AP-77,029
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/3/2015 1:20:25 PM
Accepted 2/3/2015 1:30:25 PM
February 3, 2015 ABEL ACOSTA
CLERK
NO. AP-77,029
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
JAMES HARRIS JR.
Appellant
VS.
STATE OF TEXAS
Appellee
APPEAL FROM THE 149TH DISTRICT COURT
OF BRAZORIA COUNTY, TEXAS
AT
ANGLETON, TEXAS
TRIAL COURT CAUSE NO. 67063
APPELLANT’S BRIEF
Jimmy Phillips, Jr.
P. O. Drawer 29
Angleton, Texas 77516-0029
Tel: 979-849-8511 Fax: 979-849-1409
email: jimmy@jpjlaw.com
SBN 15953000
Attorney for Appellant
JAMES HARRIS JR.
February 2015
NO. AP-77,029
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
JAMES HARRIS JR.
Appellant
VS.
STATE OF TEXAS
Appellee
APPEAL FROM THE 149TH DISTRICT COURT
OF BRAZORIA COUNTY, TEXAS
AT
ANGLETON, TEXAS
TRIAL COURT CAUSE NO. 67063
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
CERTIFICATE OF PARTIES
APPELLANT
JAMES HARRIS JR.
COUNSEL FOR APPELLANT
Jimmy Phillips, Jr.
P. O. Drawer 29
Angleton, Texas 77516-0029
Tel: 979-849-8511 Fax: 979-849-1409
email: jimmy@jpjlaw.com
SBN 15953000
APPELLEE
STATE OF TEXAS
COUNSEL FOR APPELLEE
Brazoria County District Attorney
REQUEST FOR ORAL ARGUMENT
In accordance with Texas Rules of Appellate Procedure, Appellant respectfully
waives oral argument.
i
SUBJECT INDEX
PAGE
CERTIFICATE OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
REQUEST FOR ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INDEX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii, iii, iv
LIST OF AUTHORITIES AND STATUTES.. . . . . . . . . . . . . . . . . . . . . . . v, vi, vii
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii, ix
STATEMENT OF NATURE AND RESULT OF THE CASE. . . . . . . . . . . . . . . . 2
APPELLANT’S POINTS OF ERROR
POINT OF ERROR NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
POINT OF ERROR NUMBER TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
POINT OF ERROR NUMBER THREE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
POINT OF ERROR NUMBER FOUR.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
POINT OF ERROR NUMBER FIVE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
POINT OF ERROR NUMBER SIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
POINT OF ERROR NUMBER SEVEN.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
POINT OF ERROR NUMBER EIGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
POINT OF ERROR NUMBER NINE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
POINT OF ERROR NUMBER TEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ii
POINT OF ERROR NUMBER ONE RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . 5
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER ONE. . . . 5-9
SUMMARY OF ARGUMENT POINT OF ERROR NUMBER ONE. . . . . . . . . . 9
ARGUMENT AND AUTHORITIES UNDER
POINT OF ERROR NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-17
CONCLUSION UNDER POINT OF ERROR NUMBER ONE. . . . . . . . . . . . . . 18
POINT OF ERROR NUMBER TWO RESTATED. . . . . . . . . . . . . . . . . . . . . . . . 19
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER TWO. . . . . 19
SUMMARY OF ARGUMENT POINT OF ERROR NUMBER TWO. . . . . . 19-20
ARGUMENT AND AUTHORITIES UNDER
POINT OF ERROR NUMBER TWO. . . . . . . . . . . . . . . . . . . . . . . . . . 20-22
CONCLUSION UNDER POINT OF ERROR NUMBER TWO. . . . . . . . . . . . . . 22
POINT OF ERROR NUMBER THREE RESTATED. . . . . . . . . . . . . . . . . . . . . . 23
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER THREE.23-24
SUMMARY OF ARGUMENT POINT OF ERROR NUMBER THREE. . . . . . . 24
ARGUMENT AND AUTHORITIES UNDER
POINT OF ERROR NUMBER THREE.. . . . . . . . . . . . . . . . . . . . . . . . 24-26
CONCLUSION UNDER POINT OF ERROR NUMBER THREE. . . . . . . . . . . . 26
POINT OF ERROR NUMBER FOUR RESTATED. . . . . . . . . . . . . . . . . . . . . . . 27
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER FOUR. 27-28
SUMMARY OF ARGUMENT POINT OF ERROR NUMBER FOUR. . . . . . . . 28
ARGUMENT AND AUTHORITIES UNDER
POINT OF ERROR NUMBER FOUR.. . . . . . . . . . . . . . . . . . . . . . . . . 28-30
CONCLUSION UNDER POINT OF ERROR NUMBER FOUR. . . . . . . . . . . . . 30
POINT OF ERROR NUMBER FIVE RESTATED. . . . . . . . . . . . . . . . . . . . . . . . 31
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER FIVE. . 31-32
SUMMARY OF ARGUMENT POINT OF ERROR NUMBER FIVE. . . . . . . . . 33
ARGUMENT AND AUTHORITIES UNDER
POINT OF ERROR NUMBER FIVE.. . . . . . . . . . . . . . . . . . . . . . . . . . 33-35
CONCLUSION UNDER POINT OF ERROR NUMBER FIVE. . . . . . . . . . . . . . 35
iii
POINT OF ERROR NUMBER SIX RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . 36
