Garcia, Jose Carmen Jr. ( 2015 )

35«M5 ORIGINAL
NO. PD-
RECEIVED IN
JUN m IBIS
IN THE
COURT OF CRIMINAL APPEALS
Ab@SAe@§fi,Oi@rS<
OF TEXAS AT AUSTIN
JOSE CARMEN GARCIA, JR., FILED \H
petitioner COURT OF CRIMINAL APPEALS
JUN 10 22j
THE STATE OF TEXAS,
RESPONDENT
Abel Acosta, Cierk
PETITION FOR DISCRETIONARY REVIEW
from the 10th Court of Appeals, Cause No. 10-14-00028-CR;
Aff'd March 5, 2015;
from the 19th District Court Mclennan Co., Texas, Cause
No. 2012-2360-Cl, convicted January 16, 2014
Jose Carmen Garcia, Jr., Pro Se
Petitioner
TDCJ# 1910011 McConnell Unit
3001 S. Emily Dr.
Beeville, Texas 78102-8583
361.362.2300 (ph.)
361.362.3011 (fax)
TABLE OF CONTENTS
INDEX OF AUTHORITIES
STATEMENT REGARDING ORAL ARGUMENT
STATEMENT OF THE CASE
STATEMENT OF PROCEDURAL HISTORY
GROUNDS FOR REVIEW
Due Process -
A. The indictment failed to notify with specific certainty
the charges against defendant using erroneous definitions;
B. In an abuse of discretion, the trial court effectively
defined the "Beyond a Reasonable Doubt" standard during
voir dire, a critical stage in the proceedings;
C. In an attempt to bolster the State's case, the State often
& repeatedly lead witness testimony on direct examination
equivalent to prosecutorial misconduct, inflaming the minds
of the jurors;
D..The jury's determination of the facts was unreasonable denying
Defendnat a fair & impartial trial environment.
ARGUMENT
PRAYER FOR RELIEF
APPENDIX
INDEX OF AUTHORITIES
UNITED STATES CONSTITUTION TEXAS CONSTITUTION
5th Amendment 2 §19
14th Amendment 2
United States Cases
106 S. Ct. 3325 (19B6) 5
Brooks v. Kemp 762 F.3d 1383 (11th Cir. 1985) 5
Irvin v. Doud 81 S. Ct. 1639 (1961) 5
Ross v. Oklahoma 108 S. Ct. 2273 (198B) 5
Spivey v. Head 207 F.3d 1263 (11th Cir. 2000) k
Texas Cases
Fisher v State S.U.2d 29B (Tex. Crim. App. 1993) 6
Narvais v. State 840 S.U.2d 415 (Tex. Crim. App. 1992)6
Olivas v. State 202 S.U.3d 137 (Tex. Crim. App. 2006) 2
Sanchez v. State 376 S.U.3d 767 (Tex. Crim. App.2012) 1
Stuhler v. State 218 S.U.3d 706 (Tex. Crim. App.2007) 2
ii,
STATEMENT OF THE CASE
A jury convicted Dose Carmen Garcia, Jr. of indecency uith a child by con
tact. (CR 57), (4 RR 1B5-1B6). See Tex. Pen. Code Ann. § 21.11(a)(1) (Uest 2011).
Garcia pleaded "true" to an enhancement allegation. (4 RR 187-BB). The trial
court, the Honorable Ralph T. Strother, presiding judge of the 19th District
Court of Mclennan County, imposed a mandatory life sentence. (CR 50-60), (4 RR
190).
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not required nor requested as it would not aid in the
Court's decision during this appeal.
STATEMENT^* PROCEDURAL HISTORY
Garcia plead not guilty to the charges and proceeded to trial on the 16th
day of January, 2014 in the 19th Judicial District Court of McLennan Co., Texas.
A jury found Garcia guilty of the charge of indecency with a child by contact
on that same day. Garcia was sentenced to life imprisonment in the Texas Dept.
of Criminal Justice - Instutional Division.
