William David Parsons v. State ( 2015 )

ACCEPTED
13-14-00309-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
4/2/2015 11:26:57 AM
DORIAN RAMIREZ
CLERK
No. 13-14-00309-CR
IN THE FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
THIRTEENTH COURT OF APPEALS
4/2/2015 11:26:57 AM
DORIAN E. RAMIREZ
at Corpus Christi Clerk
_______________
WILLAIM DAVID PARSONS
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
_______________
Appealed from Cause Number S-12-3254CR
In the 36th Judicial District Court of
San Patricio County, Texas
________________________________________________________________________
APPELLEE’S BRIEF
________________________________________________________________________
Michael E. Welborn
District Attorney
Samuel B. Smith, Jr.
Assistant District Attorney
Texas Bar No. 18682570
P.O. Box 1393
Sinton, Texas 78387
Tel. (361) 364-9390
Fax (361) 364-9490
samuel.smith@co.san-patricio.tx.us
ATTORNEY FOR APPELLEE,
THE STATE OF TEXAS
No. 13-14-00309-CR
IN THE
THIRTEENTH COURT OF APPEALS
at Corpus Christi
_______________
WILLAIM DAVID PARSONS
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
_______________
Appealed from Cause Number S-12-3254CR
In the 36th Judicial District Court of
San Patricio County, Texas
__________________________________________________________________
______
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL iii
INDEX OF AUTHORITIES iv
STATEMENT OF THE CASE 5
STATE’S REPLY TO APPELLANTS ISSUES 5
STATEMENT OF FACTS 5,6,7,8
SUMMARY OF THE ARGUMENT AND 8
REPLY TO APPELLANT’S FIRST ISSUE
ARGUMENT AND AUTHORITIES ISSUE NUMBER ONE 8,9,10
SUMMARY OF THE ARGUMENT AND 10
REPLY TO APPELLANT’S SECOND ISSUE
ARGUMENT AND AUTHORITIES ISSUE NUMBER TWO 10, 11
CONCLUSION/PRAYER 12
CERTIFICATE OF SERVICE 12
CERTIFICATE OF COMPLIANCE 13
ii
IDENTITY OF PARTIES
APPELLANT: William David Parsons
TRIAL JUDGE Hon. Joel Johnson
Judge Presiding
36th Judicial District
400 W. Sinton Street
Sinton, Texas 78387
ATTORNEYS
TRIAL ATTORNEY FOR STATE Samuel Boyd Smith, Jr.
AND APPEAL Assistant District Attorney
SBOT 18682570
P.O. Box 1393
Sinton, Texas 78387
361-364-9390
samuel.smith@co.san-
patricio.tx.us
FOR THE APPELLANT AT TRIAL John S. Gilmore, Jr.
SBOT 07958500
622 S. Tancahua
Corpus Christi, Texas 78401
361-882-4378
Christopher Dorsey
SBOT 24036493
606 N. Carancahua
Corpus Christi, Texas 78401
361-882-9991
FOR THE APPELLANT ON APPEAL Richard W. Rodgers
SBOT 17191200
710 Buffalo Street Suite 202
Corpus Christi, Texas 78401
351-888-7620
iii
INDEX OF AUTHORITIES
Cases Page
Manns v State, 122 S.W. 3d 171(Tex. Crim. App, 2003) 9
Manns v State, 122 S.W. 3d 171(Tex. Crim. App, 2003) 10
Dossett v. State, 216 S.W. 3d, 7(Tex. App – San Antonio 2006, ( pet ref’d) 11
Powell v State, 63 S.W. 3d, 435 (Tex. Crim. App, 2001 11
Tienda v State, 358 S.W. 3d, 633 (Tex. Crim. App, 2012) 11
Rules and Statutes
Tex. Crim. Evid. 901(a) 10
iv
STATEMENT OF CASE
William David Parsons (hereafter “Appellant”) was indicted for the offense of capital
murder on September 4, 2012. The offense occurred October 19, 2011. Clerk’s record (hereafter
“CR”) Volume (hereafter “V”) 1, pp. 6-7. The State did not seek the death penalty, CR, V 1, pp
105 – 110. A jury was selected May 27, 2014 and the case was tried on Appellant’s pleas of not
guilty. CR, V 1, pp 66, 67. Appellant testified in support of his plea of not guilty, Reporter’s
Record (hereafter “RR”), V. 10, pp 155-181. The jury found Appellant guilty of capital murder
on May 30, 2014. CR, V. 1, pp. 85-88. The court then assessed the mandatory life without
parole sentence. RR, V. 11, pp. 48, 49. Appellant gave timely notice of appeal. CR, V. 1, pp. 89,
90.
