Young, Keven

PD-1378-14
December 29, 2014
No. _
IN THE
COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS
AT AUSTIN, TEXAS
KEVEN ALVINO YOUNG, SR.
APPELLANT,
V.
THE STATE OF TEXAS,
APPELLEE
APPELLANT'S
PETITION FOR DISCRETIONARY REVIEW
NO.02-13-00032-CR
COURT OF APPEALS
FOR THE SECOND DISTRICT OF TEXAS
AT FORT WORTH, TEXAS
On appeal from Cause Number F-2011-0122-D
in the 362nd Judicial District Court of Denton County, Texas
Honorable Bruce McFarling, Judge Presiding
STEPHEN WOHR
ATTORNEY FOR APPELLANT
APPELLANT REQUESTS ORAL ARGUMENT
LIST OF NAMES AND ADDRESSES
Mr. Michael Graves, Assistant District Attorney
and
Mr. Rick Daniel, Assistant District Attorney
Denton County Courts Building
1450 E. McKinney, Suite 3100
Denton, Texas 76209
Paul lohnson/Charles Orbison,
Criminal District Attorney
Appellate Division
1450 E. McKinney
Third Floor, Denton, Texas 76209
Mr. Keven Young
TDCl # 1846840
M. SkIes Unit
3060 FM 3514
Beaumont, Texas 77705
Mr. Mr. Carlton Hughes
401 Corporate Drive, Suite 100
Lewisville, Texas 75057
Ms. Debra H. Jones
419 S. Carroll, Suite 200
Denton, Texas 76201
Appellant's Trial Attorneys
Mr. Stephen Wohr
Attorney for Appellant
1417 E. McKinney, Ste. 100
Denton, Texas 76209
Court of Criminal Appeals
P.O. Box 12308
Austin, Texas 78711
TABLE OF CONTENTS
IDENTIFY OF PARTIES AND COUNSEL i
TABLE OF CONTENTS ii
INDEX OF AUTHORITIES iii-iv
STATEMENT REGARDING ORAL ARGUMENT 1
STATEMENT OF THE CASE 1-2
STATEMENT OF PROCEDURAL HISTORY 2
GROUNDS FOR REVIEW 2
REASONS FOR REVIEW: 3-8
PRAYER FOR RELIEF: 9
CERTIFICATE OF SERVICE: 9
APPENDIX 10
Keven Young v. State, No.02-13-00032-CR (Tex. App.-Fort Worth, delivered August 29,
2014)( unpublished).
11
INDEX OF AUTHORITIES
CASE LAW
Autry v. State, 626 S.W.2d 758 (Tex. Crim App. 1982) 8
Bur. v. State, 179 S.W.3d 18 (Tex. App.-San Antonio 2005, no pet.) 7
Easley v. State, 564 S.W.2d 742 (Tex. Crim. App. 1978) 5
Givens v. State, 26 S.W.2d 739 (Tex. App. - Austin 2000) 3
Gomez v. State, 183 S.W.3d 86 (Tex. App.--Tyler 2005, no pet.) 7
Hopper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) 8
Jackson v. Virginia, 433 U.S. 307, 99 S. Ct. 2781, 61 L.Ed2d 560 (1979) 3&6
King v. State, 638 S.W.2d 903 (Tex. Crim. App. 1982) 8
McKinney v. State, 177 S.W.3d 186 (Tex. App.--Houston [1st. Dist.] 2005, aff'd on
other grounds, 207 S.W.3d 366 (Tex. Crim. App. 2006) 7
Miller v. State, 177 S.W.3d 177 (Tex. App.--Houston [1st. Dist.] 2005, no pet.) 7
MojJ v. State, 131 S.W.3d 485 (Tex. Crim. App. 2004) 6
Mueshler v. State, 178 S.W.3d 151 (Tex. App.--Houston [1st. Dist.] 2005, pet ref'd) 7
Scott v. State, 165 S.W.3d 27 (Tex. App.--Austin 2005, pet granted) 7
Thomas v. State, 735 S.W.2d 688 (Tex. Crim App. 1988) 6
Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005) 7
Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) 6
West v. State, 121 S.W.3d 95 (Tex. App.--Fort Worth 2003, pet ref'd) 7
Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013) 8
Wright v. State, 603 S.W.2d 838 (Tex. Crim. App. 1979) 5
III
Yarborough v. State, 178 S.W.3d 895 (Tex. App.-- Texarkana 2005, pet refd) 7
Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004) 6
TREATISES
Wharton's Criminal Evidence, 15th Ed. § 2:3 5
STATUTES
TEX. R. ApP. PRO. 68.1, et seq (generally) .