Garcia timely appealed to the 10th Court of Appeals at Waco, Texas. A brief
was timely filed by appointed counsel, E. Allan Bennett, SB0T# 02140700. The
Court of Appeals affirmed the conviction and filed it's Memorandum Opinion on
March 5, 2015. (Copy provided in the appendix).
Garcia timely filed for extension of time to file his petition for disc
retionary review. His petition is due before this Court on or before June 5,
2015. He files this petition.
GROUNDS FOR REVIEW
As in his direct appeal, Garcia complains of a Due Process violation,
however it is argued in a different light as guaranteed by the United States
& Texas Constitutions. (U.S. Const. Amend. 5, 6, & 14; Tex. Const. §13).
A. The indictment failed to notify with specific certainty the
charges against defendant using erroneous definitions;
B. In an abuse of discretion, the trial court effectively defined
the "beyond a reasonable doubt" standard during voir dire, a
critical stage in the proceedings;
in.
C. In an attempt to bolster the State's case, the State often &
repeatedly lead witness testimony on direct examination equi
valent to prosecutorial misconduct, inflaming the minds of
the jurors;
D. The jury's determination of the facts was unreasonable denying
Defendant a fair & impartial trial environment.
ARGUMENT AND AUTHORITIES
The petitioner, Jose Carmen Garcia, Jr. (Garcia), respectfully presents
to this Honorable Court his argument and cited authorities for the above Due
Process violations which affected the outcome of the trial. Garcia would show
the following:
I.
Petitioner's (Garcia) claim is one of Due Process, the fundamental bed
rock of our juris prudence system. Here Garcia will show within the record
before the Court that he was denied Due Process when the following errors
were commited against his guaranteed constitutional protections.
Garcia further alleges these Due Process violations appearing in the
record, 1) were not harmless; 2) rendered the judgment against him void. A
void judgment may be attacked at any time, see
II.
Denial of Due Process-
A. The indictment failed to notify with specific certainty the
charges agains him using erroneous definitions.
As argued onmappeal, the indictment and jury charge erroneously defined
the term "child". See Garcias App. Brief, pp. 6, 1B, 19). Garcia alleges if the
term was erroneous in the jury charge it was also erroneous in the charging
instrument, (i.e. the indictment or information) thusly depriving him of prop
er notice. Since the charge nor indictment were challenged prior to nor during
the proceedings Garcia must show egregious harm. Sanchez 376 S.W.3d 767, 775
(Tex. Crim. App. 2012). The standard of review is for the reviewing Court to
1 .
consider the entire jury charge, the state of the evidence, the final argum
ents of the parties, and any other relevant information revealed by the rec
ord of the trial as a whole. Olivas 202 S.U.3d 137, 144 (Tex. Crim. App. 2006).
Error is egregiously harmful if it affects the vary basis of the case,
deprives the defendnat of a valuable right, or vitally affects a defensive
theory. Stuhler 218 S.W.3d 706, 719 (Tex. Crim. App. 2007), Sanchez 209 S.W.3d
117, 121 (Tex. Crim. App. 2006).
Garcia claims that here the valuable right is one that the U.S. Constit
ution and the Texas Constitution specifically protect, Due Process (5th & 14th
Amends.) and Due Course of Law (§19). In reviewing this issue the Court of
Appeals notes specifically in its opinion (No. 10-14-00028-CR, 10th C0A Mem.
Op. @ p. 5), "The definitional section of the charge contained surplusage.3"
At footnote 3 it is added, " Interestingly, had the charge's definition of
"child" been used in the application section, the State's burden would have
been heightened."
It is easily debatable as to whether surplusage can be confusing to those
trained in the art of law, however, when posed to laymen, peers of the accused
it is an almost certainty to cause confusion and/or uncertainty in the minds
of jurors. It is arguable as to whether this surplusage is a strategic add-on
in an attempt to eviscerate any rational thought process a juror may retain
prior to deliberations. This would without a doubt compound any confusing,
many times conflicting instructions & definitions submitted to the jury for
their considerations.