STATE’S REPLY TO APPELLANTS ISSUES
ISSUE NUMBER ONE
The trial court did not commit reversible error in admitting the letter and notes of the
Appellant’s. There is no evidence that the State and co-defendant Fuentes had entered into an
agency agreement.
ISSUE NUMBER TWO
State’s Exhibit 12 was properly admitted over Appellant’s objection. The trial court after
hearing the evidence establishing the chain of custody of the exhibit, from the seizure of the
exhibit from the Appellant to the delivery to the lab for testing, properly admitted Exhibit 12.
STATEMENT OF FACTS
The evidence at trial concerned the killing and robbery of George Cardenas, hereafter
“Cardenas.” The lifeless body of Cardenas was discovered October 20, 2011 in his home in San
5
Patricio County, Texas. RR, V. 9, p. 15. The house had been forcibly entered. RR, V. 9, p. 16.
There was evidence that Cardenas had been bludgeoned to death. RR, V. 9, pp. 17, 104.
Cardenas’ house had been ransacked and property taken. RR, V. 9, pp. 22, 91, 123. An
informant’s tip caused the investigation into the crime to focus on Appellant and Alvino Fuentes,
Jr. (hereafter “Fuentes”). RR, V. 9, p. 25. Fuentes 3 eventually told the investigators that he was
involved in Cardenas’ death, along with Appellant. RR, V. 9, p. 28. Appellant and Fuentes were
subsequently arrested. RR, V. 9, p.111. Appellant denied involvement in Cardenas’ death and
robbery, both during the investigation, RR, V. 9, p. 131, and at trial, RR, V. 10, pp. 148 – 152.
Accomplice witness Fuentes gave crucial testimony against Appellant at trial. He testified that he
and Appellant had been friends since high school. RR, V. 9, p. 189. He said that Appellant
formulated a plan to rob a drug dealer in October of 2012 in San Patricio County, Texas. RR, V.
9, pp. 193, 194. They walked to the man’s home. Appellant turned off the lights in the home by
the outside breaker box. Fuentes lay back while Appellant approached the front door and hit the
occupant with a roofing hammer and entered the home. RR, V. 9, pp. 193 - 195. Fuentes said he
helped Appellant by turning the lights back on at Appellant’s later command. RR, V. 9, p. 196.
Fuentes said he waited outside the home until he went in to tell Appellant it was time for the two
to escape. RR, V. 9, p. 198. The two then walked to a nearby bridge and split the money and
drugs Appellant had gotten while in the home. RR, V. 9, p. 198. The State corroborated Fuente’s
story about Appellant killing and robbing Cardenas by offering a number of written
communications from Appellant to Fuentes. These communications began after Fuentes had
confessed to law enforcement by telling them that he and Appellant had killed and robbed
Cardenas. RR, V. 9, p. 210. The communications were written while both men were in custody
after indictment and awaiting Appellant’s trial. RR, V. 9, 210. The inception of the writings
6
began when Fuentes and Appellant were placed in the same cell when they were first charged
with murder. They discussed the case and agreed that if they were separated, they would
communicate by coded correspondence. RR, V. 9, p. 206. Both Appellant and Fuentes were
represented by counsel at the time. RR, V. 9, p. 210. Fuentes testified at trial that he received a
number of notes and letters from Appellant after he and Appellant were separated. Fuentes’
practice was to turn the communications over to his attorney. The attorney would then give them
to the prosecutor’s office. RR, V. 9, p. 211. Fuentes admitted he had initiated the written
communications by writing Appellant the first letter. RR, V. 9, p. 216. Fuentes said the essence
of the communications was an attempt to induce him to take the blame or blame another for the
crime so Appellant could go free. RR, V. 9, p. 215. Appellant objected to each item of
correspondence based on a violation of his Sixth Amendment right to counsel. RR, V. 10, p. 12.
