George Washington Sharper v. State

ACCEPTED
06-15-00114-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
11/16/2015 3:36:38 PM
DEBBIE AUTREY
CLERK
No. 06-15-00114-CR
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE COURT OF APPEALS 11/16/2015 3:36:38 PM
SIXTH DISTRICT OF TEXAS DEBBIE AUTREY
AT TEXARKANA Clerk
GEORGE WASHINGTON SHARPER
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
On Appeal from the 196th Judicial District Court
Of Hunt County, Texas
Trial Court Cause 28240
Hon. Joe Clayton, Judge Presiding
APPELLANT’S BRIEF
Katherine A. Ferguson (SBN 06918050)
Renshaw, Davis & Ferguson, L.L.P.
2900 Lee Street, Suite 102
P.O. Box 21
Greenville, Texas 75403-0021
Telephone: (903) 454-6050
Facsimile: (903) 454-4898
Email: rdflawoffice@yahoo.com
ORAL ARGUMENT NOT REQUESTED
IDENTITIES OF PARTIES AND COUNSEL
Appellant: George Washington Sharper
Defense Counsel at Trial: Jack L. Paris, Jr.
3101 Joe Ramsey Blvd., Suite 101
Greenville, Texas 75404
Appellant’s Attorney on Appeal: Katherine A. Ferguson
Renshaw, Davis & Ferguson, L.L.P.
2900 Lee Street, Suite 102
P.O. Box 21
Greenville, Texas 75403-0021
Appellee’s Attorney at Trial: Calvin Grogan
Assistant District Attorney
Hunt Co. District Attorney
P.O. Box 441
Greenville, Texas 75403-0441
Appellee’s Attorney on Appeal: Calvin Grogan
Assistant District Attorney
Hunt Co. District Attorney
P.O. Box 441
Greenville, Texas 75403-0441
Trial Judge: Hon. Joe Clayton
TABLE OF CONTENTS
Identities of Parties and Counsel ………………………….……..…….ii
Table of Contents………………………………………………………iii
Index of Authorities………………………………………....................iv
Statement of the Case………………………………………..................2
Issues Presented ………………………………………………………..2
Statement of Facts ……………………………………………………2
Summary of the Argument …………………………………………… 6
Argument and Authorities ….…………….…………….…...................8
ISSUE NUMBER ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
THE TRIAL COURT ERRED IN ADMITTING THE
OUT OF COURT STATEMENT OF MARCUS
STEPHENSON.
ISSUE NUMBER TWO ……………………………………………..16
THE TRIAL COURT ERRED IN ADMITTING
TESTIMOMY REGARDING AN EXTRANEOUS
OFFENSE DURING THE GUILT-INNOCENCENCE
PHASE OF THE TRIAL.
PRAYER……………………………………..........................................21
CERTIFICATE OF SERVICE…..……………………………………...22
INDEX OF AUTHORITIES
Cases
Crawford v. Washington, 541 U.S. 36, 52 (2004) …………………………10
Davis v. Washington, 547 U.S. 813, 821 (2006)……………… …………..10
U.S. v. Elizondo, 502 Fed. Appx. 369, 372 (5th Cir. 2012) ………...... …11
U.S. v. Flores, 985 F.2s 770, 780 (5th Cir. 1993) ………………………… 11
U.S. v. Houston, 481 Fed. Appx. 188, 193 (5th Cir. 2012) …………… . …19
U.S. v. Owens, 484 U.S. 554 (1988) ………………………………………12
United States v. Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008) …….15
Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim. App. 1981) …………17
Jahanian v. State,
145 S.W.3d. 346, 350 (Tex. App. – Houston [14th Dist.] 2004) …10, 13
Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010) ……….10, 15
Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) …………....8
O’Rarden v. State, 777 S.W.2d 455
(Tex. App. – Dallas 1989, pet. ref’d) ….……………8
Ransom, v. State, 503 S.W.2d 810 (Tex. Crim. App. 1974) ………………18
Simmons v. State, 457 S.W.2d 570 (Tex. Crim. App. 1970) ……………..20
Snowden v. State, 353 S.W.2d 815 (Tex. Crim. App. 2011) …………….15
Walker v. State, 406 S.W.3d 590, 596 (Tex. 2013) ……………………….13
Statutes and Rules
TEX. RULE APP. P. 33 ………………………………………………………8
No. 06-15-00114-CR
IN THE COURT OF APPEALS
SIXTH DISTRICT OF TEXAS
AT TEXARKANA
GEORGE WASHINGTON SHARPER
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
On Appeal from the 196th Judicial District Court
Of Hunt County, Texas
Trial Court Cause No. 28,240
Hon. Joe Clayton, Judge Presiding
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS:
NOW COMES Appellant, GEORGE WASHINGTON SHARPER,
and respectfully submits this brief in support of his appeal of the judgments
of the 196th Judicial District Court of Hunt County, Texas, the Honorable
Joe Clayton presiding.