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER SIX. . . . . . 36
SUMMARY OF ARGUMENT POINT OF ERROR NUMBER SIX. . . . . . . 36-37
ARGUMENT AND AUTHORITIES UNDER
POINT OF ERROR NUMBER SIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . 37-39
CONCLUSION UNDER POINT OF ERROR NUMBER SIX. . . . . . . . . . . . . . . 39
POINT OF ERROR NUMBER SEVEN RESTATED. . . . . . . . . . . . . . . . . . . . . . 40
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER SEVEN. . . 40
SUMMARY OF ARGUMENT POINT OF ERROR NUMBER SEVEN. . . . 40-41
ARGUMENT AND AUTHORITIES UNDER
POINT OF ERROR NUMBER SEVEN.. . . . . . . . . . . . . . . . . . . . . . . . 41-42
CONCLUSION UNDER POINT OF ERROR NUMBER SEVEN. . . . . . . . . 42-43
POINT OF ERROR NUMBER EIGHT RESTATED. . . . . . . . . . . . . . . . . . . . . . 44
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER EIGHT. 44-45
SUMMARY OF ARGUMENT POINT OF ERROR NUMBER EIGHT. . . . 45-46
ARGUMENT AND AUTHORITIES UNDER
POINT OF ERROR NUMBER EIGHT. . . . . . . . . . . . . . . . . . . . . . . . . 46-50
CONCLUSION UNDER POINT OF ERROR NUMBER EIGHT. . . . . . . . . . . . 51
POINT OF ERROR NUMBER NINE RESTATED.. . . . . . . . . . . . . . . . . . . . . . . 52
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER NINE. . 52-53
SUMMARY OF ARGUMENT POINT OF ERROR NUMBER NINE.. . . . . . . . 53
ARGUMENT AND AUTHORITIES UNDER
POINT OF ERROR NUMBER NINE. . . . . . . . . . . . . . . . . . . . . . . . . . 53-57
CONCLUSION UNDER POINT OF ERROR NUMBER NINE.. . . . . . . . . . . . . 57
POINT OF ERROR NUMBER TEN RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . 58
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER TEN.. . 58-59
SUMMARY OF ARGUMENT POINT OF ERROR NUMBER TEN. . . . . . . . . 59
ARGUMENT AND AUTHORITIES UNDER
POINT OF ERROR NUMBER TEN. . . . . . . . . . . . . . . . . . . . . . . . . . . 59-62
CONCLUSION UNDER POINT OF ERROR NUMBER TEN. . . . . . . . . . . . . . 62
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
iv
LIST OF AUTHORITIES
CITATIONS:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PAGE
Barrow v. State, 688 S.W.2d 860, 863 fn.1
(Tex. Crim. App. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 30, 35, 38
Boyd v. State, 811 S.W .2d 105, 118 (Tex. Crim. App. 1991) .. . . . . . . . . . . . 47, 54
Broders v. Heise, 924 S.W .2d 148, 151 (Tex. 1996).. . . . . . . . . . . . . . . . . . . . . . 14
Coble v. State, 330 S.W .3d 253, 273(Tex. Crim. App.2010). . . . . . . . . . . . . . . . 11
Comeaux v. State, 413 S.W.3d 176, 182-183
(Tex. App. Beaumont 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 29, 34, 37
Cooks v. State, 844 S.W .2d 697, 721 (Tex. Crim. App. 1992). . . . . . . . . . . . 41, 42
Cordova v. State, 733 S.W .2d 175, 186
(Tex. Crim. App. 1987). . . . . . . . . . . . . . . . . . . . . . . . 25, 26, 29, 30, 34, 35, 37, 38
Downer v. Aquamarine Operators, Inc.,
701 S.W .2d 238, 241-42 (Tex. 1985), cert. denied,
476 U.S. 1159, 90 L. Ed. 2d 721, 106 S. Ct. 2279 (1986).. . . . . . . . . . . . . . . . . . 15
E. I. Du Pont de Nemours & Co. v. Robinson,
923 S.W .2d 549, 558 (Tex. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014).46, 48, 50, 53, 55, 59
Eddings v. Okla., 455 U.S. 104 (U.S. 1982) . . . . . . . . . . . . . . . . . . . . 25, 30, 34, 38
Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002).. . . . . 25, 29, 33, 37
Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009). . . . . 25, 29, 33, 37
Hill v. State, 426 S.W.3d 868, 877 (Tex. App. Eastland 2014). . . . . . 49, 50, 57, 62
Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000). . . . . . . . . 10, 11
Kelly v. State, 824 S.W .2d 568, 572 (Tex. Crim. App. 1992). . . . . . . . . . . . . 10, 12
v
Layton v. State,280 S.W.3d 235, 241(Tex. Crim. App.2009) . . . . . . . . . . . . . . . 11
Lockett v. Ohio, 438 U.S. 586, 604-605 (U.S. 1978). . . . . . . . . . . . . . . . . . . . 49, 47
Motilla v. State, 78 S.W .3d 352, 355 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . 16
Reeves v. State, 420 S.W .3d 812, 816 (Tex. Crim. App. 2013). . . . . . . . . . . . . . 20
Roise v. State,7 S.W .3d 225, 233(Tex. App. Austin1999 . . . . . . . . . . . . . . . . . . . 15
Sadler v. State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998). . . . . . 24, 29, 33, 37
Samaripas v. State, 2014 Tex. Crim. App. LEXIS 1559,
11 (Tex. Crim. App. Oct. 15, 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 54, 60
Sanchez v. State, 165 S.W.3d 707, 711-12 (Tex. Crim. App. 2005). . . . . . . . . . . 47
Sexton v. State, 93 S.W .3d 96, 99 (Tex. Crim. App. 2002).. . . . . . . . . . . . . . 10,11
