Digman, Robert Emmanuel ( 2015 )

«? 26 -/S
NO. 24.202-C
COURT OF CWUFP3IS
ORIGINAL
FEB 27 2015
Abe! Asosfa, Clorfc
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
F!
ROBERT EMMANUEL DIGMAN,
COURT OF CRIMINAL APPEALS
FEB 27 2::]
Appellant Petitioner
VS.
Abel Acosta, Clerk
THE STATE OF TEXAS,
Appellee/Respondent'
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
In Appeal No. 07-14-00428-CR
From the
Court of Appeals
For the Seventh Judicial
District of Texas
Robert Digman
1536 I H-10 East
Fort Stockton TX 79735
TABLE OF CONTENTS
INDEX OF AUTHORITIES
STATEMENT REGARDING ORAL ARGUMENT— 2
STATEMENT OF THE CASE 3
STATEMENT OF PROCEDURAL HISTORY 3
GROUNDS FOR REVIEW-L 4
GROUND FOR REVIEW NO. ONE
The Court of Appeals erred in holding the evidence was sufficient
GROUND FOR REVIEW NO. TWO
Judicial misconduct, misuse of judicial powers
GROUND FOR REVIEW NO. THREE
The Prosecuting Attorneys instructions at the opening statement of my trial
affected my entire trial.
ARGUMENT NUMBER ONE 5
ARGUMENT NUMBER TWO 6
ARGUMENTNUM BERTH RE E 7
PRAYER FOR RELIEF 8
CERTIFICATE OF SERVICE '
APPENDIX (OPINION)
ii
INDEX OF AUTHORITIES
Andrean V Sec-US Army, 840 F-Supp. 1414 (D.kan 1993)
Brady V Maryland 373. VS 83 (1963)
Casey V State 215 S.W.3d 870
Casio V State 318 SW 3d
DigmanV State attached
Exporte Clark 597 S.W.2d 760
appeal (1979)
Fitzgerald VEstelle 505 f 2d 1334,1336 (5 year 1975)
Henderson V Kibbe, 431 us 145, 97 S, LT 1730 (1977)
Hernanadez V State 952 S.W.2d 59 (review granted)
Holmes V Morales 924 S.W.2d 920
lnReD.LM.982SW2dl46
Kelly V State 676 S.W.2d 104
Wright VSmith 569 F2d 188 (2nd cir 1978)
NO. 24 202-C
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
Robert Emmanuel Digman
Appellant/ Petitioner
VS.
THE STATE OF TEXAS
Appellee/Respondent
APPELLANT'S PETITION FOR DISCRESTIONARY REVIEW
TO THE COURT OF CRIMUNAL APPEALS OF TEXAS:
Appellant/Petitioner respectfully submits this petition for Discretionary
Review and moves that this Honorable Court grant review for this cause and
offers the following in support thereof:
STATEMENT REGARDING ORAL ARGUMENT
The Appellant Petitioner requests oral argument in this case because such
Argument may assist the Court in applying the facts to the issues raised. It is
Suggested that oral argument may help simplify the facts and clarify the issues.
STATEMENT OF THE CASE
I am accused for making my step daughter slide down a water slide for my
own sexual gratification and to see her genitals or anus.
STATEMENT OF PROCEDURAL HISTORY
In Cause No. 24 202-C the Appellant/Petitioner was convicted of such
offense of Indecency by exposure of a child. The Appellant/Petitioner was
convicted of such offense on April 16, 2013 and appealed the conviction on
December 23, 2014 , the 7th Court of Appeals affirmed the conviction. Amotion
for rehearing was filed. On January 28, 2015. Motion was overruled on Feburary
2015. This petition for discretionary Review was timely sent to the Criminal
Court of Appeals.
GROUNDS FOR REVIEW
I
The seventh District Court of Appeals Erred in holding that the evidence was
sufficient in court I of cause NO. 24 202-C to award a new trial.
II
Misuse of judicial power, Judicial misconduct of the Trial Judge, Prosecuting
Attorney and Defense Attorney. My trial ended in constitutional error, a full
Acquittal should have been entered after the jury returned.