STATEMENT OF THE CASE
The Appellant, GEORGE WASHINGTON SHARPER, was charged
in Cause No. 28,240 with the offense of capital murder. (CR #15-16).
Appellant plead “Not Guilty.” The State of Texas was not seeking the death
penalty; if found guilty the sentence would be life in the Texas Department
of Corrections Institutional Division. Thereafter, a jury was empanelled and
the case was tried on GEORGE WASHINGTON SHARPER’s plea of not
guilty. After four days of testimony, the jury convicted GEORGE
WASHINGTON SHARPER of capital murder. Thereafter, the Court
sentenced GEORGE WASHINGTON SHARPER to life in prison without
parole. Appellant filed a Motion for New Trial which was heard and
denied. (CR #216-253; #318) This appeal is taken therefrom.
ISSUES PRESENTED
ISSUE NUMBER ONE: THE TRIAL COURT ERRED
IN ADMITTING THE OUT OF COURT STATEMENT
OF MARCUS STEPHENSON.
ISSUE NUMBER TWO: THE TRIAL COURT ERRED
IN ADMITTING TESTIMOMY REGARDING AN
EXTRANEOUS OFFENSE DURING THE GUILT-
INNOCENCENCE PHASE OF THE TRIAL.
STATEMENT OF FACTS
GEORGE WASHINGTON SHARPER (hereinafter, “Appellant”) was
indicted for the offense of capital murder (CR #15).
On June 27, 2007, the Greenville Police Department responded to a
911 call regarding a shooting at 3408 Henderson in Greenville, Texas. (RR
Vol. 5, 23:19-22) Upon arrival Officer Phillip Spencer of the Greenville
Police Department (“GPD”) found David Olivares, a Hispanic male,
(hereinafter “the victim”) with a single gunshot wound to the chest. (RR
Vol. 5, 26:20-25) The victim was lying just inside of the front door of the
residence, and there was a metal storm door with broken glass at the bottom.
(RR Vol. 5, 43:11-19) The victim was non-responsive but still breathing.
(RR Vol. 5, 44:1-2) The officers assessed the body to see if there were more
wounds; after moving the body the victim stopped breathing and the GPD
officers began CPR. (RR Vol. 5, 27:13-19) There were some other
Hispanic males present at the residence. (RR Vol. 5, 44:7-9) The victim
was taken to the Hunt Regional Medical Center where he was pronounced
dead by Justice of the Peace Aaron Williams. (RR Vol. 5, 46:10-47:20)
Armando Torres Soto lived at 3408 Henderson with the decedent and
several other Hispanic males. (RR Vol. 5, 72:6-23) Mr. Soto testified he
was unaware of any enemies that the victim may have had. (RR Vol. 5,
75:1) The victim slept in the living room of the house. (RR Vol. 5, 75:15-
16) On the day of the shooting, a female showed up who made threats
against the victim. (RR Vol. 5, 77:7-11) Mr. Soto had seen her at the house
before (RR Vol. 5, 80:11-14) asking for money (RR Vol. 5, 80:23-25) and
knew that Uzzivil Torres, another resident, had seen and heard the woman
threaten the victim. (RR Vol. 5, 79:2-7) Mr. Soto knew the woman only by
the nickname “La Diabla.” (RR Vol. 5, 92:10-11) Another person, Uncle
Canuto, was visiting the residence and was present at the time of the
shooting, but became frightened afterward and returned to Mexico. (RR
Vol. 5, 112:16-113:5)
Roberto Olivares also resided in the house the victim, who was his
cousin. (RR Vol. 5, 116:14-18) He was asleep when his cousin was shot.
