Coleman, Marque Jamal ( 2015 )

June 17, 2015
NO. PD-0551-15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AT AUSTIN
NO. 14-13-00921-CR
IN THE COURT OF APPEALS FOR THE
FOURTEENTH DISTRICT OF TEXAS
AT HOUSTON
MARQUE JAMAL COLEMAN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Danny K. Easterling
Easterling & Easterling, P.C.
Texas Bar No. 06362100
1018 Preston, 6,h Floor
Houston, TX 77002
(713)228-4441
E-mail:eaepc@swbell.net
Counsel for Appellant,
Court-appointed on appeal.
ORAL ARGUMENT REQUESTED.
STATEMENT REGARDING ORAL ARGUMENT
The appellant requests oral argument because of the novelty and importance
of the issues presented.
LIST OF INTERESTED PARTIES
Marque Jamal Coleman Appellant, Defendant in trial court
Cheryl Irvin Appellant's Counsel at trial
917 Franklin, Fourth Floor
Houston, TX 77002
Equator L. Turner
440 Louisiana, Suite 900
Houston, TX 77002
Danny K. Easterling Appellant's counsel on appeal
1018 Preston, 6th Floor
Houston, TX 77002
Devon Anderson Harris County District Attorney
1201 Franklin, Suite 600
Houston, TX 77002
Stuart Ladner Assistant District Attorneys
Gretchen Flader
Melissa Hervey
Hon. Leslie Brock Yates Visiting Judge, 174th District Court
Harris County, Texas
TABLE OF CONTENTS
Statement Regarding Oral Argument i
List of Authorities iv
Statement of the Case 1
Statement of Procedural History 2
Questions Presented 2
1. Did the Court of Appeals err in holding that the appellant was not
entitled to the submission of a jury instruction on Theft from Person
as a lesser included offense because evidence did not directly
address the appellant's state of mind?
2. Did the Court of Appeals' err in holding that an instruction to
disregard evidence sufficiently cured guilt-stage testimony indicating
that Coleman had some connection with a gang?
Argument 3
Reasons for Review of Question One 3
A. The Applicable Law 3
B. The Scintilla - or More - of Evidence 5
C. The Court of Appeals'Narrow View of the Standard 5
Reasons for Review of Question Two 9
A. The Applicable Law 9
B. The Improper Revelation 11
C. The Inadequacy of an Instruction 12
Prayer for Relief 15
Certificate of Compliance 15
Certi ficate of Service 16
Appendix: Court of Appeals' Memorandum Opinion and Judgment
in
LIST OF AUTHORITIES
Cases Page
Allen v. State, 513S.W.2d 556 (Tex. Crim. App. 1974) 14
Anderson v. State, 901 S.W.2d 946 (Tex. Crim. App. 1995) 11
Barclay v. Florida, 463 U.S. 939,103 S.Ct. 3418,77 L.Ed.2d 1134 (1983) 10
Dawson v. Delaware, 503 U.S. 159, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992) 10
Earls v. State, 707 S.W.2d 82 (Tex. Crim. App. 1986) 4
Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992) 10-11
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) 3-4, 10
McKay v. State, 707 S.W.2d 23 (Tex. Crim. App. 1985) 11-12
Nguyen v. State, No. 14-11-00706-CR, 2012 WL 3043063, at *3
(Tex. App.-Houston [14th Dist.] July 26, 2012, pet.ref d) 9
Schweinle v. State, 915 S.W.2d 17 (Tex. Crim. App. 1996) 4
UnitedStates v. Lemon, 723 F.2d 922 (D.C. Cir. 1983) 11
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) 12
Constitutional Provisions. Statutes, and Rules
TEX. CODE CRIM. PROC. Art. 37.09 3
TEX. CONST. Art. I, § 10 8-9
TEX. PENAL CODE §6.03© 7
TEX. PENAL CODE §6.03(d) 7
iv
TEX. PENAL CODE §29.02(a)( 1) 5
TEX. PENAL CODE §31.03(e)(4)(B) 4
TEX. R. APP. PROC. 66.3(b) 6-7
U.S. CONST. Amend. V 8-9
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
COMES NOW the appellant, Marque Jamal Coleman (hereinafter "Coleman"),
through the undersigned court-appointed counsel on appeal, and respectfully
requests that this Court grant discretionary review of the decision in this cause by
the Court of Appeals for the Fourteenth District of Texas, for reasons set forth as
follows.