Ill
The instructions by the District Attorney in Voir diV^ statement was incorrect
as a matter of law.
*4i
*H
ARGUMENT NUMBER ONE
There is no evidence to support count one. Sq Townsend failed to ask where and
how the slide was set up and where I was. The district attorney asked her if I let
her slide. No one ever asked if I tried to look at her. The district attorney accused
me of exposure but prosecuted me for letting her slide down the slide. The
district attorney mislead the jury from her opening statement to her closing
statement.
There is no evidence to support this charge the district attorney used WMiS'.te'i
A lot of hearsay but no facts to back it up. Iwas convicted on the nature of the
case not facts. The Texas law reads that a female's genitals or anus is not
exposed
until she spreads her legs, squats or bends over. Casey VState- misleading the
jury.
Cosio V State all 4 counts reversed because of egregiously harmed because
the district attorneys instructions on unanimity.
Digman VState was proven egregious harm occurred in this cause # 24 202-C and
I did not receive a fair trial, evidence was with held, which was, a statement
saying Vickie was coaching Whitney as to what to say on the stand, Whitney said
it sounds cool to slide. The state failed to prove its case Brady V Maryland.
ARGUMENT NUMBER TWO
Judicial power embraces power to hear facts to decide issues of facts made by
pleadings to decide questions of law involved. To render and enter judgment of
facts in accordance with law as determined by the court and to execute judgment
of sentence. The constitution assures an accused the right to effective assistance
of counsel and my 14 amendment of due process in Fitzgerald V Estelle the fifth
circuit noted that breach of legal duty. The court concluded that "state action"
could non-the less be found where it is demonstrated.
My attorney and the judge is supposed to know and uphold the laws to assure I
receive a fair and just trial by an impartial jury of my sixth amendment jury panel
must remain impartial.
Irving VDawd, the district attorney mislead the jury, the judge and/or my
attorney is supposed to fix the mistake. When the jury returned the judge should
have set aside the entire cause # 24 202-C and entered a judgment of full
acquittal. He did not, nor did he give the jury proper instructions. The district
attorney, my attorney and the trial judge failed in their duty to protect the 14*
amendment of due process and to accord justice to the accused in the
incompetency of the trial judge, district attorney and my attorney was obvious
that a reasonable state official should have been aware of it and could have taken
corrective actions BUT did not. Resulting in my trial ending with constitutional
error and egregious harm as pointed out in Digman VState, the district attorney
Amy Rhodes has a friend in the RR 3,1, 26 jury panel Juror # 3 James Gibbs, she
pointed it out in the jury selection footnote. Did the 251st still have jurisdiction
over me after my 14th amendment was violated?
ARGUMENT NUMBER THREE
See West Law Texas jurisprudence, third edition, judgments sec 335 void
judgments. Invalidity can be pointed out by anyone at anytime in any court.
Corpus Jurissecundum judgment-754 void judgment footnote # 5 Anderan VSec-
US Army, 840 Fsupp 1414 (D.kan 1993). Judgment is void when due process is
violated.
Henderson V Kibbe
A petitioner to be entitles to relief on erroneous jury instructions must
demonstrate that the instructors infected the entire trial resulting in conviction
and violation of due process.
Wright V Smith Exporte Clarke
The instructions that was given to the jury in opening statement and was not
corrected. I believe it infected my entire trial with breach of legal duty and
egregious harm caused before the trial ever began. The court of appeals said it
only infected half my trial. An jury member could have thought, "all Ihave to do
is believe so I don't have to listen to the whole trial."
PRAYER FOR RELIEF
In cause #24 202-C my trial ended in constitutional error, I respectfully ask the
court to put the cause back into one appeal number. Icannot understand how
only half a trial was infected for the reasons stated above, It is respectfully
submitted that the court of criminal appeals should grant this petition for
discretionary review.