Smith v. State, 703 S.W .2d 641, 643 (Tex. Crim. App. 1985) . . . . . . 46, 48, 53, 61
State v. Esparza,413 S.W .3d 81, 93(Tex. Crim. App.2013). . . . . . . . . . . . . . . . . 12
Thomas v. State, 701 S.W.2d 653, 658 (Tex.Cr.App. 1985). . . . . . . . . . . . . . . . . 42
Villarreal v. State, 2014 Tex. App. LEXIS 8589
(Tex. App. Austin Aug. 7, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Weathered v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). . . . . . . . . 10, 11
Zavala v. State, 401 S.W .3d 171, 175
(Tex. App. Houston 14th Dist. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
vi
STATUTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PAGE
TEXAS RULES OF EVIDENCE
TRE Rule 104(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14
TRE Rule 702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12, 18
TRE Rule 705. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 9, 12, 17
TEXAS RULES OF APPELLATE PROCEDURE
TRAP Rule 44.2(a). . . . . . . . . . . . . . . . . . . . . . . . 48, 50, 55, 57, 61, 62
TRAP Rule 44.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 47, 56, 61
TEXAS CODE OF CRIMINAL PROCEDURE
TCCP Art. 35.16 (a)(9) & ( c)(2). . . . . . . . . . . . . . . . . . . 24, 28, 33, 37
TCCP Art. 36.14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
vii
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PAGE
Appendix - Attachment 1 (Reporter’s Record Vol 73, Pg. 5 to 42). . . . . . . . . . . . 5
Appendix - Attachment 2 (Reporter’s Record Vol 73, Pg. 125 to Pg. 129 ).. . 8,16
Appendix - Attachment 3 (Reporter’s Record Vol 74, Pg. 60 to 61). . . . . . . . . 9 17
Appendix - Attachment 4 (Reporter’s Record Vol 74, Pg. 152 to 153) . . . . . . 9 17
Appendix - Attachment 5 (District Clerks Record Vol 4, Pg. 115).. . . . . . . . . . . 19
Appendix - Attachment 6 (Reporter’s Record Vol. 74, Pg. 10, line 6 to 17). 19, 21
Appendix - Attachment 7 (Reporter’s Record Vol. 26, Pg. 48 to 139). . . . . . . . . 23
Appendix - Attachment 8 (Reporter’s Record Vol. 27, Pg. 112 to 213). . . . . . . . 27
Appendix - Attachment 9 (Reporter’s Record Vol. 29, Pg. 48 to 253). . . . . . . . . 31
Appendix - Attachment 10 (Reporter’s Record Vol. 32, Pg. 34 to 109 ). . . . . . . . 36
Appendix - Attachment 11 (Reporter’s Record Vol. 49, Pg. 201 to 232). . . . . . . 40
Appendix - Attachment 12 (Reporter’s Record Vol. 32, Pg. 101 to 102). . . . . . . 43
Appendix - Attachment 13 (Reporter’s Record Vol. 27, Pg. 190 to 195). . . . . . . 50
Appendix - Attachment 14 (Reporter’s Record Vol. 27, Pg. 204 to 207). . . . . . . 51
Appendix - Attachment 15 (Reporter’s Record Vol. 23, Pg. 99 to 100). . . . . . . . 56
viii
NO. AP-77,029
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
JAMES HARRIS JR.
Appellant
VS.
STATE OF TEXAS
Appellee
APPEAL FROM THE 149TH DISTRICT COURT
OF BRAZORIA COUNTY, TEXAS
AT
ANGLETON, TEXAS
TRIAL COURT CAUSE NO. 67063
BRIEF OF APPELLANT, JAMES HARRIS JR.
TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW JAMES HARRIS JR., the Appellant in the above entitled and
numbered cause, and submits this brief seeking reversal of the judgment below and
the granting of a new trial or in the alternative the reformation of his sentence to life
without parole.
-1-
STATEMENT OF THE NATURE AND RESULT OF THE CASE
The Defendant was indicted on February 9, 2013, for the offense of Capital
Murder committed on January 14, 2012. After jury selection, the Defendant’s trial
began on November 11, 2013. The Defendant plead guilty to the indictment.
Evidence was heard on punishment and at the conclusion of the evidence, the issue
of punishment was submitted to the jury. On the 11th day of December, 2013, the jury
returned its verdict. The Court found that the punishment assessed was death. The
Defendant was sentenced on December 11, 2014. The Defendant gave notice of
appeal on December 16, 2013. Motion for new trial was filed on December 19, 2013.
An amended motion for New Trial was filed on January 9, 2014. The filing of that
motion was called to the Judge’s attention on January 9, 2014. The new trial was
overruled as a matter of law, giving rise to this appeal.
-2-
APPELLANT’S POINTS OF ERROR
POINT OF ERROR NUMBER ONE:
The Trial Court erred in allowing the State to impeach the legal findings found
by the trial court that Dr. Raymond Singer was qualified to testify as an expert in
toxicology and neuropsychology and that his opinions were relevant and admissible
before the jury.
POINT OF ERROR NUMBER TWO:
The Court erred in its charge to the jury because the finding of the Court that
the Defendant was competent and sane was a comment on the weight of evidence
before the jury.
