idea. I know that following the arrest we checked to make sure it
was downloaded. It was downloaded. The file was there. But in the course
of time between that day and today, something has happened to it. I couldn't
tell you what, but I know I did attempt to bring the video to court.
Q. So Mr. Cole asked for a jury trial. You are saying that the dash-cam video
was downloaded. All of a sudden, unbeknownst to you, it mysteriously
disappears, which would corroborate whether or not the rear light was out?
A. Correct. The way it works, once it's downloaded -- every video Dallas
Police Department captures on dash cam is downloaded automatically. As
soon as you pull under the sally-port area at the station, it downloads it
wirelessly.
Once it's downloaded, you have to check and put in a piece of
paperwork to show which video you would like saved with evidence. That
keeps the City of Dallas from having hundreds and hundreds and thousands
of videos of someone blocking off a highway during an accident where there
is nothing there. No evidentiary value.
What it does is that system automatically deletes any video that isn't
marked to be saved for evidence for a certain amount of time. I think it's 90
days. After 90 days, it's deleted.
Mills and I completed the paperwork to have it saved. We checked to
see it was downloaded. The video was there. I don't know this -- what's
happened since then, if it's been automatically deleted by a system error, if
the person I gave the paperwork to save the video didn't click the right box
or if the paperwork got lost. I don't know what happened, but I took the steps
to bring the video to you.
Q. So you don't know what happened?
A. I have no idea. (SF Vol 3, pp. 47-49)
Appellant Cole’s Briefs 05-14-01398/399-CR Page 13
Officer Mills also testified on direct that the vehicle was stopped for the
traffic violation of a defective license plate light. (SF Vol 3, p. 76). He was cross-
examined about the dash cam and the missing recording. (SF Vol. 3, pp. 81-82).
Appellant’s trial counsel made a timely and proper request for the 38.23 jury
instruction. (SF Vol 3, p. 112). During his argument to the jury on guilt or
innocence Appellant’s trial counsel tried to argue the significance of the missing
recording:
Okay. Now, you heard about this burned-out light on the car. Okay. Of
course, the dash cam, I mean, how much time they spend on that, trying to
excuse that away. There should be a video showing the light was burned out,
showing they had a legitimate reason. You know. What are we really talking
about here? You know. They're talking about this traffic infraction. I went
over these other traffic infractions. The 47 in a 45, pulling over the solid
white line. This nonsense, oh, a burned-out license-plate light. You know,
people get a pass on that every day, everywhere, except if you are driving
down Bexar Street in South Dallas. (SF Vol 3, p. 119)
Evidence to justify an Article 38.23(a) instruction can derive from any
source, no matter whether strong, weak, contradicted, unimpeached, or
unbelievable. Robinson v. State, supra, at 719-720. Here the evidence was raised
by the cross-examination of the two officers. If there was no defective license-
plate light, there was no legal reason to stop the car. Both officers stated that the
only reason the vehicle was stopped was because of the defective license plate
light. (SF Vol 3, pp. 50, 81) Appellant Cole was a passenger in the car. He had
Appellant Cole’s Briefs 05-14-01398/399-CR Page 14
standing to protest the alleged traffic stop. 2 The officers clearly stated that they
recorded the top and were close enough for the video to show if the license plate
light was defective. Officer Roach went to great lengths to explain the absence of
the recording. It clearly was a fact question within the jury’s purview to determine
if the stop was “legal.”
The San Antonio Court of Appeals affirmed a murder conviction in Ford v.
State, 444 S.W.3d 171 (Tex.App.-San Antonio 2014). The opinion stated:
At trial, Deborah Edwards testified that a power cord used to charge a
cordless electric drill was also missing from her daughter's condominium.
Specifically, Deborah Edwards testified:
She had one and she bought her father one just like it. And
when we were putting things up, the cord was missing from hers. It
was in her office. . . . She bought them at the same time.
The State then moved to introduce into evidence the identical
charging cord from the drill Edwards had purchased for her father.