(RR Vol. 5, 119:8-9) The day after the shooting, Mr. Olivares was shown a
police line-up and picked out Carla Thornton, the woman he knew as
Vanessa but whom the others called “La Diabla” as the person who had been
to the house before. (RR Vol. 5, 121:13; 123:3-5; 125:23-126:10)
Lt. William Cole of GPD testified that he also responded to the scene
of the shooting. He testified that three shell casings were recovered (RR
Vol. 5, 187:11-188:1) and that the door was damaged as if someone had shot
through it (RR Vol. 5, 189:8-17) Lt. Cole spoke with the other residents,
who told him about the woman “La Diabla” and Cole listed Vanessa as a
suspect in the case. (RR Vol. 5, 195:13-209:16)
Steve Walden, a sergeant in the Criminal Investigations Division at
GPD, testified that he recovered $300.00 in cash, some checks and other
property of the victim from the victim’s car at the residence. (RR Vol. 5,
219:10-226:7)
Carla Thornton testified that she knew Appellant because Appellant
was her daughter’s husband. (RR Vol. 6, 45:5-15) Thornton testified that
Appellant and Markus Stephenson allegedly told her that they had killed a
guy (RR Vol. 6, 83:6-8). Thornton also testified that she told police where
they could find the gun used in this offense because it had been used by
Appellant in another robbery. (RR Vol. 6; 85:20 – 86:6; 13-18; 87:1-11)
William Ball, a Commerce peace officer, testified that he was called
as backup on July 23, 2007 for a felony stop regarding a possible robbery
(RR Vol. 6, 123:16-124:15) Ball stated that Appellant was one of three
individuals in the car that was stopped. (RR Vol. 6, 125:16-17) Ball
testified that upon a search of the vehicle, he recovered a silver or chrome
.380 semiautomatic pistol in the back passenger floor area of the car. (RR
Vol. 6, 127:1-16) (SX 16B) Officer Neil Johnson with the Commerce
Police Department took custody of the gun from Ball. (RR Vol. 6, 140:7-13)
Wade Thomas, a forensic scientist with the Department of Public
Safety crime lab who specializes in firearms and tool marks, performed an
analysis of SX16B as well as the bullets recovered from the scene and the
body of the victim. (RR Vol. 6, 152:9-159:8) Thomas testified that the
weapon that was fired at the victim is the same weapon as SX16B. (RR Vol.
6, 165:2-17)
Markus Ladane Stephenson was called to testify at Appellant’s trial.
Stephenson immediately claimed his privilege against self-incrimination.
(RR Vol. 6, 192:12) The State continued to question Stephenson and he
continued to invoke the Fifth Amendment. (RR Vol. 6, 192:15-16) The
Court instructed Stephenson to answer the State’s questions. (RR Vol. 6,
193:2-3; 9-10; 14-15; 19) Stephenson then claimed he could not remember
his prior statements and the Court admitted a redacted copy of a transcript of
Stephenson’s statement to the police. SX 18
Officer Warren Mitchell of the Greenville Police Department testified
about his interview with both Thornton and Stephenson.
SUMMARY OF THE ARGUMENT
The Appellant was tried for capital murder. At trial, the State offered
the testimony of an alleged co-actor, Markus Stephenson (“Stephenson”).
When called to testify, Stephenson invoked his right against incrimination
under the 5th Amendment to the Constitution of the United States of
America. Stephenson indicated that although he had pled to the charge, he
was in the process of appealing his conviction and had sought the assistance
of writ attorneys. Stephenson’s invocation of his privilege against self-
incrimination rendered him unavailable to testify. The State then entered
into evidence the statement Stephenson had given to law enforcement
officers regarding the offense. Appellant had no prior opportunity to cross-
examine Stephenson on his prior statement, and therefore the admission of
this statement violated Appellant’s right to confront and cross examine the
witnesses against him. The admission of the statement of Stephenson was
clearly harmful, as the testimony of Stephenson was the only direct evidence
of the aggravating circumstance necessary to make the case one for capital
murder rather than just murder.