POINT OF ERROR NUMBER THREE:
The trial court erred in refusing to grant the Appellant’s motion to strike for
cause the juror, Brenda Woods.
POINT OF ERROR NUMBER FOUR:
The trial court erred in refusing to grant the Appellant’s motion to strike for
cause the juror, Stephanie Cooper.
POINT OF ERROR NUMBER FIVE:
The trial court erred in refusing to grant the Appellant’s motion to strike for
cause the juror, Brenda Lee.
POINT OF ERROR NUMBER SIX:
The trial court erred in refusing to grant the Appellant’s motion to strike for
cause the juror, Donna Vanscoy.
POINT OF ERROR NUMBER SEVEN:
The trial court erred in failing to allow the Defendant additional peremptory
challenges upon his request before the 12th juror was seated with the selected jury
because the trial court has erred by refusing to strike one or more jurors for cause and
thereby forced the Defendant to use one or more of his peremptory strikes because of
the error.
-3-
POINT OF ERROR NUMBER EIGHT:
The trial court erred in preventing the defendant from acquiring from Donna
Vanscoy information with which to intelligently exercise his peremptory challenges
and challenges for cause during jury selection.
POINT OF ERROR NUMBER NINE:
The trial court erred in preventing the defendant from acquiring from Stephanie
Cooper information with which to intelligently exercise his peremptory challenges
and challenges for cause during jury selection.
POINT OF ERROR NUMBER TEN:
The trial court erred in preventing the defendant from acquiring from Audrey
Holt information with which to intelligently exercise his peremptory challenges and
challenges for cause during jury selection.
-4-
POINT OF ERROR NUMBER ONE RESTATED:
The Trial Court erred in allowing the State to impeach the legal findings found
by the trial court that Dr. Raymond Singer was qualified to testify as an expert in
toxicology and neuropsychology and that his opinions were relevant and admissible
before the jury.
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER ONE:
Dr. Raymond Singer was called to testify for the Defense in the punishment
phase of the trial. Pursuant to a request from the state, the Court held a hearing
pursuant to Tex. Evid. R. 705 outside the presence of the jury to determine the
qualifications of Dr. Raymond Singer to testify as an expert and the appropriateness
of the opinions which he would offer.1 During the hearing, Dr. Raymond Singer
testified that he was employed as a neuropsychologist and neurotoxicologist. He
received a Ph. D. Degree in psychology. He studied biological psychiatry in a post
doctoral fellowship at New York University School of Medicine. Next, he had a
fellowship where he studied the effects of toxic chemicals, particularly the effects of
low level chronic exposures. He was board certified in Neuropsychology with added
qualifications in forensic specialization. At the Mount Sinai School of Medicine, he
assessed the effects of neurotoxicity which included evaluating patients and
developing methodology to evaluate the effects of neurotoxicants, which he taught
1
Appendix - Attachment 1- (Reporter’s Record Vol 73, Pg. 5 to 42)
-5-
at the Mount Sinai School of Medicine. After four years there, he joined the Society
of Toxicology and has been a full member for 25 years. He further testified about his
numerous publications and his other professional memberships. (Reporter’s Record,
Vol 73, Pg. 5 to 9) He then detailed the work he had done on the Defendant’s case
and the opinions that he had reached and would testify about before the jury. Since
1983 he has averaged giving testimony about 4 times a year. (Reporter’s Record,
Vol 73, Pg. 9 to 11)
The attorney for the State then cross-examined him pointing out that he was not
a medical doctor, a radiologist, or a neurologist. (Reporter’s Record, Vol 73, Pg. 17
to 19) After establishing his compensation for his services in the Defendant’s case
and that he had two offices, the State then inquired about his opinions that he would
offer. (Reporter’s Record, Vol 73, Pg. 19 to 27)
The attorney for the State then began to question him concerning cases in
which the State maintained that Dr. Raymond Singer had not been qualified to give
his opinions. The excluded testimony was in an extreme minority of the times he had
testified in court. There were four cases discussed.
The first was in Virginia. Dr. Singer didn’t know why, but believed that it was
excluded because a witness who he had relied on was excluded. The testimony was
not based on scientific unreliability. (Reporter’s Record, Vol 73, Pg. 28 to 29) Dr.
-6-
Singer’s testimony was excluded once in Texas in 1985. Dr. Singer’s testimony in
New Mexico concerned an electromagnetic hypersensitivity case which was tried to
a judge. The Judge dismissed the case. There was a case in California which
concerned mold toxicity where he did not testify. The Court did not let anyone testify
about mold neurotoxicity. He did not recall any others but those four. His testimony
was concluded. (Reporter’s Record, Vol 73, Pg. 29 to 32)
The parties then made arguments to the court based on the 705 hearing. The
state objected that: the witness was not a medical doctor. He is not a radiologist and
cannot read a MRI and that his testimony was excluded before in several courts. The
State maintained that he was not qualified to testify. The State also maintained that
if the Court found that Dr. Singer was qualified as an expert, the prior exclusions of
Dr. Singer’s opinions was a proper inquiry before the jury. (Reporter’s Record, Vol
73, Pg. 32 to 35) The Defendant’s attorney argued that in the event that the Court
found Dr. Singer qualified and his opinions admissible, it would be improper for the
Court to allow the State to mention before the jury the impeachment evidence of the
other court rulings that was presented to the Court out of the jury’s presence. The
cases did not have the same facts and opinions as the instant case. To allow such
impeachment basically goes behind the Court’s legal findings which held that Dr.