TEX.R. ApP. P. (general) .
IV
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS
NOW COMES, Keven Young, Appellant in this cause, by and through his attorney of
record, Stephen Wohr, and, pursuant to the provisions of TEX. R. ApP. PRO. 66, et seq., moves this
Court to grant discretionary review, and in support will show as follows:
I. STATEMENT REGARDING ORAL ARGUMENT
Appellant has raised important questions in this Court and believes that oral argument would
help clarify the issues presented in his petition for discretionary review.
II. STATEMENT OF THE CASE
This case involves a murder charge wherein one of the two witnesses was the only one with
Gun Shot Residue (GSR) on her body. Sisters, Ebony Chandler and LaShondra Chandler testified
that they did not see the shot fired. However, they claimed that Keven Young, the father of Ebony
Chandler's children confronted Desmond Poe and he went into the house with Ebony Chandler.
After Desmond Poe returned to the garage where Keven Young and LaShondra Chandler were
talking, according to the sisters, Keven Young pulled out a pistol and shot Desmond Poe and then
left the scene.
Police Officers searched the garage, finding a slug in the wall. However, the police never
searched the home for the murder weapon and in fact did not find the murder weapon, nor did they
find GSR on Keven Young. The police did find GSR on Ebony Chandler. Keven Young's vehicle
was located, however no one checked the vehicle for GSR. The case was built upon the testimony
of the sisters and no other evidence. Ebony Chandler admitted that she was not happy with Keven
Young regarding issues related to their children.
On the 14th day of January in the 362nd Judicial District Court of Denton County, Texas,
1
Honorable Bruce McFarling, Judge Presiding, the case of the State of Texas v. Keven Young was
called to Jury Trial. The Prosecuting Attorney was Mr. Michael Graves and Mr. Rick Daniel and
the Appellant was represented at trial by Mr. Carlton Hughes. A record of the proceedings was
made by recording and transcribed by Ms. Molly Bowers, RDR, CRR. (Court Reporter's Record,
Vol. 1 of 6, Pg. 16, L. 16-21).
The trial was held on capital murder.
The trial by Jury proceeded, and on January 17,2013, Appellant was convicted on a plea of
"Not Guilty" by the murder a lesser included offense of that in the indictment. (Reporter's Record
Vol. 5 of 6, Pg. 5, L. 13-16). After the close of the punishment phase of the trial, the jury assessed
punishment at confinement for life in the Texas Department of Criminal Justice with a $10,000.00
fine. (Reporter's Record Vol. 5 of 6, Pg. 51, L. 10-21). On January 17,2013, after the jury was
excused, the Honorable Bruce McFarling pronounced sentence of confinement for life in the Texas
Department of Criminal Justice and a fine of $10,000.00. (Reporter's Record, Vol. 5 of 6, Pg. 53,
L.9-15).
III. STATEMENT OF PROCEDURAL HISTORY
Appellate presented one issues in his appellant brief. The conviction was affirmed in an
opinion that was not designated for publication, delivered on August 29, 2014. (See Appendix).
Motion for Rehearing and Reconsideration En Bane was filed and denied on October 21, 2014. This
petition is due to be filed on October 29,2014.
IV. GROUNDS FOR REVIEW
THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SUPPORT THE
JURY'S CONVICTION FOR MURDER.
2
V. REASONS FOR REVIEW
The evidence presented by the State in Keven Young's case was insufficient. The burden
of proof is on the State to present sufficient evidence and that right can not be waived or forfeited.
Givens v. State, 26 S.W.2d 739, 741 (Tex. App. - Austin 2000) (cites omitted). "The test for legal
sufficiency of the evidence is whether, after viewing all the evidence in the light most favorable to
the verdict, any rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt." Id. (cites omitted). The prosecution has the burden of production and the
burden of persuasion on the question of guilt and the standard is "beyond a reasonable doubt".