As a matter of law, which was not explained to the jury, the literal con
struction of the charge has implications as noted by the reviewing Court. Bar
the jury containing a criminal attorney in its midst, there is no conceivable
way they would be able to discern these ramifications. The State's burden is
paramount to the proceedings and directly correlated to Garcia's liberty in
terest, freedom. For instance, assuming arguendo, had the charge been worded
as noted in footnote3 @ p. 5 of the Court's Mem. Op., would in this case had
the State met its burden? This argument falls within the guidelines of the
"hypothetically correct jury charge" theory/review standard. It can be reas
onably argued that Garcia was denied his Due Process protections because even
as a passing note, the Court of Appeals recognized an issue that not only would
have, but did have an affect on the outcome of the proceedings.
B. In an abuse of discretion, the trial court, effectively
defined the "Beyond A Reasonable Doubt" standard during
voir dire, a critical stage in the proceedings.
The Due Process violation here alleged by Garcia is one of a fair and
impartial jury and/or a fair and unbiased trial environment. The trial Court,
Judge Ralph T. Strother, addressed the venire panel in an attempt to inform
them of the legal concept of proof "beyond a reasonable doubt" standard. In
(2 RR 23-25) of the record, the trial Court effectively defines the legal sta
ndard by providing, albeit vague, top-end and low-end "definitions". Basically
talking out both sides of his mouth, Judge Strother, makes statements such as:
(2 RR 24) " And there's not a percentage that we assign to that. It's
not based upon how many witnessesare called or how much
evidence is presented in the courtroom."
" On the other hand, you could hear from 50 witnesses, you
might not be convinced beyond a reasonable doubt."
Garcia alleges that while the judge's comments may have been well intended
or seemingly harmless, the trialcourt abused its discretion by taking its comm
ents regarding the "beyond a reasonable doubt" standard to the "next" level
and effectively defining it. Allowing the jury to self define the standard has
been the precedence as decided by the United States Supreme Court. Here, the
trial court's comments on the legal standard gave the "mental picture" of
boundaries, marking one side that is and one side that isn't. The percentage
referance made several times also adds to the argument as many individuals
might "visualize" a perceptable level or amount, thusly defining the standard.
Garcia alleges these statements were extra judicial and not within the
letter or intent of precedence set forth by the U.S. Supreme Court, and thusly
created an unfair or biased trial environment denying him his constitutional
guaranteed protections therefrom.
C. In an attempt to bolster the State's case, the State often and
repeatedly lead witnesses testimony on direct examination equ
ivalent to prosecutorial misconduct, inflaming the minds of the
jurors.
The record reflects on multiple occasions the State was effectively inter
jecting its own testimony into the proceedings. (3 RR 32; 4 RR 43; 4 RR 85, B7,
91; 4 RR 119) are only a few of the incidences alleged by Garcia that the State
was strategically infusing its version of events, tainting the first person
testimony of the witness. Garcia argues that this "strategy" is not only unfair
but undermines not only the State's duty to seek justice but the fairness doct
rine paramount to the judicial process.
Garcia claims that like in Spivey v. Head 207 F.3d 1263 (11th Cir. 2000),
improper prosecutor arguments, (i.e. leading) must be considered carefully
because while wrapped in the cloak of State authority they have a weighted imp
act on the jury. Garcia alleges these errors have a substantial and injurious
effect or influences in determining the jury's verdict. Although the trial Court
sustained the objections, and at one point admonished the prosecutor, lightly,
the conduct continued. This undoubtedly had an effect on the jury. Not once did
the Court instruct the jury how to perceive or digest this legal situation. Nor
were they instructed to disregard either the manner and/or content of what the
State was leading and rely only on the evidence originating from the witness.
The right to a jury trial guarantees the criminally accused a fair trial
by a panal of impartial indifferent jurors. See Irvin v. Dowd 81 S. Ct. 1639
(1961); Ross v. Oklahoma 108 S. Ct. 2273 (19BB) ("it is well settled that the
6th & 14th Amendments guarantee a defendnat on trial for his life the right to
an impartialjury.") Here, Garcia received a life sentence. It is>lrequested the
Court examine the entire content of the judicial proceeding to determine if it
was fundamentally unfair. See Brooks v. Kemp 762 F.3d 1383 (11th Cir. 19B5), (en
banc) vacated; 106 S. Ct. 3325 (1986).