STATEMENT OF THE CASE
Coleman was indicted for Robbery in Cause Number 1347307 in the 174th
District Court of Harris County, Texas (CR-9).l A jury found Coleman guilty as
charged (CR-607). At the punishment stage Coleman stated that two enhancement
allegations relating to prior felony convictions were true (RR V-5). Coleman also
stipulated that he had other prior convictions for diverse offenses (RR VIII, Exh.
1). The visiting trial judge, Hon. Leslie Brock Yates, assessed punishment at
confinement for thirty years in the Texas Department of Criminal Justice,
Correctional Institutions Division (CR-609). Coleman gave timely notice of appeal
(CR-614).
On appeal Coleman presented two points of error. First he argued that the
trial court judge should have instructed the jury on Theft from Person as a lesser
included offense for the charged offense of Robbery. Coleman also argued that a
1 The clerk's record containing court documents is designated by "CR" herein. The reporter's record is designated
by "RR." with Roman numerals for volume numbers. The Court of Appeals' memorandum opinion is designated by
"Mem. Opin."
detective interjected error into the proceedings when she revealed that a photo of
Coleman was taken from a "gang tracker database." The Court of Appeals
overruled both points of error and affirmed the judgment and sentence in a
memorandum opinion.
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals rendered its decision and delivered its memorandum
opinion on April 16, 2015. No motion for rehearing was filed. This Court
extended the time for filing a petition for discretionary review until June 17, 2015.
QUESTIONS PRESENTED
This petition presents two questions for review:
1. Did the Court of Appeals err in holding that the appellant was not
entitled to the submission of a jury instruction on Theft from Person
as a lesser included offense because evidence did not directly
address the appellant's state of mind?
2. Did the Court of Appeals' err in holding that an instruction to
disregard evidence sufficiently cured guilt-stage testimony indicating
that Coleman had some connection with a gang?
ARGUMENT
REASONS FOR REVIEW OF QUESTION ONE
Did the Court of Appeals err in holding that the appellant was not
entitled to the submission of a jury instruction on Theft from
Person as a lesser included offense because evidence did not
directly address the appellant's state of mind?
A. The Applicable Law
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), observed that TEX.
CODE CRIM. PROC. Art. 37.09 sets forth the ways in which an offense may
constitute a lesser included offense of the offense charged in the indictment. An
offense is a lesser included offense if:
(1) It is established by proof of the same or less than all the facts
required to establish the commission of the offense charged;
(2) It differs from the offense charged only in the respect that a less
serious injury or risk of injury to the same person, property, or public
interest suffices to establish its commission;
(3) It differs from the offense charged only in the respect that a less
culpable mental state suffices to establish its commission; or
(4) It consists of an attempt to commit the offense charged or an
otherwise included offense.
Under Hall, supra at 531, "when the greater offense may be committed in more
than one manner, the manner alleged will determine the availability of lesser-
included offenses. In this cause, for example, the indictment alleged that Coleman
caused bodily injury, rather than threatening it, so the analysis must focus on what
lesser offenses might apply to that form of Robbery.
Hall specifically held that the determination as to whether a charged offense
includes another particular offense as a lesser included offense, under the first
alternative in Article 37.09, "should be made by comparing the elements of the
greater offense, as the State pled it in the indictment, with the elements in the
statute that defines the lesser offense." Id., at 525. The controlling test is whether
"the elements of the lesser offense are established by proof of the same or less than
all the facts required to establish the commission of the charged offense." Id., at
536. In this cause the State conceded - and the Court of Appeals held (Mem.
Opin., p. 4) - that the offense of Theft from Person, under TEX. PENAL CODE
§31.03(e)(4)(B), can be a lesser included offense of Robbery. This Court had so
held in Earls v. State, 707 S.W.2d 82 (Tex. Crim. App. 1986).
That statute-based determination is the first step in a two-step analysis. The
second step is to determine whether or not a lesser included offense has been raised
in a particular case. The test for this second step is whether there is "some evidence
which would permit a rational jury to find that if guilty, the defendant is guilty
only ofthe lesser offense." Schweinle v. State, 915 S.W.2d 17 (Tex. Crim. App.
1996). "Anything more than a scintilla ofevidence from any source is sufficient to
entitle a defendant to submission of the issue." Id. The Court of Appeals held that
this prong of the test was not met and therefore overruled the point of error.