Singer is qualified as an expert and can give his opinions to the jury. The state gave
-7-
three cases to the Court. (Reporter’s Record, Vol 73, Pg. 35 to 36) They were never
identified with certainty or made part of the record.
After further discussion and reviewing the cases, the Court ruled:
“I am going to go ahead and allow him to testify to the limited basis that
he said he’s qualified to attest to and to the things he testified to during
this 705 examination. I think the magnitude of the case would require
me to allow that to be brought in. But the defense is entitled to test his
qualifications with regard – I’m sorry. I am looking at you.
MS. YENNE: We’re to the point where we could swap.
THE COURT: You can go into prior cases where he has been found to
be not qualified. Because some of this language in these cases is pretty
pointed as to going to his qualifications to give toxicology - type
opinions. But I will allow him to testify, but I will allow the State to go
in on cross-examination to those other issues.”
The Defendant’s attorney then objected and the Court said he understood and
again overruled the objection. (Reporter’s Record, Vol 73, Pg. 41 Ln. 6 to Ln. 24)
During cross-examination, the State did in fact go into the court cases it had
mentioned before the Court when contending that the cases showed that the
Defendant’s expert was not qualified to be an expert and his opinions were not valid
opinions. The State never introduced the cases into evidence before the jury, and they
are not therefore in the appellate record of proceedings before the jury. (Reporter’s
Record Vol 73, Pg. 125 to Pg. 129) 2 The State did not offer a counter-expert to the
2
Appendix - Attachment 2 (Reporter’s Record Vol 73, Pg. 125 to Pg. 129 )
-8-
opinions of Dr. Singer.
During closing argument, the State continued to emphasize that Dr Singer was
not qualified as an expert and his opinions were not valid due to the fact that other
courts had held that he could not testify. The state concluded in an emotional
argument intended to arouse the emotion of the jury against the Defendant’s expert
that he was like a “snake oil salesman” and his opinions were worthless and should
3
not be considered. (Reporter’s Record Vol 74, Pg. 60 to 61) and (Reporter’s
Record Vol 74, Pg. 152 to 153) 4
SUMMARY OF ARGUMENT POINT OF ERROR NUMBER ONE:
Pursuant to the state’s request, the trial court held a hearing pursuant to Rule
705 and performed the “gatekeeping functions” required of the trial court. At the
conclusion of the hearing, the court allowed the expert to testify and thereby
implicitly found by clear and convincing evidence that the defendant’s expert was
qualified to testify and his opinions were admissible and helpful for the jury.
Thereafter, he allowed the state’s attorney to attack the court’s findings before the
jury, without any expert testimony. In doing so, the trial court turned over his
“gatekeeping functions” in law to the jury to decide if the expert was legally qualified
3
Appendix - Attachment 3 (Reporter’s Record Vol 74, Pg. 60 to 61)
4
Appendix - Attachment 4 (Reporter’s Record Vol 74, Pg. 152 to 153)
-9-
to testify to the opinions
the court had approved. The actions of the court denied the defendant a fair trial, and
the judgment should be reversed.
ARGUMENT AND AUTHORITIES UNDER POINT OF ERROR NUMBER ONE:
The Trial Court’s Error:
A jury is not equipped with the legal education and understanding of scientific
evidence to properly judge whether it can meet the requirements of Tex. Evid. R. 702.
Scientific evidence has the ability to mislead a jury that is not properly equipped to
judge the probative force of the evidence. Under Rule 702, it is the responsibility of
the trial court to determine whether the scientific evidence offered is sufficiently
reliable, as well as relevant, to help the jury in reaching accurate results in its
deliberation. Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). This places
the trial judge in the role of a "gatekeeper," whose responsibility is to weed out
inadmissible evidence based on a lack of reliability. Sexton v. State, 93 S.W.3d 96,
99 (Tex. Crim. App. 2002); Kelly, 824 S.W.2d at 572. The proponent of scientific
evidence bears the burden of proving, by clear and convincing proof 5, that the
evidence is sufficiently relevant and reliable to assist the jury in determining a fact
5
Jackson v. State,17 S.W.3d 664(Tex. Crim. App.2000)
Weatherred v. State,15 S.W.3d 540(Tex. Crim. App.2000)
Sexton v. State,93 S.W.3d 96(Tex. Crim. App.2002)
-10-
in issue. Sexton, 93 S.W.3d at 100; Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim.
App. 2000); Weathered v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Kelly,
824 S.W.2d at 573. Also see Layton v. State,280 S.W.3d 235, 241(Tex. Crim.
App.2009)
In Kelly v. State, the Texas Court of Criminal Appeals adopted several
procedural and substantive limitations upon the admission of expert scientific
testimony to ensure that unreliable expertise would be excluded from the jury's
consideration. Under Kelly, a trial judge is mandatorily required, upon request, to
conduct a "gatekeeping" hearing outside the presence of the jury to determine
whether scientific evidence is sufficiently reliable and relevant to help the jury in
reaching an accurate result. Then the judge must decide whether, on balance, that
expert testimony might nonetheless be unhelpful or distracting for other reasons.