The Trial Court also erred in admitting testimony regarding an
extraneous offense of Appellant. The State offered testimony that
approximately one month after the underlying offense, Appellant committed
an armed robbery. The allegation was that Appellant used the same weapon
in that extraneous offense as used in the underlying charge. However, there
was no evidence that Appellant was ever convicted of that offense or that the
weapon used in this case was the same as in the extraneous offense. The
Trial Court initially allowed Carla Thornton to testify about the offense, but
later ruled further evidence of the extraneous offense would be too
prejudicial. By allowing the testimony of Carla Thornton on the extraneous
offense, the jury was allowed to consider evidence of Appellant’s criminality
in general as a basis for convicting him of the underlying offense.
ARGUMENT
ISSUE NUMBER ONE: THE TRIAL COURT ERRED IN ADMITTING
THE OUT OF COURT STATEMENT OF
MARCUS STEPHENSON.
Preservation of Error
Texas Rule of Appellate Procedure 33.1(a) sets forth the standards for
preserving a complaint for appellate review. First, the record must reflect
that the complaint was made to the trial court by a timely request, objection
or motion that states the grounds for the request with specificity and the trial
court ruled on the request. TEX. R. APP. P. 33.1(a). “As regards specificity,
all a party has to do to avoid the forfeiture of a complaint on an appeal is to
let the trial judge know what he wants, why he thinks himself entitled to it,
and to do so clearly enough for the judge to understand him at a time when
the trial court is in a proper position to do something about it.” Lankston v.
State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). The request may be
made orally. O’Rarden v. State, 777 S.W.2d 455, 460 (Tex. App. – Dallas
1989, pet. ref’d) (Holding that oral motion for continuance preserved
complaint for appellate review.)
The objection to the admission of Stephenson’s testimony properly
preserved the Confrontation Clause violation for appellate review.
Appellant’s trial counsel made a timely, specific objection to the admission
of the testimony of Stephenson. Appellant’s trial counsel made the
following objections:
“There are constitutional problems as far as that
kind of evidence, because the issue of - well, first
of all, that is hearsay, but beyond that there’s the
confrontation and cross examination.” (RR Vol. 6,
201:17-19)
“Your Honor, I think this issue really has been
addressed by the Supreme Court of the United
States, starting with Crawford versus Smith and
then going to Davis versus Washington, Hammond
versus Indianan and – and it all has to do with the
Sixth Amendment, right to confrontation of
witnesses and – and the bright line that is drawn in
Crawford and the cases that follow, that helped
define it, Davis versus Washington and Hammond
versus Indianan.” (RR Vol. 6, 206:12-19)
Therefore the error in admitting Stephenson’s prior statement in
violation of the Constitution has been properly preserved for appeal.
Admission of Prior Statement Violated Appellant’s Sixth Amendment Right
The admission of Stephenson’s prior statement violated Appellant’s
right to confrontation and cross examination of witness under the 6 th
Amendment to the Constitution of the United States of America. In
Crawford v. Washington, the Supreme Court held the Sixth Amendment
confrontation right applies not only to court testimony but also to out of
court statements that are testimonial in nature. Crawford v. Washington, 541
U.S. 36, 52 (2004) It is clear that the interview of Stephenson by law
enforcement officials was a testimonial statement. “Whatever else the term
covers, it applies at a minimum . . . to police interrogations.” Id at 68. See
also Langham v. State, 305 S.W.3d 568,576 (Tex. Crim. App. 2010);
Jahanian v. State, 145 S.W.3d. 346, 350 (Tex. App. – Houston [14th Dist.]
2004) (Statement given by suspect to police was testimonial in nature). It is
also clear that Appellant’s counsel did not have a prior opportunity to cross
examine Stephenson about the prior statement. See Davis v. Washington,
547 U.S. 813, 821 (2006) (Cannot admit prior statement at trial who is
unavailable unless defendant had prior opportunity to cross-examine.)
When Stephenson was called as a witness at trial, Stephenson
immediately invoked his right against self-incrimination. (RR Vol. 6,
192:12) Stephenson invoked his right against self-incrimination numerous
times. Stephenson testified that he was in the process of trying to appeal his
conviction as a co-actor on this offense. (RR Vol. 7, 31:1-18).
Stephenson’s invocation of his 5th Amendment rights rendered him
“unavailable” to testify for purposes of Crawford. U.S. v. Flores, 985 F.2d
770, 780 (5th Cir. 1993) (Invocation of 5th Amendment rendered declarant
unavailable and prior statements to law enforcement violated confrontation
clause); U.S. v. Elizondo, 502 Fed. Appx. 369, 372 (5th Cir. 2012) (“In
criminal trials, courts consistently hold that a witness who invokes her Fifth
Amendment right against self-incrimination is ‘unavailable.’”)