Jackson v. Virgina, 443 U.S. 307,99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
illthis case, there is indeed missing information or alternatively, mis-information. The State
built its case around two witnesses Ebony Chandler and her sister LaShondra Chandler. The
Chandler sisters stories are basically contradictory. Ebony Chandler and Appellant, Keven Young
had two children together. (Reporter's Record, Vol. 3 of 6, Pg. 48, L. 3-5). Ebony Chandler lived
with her children and sister. (Reporter's Record, Vol. 3 of 6, Pg. 47, L. 1-11; Pg. 49, L. 12-14).
Ebony Chandler testified that she had spoken to Keven Young earlier in the day and that she told him
she would call him around 3:00 but she did not call him because "she thought that he would just
probably come over to get the kids". (Reporter's Record, Vol. 3 of 6, Pg. 51, L. 22-25 through
Pg. 53, L. 13). Later, Ebony Chandler testified that "[i]fwe made an arrangement for him to be at
that certain time, he would just pop up". (Reporter's Record, Vol. 3 of 6, Pg. 84, L. 4-12).
Ebony Chandler had a rocky relationship with Keven Young but testified that it was basically
an amicable relationship. This is contradictory to her testimony regarding the reason she knew
Keven Young's license plate number, allegedly to provided it to the police because ofthe fights they
3
had. (Reporter's Record, Vol. 3 of 6, Pg. 92, L. 2-5).
Ebony Chandler testified that she initially locked the door between the garage and the house
after the shooting but then opened it to let her sister back into the house and after opening the door
went out to her van to get her cellular phone. (Reporter's Record, Vol. 3 of 6, Pg. 95, L. 18-25
through Pg. 96, Ln. 1-13). This was despite the fact that her sister had a working cellular phone
in the house. (Reporter's Record, Vol. 3 of 6, Pg. 95, L. 18-25 through Pg. 96, Ln. 1-13).
Ebony Chandler testified that the weapon she saw Keven Young with was silver while
LaShondra Chandler testified that the weapon was black. (Reporter's Record, Vol. 3 of 6, Pg. 66,
L. 1-3)(Reporter's Record, Vol. 3 of 6, Pg. 82, L. 4-10)(Reporter's Record, Vol. 3 of 6, Pg. 134,
L. 21-25 through Pg. 135, L. 1; Pg. 138, L. 7-12). One sister testified that she saw Keven Young
with the gun in his left hand, the other testified that he had it in his right hand. (Reporter's Record,
Vol. 3 of6, Pg. 71, L. 24-25 through Pg. 72, L.1; Pg. 82, L.11-21; Pg.135, L.14-25 through P.
136, L. 1). However, neither sister testified that they saw Keven Young shoot a gun. (Reporter's
Record, Vol. 3 of6, Pg.137, L. 4-5; Pg.137, L. 4-5).
The officers investigating the offense never looked pasted Keven Young to determine if there
were other potential suspects or only superficially looked at other suspects. The investigation was
flawed in several aspects. First, the only individual with Gun Shot Residue (GSR) on the person was
Ebony Chandler. (Reporter's Record, Vol. 4 of 6, Pg. 87, L. 10-19). The GSR found on Ebony
Chandler did not prove or disprove she fired a weapon but there was still no search of the home.
(Reporter's Record, Vol. 4 of6, Pg. 94, L. 4-25 through Pg. 95, L. 1-6).
Additionally, although Keven Young's vehicle was found while the crime scene investigators
were still working the crime scene, the vehicle was not tested for GSR. (Reporter's Record, Vol.
4
4 of6, Pg. 21, L. 2-25 through Pg. 22, L.1-19; Pg. 23, L.16-22). (Reporter's Record, Vol. 4 of
6, Pg. 44, L. 10-24)( Reporter's Record, Vol. 4, or 6, Pg. 54, L. 18-25 through Pg. 55, L. 1-9).
Detective Teniente testified that GSR will stay on a surface four to five hours and then come off with
typical activity. (Reporter's Record, Vol. 4 of6, Pg. 65, L. 11-21).
Second, the investigating officers never searched the home for a weapon or shell casings.