To be considered reliable, evidence from a scientific theory must satisfy three
criteria: "(a) the underlying scientific theory must be valid; (b) the technique applying
the theory must be valid; and (c) the technique must have been properly applied on
the occasion in question." The trial court's essential gatekeeping role is to ensure that
evidence that is unreliable because it lacks a basis in sound scientific methodology
is not admitted. Coble v. State, 330 S.W.3d 253, 273(Tex. Crim. App.2010)
While ultimately the proponent of scientific evidence bears the burden of
-11-
proving reliability by satisfying the criteria set forth in Kelly v. State, 824 S.W.2d
568, 573 (Tex. Crim. App. 1992), it is the trial court that must conduct the hearing
and determine whether the proponent has established that criteria.("Under Rule
104(a) and (c) and Rule 702, all three [Kelly] criteria must be proven to the trial
court, outside the presence of the jury, before the evidence may be admitted[,]" and
"Rule 104(a) requires that the admissibility of expert testimony be determined by the
trial court."). State v. Esparza,413 S.W.3d 81, 93(Tex. Crim. App.2013). There is
no provision which allows the trial court to shift the mandatory “gatekeeping”
obligation of the court to the deliberation of the jury.
In this case, the Court held the hearing as required under Tex. Evid. R. 705
outside the presence of the jury. After the hearing, the trial court held that Dr.
Raymond Singer was a qualified expert and could testify to the opinions within his
expertise about the matters made known to the Court. Because of his “gatekeeping
role” the trial court had to reach the following legal findings and conclusions as a
result of “clear and convincing proof”, before he could allow the expert to testify:
1. That Dr. Raymond Singer was qualified as a neuropsychologist and a
neurotoxicologist and had expertise in neurotoxicology and psychology.
2. That the underlying scientific theory was valid.
3. That the technique was properly applied on the occasion in question.
4. That the expert evidence would help the jury in reaching an accurate
-12-
result.
5. That the expert evidence was sufficiently relevant and reliable to assist
the jury in determining a fact in issue.
6. That the findings, 1 to 5 above, had been established by “clear and
convincing proof”
.
The trial court thereafter ruled that the State could attack and impeach the
Court’s findings by introducing before the jury other cases from other courts, which
had other fact situations and considerations, to establish that Dr. Raymond Singer was
not a qualified expert; that his scientific theory was not a valid one; and that the
technique was not properly applied. In this case, Dr. Raymond Singer was the only
expert qualified by the trial court in his field and his opinions in his field were the
only opinions which the court had found reliable and admissible. The State did not
qualify a counter expert with differing opinions. The only action of the state was to
use cross examination techniques and speculation to cause an emotional reaction
among the jurors to discredit the defendant’s expert and his opinions. It should be
additionally noted that at no time did the State even prove that the “other cases” it
questioned Dr. Raymond Singer about were the same type of issues as in the
Defendant’s capital case or concerned the same matters that were being testified to
in the defendant’s trial. The jury was never informed of the legal findings of the
Court. The jury was never charged by the court on how they would be required to
-13-
conduct the “gatekeeping functions” to test the qualifications of Dr. Singer and the
value of his opinions. This in itself created a distinct advantage in favor of the State’s
position and against the Defendant’s position and the Court’s explicit findings. The
jury never knew that the Court had found the expert qualified and the evidence
reliable, but had to judge the legal qualifications of the expert and his opinions
without any additional expert or legal guidance.
What the trial court did by allowing this procedure was to totally negate his
“gatekeeping function” and place the “gatekeeping function” decision solely in the
hands of the jurors. All of the safeguards of Kelly v. State and its progeny simply
flew out of the window and the jury became the judges of the legal qualifications of
the expert and the opinions which he held without any guidance on how to
accomplish that task. Under the trial court’s ruling, a jury not properly equipped to
judge the validity and legal relevance of the expert’s evidence, took over the trial
court’s mandatory duty to assess the validity of the evidence through the court’s
“gatekeeping functions”.
Preliminary questions concerning admissibility of evidence are determined by
the trial court. See Tex. R. Evid. 104(a). This determination will not be overturned
absent a clear abuse of discretion. See Broders v. Heise, 924 S.W.2d 148, 151 (Tex.
1996); E. I. Du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.
-14-
1995).
The test for determining whether an abuse of discretion occurred is not whether
the facts present an appropriate case for the trial court's action; rather, the test is
whether the trial court acted without reference to any guiding rules and principles, or
in other words, acted in an arbitrary and unreasonable manner. See Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476
U.S. 1159, 90 L. Ed. 2d 721, 106 S. Ct. 2279 (1986).” Roise v. State,7 S.W.3d 225,
233(Tex. App. Austin1999)
In the Defendant’s trial, there exists no authority for the trial court to turn over
to the jury the required function of the trial court to determine the reliability and
admissibility of the expert testimony. Clearly, there was an abuse of the trial court’s
discretion.
Harm Analysis:
Because the error of the trial court was so great, a harm analysis should not be
necessary and Appellant does not agree that a harm analysis is necessary. However,
in the event that a harm analysis should be required, the Appellant would show that
a reversal of the conviction or reformation of the sentence is required based on the
harm that the trial court’s error caused. See Tex. R. App. P. 44.2(b).
Non-constitutional error "that does not affect substantial rights must be disregarded."
-15-
Substantial rights are not affected by the erroneous admission of evidence if, after
examination of the record as a whole, there is fair assurance that the error did not
influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355
(Tex. Crim. App. 2002). In assessing the likelihood that the jury's decision was
adversely affected by the error, the appellate court should consider everything in the
record, including any testimony or physical evidence admitted for the jury's
consideration, the nature of the evidence supporting the verdict, the character of the
alleged error and how it might be considered in connection with other evidence in the
case. Id. Considerations may also include jury instructions, the State's theory, and
any defensive theories, closing arguments, and voir dire, if applicable. Finally, a
consideration may be the State's emphasis on the error as a factor.