The Appellant’s attorneys’ took Fuentes on voir dire out of the presence of the jury. RR, V. 9, pp
209 - 231. The court after hearing the proffered testimony ruled that the State did not direct the
action of Fuentes and appellant’s objections were overruled. RR, V. 9, pp. 230, 231. The
communications, if taken at face value, strongly pointed to Appellant’s guilt. Exhibit 30 was a
note Appellant surreptitiously passed to Fuentes. RR, V. 10, pp. 13 – 15. In summary, it asked
Fuentes to take responsibility for the crime, along with another person. Appellant said that he
would financially reward Fuentes for this. Exhibit 31 was another secretly passed note. The note
asked Fuentes to say he had placed a blood smear on Appellant’s eyeglasses the day after the
murder. (This was in connection with a DNA analysis finding that Cardenas’ blood was on
eyeglasses worn by Appellant at the time of the murder. RR, V. 10, p. 111.) The State’s Exhibits
33, 33A, 33B, and 33C were letters delivered by U.S. Mail. Appellant again objected on Sixth
Amendment grounds. RR, V. 10, p. 27. The correspondence again alluded to the perjury
7
concerning the eyeglasses, with Appellant instructing that it was to be used only if “they come
back with stuff on them” i.e. the DNA evidence link. RR, V. 10, p. 29, 30, 36. The final
correspondence was another letter delivered by U.S. Mail. (Exhibits 34A, 34B, 34C.) It focused
on the eyeglasses and Appellant again asked Fuentes to say he placed the blood smear on the
eyeglasses. RR, V. 10, p. 35. It was also admitted over objection. Another key facet of the State’s
case against Appellant was evidence of a DNA analysis that concluded Cardenas’ blood was on
eyeglasses worn by Appellant. DNA expert Morales testified she tested a blood smear from
State’s Exhibit 12, a pair of eyeglasses and the result showed the blood was that of Cardenas.
RR, V. 10, p. 111. DNA expert Morales also testified that the results of the DNA analysis she
performed on the glasses indicated that Appellant and victim Carenas could not be excluded as
contributors. RR, V. 10 p. 115, lines 17 – 24. Appellant objected to the results of the test because
“the State has not proven at this time that these glasses were removed from Mr. Parsons.” RR, V.
10, pp. 112, 10 – 118. This objection was overruled and the eyeglasses and DNA testing results
were admitted in evidence. RR, V. 10, p. 118.
STATES REPLY TO APPELLANT’S ISSUES
ISSUE NUMBER ONE
The trial court did not commit reversible error in admitting the letter and notes of the
Appellant’s. There is no evidence that the State and co-defendant Fuentes had entered into an
agency agreement.
ARGUMENT AND AUTHORITIES
“In approaching a Sixth Amendment right-to-counsel question, as with many other constitutional
issues, we employ the now familiar bifurcated standard of review articulated in
v. State.7 An appellate court should afford “almost total deference” to a trial court's
determination of the historical facts and to its determination of mixed questions of law and fact
that turn on an evaluation of credibility and demeanor.8 Mixed questions of law and fact that do
not turn on credibility and demeanor are to be reviewed de novo.”Manns v State, 122 S.W. 3d
171(Tex. Crim. App, 2003) The trial court in this case, on Appellant’s request, conducted a
hearing out of the presence of the jury to determine the admissibility of the notes and letters
written by the Appellant. RR, V. 9, pp. 208 – 231. The trial court determined that an agency
relationship did not exist between the State and co-defendant Fuentes: : “I don't find
that this was an action on State directed action. It seems to be
a defense-cut-throat action. When you swim with sharks,
sometimes you get bitten” RR, V. 9, p. 231, lines 1-3.
Appellant argues that the State “secretly elicited incriminating statements in the absence
of counsel,” yet offers absolutely no proof to substantiate this claim. In fact the examination
conducted by the trial court of Fuentes and his counsel reveals the opposite. It clearly shows the
State did not enter into an agency relationship with Fuentes and that Fuentes did this on his own
initiative. RR, V. 9, pp. 208 – 231. “Undoubtedly, most inmates who provide information to law
enforcement officials harbor the hope that their service will not go unrewarded. But as the court
cautioned in Lightbourne v. Dugger, “we must not confuse speculation about [an informant's]
motives for assisting the police for evidence that the police promised [the informant]
consideration for his help or, otherwise, bargained for his active assistance.” One might argue
that merely by providing the market for information, the government violates the right to
counsel, but that would be to overstate the government's role in most cases; the instinct for self-
preservation is as sharply honed, if not more so, in prison as it is elsewhere. From the moment
9
that suspects are arrested, they learn (if it had not already occurred to them) that cooperation with
the authorities may benefit them. That inmates realize there is a market for information about
crime does not make each inmate who enters the market a government agent.70” Manns v State,
122 S.W. 3d 171(Tex. Crim. App, 2003) It should also be noted that the Appellant testified that he
admitted to writing the letters and notes in an attempt to implicate his co-defendant Fuentes. RR,
V. 10, pp. 173-175.
Under the facts of this case, viewed in the light most favorable to the trial court’s ruling,
Fuentes was not a government agent and State’s Exhibits 30, 31, 33A, 33B, 33C, 34, 34A, 34B,
and 34C were properly admitted.