B. The Scintilla - or More - of Evidence
Hortensia Garza testified that she was returning home from work at around 2
a.m. on April 28 2012 (RR III- 13-14). Garza had parked her car at her apartment
complex and was walking toward her apartment. As she got close to her apartment
a man appeared, about only two feet from her (RR 111-23). She thought he was a
resident and smiled at him but did not say anything (RR 111-23). As the man
walked past, he tried to grab a backpack that Garza was carrying over her left
shoulder (RR 111-26). Garza "fought" to keep the backpack for about 30 seconds
until the man "shoved" Garza in the face with the palm of his hand (RR 111-28).
That knocked Garza down, and the man ran off with the backpack. As a result of
falling to the ground, Garza hit her head, but she did not claim any injury from that
(RR 111-29). Garza broke a finger as she landed on the ground (RR 111-29-30).
Garza identified the appellant in court as the man who assaulted her (RR 111-30).
C. The Court of Appeals' Narrow View of the Standard
Coleman argued in the Court of Appeals that there was some evidence that he
shoved Garza without having the mens rea required for Robbery under TEX.
PENAL CODE §29.02(a)(l), i.e./'intentionally, knowingly, or recklessly" causing
bodily injury. Coleman argued that his goal was to steal, not to hurt Garza. There
was at least some indication that Garza fell, and thereby broke her finger, because
of her size and weight. Garza said "I am short, but I got some weight on me. In
order to knock me down, you have to push me hard."
Another indication that Coleman only intended to make a quick grab and run
off to the escape vehicle with his plunder was his method of walking past and
catching Garza off guard. Coleman pushed Garza instead of using the kind of
fighting blows like punching, kicking, etc., which would be more consistent with
an intent to actually injure someone. The act of pushing may indicate a mere desire
to create distance between the assailant and the victim, thus preventing hand-to-
hand resistance and giving the assailant a head start in any ensuing chase.
The Court of Appeals nevertheless declined to consider testimony about the
physical contact and how it led to a broken finger as evidence which might go to
the question of mens rea, stating:
Garza's testimony only speaks to causation, not Coleman's mental
state as to whether he intended to cause Garza bodily injury.
(Mem. Opin., pp. 6-7). But did the testimony only have relevance to causation?
This Court is presented with an important but unsettled legal question: May
the "scintilla" of evidence to show a lesser culpable mental state, and thus justify a
jury instruction, consist of indirect or circumstantial evidence regarding actions
and consequences? By effectively holding that it may not, the Court of Appeals is
giving too narrow a reading to the second prong of the test for entitlement to an
instruction. This is an issue worthy of this Court's examination under TEX. R.
APP. PROC. 66.3(b).
Consider the difference between "recklessness" (which is the lowest of the
three levels of mens rea for Robbery under the "causes injury" prong of the statute)
and "criminal negligence." TEX. PENAL CODE §6.03(c) provides:
A person acts recklessly, or is reckless, with respect to circumstances
surrounding his conduct or the result of his conduct when he is aware
of but consciously disregards a substantial and unjustifiable risk that
the circumstances exist or the result will occur. The risk must be of
such a nature and degree that its disregard constitutes a gross
deviation from the standard of care that an ordinary person would
exercise under all the circumstances as viewed from the actor's
standpoint.
In the context of a Robbery prosecution based on "causing" injury, the recklessness
would apply to the result of conduct, i.e. causing the particular injury suffered by
the complainant. Criminal negligence, under TEX. PENAL CODE §6.03(d), is
distinguishable in that the actor need not actually be "aware" of the risk. It is
applicable when a reasonable person ought to be aware of the risk.
An actor's state of mind often is suggested by his specific actions and/or by
the circumstances of an encounter. The State has advanced that proposition in
thousands ofjury arguments over the years, and that logic is well embedded in case
law too. Should not the same principle apply when the issue is whether another
offense may be indicated? In this cause Coleman's actions do not indicate that he
actually was aware that his "push and grab" theft technique was designed to cause
injury. Nor does the evidence indicate that the risk that Garza could break her
finger by falling was a "substantial" one in a "push and grab" theft.
Thus some of the evidence pointed more towards criminal negligence than it
pointed towards recklessness with respect to physical injury. That should be
enough to justify a lesser included offense instruction, for the only way to raise the
question of a lesser mens rea and actually rule out a greater mens rea would be for
the defendant to testify. Surely the second prong of the test should not be pushed to
the point where it virtually requires a defendant to testify, since that would
undermine constitutional rights under U.S. CONST. Amend. V and TEX. CONST.
Art. I, §10.