Having been given free reign to question the trial court findings concerning the
expert qualifications, the State on numerous occasions questioned the qualifications
and opinions of the expert with prior holdings of other courts in other factual
situations. There were four distinct cases which were discussed in which the State’s
attorney brought out before the jury Dr. Singer’s opinions did not prevail or he was
excluded as an expert 6. None of the cases were shown to have any relation to the
type of opinion that was being rendered in the case before the jury. Even if the
6
Appendix - Attachment 2 (Reporter’s Record Vol 73, Pg. 125 to Pg. 129 )
-16-
questioning was not significant enough to mislead the jury, it set up the final
argument of the State in closing:7
• Dr singer’s opinions were “worthless”.
• “ His testimony has been excluded in so many courts he just about can’t
count.
• “His science is not reliable”
• He was like a “snake oil salesman”
• “We have fancy forms of strange snake oil. They are called
neuropsychologist.”
• “You can’t find any self-respecting medical doctor that would have the
nerve to come in and testify to this.”
• “This man will find a toxin anywhere for money.”
• “He’s not a medical doctor. He’s not a neurologist. He’s not a
psychiatrist.”
By allowing the State to attack the findings of the Court by clear and
convincing evidence, and bring in the cases from the other courts and the facts of the
extraneous cases which had to the opinions offered in the defendant’s capital murder
case, the defendant was denied a fair trial and denied the chance of a proper
punishment in his death penalty trial. Every point made by the State, as above noted,
7
Appendix - Attachment 3 (Reporter’s Record Vol 74, Pg. 60 to 61)
and Appendix - Attachment 4 (Reporter’s Record Vol 74, Pg. 152 to 153)
-17-
during its argument was designed to arouse the emotional feelings of the jurors
against the Defendant’s expert, his opinions, and ultimately the Defendant’s case.
The actions of the state in questioning the rulings of the court and the argument they
made about the expert’s opinions could only have harmed the substantial rights of the
defendant to a fair hearing.
CONCLUSION UNDER POINT OF ERROR NUMBER ONE:
The jury never was informed that the trial court had found from “clear and
convincing evidence” that the trial court used to make its “gatekeeping
determinations”. The entire hearing became a nullity. The harm that the Tex. Evid.
R. 702 and 705 was designed to prevent occurred. The jury was given no guidance
from the Court on how to determine and evaluate the expert and his opinions. The
trial jury which was not properly equipped to judge the legal requirements before the
evidence could be disregarded. They had no training on how to adequately judge the
qualifications of this expert and his testimony nor to compare the impeachment
matters inquired into by the State. The conviction of the Defendant should be
reversed and a new trial ordered or in the alternative, the sentence of death should be
reformed to a sentence of life without the possibility of parole.
-18-
POINT OF ERROR NUMBER TWO RESTATED:
The Court erred in its charge to the jury because the finding of the Court that
the Defendant was competent and sane was a comment on the weight of evidence
before the jury.
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER TWO:
The Court’s Charge to the jury contained the following after reciting that the
Defendant had pleaded guilty:
“And it appearing to the Court that the defendant is competent and
sane and that he is not influenced to make this plea by any
consideration of fear, nor by a persuasive or delusive hope of
pardon prompting him to confess his guilt, said plea is by the Court
received “ (emphasis added) 8
The Defendant objected to the inclusion of the language because the same was
not necessary and was a comment on the weight of the evidence.9 Throughout the
trial, it was the defense contention that a major part of the mitigation was that the
Defendant suffered from mental impairment due to circumstances beyond his control
and his use of illegal drugs.
SUMMARY OF ARGUMENT POINT OF ERROR NUMBER TWO:
The Defendant’s theory during the punishment hearing was that his mental
condition was such that it mitigated against the imposition of the death penalty. He
8
Appendix - Attachment 5 (District Clerks Record Vol 4, page 115)
9
Appendix - Attachment 6 (Reporter’s Record Vol. 74, page 10, line 6 to 17)
-19-
introduced evidence that both the environment where he was raised and worked, and
his habitual use of drugs affected his mental capacity to such an extent that it
mitigated against the imposition of the death penalty. The trial court informing the
jury that he had found the Defendant sane and competent was a comment on the
evidence, and extremely harmful to the mitigation theory of the defendant.
ARGUMENT AND AUTHORITIES UNDER POINT OF ERROR NUMBER TWO:
Tex. Code Crim. Proc. Art. 36.14 provides that the Court shall deliver a written
charge distinctly setting forth the law applicable to the case; not expressing any
opinion as to the weight of the evidence, not summing up the testimony,
discussing the facts .........(emphasis added). The charge of the court was in error
because it commented on the weight of the evidence as to the mental condition of the
Defendant and expressed the trial court’s opinion that the Defendant was competent
and sane.
If the error in the charge was the subject of a timely objection in the trial court,
then reversal is required if the error is "calculated to injure the rights of defendant,"
which means no more than that there must be some harm to the accused from the
error. In other words, an error which has been properly preserved by objection will
call for reversal as long as the error is not harmless. Reeves v. State, 420 S.W.3d 812,
816 (Tex. Crim. App. 2013). The court’s charge is erroneous because it conveys to
-20-
the jury that the Court has found the Defendant, competent and sane.