Respectfully submitted
Robert Digman
1536 I H-10 East
Fort Stockton TX 79735
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8
CERTIFICATE OF SERVICE
The undersigned Appellant/Petitioner herby certifies that a true and correct copy
of the foregoing Petition for Discretionary Review has been mailed; US mail,
postage prepaid, to the Office ofthe Criminal District Attorney for Randall County
at 2309 Russell Long Blvd Suite 120 Canyon Texas 79015, and to the State
Prosecuting Attorney, P.O. Box 12405, Austin Texas 78711, on this the
*XH day of Feircary, 2015
APPELLANT/PETITIONER
Court of Appeals
^>ebentl) Btetrict of Cexatf at gmartllo
Nos. 07-13-00114-CR, 07-14-00428-CR
ROBERT EMMANUEL DIGMAN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Gourt
Randall County, Texas
Trial Gourt No. 24,202-C, Honorable Ana Estevez, Presiding
December 23, 2014
OPINION
Before QUINN, CJ., and CAMPBELL and PIRTLE,TJ.
A jury convicted appellant Robert Emmanuel Digman of two counts of indecency
with a child by exposure1 and assessed punishment on each count at five years'
confinement in prison with a fine of $2,500. The court ordered the sentences served
consecutively. Two judgments were signed, one for each count.2 On appeal appellant
1Tex. Penal Code Ann. §21.11 (a)(2)(A),(B) (West 2011).
2 By sua sponte order below, we have severed the appeal into two cause
numbers, one for each of the trial court's judgments.
challenges the judgment under Count Two3 which bears appellate Cause No. 07-13-
00114-CR. Appellant does not challenge the judgment under Count One which bears
appellate Cause No. 07-14-00428-CR. In its appellee's brief, as for the judgment
challenged in Cause No. 07-13-00114-CR, the State concedes charge error caused
appellant egregious harm. We agree, and will reverse the trial court's judgment
appealed in Cause No. 07-13-00114-CR and remand that case for a new trial. We will
affirm the trial court's judgment in Cause No. 07-14-00428-CR.
Background
A two-count indictment charged appellant with indecency with a child by
exposure. Count one alleged appellant, while acting with intent to gratify his sexual
desire, intentionally and knowingly caused W.C., a child younger than age seventeen, to
expose her genitals.
Our concern here is Count Two which alleged:
[0]n or aboutthe 1st day of May, A.D. 2010, in said County and State, and
anterior to the presentment of this indictment, that ROBERT EMMANUEL
DIGMAN
PARAGRAPH A
did then and there with intent to arouse and gratify the sexual desire of
ROBERT EMMANUEL DIGMAN, intentionally and knowingly cause [CD.],
a child younger than 17 years of age, to expose his genitals,
PARAGRAPH B
3 Appellant's initial court-appointed appellate counsel filed a motion to withdraw
from the representation supported by a brief under Anders v. California, 386 U.S. 738,
744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). After reviewing the record we found an
arguable ground for appeal, granted the motion to withdraw, and abated and remanded
the case for appointment of new appellate counsel. Digman v. State, No. 07-13-00114-
CR, 2014 Tex. App. LEXIS 5830 (Tex. App —Amarillo May 29, 2014) (per curiam order,
not designated for publication). Following reinstatement of the appeal, new appellate
counsel filed a merits brief urging the issue now before us.
did then and there with intent to arouse and gratify the sexual desire of
ROBERT EMMANUEL DIGMAN, intentionally and knowingly expose his
genitals, knowing that [CD.], a child younger than 17 years of age, was
present[.]
During voir dire the prosecutor told members of the jury panel:
Indictments with multiple paragraphs. If an indictment contains
multiple paragraphs, that means jury unanimity is not required as to the
paragraphs.
That means that out of twelve of the jurors, three could believe that
a defendant exposed his genitals to gratify his sexual desire, and the rest
of the jurors—the other nine—could believe that a defendant exposed the
child's genitals to arouse or gratify the defendant's sexual desire. But you
could still find him guilty of indecency with a child by exposure... .
Six could believe the red part, six could believe the green part.