Coleman realizes that it could be argued that, if the mens rea of recklessness
is doubtful, the trial court should simply instruct that reasonable doubt on the mens
rea requires acquittal. In practice, however, it is likely that a jury will not
completely acquit a defendant who is shown to have committed at least a state jail
felony offense. Furthermore, for defense counsel to have to argue for a complete
acquittal, based on a lack of clarity as to whether a defendant was reckless or only
criminally negligent, would itself be perilous to the Fifth Amendment privilege
(and the similar privilege under Article I, Section 10), for the jury would know that
only one person could give testimony making such a fine distinction.
In fact, a case cited by the Court of Appeals suggests that even abandoning
constitutional protections might be to no avail in obtaining an instruction on the
theory of a lesser offense. A memorandum opinion, Nguyen v. State, No. 14-11-
00706-CR, 2012 WL 3043063, at *3 (Tex. App.-Houston [14th Dist.] July 26,
2012, pet.refd) was cited as "holding that [the] defendant was not entitled to a
lesser included offense instruction because the evidence showed that he acted
intentionally, despite claiming that 'he never intended to harm the complainant.'"
Finally, there is room here even for a more fundamental consideration of
whether the "guilty only" element of the standard needs to be reconsidered, or at
least not applied to charge requests centered on mens rea. In the long run that
would simplify the law, aid jury deliberations, and avoid some appellate litigation,
all at the relatively small cost of adding a page to some jury charges. Whatever the
right solution is, the first step is to grant discretionary review.
REASONS FOR REVIEW OF QUESTION TWO
Did the Court of Appeals err in holding that an instruction to
disregard evidence sufficiently cured guilt-stage testimony
indicating that Coleman had some connection with a gang?
A. Applicable Law
It is a cardinal principle of criminal law that a felony defendant should be
tried for the offense charged in the indictment. Hall, supra at 532 called this
principle an "ancient doctrine of both the common law and of our Constitution."
One way in which this doctrine can be breached is through evidence which
improperly reveals other criminal conduct or suggests the bad character of the
defendant at the guilt stage of trial. One type of such evidence is testimony which
links a defendant to organized criminal activity or to a group identified as a "gang"
by the police.
In Dawson v. Delaware, 503 U.S. 159, 112 S. Ct. 1093, 117 L. Ed. 2d 309
(1992), the Supreme Court held that evidence showing that Dawson was a member
of a prison gang affiliated with the Aryan Brotherhood was not relevant to
sentencing, Dawson distinguished cases such as Barclay v. Florida, 463 U.S.
939,103 S.Ct.3418,77 L.Ed.2d 1134 (1983), where the crime was a racially-
motivated murder. In the wake of Dawson, this Court has approved of introducing
gang-affiliation evidence in some cases. In Fuller v. State, 829 S.W.2d 191 (Tex.
10
Crim. App. 1992), the Court appeared to approve a three-part relevancy test for
admission of such evidence, derived from United States v. Lemon, 723 F.2d
922,941 (D.C. Cir. 1983), although Fuller is a little murky in that respect because
the issue in Fuller ultimately was decided on the basis of procedural default.
Under the Lemon test, evidence of group affiliation is not to be admitted at the
punishment stage unless it establishes that (1) the defendant is a member of the
group, (2) the group's aims are illegal, and (3) the defendant intended to further
those illegal aims. Fuller, supra; Lemon, supra. See also Anderson v. State, 901
S.W.2d 946 (Tex. Crim. App. 1995). It has never been suggested by this Court that
proof of the Lemon factors would be sufficient to justify admission of gang
affiliation evidence at the guilt stage of trial.
As with other evidence, a witness could step over the line and introduce the
fact of gang affiliation. As with other improper, an objection is required, and if it
is sustained, then the trial court judge should be requested to give an instruction
that the jury must disregard the improper testimony. Once that is done, the question
becomes whether a requested mistrial also should be granted. That issue is the basis for
this point of error.
The Court of Appeals accurately summarized the general rule in this area, stating:
Generally, any error resulting from improper testimony is cured by an
instruction to disregard the same except in extreme cases where it
appears that the evidence is clearly calculated to inflame the minds of
11
the jury and is of such a character as to suggest the impossibility of
withdrawing the impression produced on their minds. McKay v. State,
707 S.W.2d 23, 36 (Tex. Crim. App. 1985). In most instances, an
instruction to disregard the remark will cure the error. Wesbrook v.
State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). "Only offensive or
flagrant error warrants reversal when there has been an instruction to
disregard ... ." Id. at 116.
The question is whether that general rule should apply.