(Reporter's Record, Vol. 3 of 6, Pg. 188, L. 6-16; Vol. 4, or 6, Pg. 47, L. 14-25 through P. 48,
L. 1-4). There were no shell casings found in the house or the vehicle belonging to Keven Young.
(Reporter's Record, Vol. 4 of 6, Pg. 23, L. 18-25 through Pg. 24, L. 1-6). Third, the officers did
not search the house for evidence that either sister might have changed clothes and showered after
the murder.
Fourth, Detective Teniente testified that no one ever issued a subpoena for Keven Young's
cellular phone records. (Reporter's Record, Vol. 4 of6, Pg. 66, L. 20-25 through Pg. 77, L. 1-14).
ARGUMENT
In order to prevail in a criminal case, the State must prove beyond a reasonable doubt that
the defendant committed the offense for which he/she stands accused. See, Wharton's Criminal
Evidence § 2.3. In the instant case, the State did not meet its burden of proof. Instead, the State
overwhelmed the jury with circumstantial evidence but nothing that was substantial. The two
witness who accused Keven Young of the murder of Desmond Poe were sisters. There were clearly
issues between Keven Young and Ebony Chandler. The sisters stories were contradictory as set out
above. In a circumstantial case, "evidence must exclude every reasonable hypothesis except the guilt
of appellant. Wright v. State, 603 S.W.2d 838, 839 (Tex. Crim. App. 1979) (citing, Easley v. State,
564 S.W.2d 742 (Tex. Crim. App. 1978). Adopting the standard of review in Jackson v. Virginia,
5
the Moff Court found that the court "must consider all evidence which the jury was permitted,
whether rightly or wrongly, to consider". MoJJv. State, l31 S.W.3d 485, 488 (Tex. Crim. App.
2004) (citing, Jackson v. Virginia, 433 U.S. 307,99 S. Ct. 2781, 61 L.Ed2d 560 (1979). Further, the
MoffCourt found the method by which the State proved an element of the offense was deficient or
defective. However, an "appellate court must consider all evidence actually admitted at trial in its
sufficiency review and give it whatever weight and probative value it could rationally convey to a
jury". !d. at 489 (citing, Thomas v. State, 735 S.W.2d 688,695 (Tex. Crim App. 1988). The MoJJ
Court found that the question that an appellant is entitled to have answered is whether any rational
jury could have found beyond a reasonable doubt, from all the evidence admitted in the light most
favorable to the State, that the appellant committed the offense as charged. Id. at 492.
The Zuniga Court delineated the precise standard of review for factual insufficiency
questions, including, linking the burden of proof at trial to the standard of review and avoiding
language suggestive of preponderance of the evidence burden of proof. Zuniga v. State, 144 S.W.3d
477, 484-85 (Tex. Crim. App. 2004). Further, after Zuniga, the Watson Court held that the
"evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under
a beyond a reasonable doubt standard". Watson v. State, 204 S.W.3d 404,417 (Tex. Crim. App.
2006) (holding that Zungia was flawed). ill the case at issue herein, the burden of proof was clearly
on the State, but the State also was in control of the evidence. They were also in control of what
evidence was collected and what evidence it chose to ignore through its agents, the investigating
officers.
If evidence is both supporting and contradicting the verdict, and the contrary evidence is so
strong that guilt can not be proven beyond a reasonable doubt, then the evidence is factually
6
There was no investigation as to whether GSR was in the vehicle driven by Keven Young. There
was no investigation or search of the home of the Chandler sisters for evidence of a cover up,
including whether they had bathed, whether they had the murder weapon or anyother important piece
of evidence. No one ever searched for evidence of other potential offenders in this case. What the
State and its agencies did was to place the burden of proof on Keven Young. Keven Young was
faced with the task of proving himself innocent. This is a burden that is not required and this
Honorable Court should send a message to the State and her agents that it will not tolerate such
insufficient evidence.
In Winfrey, the Court found that a "conclusion reached by speculation ... is not sufficiently
based on facts or evidence to support a finding beyond a reasonable doubt. Winfrey v. State, 393
S.W.3d 763, 772 (Tex. Crim. App. 2013) (citing Hopper v. State, 214 S.W.3d 9, 16 (Tex. Crim.
App. 2007). The evidence presented by the State centered around the testimony of the Chandler
sisters. There is no independent evidence that connected Keven Young to the murder. "Proof
amounting only to strong suspicion or mere probability is insufficient". King v. State, 638 S.W.2d
903,904 (Tex. Crim. App. 1982)(citing, Autry v. State, 626 S.W.2d 758 (Tex. Crim App. 1982).