Prosecutorial misconduct as defined by Black's.Law Dictionary (10th Ed.)
states: A prosecutor's improper or illegal act (or failure to act), esp. invol
ving an attempt to wrongfully convict a defendnat or assess unjustified
punishment. If prosecutorial misconduct results in a mistrial, a later prose
cution may be barred under double jeopardy clause.
D. The jury's determination of the facts was unreasonable denying
Garcia a fair & impartial trial environment.
Garcia alleges the foregoing reasons and arguments create this situation.
A measurable quantity of facts that were considered were improperly created
or induced by the State. Because there were no admonishments by the trial Court
to the jury not to consider them, one must begin with the presumption that they
did consider them in their deliberations. This is not only improper but unfair
ineffectuating Garcia's constitutionally guaranteed protections against unfair
ness or a biased jury. It is conceivable that not only what the State improper
ly entered created an impression on the jury but that it reasonably could have
inflamed their minds purely due to the context. Even during voir dire the pros
ecutor's statements tracked so closely with the case at bar it is undeniable
that the State was "setting up" the panal for the exact same facts they would
eventually hear as evidence. There were few hypothetical references that drew
the panal to a neutral reference where they could grasp the concept the State
was attempting to portray. The prosecutor also had the panal reflect, even
publicly, on events that personally affected them. Assuming arguendo that it
was strategic to weed out biased jurors, it can also be said to have influenc
ed the minds of those who were selected.
Garcia would also point to the facts testified to by the SANE nurse,
Michelle Davis, under both direct and cross-examination that J.O.'s presentati
on could have been from several various circumstances not associated to "sex
ual contact" but to a known and documented kidney problem had by J.O.. Undis
puted scientific facts cannot be ignored by the jury. As stated in Fisher v.
State 851 S.U.2d 298 (Tex. Crim. App. 1993) "if, based on all of the evidence,
a reasonably minded jury must necessarily entertain a reasonable doubt of the
defendants guilt, due process requires that we reverse and order a judgment of
acquittal." (citing Narvais v. State 840 S.U.2d 415, 423 (Tex. Crim. App. 1992)).
Here, Garcia shows at (4 RR 33, 34) SANE nurse Davis testifies 1) knowing about
J.O.'s condition; 2) aware of the treatment for the condition; and 3) the prior/
current condition in fact to be the cause for the symptoms presented. These th
ree last points are undisputed scientific facts and give rise to reasonable
doubt beyond a preponderance of the evidence, well sufficient justifying a
finding of not guilty.
The jury's determination was unreasonable and not in conformity with the
law. For these and the preceeding reasons Garcia's conviction and sentence
should be reversed, and judgment of acquittal should be entered.
CONCLUSION AND PRAYER
Garcia has shown, in the record, numerous and aggratory instances that both
violate his conviction on the basis of due process and void the judgment and
sentence. Garcia has supported his arguments with current case precedence that
supports the finding requested, therefore...
Premises having been duly considered, Petitioner, Jose Carmen Garcia, Jr.,
humbly and respectfully prays that this Honorable Court would grant the here
and above sought requested relief, reversing the judgment and sentence, and
entering a judgment of acquittal. At the least alternative Garcia prays for
a new trial by an unbiased panal of his peers. Lastly Garcia requests he be
granted any general relief to which he is entitled under either Federal or
Texas law.
Respectfully Submitted,
L-" 135 S.W.3d 681, 682 (Tex. 2004)
APPENDIX
Tenth Court of Appeals Mem. Op.
filed March 5, 2015
COPY
IN THE
TENTH COURT OF APPEALS
No. 10-14-00028-CR
Jose Carmen Garcia, Jr.,
Appellant
v.
The State Of Texas,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2012-2360-Cl
MEMORANDUM OPINION
In one issue, appellant, Jose Carmen Garcia, Jr., appeals his conviction
for indecency with a child by contact, a first-degree felony. See Tex. Penal
Code Ann. §21.11(a)(1) (West 2011). Because we cannot say that appellant was
egregiously harmed by the charge submitted to the jury, we affirm.