Three could believe the red, nine could believe the green. ... As long as
you believe it beyond a reasonable doubt.4
In the jury charge, a single application paragraph pertaining to Count Two of the
indictment disjunctively submitted the questions whether appellant caused exposure of
C.D.'s genitals and whether appellant exposed his genitals to CD. Appellant did not
object to the submission, which read as follows:
Now bearing in mind the foregoing instructions, if you unanimously believe
from the evidence beyond a reasonable doubt, that the defendant,
ROBERT EMMANUEL DIGMAN, on or about the 1st day of May, 2010, in
the County of Randall, and State of Texas, as alleged in Count II of the
indictment, did then and there, with intent to arouse or gratify the sexual
desire of ROBERT EMMANUEL DIGMAN, intentionally or knowingly
cause [CD.], a child younger than 17 years of age, to expose his genitals
or did then and there with intent to arouse or gratify the sexual desire of
ROBERT EMMANUEL DIGMAN, intentionally or knowingly expose his
genitals, knowing that [CD.], a child younger than 17 years of age, was
4 The prosecutor explained that, on an exhibit, she had highlighted one
paragraph in green, the other in red.
present, you will find the defendant guilty of the offense of Indecency With
A Child By Exposure, as alleged in Count II of the indictment, and so say
by your verdict. If you do not so believe, or if you have a reasonable doubt
thereof, you will acquit the defendant of Count II and so say by your
verdict.
(Bolding and underlining in original).
The attached verdict form for Count Two asked the jury merely to find appellant
guilty, or not, "of the offense of Indecency With A Child by Exposure as alleged in Count
II of the indictment."
In closing argument, the prosecutor told the jury:
Now remember, six of you can decide [appellant] exposed his own
genitals for his sexual gratification, or six of you could decide he exposed
[C.D.'s] genitals for his gratification, as long as each one of you believes
beyond a reasonable doubt that that happened. You all do not have to
agree on whose genitals were exposed for [appellant's] gratification as
long as you believe it beyond a reasonable doubt.
The jury found appellant guilty of the offenses alleged under both counts of the
indictment and the court imposed the noted sentences.
Analysis
Through a single issue appellant argues the jury charge was flawed in that it
permitted conviction under Count Two of the indictment without requiring jury unanimity
and the error, although then unchallenged, caused him egregious harm.
When reviewing claims of jury-charge error, we first determine whether an error
actually exists in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App.
2009). If error exists and appellant objected to the error at trial, then we determine
whether the error caused sufficient harm to require reversal. Id.; Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985); see Ngo v. State, 175 S.W.3d 738, 743-44
(Tex. Crim. App. 2005). When, as here, the error was not brought to the attention of the
trial court, we will not reverse for jury-charge error unless the record shows egregious
harm. Barrios, 283 S.W.3d at 350.
In making our determination, "the actual degree of harm must be assayed in light
of the entire jury charge, the state of the evidence, including the contested issues and
weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at
171; see Garrett v. State, 159 S.W.3d 717, 719-21 (Tex. App.—Fort Worth 2005), affd,
220 S.W.3d 926 (Tex. Crim. App. 2007). Jury charge error causes egregious harm to
the defendant if it affects the very basis of the case, deprives the defendant of a
valuable right, or vitally affects a defensive theory. Almanza, 686 S.W.2d at 171. In
analyzing harm from a jury charge error, neither the State nor the defense has a burden
to show harm, learner v. State, 245 S.W.3d 458, 462, 464 (Tex. Crim. App. 2008).
"Under our state constitution, jury unanimity is required in felony cases, and,
under our state statutes, unanimity is required in all criminal cases." Ngo, 175 S.W.3d
at 745. The jurors "must agree that the defendant committed one specific crime."
Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008); see Pizzo v. State, 235
S.W.3d 711, 714 (Tex. Crim. App. 2007) (jury unanimity required on essential elements
of offense). The jury unanimity requirement, however, does not extend to require
agreement among jurors on the specific way in which the defendant committed the
crime. Id. Recognizing that defining crimes is a legislative function, when courts decide
what elements and facts require unanimous agreement for conviction, we "implement
the legislative intent behind the penal provision." Id. In cases like that before us, the
task requires the court to examine the statute defining the offense to determine whether
by its enactment the Legislature defined separate offenses or a single offense with
different methods or means of commission. Pizzo, 235 S.W.3d at 714; see Huffman v.
State, 267 S.W.3d 902 (Tex. Crim. App. 2008) (noting similarity of analysis in jury
unanimity and double jeopardy cases); Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim.