“In criminal trials, a concern naturally arises that the defendant will
not have the opportunity to cross-examine an unavailable witness and ‘test
the truth of the witness’s direct testimony.’” Id. “The right may be violated
when a defendant cannot question a physically present witness.” Id. Here,
Stephenson was physically present at the trial, but his invocation of his
rights made him unavailable. When the Trial Court ordered Stephenson to
answer, he stated in response to numerous questions that he couldn’t
remember making the prior statements to law enforcement. (RR
Vol. 6, 194:6, 21; 195:1, 6, 9, 11, 20;197:13-14, 18, 23, 198:1, 6, 10, 13, 16,
20, 24; 199: 2).
The State may focus on Stephenson’s claim of lack of memory to
argue that a feigned loss of memory does not render a witness unavailable
for confrontation clause purposes. U.S. v. Owens, 484 U.S. 554 (1988)
However, before any memory issues arose, Stephenson had invoked his right
against self-incrimination. The Trial Court ordered Stephenson to answer
without exploring the basis of Stephenson’s claim. Stephenson had pled and
been convicted of that offense; however, Stephenson was also in the process
of challenging that conviction with writ attorneys. (RR Vol. 7, 31:10; MNT
X2, RR Vol. 9, 76:6) Stephenson was still in jeopardy and answering the
questions could impact his appeal. Therefore, Stephenson’s proper
invocation of his rights rendered him unavailable. His prior statement to law
enforcement could only be admitted if Appellant had a prior opportunity to
confront and cross examine him.
It is uncontested that Appellant did not have an opportunity to
confront and cross-examine Stephenson about his prior statement. The fact
that Stephenson’s prior statement might have been admissible as an attempt
to refresh his recollection does not change this analysis. “[E]ven when a
statement offered against a defendant is admissible under evidentiary rules,
the statement may implicate the Sixth Amendment’s Confrontation Clause.”
Walker v. State, 406 S.W.3d 590, 596 (Tex. 2013) “The Constitution simply
does not permit the admission of a testimonial statement of a witness unless .
. . the defendant had a prior opportunity for cross-examination. Jahanian,
145 S.W.3d at 350.
Harm Analysis
Because the admission of the statement by Stephenson (SX 18)
creates a constitutional error, this Court must reverse unless it determines
“beyond a reasonable doubt that the error did not contribute to the
conviction . . . .” Id.
Here, the primary evidence against Appellant that he committed
capital murder is the prior statement of Stephenson in S
X 18. The State continuously argued that the statement of Stephenson
proved the aggravating element necessary for the case to be capital. The
State argued:
“Because you’ve got State Exhibit Number 18 that tells
you what the intentions was. This isn’t some – this isn’t from
some police officer who you might, you know, think maybe
he’s got an agenda and wants to get – this is from the co-actor
himself . . . .” (RR Vol. 8, 6:12-16) (emphasis added)
“In fact, the co-actor’s statement talks about a struggle
at the door. That’s also burglary of a habitation . . . .” (RR
Vol. 8, 8, 7-8) (emphasis added)
“Stephenson says, in that transcript, what they were
doing that night. They intended to go down to hit a lick off of
these Mexicans that lived down the street. . . . “ (RR Vol. 8,
36:17-19) (emphasis added)
The State in closing argument concedes that the only evidence of the
aggravating circumstance necessary to make this case a capital murder is the
transcript of Stephenson: “You twelve have to decide, has the State met its
burden of proof, to prove beyond a reasonable doubt the offense of capital
murder, considering all the evidence. And I ask you, there is no evidence
that it is just murder. . . . If you’re going to go that far, then that means why
don’t you consider what Stephenson said before he was arrested and charged
with this, which means they were going to commit the robbery.” (RR Vol. 8,
37:3-15)
“A defendant convicted on the basis of constitutionally inadmissible
Confrontation Clause evidence is entitled to a new trial unless it was
harmless in that there was no reasonable possibility that the evidence
complained of might have contributed to the conviction.” United States v.
Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008). “Accordingly, the
[State] must demonstrate beyond a reasonable doubt that the tainted
evidence did not contribute to the conviction.” Id. at 342. See Snowden v.
State, 353 S.W.2d 815 (Tex. Crim. App. 2011).
As is made clear by the State’s closing arguments cited above, the
only evidence of the aggravating circumstance that elevated this offense to
capital murder was the prior statement of Stephenson to law enforcement in
SX 18. Without the statement of Stephenson, the evidence is legally and
factually insufficient to uphold a conviction for capital murder, because
there is no evidence of the aggravating circumstance other than the statement
of Stephenson in SX 18.
The question for this Court is not whether the verdict was support by
evidence. Instead, the question is the likelihood that the constitutional error
was a contributing factor in the jury’s deliberations; that is, whether the error
adversely affected the integrity of the process leading to the decision.
Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010) Given the
emphasis placed by the State on SX 18 in its closing and the fact that there
was no other evidence offered to support the aggravating circumstance, it is
inconceivable for the jury not to have considered the statement of
Stephenson in determining that Appellant was guilty of capital murder rather
than just murder. As a result, this Court should find that the constitutional
error in admitting the statement of Stephenson (SX 18) was harmful.
Because the Trial Court erred in denying the Appellant’s right to
confront and cross examine the primary witness against him at trial and that
error was harmful, this Court should reverse the judgment of conviction and
order a new trial.
ISSUE NUMBER TWO: THE TRIAL COURT ERRED
IN ADMITTING TESTIMOMY REGARDING AN
EXTRANEOUS OFFENSE DURING THE GUILT-
INNOCENCENCE PHASE OF THE TRIAL.
Preservation of Error
Prior to the testimony of Thornton, counsel for Appellant strenuously
objected to the admission of her testimony about an extraneous offense
committed by Appellant. The Trial Court ruled that the State could elicit
testimony from Thornton about this offense because it went to the issues of
“identity, intent, motive, rebuttal of a defensive theory.” (RR Vol. 6, 76:15-
16). Trial counsel argued that the identity exception did not apply. (RR
Vol. 6, 77:25-26:16) The Trial Court ultimately ruled that the probative
value of the testimony about the extraneous offense “substantially
outweighed” the prejudicial effect. (RR Vol. 6, 79:17-18)
The testimony of Thornton was that Appellant participated in another
robbery using the same handgun used in this case. (RR Vol. 6, 85:20-86:1)
She testified the Appellant and Stephenson told her about robbing a man
named “Boo” in Commerce and that the police pulled them over shortly
afterwards and recovered the weapon. (RR Vol. 6, 87:1-88:3) Other
officers also testified that they made a stop on a vehicle in which Appellant
was present and recovered the handgun used in this offense. (RR Vol. 6,
127:1-16) (SX 16B)
Harm
The trial court erred in allowing the statements of Thornton regarding
Appellant’s alleged robbery of “Boo.” The Trial Court erred in admitting
Thornton’s testimony to prove the identity of the assailant in this case.
“When identity has become a contested, material issue, as it did in this case,
there must be a showing that the extraneous offense which was committed
by the defendant was ‘so nearly identical in method (to the instant offense)
to earmark them as the handiwork of the accused. Here, much more is
demanded than the mere repeated commission of crimes of the same class . .
.The device must be so unusual and distinctive as to be like a signature.’”
Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim. App. 1981) The
allegation that Appellant may have committed an armed robbery one month
after the offense in question, using a similar handgun, is not so unique or
distinctive as to qualify as a “signature” of his crimes. Furthermore, there is
the requirement that “before any extraneous offense is admissible the
offenses must be clearly proven and the accused shown to have been its
perpetrator.” Ransom v. State, 503 S.W.2d 810, 813 (Tex. Crim. App. 1974)
In the instant case, the jury was given information by Thornton about
a second crime committed by Appellant that was not proven. The State
attempted to introduce certified copies of convictions, but the Trial Court
reversed its earlier ruling and ruled that the prejudicial effect of this
evidence (conviction for a robbery one month after the instant offense)
outweighed its probative value. (RR Vol. 7, 18:1-2) Therefore, the jury
heard that Appellant committed an armed robbery after the instant offense,
and heard evidence the same gun was used. However, no evidence of a
conviction for the offense, or even that the gun admitted into evidence in this
case was the gun used in the extraneous case, was admitted into evidence.