Ford objected that the cord was not relevant and invited speculation.
The State responded that the proffered " exhibit is an exact copy of the
charging cord that is missing from the deceased's cordless charger that
was in the office where she was found murdered by strangulation."
The trial court overruled Ford's objection and admitted the cord into
evidence.
The opinion continued:
2
See Kothe v. State, 152 S.W.3d 54, 61 (Tex.Crim.App. 2004) (holding that passengers in a vehicle may
claim a violation of the Fourth Amendment based on an unlawful investigatory stop). See also Pineda v.
State, 444 S.W.3d 136, 143 (Tex.App.-San Antonio 2014)( The investigative stop of Pineda's vehicle
without reasonable suspicion violated Pineda's Fourth Amendment rights as a passenger.)
Appellant Cole’s Briefs 05-14-01398/399-CR Page 15
The State elicited testimony that the cord was missing from the crime
scene, presented an identical cord into evidence, and argued that the
missing cord could have in fact been the murder weapon. Such
“speculation” is a proper use of circumstantial evidence and a
question of fact for the jury to resolve.
In the present case Appellant presented circumstantial evidence that an
important recording was missing. The recording could have shown that there was
no defective license plate light, thus no valid reason to stop the vehicle. With no
reason to stop, all the evidence found on the Appellant would have been seized in
violation of the Texas and United States Constitutions. This was a question that
Article 38.23 requires the jury to answer, and if the jury answers favorably to the
accused, the jury may not consider the evidence for any purpose. The jury should
have been properly charged on the issue. Appellant properly objected to the trial
court’s failure to give a 38.23 jury instruction. Pursuant to Almanza, supra, if
there is a proper request, then any harm, regardless of degree, is sufficient to
require reversal. Arline v. State, supra, at 351. If the jury does not consider the
drugs seized, there would be no conviction. Appellant was harmed by the failure
of the trial court to instruct the jury as required by Art. 38.23, Tex. Code Crim.
Pro.
Appellant requests that the convictions be reversed and the cause remanded
for a new trial.
Appellant Cole’s Briefs 05-14-01398/399-CR Page 16
Point of Error Number 2
The evidence was insufficient to prove the enhancing paragraph in
each indictment.
Standard of Review
In evaluating legal sufficiency the Court of Appeals reviews all the evidence
in the light most favorable to the trial court's judgment to determine whether any
rational jury could have found the essential elements of the offense beyond a
reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010)
(citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)). The appellate court examine legal sufficiency under the direction of the
Brooks opinion, giving deference to the responsibility of the jury “to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13
(Tex.Crim.App.2007) (citing Jackson, 443 U.S. at 318-19, 99 S. Ct. 2781); Clayton
v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).
Argument
To establish that a defendant has been convicted of a prior offense, the State
must prove beyond a reasonable doubt that (1) a prior conviction exists and (2) the
defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921
(Tex.Crim.App.2007). The Flowers court noted that Texas law does not require
Appellant Cole’s Briefs 05-14-01398/399-CR Page 17
“that the fact of a prior conviction be proven in a specific manner,” and “any type
of evidence, documentary or testimonial, may suffice.” Id. In its decision, the
Texas Court of Criminal Appeals likened the process of proving up a prior
conviction to evidentiary pieces to a jigsaw puzzle and left the ultimate decision of
whether these “pieces fit together sufficiently to complete the puzzle” with the trier
of fact under the totality of the evidence. Id. at 923 In Gentile v. State, 848 S.W.2d
359, 360 (Tex.App.-Austin 1993, no writ) a certified copy of driving record,
standing alone, was held insufficient. Appellant contends that the evidence in this
case was the same as that in Gentile - certified records of a judgment.
Facts Showing Error
Dallas County Deputy Sheriff Fernando Hernandez stated that he took the
Appellant’s fingerprints. (SF Vol 4, p. 12). He compared the prints to conviction
records for two felonies. State’s Exhibit #9 was for a conviction in F-05-58330 for
unlawful delivery of cocaine resulting in a 6-year sentence. (SF Vol 4, p. 17).