I. Background -*-
In the instant case, the indictment provides the following, in relevant part:
[On] or about the 20th day of November, A.D. 2010 in McLennan County, Texas,
did then and there, with the intent to arouse or gratify the sexual desire
of any person, engage in sexual contact with [J.O.] by touching the genitals
of [J.O.], a child who was at the time younger than seventeen (17) years of
age and not the spouse of Defendant, by means of Defendant's hand
1 As this is a Memorandum opinion and the parties are familiar with the
facts, we only recite those facts necessary to the disposition of the case,
see Tex. R. App. P. 47.1, 47.4.
Garcia v. State
COPY
Appellant did not object to the language in the indictment, and this case pro
ceeded to trial.
At the conclusion of the evidence, the jury was instructed regarding the
law governing the case. Among the many items included in the jury charge was
the following definition of the term "child": "Child,1 means a person younger
than seventeen (17) years of age who is not the spouse of the actor." However,
in the application portion, the charge stated the following elements of the ch
arged offense:
•ELEMENTS
1. On or about the 20th day of November, 2010;
2. in McLennan County, Texas;
3. the defendant, JOSE CARMEN GARCIA, JR.;
4. did then and there, with, the intent to arouse or gratify the
sexual desire of any person;
5. engage in sexual contact with [J.O.] by touching the genitals
of [J.O.], a child who was then and there younger than seven
teen (17) years of age;
6. by means of the Defendant's hand.
Appellant did not object to the charge, and the jury subsequently found
appellant guilty of the charged offense. After appellant pleaded guilty to an
enhancement paragraph contained in the indictment, the trial court assessed
punishment at life imprisonment in the Institutional Division of the Texas Dep
artment of Criminal Justice.2 Appellant filed a motion for new trial, which
was later denied by the trial court. This appela followed.
II. THE CHARGE
In his sole issue on appeal, appellant complains that the trial court's
charge erroneously defined the term "child." More specifically, appellant arg
ues that the charge's definition of "child" was confusing because it required
the State to prove an element no longer required for indecency with a child by
contact - that the child victim is not appellant's spouse.
A. Applicable Law
In reviewing a jury-charge issue, an appellant court's first duty is to
2 In the indictment/ the .State used appellant's prior felony convictions
for indecency with a child and.;failure to comply with sex offender registration
for inchancement purposes.
Garcia v. State
COPY
determine whether error exists in the jury charge. Hutch v. State, 922 S.W.2d
166, 170 (Tex. Crim. App. 1996). If error is found, the appellant court must
analyze the error for harm. Middleton v. State, 125 S.W.3d 450, 453-54 (Tex.
Crim. App. 2003). If an error was properly preserved by objuection, reversal
will be necessary if the error is not harmless. Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985). Conversely, if error was not preserved at
trial by a proper objection, a reversal will be granted only if the error pre
sents egregious harm, meaning appellant did not receive a fair and impartial
trial. Id. To obtain a reversal for jury-charge error, appellant must have
suffered actual harm and not just merely theoretical harm. Sanchez v. State,
376 S.W.3d 767, 775 (Tex. Crim. App. 2012; Airline v. State, 721 S.W.2d 348,
352 (Tex. Crim. App. 1986).
Under Texas law, the trial court must provide the jury with "a written
charge setting forth the law applicable to the case; not expressing any op
inion as to the weight of the evidence, not summing up the testimony, discu
ssing the facts or using any argument in [its] charge calculated to arouse
the sympathy or excite the passions of the jury."Tex. Code Crim. Proc. Ann.
art. 36.14 (West 2007); See Walters v. State, 247 S.W.3d 204, 208 (Tex. Crim.
App. 2008). "This law requires the trial judge to instruct the jury on statu
tory defenses, affirmative defenses, and justification whenever they are
raised by the evidence." Walters, 247 S.W.3d at 208-09 (citing Tex. Penal
Code. Ann. §§ 2.03-.04 (West 2011); Arnold v. State, 742 S.W.2d 10, 13 (Tex.