App. 1999) (analysis of legislative intent in double jeopardy context).
In relevant part, the indecency with a child statute reads:
(a) A person commits an offense if, with a child younger than
17 years of age, whether the child is of the same or
opposite sex, the person:
(1) engages in sexual contact with the child or causes the
child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any
person:
(A) exposes the person's anus or any part of the
person's genitals, knowing the child is present; or
(B) causes the child to expose the child's anus or any
part of the child's genitals.
Tex. Penal Code Ann. §21.11 (a) (West 2011).
The single application paragraph and verdict form for Count Two permitted the
jury to find appellant guilty of indecency with a child if jurors determined appellant
exposed his genitals, knowing the child CD. was present, or determined appellant
caused CD. to expose his genitals. The jury was not required to reach unanimity as to
which provision of the statute, § 21.11(a)(2)(A) or § 21.11(a)(2)(B), appellant violated.
6
So the question is whether those two subsections define two separate offenses or two
means of committing the same offense.
Our Court of Criminal Appeals has addressed the same question with respect to
other subsections of the indecency with a child statute. The court recently reiterated its
holding that, by criminalizing indecency with a child by exposure in one subsection of
section 21.11(a) and indecency by contact in another subsection, the Legislature
created two separate offenses, not two means of committing indecency. Aekins v.
State, No. PD-1712-13 2014, Tex. Crim. App. LEXIS 1718, at *18 (Tex. Crim. App. Oct.
22, 2014) (citing Loving v. State, 401 S.W.3d 642, 646-49 (Tex. Crim. App. 2013)); see
Huffman, 267 S.W.3d at 907 (sex offenses are nature of conduct crimes and the court
has "uniformly required that different types of conduct specified in the various statutes
be treated as separate offenses").
Pizzo, 235 S.W.3d 711, involved an indecency-by-contact prosecution in which
the defendant complained he was denied the right to a unanimous jury verdict because
the indictment alleged he touched the child's breasts and genitals but the jury charge
authorized conviction on a finding he touched the child's breasts or genitals. Id. at 712.
The court of appeals held the touching of breasts and genitals, during the same
encounter, were not separate offenses but only different means of committing
indecency with a child by contact. Id. at 713. The Court of Criminal Appeals disagreed.
Guided by its analysis of the grammatical structure5 of the statute, the court
found the focus of the statute's language was the nature of the conduct proscribed, and
concluded under section 21.11(a)(1) and (c) "if a person touches the anus, breasts, and
genitals of a child with the requisite intent during the same transaction, the person is
criminally responsible for three separate offenses." Pizzo, 235 S.W.3d at 717-18; see
Loving, 401 S.W.3d at 648-49; Huffman, 267 S.W.3d at 907 (both summarizing court's
holding in Pizzo)e
Application of the court's analysis in Pizzo leads directly to the conclusion the two
subsections of section 21.11 involved here, subsections (a)(2)(A) and (a)(2)(B), define
two separate indecency by exposure offenses, not merely two methods of committing
the same offense. We note first that the two subsections are separated by the
conjunction "or," indicating that each subsection describes a distinct act, and that an
offense is complete when a person commits either act with the required intent. See
Pizzo, 235 S.W.3d at 717-18 (citing and quoting Vick, 991 S.W.2d at 833, for similar
conclusion). And, although the two subsections begin with the same subject ("the
person") and require the same intent ("intent to arouse or gratify the sexual desire of
any person"), they contain different verbs (the person "exposes" vs. the person
5 See Stuhler v. State, 218 S.W.3d 706, 718 (Tex. Crim. App. 2007) (citing
Jefferson v. State, 189 S.W.3d 305, 315-6 (Tex. Crim: App. 2006) (Cochran, J.,
concurring)).
6 In Loving, describing its holding in Pizzo, the court said: "After examining the
grammar of the statute, we held that indecency with a child by contact is a conduct-
oriented offense and that, 'sexual contact' as charged in that case, 'criminalizes three
separate types of conduct—touching the anus, touching the breast, and touching the
genitals with the requisite mental state.' We concluded that, because the subsection
prohibits the commission of any one of those acts, each act is a separate offense, and
the allowable unit of prosecution for indecency with a child by contact is the commission
of the prohibited touching." Loving, 401 S.W.3d at 648 (internal citations omitted).