ISSUE NUMBER TWO
State’s Exhibit 12 was properly admitted over Appellant’s objection. The trial court after
hearing the evidence establishing the chain of custody of the exhibit from the seizure of the
exhibit from the Appellant to the delivery to the lab for testing properly admitted Exhibit 12.
ARGUMENT AND AUTHORITIES
Rule 901(a) provides that the authentication or identification of an item for admissibility
purposes is satisfied by evidence that is sufficient to support a finding that the item in question is
what its proponent claims. TEX.R. EVID. 901(a) The State provided testimony from
Investigator Gaitan that the glasses were seized by a search warrant from the Appellant in the
San Patricio County Jail. RR, V. 9, p. 28. Deputy Tucker testified that he picked up State’s
Exhibit 12 at the jail and delivered them to Deputy Rodriguez. RR, V. 9, p. 179. Deputy
Rodriguez testified that he delivered State’s Exhibit 12 to the DPS Crime Lab in Corpus Christi.
10
RR, V. 9, p. 160. Cynthia Morales, forensic scientist, testified she received State’s Exhibit 12 at
the crime lab in Corpus Christi. RR, V. 10 p. 111. Co-defendant Fuentes identified State’s
Exhibit 12 as the glasses Investigator Gaitan removed from Appellant’s face in the jail and that
they belonged to Appellant. RR, V. 10, pp. 22-23.
“When the trial court does not make explicit findings of historical fact, we review the
evidence in a light most favorable to the court's ruling and assume the court made implicit fact
findings that are supported by the record.” Dossett v. State, 216 S.W. 3d, 7(Tex. App – San
Antonio 2006, ( pet ref’d) In this case the trial court heard the testimony from the witnesses and
determined that the chain of custody was established and that the glasses (Exhibit 12) were
sufficiently linked to the Appellant and it was admitted .
“Because trial courts are in the best position to make the call on these substantive
admissibility questions, an appellate court must review a trial court's admissibility decision under
an abuse of discretion standard.” Powell v State, 63 S.W. 3d, 435 (Tex. Crim. App, 2001). The
ultimate question whether an item of evidence is what its proponent claims then becomes a
question for the fact-finder—the jury, in a jury trial. In performing its Rule 104gate-keeping
function, the trial court itself need not be persuaded that the proffered evidence is authentic. The
preliminary question for the trial court to decide is simply whether the proponent of the evidence
has supplied facts that are sufficient to support a reasonable jury determination that the evidence
he has proffered is authentic.” Tienda v State, 358 S.W. 3d, 633 (Tex. Crim. App, 2012) The
evidence concerning the chain of custody and authentication of State’s Exhibit 12 is more than
sufficient for their admissibility.
PRAYER
The appellant has presented no grounds in his appeal which justify the relief sought.
11
Accordingly, Appellee respectfully prays that this Honorable court affirm the judgment of the
trial court in all respects.
Respectfully submitted,
Michael Welborn
District Attorney
/s/ Samuel B. Smith, Jr.
Samuel B. Smith, Jr.
Assistant District Attorney
State Bar No. 18682570
P.O. Box 1393
Sinton, Texas 78387
Tel. (361) 364-9390
Fax (361) 364-9490
samuel.smith@co.san-patricio.tx.us
CERTIFICATE OF SERVICE
I hereby certify that on this 2nd day of April, 2015, a true and correct copy of the
above and foregoing instrument was mailed and faxed to Richard W. Rodgers, Attorney
for Appellant, 710 Buffalo St., Corpus Christi, Texas 78401and 361-888-7619.
/s/ Samuel B. Smith, Jr.
Samuel B. Smith, Jr.
Assistant District Attorney
12
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rules of Appellate Procedure 9.4(i)(3), I certify that the
number of words in this brief, excluding those matters listed in Rule 9.4(i)(1), is 2750.
/s/ Samuel B. Smith, Jr.
Samuel B. Smith, Jr.
Assistant District Attorney
13