Crim; App. 1987)). "Some information, such as elements of the charged offense,
must appear in the jury charge and is without question the law applicable to
the case." Sakil v. State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009)(internal
citations & quotations omitted).
B. DISCUSSION
It is undisputed that appellant did not object to the jury charge; acc
ordingly, on appeal, appellant must establish that, he was egregiously harmed.
See Sanchez, 376 S.W.3d at 775; Almanza, 686 S.W.2d at 171; Airlaine, 721 S.W.
2d at 352. In examining the record for egregious harm, we consider the entire
jury charge, the state of the evidence, the,final arguments of the parties, and
any other relevant information revealed by the record of the trial as a whole.
Garcia v. State
COPY
Olivas v. State 202 S.W.3d 136, 144 (Tex. Crim. App. 2006). Jury-charge err
or is egregiously harmful if it affects the very basis of the case, deprives
the defendant of a valuable right, or vitally affects a defensive theory.
Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State,
209 S.W.3d 117, 121 (Tex. Crim. App. 2006).
In the abstract portion, the charge defines a "child" as "a person young
er than seventeen (17) years of age who is not the spouse of the actor."
However, a review of the operative criminal statute - section 21.11 of the
Penal Code - shows that, in trying appellant for indecency with a child by
contact, the State was not required to' prove whether J.O. is appellant's
spouse. See Tex. Penal Code Ann § 21.11(a). Instead, section 21.11(b-l) pro-
vdes that it "is an affirmative defense to prosecution under this section that
the actor was the spouse of the child at the time of the offense." Id. § 21.11
(b-1). Therefore, it appears that the definitional section of the charge con
tained surplusage.3 In any event, the application paragraph in the charge did
not reference the spousal affirmative defense and, instead, substantially
tracked the language of section21.11(a). See id. §21.11(a); see also Medina v.
State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999) ("Where the application para
graph correctly instructs the jury, an error in the abstract instruction is not
egregious."); Planta v. State, 926 S.W.2d 300, 302-03 (Tex. Crim. App. 1996),
overruled on other grounds by Malik v. State, 953 S.W.2d.234 (Tex. Crim. App.
1997) (holding that the inclusion of merel superfluous abstraction never
produces reversible.error in the court's charge because it has no effect on
the jury's ability to implement fairly and accurately the commands of the app
lication paragraph or paragraphs);
Furthermore, appellant admits that the State presented evidence to supp
ort a finding on each element of its case and that the parties did not argue
J.O.'s marital status during closing argument.4 Appellant acknowledges, "the
3 Interestingly, had the charge's definition of "child" been used in the
application section, the State's burden in this case would have been height
ened. See Tex. Penal Cods Ann. § 21.11(a) (West 2011).
4 In fact, the record includes the testimony of the child victim who re
counted the alleged instance of indecency with a child by contact. See Tex.
Code Crim. Proc. Ann. art. 38.07 (West 2014) (stating that a child victim's
testimony alone is sufficient to support a conviction for indecency with a
child); see also Cantu v. State, 366 S.W.3d 771, 775 (Tex. App.-Amarillo 2012,
no pet. ref'd). And though not relevant to the State's case-in-chief, the
record contains uncontroverted testimony that J.O. is not the appellant's
spouse.
Garcia v. State
COPY
argument of the parties focused in whether the allegation occurred at all."
Therfore, based on the foregoing, we conclude any error in the abstract
portion of the charge was not calculated to injure appellant's rights or
deprive him of a fair and impartial trial. See Almanza, 686 S.W.2d at 171;
see also Stuhler, 218 S.W.3d at 719; Sanchez, 209 S.W.3d at 121. Accordingly,
we cannot say that appellant was egregiously harmed.by the purported error in
the charge. See Almanza, 686 S.W.2d at 171; see also Stuhler, 218 S.W.3d at
719; Sanchez, 209 S.W.3d at 121. We overrule appellant's sole issue.
III. CONCLUSION
Having overruled appellant's sole issue on appeal, we affirm the judg
ment of the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 5, 2015
Do not publish
[CRPM]
(state seal COA)
Garcia v. State
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