B. The Improper Revelation
Coleman was tracked down through information about a vehicle which was used in
his escape. Houston Police Detective S. Spivey testified that a photo of Coleman's
picture was in a "gang tracker" database used by the Houston Police (RR IV-31-32).
Spivey mentioned discovering "all the evidence"in that review, but, as the Court of
Appeals observed, without explaining what that meant (Mem. Opin., p. 8).
Defense counsel promptly objected. The objection was sustained, and a
perfunctory instruction to ignore the evidence was given, but the request by
Coleman's counsel for a mistrial was denied (RR IV- 34-35).
C. The Inadequacy of an Instruction
It is useful to begin by recognizing the obvious: Anyone on the jury would infer
that Coleman's picture was in that police database because the police had some reason
to think that Coleman was a member of a criminal gang or otherwise was affiliated
with a gang. Spivey's vagueness about the "evidence" derived from the "gang
tracker" hardly mattered.
12
The Court of Appeals held that the instruction adequately cured the harm. The
Court of Appeals "presume[d] that the jury followed the trial court's instruction to
disregard." Should that presumption apply, however, when the concept of "guilt
by association" is implied? That concept is inimical to one of the most basic tenets
of the law, as discussed in Part A, supra. The Court of Appeals cited a pair of
intermediate appellate opinions finding no harm in a witness' allusion to a gang,
but no petitions for discretionary review were filed in those cases (Mem. Opin., pp.
9-10). The very fact that this problem continues to arise, in diverse courts around
the State, suggests that it is time for this Court to provide guidance. The mere
spectre of a mistrial or reversal does not seem to be an effective deterrent.
The Court of Appeals noted that the officer's testimony "was immediately
cut off by the defense counsel" (Mem. Opin., p. 9). After that, it was not mentioned
again. Id. Thank goodness for that, but the sound of one firecracker can be loud
enough. The Court of Appeals also pointed out that "Officer Spivey did not
provide any detail as to which gang Coleman was affiliated with nor did she
expand on any information surrounding the gang tracker database" (Mem. Opin., p.
9). It is impossible to know, however, if the lack of clarification helped or hurt,
once the horse was out of the barn. Say "Gang" and most people will think of the
Cosa Nostra, the Crips or Bloods, MS-13, or the kind of motorcycle gangs which
were involved in the recent Waco incident. The only thing the jurors would know
13
for sure was that this "gang," whatever its size, principles, or activities, was
involved in enough bad things to justify being monitored by the police. The Court
of Appeals said that Spivey's particular statement was not "flagrant" or
"offensive," but that misses the point: criminal gangs are inherently offensive to
jurors, and the risk of tainting the guilt-stage deliberations is genuine and
substantial.
It is true that there have been many cases, spanning decades, which have relied
upon the adequacy of a curative instruction when extraneous misconduct is dredged
up by a witness. See Allen v. State, 513S.W.2d 556 (Tex. Crim. App. 1974) and cases
cited therein. In most of those cases, however, the evidence concerned a defendant's own
conduct or reputation, and the nature of the extraneous misconduct was clear enough that
a jury would not be invited to speculate about "what else" a defendant might have done.
Once evidence of gang affiliation appears, however, the jurors' imaginations can run
wild. It may well be futile, or even counterproductive, to tell jurors to "pay no attention
to that gang of men behind the curtain."
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PRAYER FOR RELIEF
Wherefore Coleman prays that discretionary review be granted as to both
questions.
Respectfully submitted,
/s/ Danny K. Easterling
Danny K. Easterling
Easterling & Easterling, PC
Texas Bar No. 06362100
1018 Preston, 6lh Floor
Houston, TX 77002
(713)228-4441
E-mail: eaepc@swbell.net
Counsel for Appellant,
Court-appointed on appeal.
CERTIFICATE OF COMPLIANCE
I certify that this petition was prepared using Wordperfect with fourteen-
point font, and twelve-point font for footnotes, in Times New Roman typeface.
Omitting the portions not included for the word limit, this petition contains 3100
words.
/s/ Danny K. Easterling
Danny K. Easterling
15
CERTIFICATE OF SERVICE
I certify that a copy of this petition has been served on counsel for the State
at the following addresses on this the 17th day of June, 2015:
Harris County District Attorney's Office Lisa McMinn
Appellate Division State Prosecuting Attorney
Attention: Melissa Hervey P.O. Box 12405
1201 Franklin, Suite 600 Austin, TX 78711
Houston, TX 77002
/s/ Danny K. Easterling
Danny K. Easterling
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