This was supposed to be the conviction alleged in the enhancing paragraph of each
indictment. (R 515, p. 6; R516, p. 6). The state also introduced conviction records
showing a concurrent six year sentence for possession with intent to deliver
cocaine in F-07-52879 (State’s Exhibit #10, SF Vol 4, p. 18); a 10 month state jail
felony sentence for delivery of marijuana, (State’s Exhibit 11, SF Vol. 4, pp. 19-
20); a concurrent 10 month state jail felony conviction for delivery of marijuana
Appellant Cole’s Briefs 05-14-01398/399-CR Page 18
(State’s Exhibit 12, SF vol4, p 20); a180 day state jail sentence for unauthorized
use of a motor vehicle (State’s Exhibit 13, SF Vol 4, p. 20) and a 45 day county jail
sentence for evading arrest (State’s Exhibit 14, SF Vol 4, p. 21). The officer used
the fingerprint records of all the records of conviction (except Exhibit 10) to
compare with the Appellant’s fingerprints, but he was never asked if they matched.
Because there were no finger print records for State’s Exhibit #10, the State
sought to prove up that conviction by asking Deputy Sheriff Hernandez if the
handwriting on State’s Exhibit #9 was similar to the defendant’s signature on
documents located in State’s Exhibit 10. He stated the signatures were “similar.”
(SF Vol 4, p. 24).
The evidence connecting the Appellant to State’s Exhibit # 9 is solely his
name – Christopher Lee Cole. Appellant contends that the lack of testimony that
the fingerprints taken from him (State’s Exhibit #8) matched the fingerprints on
State’s Exhibit # 9 and the lack of any other identifying information other than his
name is insufficient as a matter of law to sustain the finding by the jury that he was
one and the same person previously convicted. There was some testimony trying
to connect Appellant’s signature, but that testimony was limited to connecting
State’s Exhibit 9 to State’s Exhibit 10 (two previous convictions), not to any
exhibit in this present prosecution. There was no testimony about the Appellant’s
photograph, driver’s license, or social security number connecting Appellant to the
Appellant Cole’s Briefs 05-14-01398/399-CR Page 19
person named in State’s Exhibit 9. Basically, the state’s case fails because the
prosecutor failed to ask the one critical question – Do the fingerprints in State’s
Exhibit 8 match the fingerprints in State’s Exhibit 9?
Since the Appellant did not receive the minimum sentence in either case, he
has been harmed and as such the case should be remanded for a new jury trial on
punishment.
Conclusion:
For the above error Appellant requests that the convictions be reversed and
remanded as to Ground of Error 1 and for a new punishment hearing on Ground of
Error 2.
Respectfully submitted,
/s/Ronald L . Goranson
RONALD L. GORANSON
2828 Routh Street, Suite 675
Dallas, Texas 75201
(214) 651.1122 / (214) 871-0420 (fax)
State Bar No. 08195000
ATTORNEY FOR APPELLANT
Appellant Cole’s Briefs 05-14-01398/399-CR Page 20
CERTIFICATE O F SERVICE
I, the undersigned, do hereby certify that a true and correct copy of the
Appellant's Brief was delivered to Ms. Lori Ordiway, Assistant District Attorney,
Appellant Division, Dallas County District Attorney’s Office, 133 N. Riverfront
Blvd, 10th floor, Dallas, Texas, 75207 this March 30, 2015.
/s/Ronald L . Goranson
RONALD L. GORANSON
CERTIFICATE O F C O M P L I A N C E
Pursuant to Rule 9.4(i)(3), Texas Rules of Appellate Procedure, counsel for
Appellant certifies that there are #### words in this document pursuant to the
inclusions and exclusions required by Rule 9.4(i)(1), Texas Rules of Appellate
Procedure.
/s/Ronald L . Goranson
RONALD L. GORANSON
Appellant Cole’s Briefs 05-14-01398/399-CR Page 21