As in the King case, "the evidence that the shooting may have been committed by another person is
not out of harmony with the evidence". Id. The State failed to hold up its duty to throughly
investigate a crime through its agents. The evidence which was not collected or even searched for
leaves a stunning gap in the State's case. It is sad when the State does not do more to protect the
rights of every citizens of this State but instead allows its agents to rush to judgment and fails to hold
its agents to the task of investigating its case throughly and with complete candor toward insuring
that no innocent citizen will be incarcerated for an offense which he/she did not commit.
8
insufficient to support the verdict. Mueshler v. State, 178 S.W.3d 151,157 (Tex. App.--Houston
[1st. Dist.] 2005, pet ref'd); Burnett v. State, 179 S.W.3d 18,25 (Tex. App.-San Antonio 2005, no
pet.). Further, upon challenge of a verdict premised on factual sufficiency of the evidence to support
a conviction, the appellate court should review the evidence in a neutral light and ask whether the
State's evidence alone can support proof of guilt, if enough to prove guilt, taken alone, is it against
the great weight and preponderance of evidence. Miller v. State, 177 S.W.3d 177, 183 (Tex. App.--
Houston [1st. Dist.] 2005, no pet.). Courts addressing factual insufficiency of evidence must
examine all evidence closely. Not only the evidence that tends to prove the appellate's guilt but also
that which negates it. Gomez v. State, 183 S.W.3d 86,88-89 (Tex. App.--Tyler 2005, no pet.);
Yarborough v. State, 178 S.W.3d 895, 904 (Tex. App.--Texarkana 2005, pet ref'd); McKinney v.
State, 177 S.W.3d 186, 191 (Tex. App.--Houston [1st. Dist.] 2005, aff'd on other grounds, 207
S.W.3d 366 (Tex. Crim. App. 2006). In examining the case, the courts should review not only the
testimony of witnesses for the defense but should also examine alternative hypothesis. See, Scott
v. State, 165 S.W.3d 27,39 (Tex. App.--Austin 2005, pet granted); West v. State, 121 S.W.3d 95,
111 (Tex. App.--Fort Worth 2003, pet ref'd). Finally, the reviewing court is authorized to disagree
with the jury determination. Vodochodsky v. State, 158 S.W.3d 502,510 (Tex. Crim. App. 2005).
In this case, none of the circumstantial evidence, separately or cumulatively, rise to the level
of beyond a mere speculation. The evidence is basically inconclusive because the investigators who
were charged with throughly investigating the offense, believed the Chandler sisters story and looked
no further. This could have been avoided had the investigating officers and detectives done their job.
This was nothing more than a rush to convict Keven Young. There was no investigation into the
telephone records of Keven Young, which the officers could have obtained very easily by subpoena.
7
PRAYER FOR RELIEF
WHEREIN, PREMISES CONSIDERED, Appellant respectfully prays that this Court grant
discretionary review and, after full briefing on the merits, issue an opinion reversing the court of
appeals judgment and remanding the cause to the trial court for a new trial.
Step en Wohr
State BarNo. 21844250
and
Katy R. Klinke
State Bar No. 00784406
Attorneys for Appellant
1417 E. McKinney, Suite 110
Denton, Texas 76209
(940) 382-4166
CERTIFICATE OF SERVICE
I hereby certify, by affixing my signature above that a true and correct copy of the foregoing
Petition/or Discretionary Review, was mailed through the U.S. Postal Service to the Office of Paul
Johnson, Criminal District Attorney, Denton County Courts Bldg., 1450 East McKinney, Denton,
Texas 76209 this 4- day of December, 2014. /
-St-ep-h-e-~~~~o~hr~~=----------
CERTIFICATE OF WORD COUNT
I certify that according to the computer generated word court the Petition for Discretionary
Review in the cause entitled "Keven Young v. The State of Texas"; Cause No. 02-13-00032-CR, the
word count is 3,345.
!5~~
K~inke
9
APPENDIX
Keven Youngv. State, No.02-13-00032-CR(Tex. App.-Fort Worth, delivered
August 29, 2014)(unpublished).
10