"causes") and are completed by different direct objects (the person's anus or any part of
genitals vs. the child to expose his anus or any part of genitals).7 They thus describe
two similar but elementally different types of conduct, criminalizing exposure, under
particular circumstances and with a particular mental state,8 of the anus or genitals of
different individuals.9 As the court noted in Loving, "The gravamen of the indecency-
with-a-child statute is the nature of the prohibited conduct, regardless of whether the
accused is charged with contact or exposure." Loving, 401 S.W.3d at 649. The
conclusion is consistent also with the double-jeopardy analysis in Harris v. State, 359
S.W.3d 625 (Tex. Crim. App. 2011), in which the court determined the allowable unit of
prosecution for indecency with a child by exposure is "the act of exposure." Id. at 632
("the gravamen of the offense of indecency with a child by exposure is the act of
exposure").
The charge's application paragraph improperly permitted jurors to convict
appellant of either of two separate offenses without requiring them to be unanimous as
to the offense committed. Some jurors may have believed that appellant exposed his
genitals for sexual gratification while some might have concluded he caused CD. to
expose his genitals for appellant's gratification. This was error.
7 We think the clause "the child to expose the child's anus or any part of the
child's genitals" is best described as an infinitive clause used as a direct object.
8 Under either subsection, the child must be under the age of 17 and the person
must act with intent to arouse or gratify the sexual desire of any person. Tex. Penal
Code Ann. § 21.11(a), (a)(2) (West 2011).
9 Cf. Loving, 401 S.W.3d at 651 (Cochran, J., concurring) (describing, in double-
jeopardy analysis, defendant's act of causing girl to touch his penis as separate criminal
act from his act of exposing himself because, inter alia, they were acts "committed by
separate individuals").
We turn then to the question whether the record adequately demonstrates
resulting egregious harm. Almanza, 686 S.W.2d at 171. The evidence in this case
showed appellant and CD. were in the bathtub together. The prosecutor's
unchallenged voir dire statements and closing argument surely left no doubt in the
minds of the jurors that conviction on Count Two was possible even without their
unanimity on the offense committed by appellant's conduct.10 We conclude the charge
error deprived appellant of the valuable right to a unanimous verdict. The harm was
egregious. Id.
Accordingly, we sustain appellant's issue.
Order of Severance
As noted, trial of the case resulted in two separate trial court judgments. We sua
sponte sever the appeal into separate cause numbers, one for each judgment. Thus,
the appeal of the judgment entered as to Count One bears appellate Cause No. 07-14-
00428-CR, while the appeal of the judgment entered as to Count Two bears appellate
Cause No. 07-13-00114-CR.
Conclusion
We reverse the judgment of the trial court appealed in Cause No. 07-13-00114-
CR (Count Two) and remand that portion of the case for a new trial. See Tex. R. App.
10 In Jourdan v. State, 428 S.W.3d 86 (Tex. Crim. App. 2014), an aggravated
sexual assault case, the court found, on the particular facts presented, the trial court's
failure to require jury unanimity did not cause the defendant egregious harm despite
statements during voir dire and argument similar to those present here. Id. at 98-99.
Review of the record in this case convinces us that the potential for a non-unanimous
verdict on Count Two is greater than in Jourdan.
10
P. 43.2(d). We affirm the judgment of the trial court in Cause No. 07-14-00428-CR
(Count One). See Tex. R. App. P. 43.2(a).
James T. Campbell
Justice
Publish.
11
FILE COPY
No. 07-14-00428-CR
Robert Emmanuel Digman § From the 251st District Court of
Appellant Randall County
§
v December 23, 2014
§
The State of Texas Opinion by Justice Campbell
Appellee §
JUDGMENT
Pursuant to the opinion of the Court dated December 23, 2014, it is ordered,
adjudged and decreed that the judgment of the trial court be affirmed.
Inasmuch as this is an appeal in forma pauperis, no costs beyond those that
have been paid are adjudged.
It is further ordered that this decision be certified below for observance.
oOo