This error allowed the state to argue to the jury that Appellant’s
“constructive possession” of the weapon a month after this offense
“completely changes the case from identity at the time of the [murder] – the
indicted count that [Appellant] defended – to control [of a car and its
contents one month later] – a wholly separate (and unindicted) issued. U.S.
v. Houston, 481 Fed. Appx. 188, 193 (5th Cir. 2012) The State argued to the
jury that because of the testimony about the Commerce robbery to prove that
Appellant committed the murder one month earlier. (RR Vol. 8, 14:1-10;
15:9-11) The State argued:
“She also seemed to know about the fact that they
committed this robbery of a guy named Boo Pitts, over in
Commerce. What independent corroboration do you have when
she was telling that story to Warren Mitchell? I don’t know.
You had two Commerce officers come in here and tell you,
yeah, that actually happened. Three and a half weeks after this
shooting, this capital murder, they went and committed a
robbery in Commerce. … That’s how easy this case is.” (RR
Vo. 8, 11:23-12:8) (emphasis added)
“And poor David Olivares lived in that house and was a
target that night. So that’s one reason why you got to hear
about the Commerce robbery. Another reason you got to hear
about it11 is because the gun used to murder David Olivares is
found with the defendant, in the floorboard, three and a half
weeks later. He hadn’t gotten rid of the murder weapon. Still
carrying it around. Still committing more crime.” (RR Vol. 8,
15:6-11) (emphasis added)
It is clear from the State’s closing arguments that the State wanted the
jury to find Appellant was the assailant, primarily because he was using the
same weapon three weeks later. However, no evidence was admitted (1) to
prove that the Commerce robbery occurred; (2) that Appellant was the
person who committed the robbery; or (3) that SX 16 was used in the
Commerce robbery. The State impermissibly used an unadjudicated
extraneous offense to attempt to prove that Appellant intended to rob the
victim in this case, and that Appellant was a participant in the crime. This is
not like Simmons v. State, 457 S.W.2d 570 (Tex. Crim. App. 1970) where a
victim to a robbery identified the defendant and was subjected to a rigorous
cross examination as to the identity of his assailant, rendering the admission
of a later extraneous offense harmless. Here, the identity of the perpetrator
was hotly contested. The admission of the extraneous offense allowed the
State to impermissibly argue that Appellant was the assailant in this case
because he participated in a robbery three weeks later. This is improper.
This Court should reverse Appellant’s conviction and order a new trial.
PRAYER
WHEREFORE, based upon the foregoing, Appellant prays his
conviction be reversed and a new trial granted.
Respectfully submitted,
RENSHAW, DAVIS & FERGUSON, L.L.P
By: /s/ Katherine A. Ferguson
Katherine A. Ferguson (SBN
06918050)
2900 Lee Street, Suite 102
P.O. Box 21
Greenville, Texas 75403-0021
Telephone: (903) 454-6050
Facsimile: (903) 454-4898
Email: rdflawoffice@yahoo.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Appellant’s Brief was sent
by first class United States Mail, postage prepaid, to the Honorable Noble
Walker, Hunt County District Attorney, P.O. Box 441, Greenville, Texas
75403-0441 on this the 16th day of November 2015.
I further certify that a true and correct copy of Appellant’s Brief was
sent by first class United States mail, postage prepaid and certified mail,
return receipt requested, to GEORGE WASHINGTON SHARPER c/o
William P. Clements Unit, 9601 Spur 591, Amarillo, Texas 79107-9606.
/s/ Katherine A. Ferguson
Katherine A. Ferguson
CERTIFICATE OF COMPLIANCE WITH RULE 9.4
Pursuant to Texas Rule of Appellate Procedure 9.4, this certifies that
this document complies with the type volume limitations because it is
computer generated and does not exceed 15,000 words. Using the word
count feature of Microsoft Word, the undersigned certifies that this
document contains 3,843 words in the entire document, except in the
following sections: caption, identities of parties and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of
the case, statement of issues presented, signature, certificate of service and
certificate of compliance. This document also complies with the typeface
requirements as it has been prepared in a proportionally spaced typeface
using Microsoft Word in 14-point Times New Roman.
/s/ Katherine A. Ferguson
Katherine A. Ferguson