This portion of the court’s charge was duly objected to by the appellant when
they made the following objection:
“There is a semicolon after the consequences of the same, and I
would ask that the Court stop the paragraph at that semicolon. The jury
is not to decide competence or sanity. That has not been an issue in the
case. They are not supposed to consider any undue influence regarding
the Defendant's plea. The word "pardon" is prejudicial, and should not
be considered by the jury. All of that second part of that paragraph
and/or sentence is prejudicial and inappropriate for the jury to consider.
It's a comment on the weight of the evidence. It's confusing. It is not
neutral, and not principle as required by Gregg and Tuilaepa versus
California.”10
The charge being erroneous and having been properly objected to prior to
reading of the charge before the jury, there remains the question whether the error is
"calculated to injure the rights of defendant".
In this case, the all important issue was mitigation evidence as would warrant
a sentence of life rather than a sentence of death. The mitigation presented to the jury
consisted mainly of the defense that the past history of the Defendant was such as to
subject him to psychological disability as a result of hazzards of his environment11,
10
Appendix - Attachment 6 (Reporter’s Record Vol. 74, Pg. 10, line 6 to 17)
11
To raise the mitigation facts, the Defendant presented a county agricultural agent to
explain the chemicals tat was used in the field where the Defendant worked, family members and
other expert witnesses.
-21-
other environment factors, and his drug usage which resulted in a mental disability.
As a result of that disability, the Defendant was unable to control his actions as a
normal person would be able to do. The inability to control his actions resulted in the
murder of the deceased.
While not an excuse for his actions, these facts, if believed by the jury certainly
would be a mitigating circumstance which would lessen the “moral capability” of the
Defendant and allow for the assessment of life without parole as a punishment.
CONCLUSION UNDER POINT OF ERROR NUMBER TWO:
Because of the comment on the weight of the evidence concerning the mental
condition of the defendant conflicted with the evidence being presented in mitigation
of punishment, the error was harmful and of such a prejudicial nature that the
judgment should be set aside and a new trial ordered, or in the alternative, the
judgment should be reformed to a sentence of life without the possibility of parole.
-22-
POINT OF ERROR NUMBER THREE RESTATED:
The trial court erred in failing to grant the Appellant’s motion to strike for
cause the juror, Brenda Woods.
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER THREE: 12
Brenda Woods was strongly in favor of a death sentence. Given the
hypothetical of a convicted capital murder defendant who had no defense she agreed
that the only appropriate sentence for such a defendant was the death sentence.
(Reporter’s Record Vol. 26, p. 104) She had held her opinions about the death
sentence pretty much through her life. Her feelings are strong and were probably
derived from her father. (Reporter’s Record Vol. 26, p. 105) Her views and her father
views are pretty much the same. The death penalty is part of society and mankind.
(Reporter’s Record Vol. 26, p. 107) The death penalty removes those that cannot be
rehabilitated.
If you have a murder case, the best option is the death penalty. (Reporter’s
Record Vol 26, p.114) As to the future danger issue, if she convicted a person of
capital murder, she would have to answer “yes” that the defendant was a future
danger. (Reporter’s Record Vol. 26, p. 121) and that would be based on her beliefs
about capital murder defendants. The Court denied the motion to strike Brenda
12
Appendix - Attachment 7 (Reporter’s Record Vol. 26, Pg. 48 to 139 )
-23-
Woods for cause. The Defendant then used peremptory strike number five against
her.
SUMMARY OF ARGUMENT UNDER POINT OF ERROR NUMBER THREE:
The testimony of Brenda Woods taken as a whole indicated that she had a bias
or prejudice which would substantially impair her ability to serve as a juror in the
capital trial of the defendant, and the trial court should have excused her for cause at
the request of the defendant.
ARGUMENT AND AUTHORITIES UNDER POINT OF ERROR NUMBER
THREE:
Under the Code of Criminal Procedure, a defendant may challenge a
prospective juror for cause if the juror has a "bias or prejudice in favor of or against
the defendant", or "a bias or prejudice against any of the law applicable to the case
upon which the defense is entitled to rely" Tex Code Crim. Proc. §35.16(a)(9), (c)(2).
"A challenge for cause is an objection made to a particular juror, alleging some fact
which renders the juror incapable or unfit to serve on the jury." §35.16(a). Bias
against the law includes a potential juror's refusal to consider or apply the relevant
law because the potential juror's beliefs or opinions would prevent or substantially
impair the performance of the juror's duties. Sadler v. State, 977 S.W.2d 140, 142
(Tex. Crim. App. 1998). The test of whether the juror should be dismissed is whether
the bias or prejudice would substantially impair the juror's ability to carry out his oath
-24-
and instructions in accordance with the law. Gardner v. State, 306 S.W.3d 274, 295
(Tex. Crim. App. 2009); Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App.
2002). See Comeaux v. State, 413 S.W.3d 176, 182-183 (Tex. App. Beaumont 2013)
Therefore, before a prospective juror is qualified to sit as a juror, that person
must unequivocally demonstrate for the record that he or she would not disregard his
oath or the trial court's instructions on the law in deciding both guilt and punishment.
Thus, a prospective juror who unequivocally demonstrates for the record that he
could fairly decide the issue of guilt, but would not be able to decide the issue of
punishment or answer special issues fairly and impartially based upon the evidence,
is disqualified, as a matter of law, as a prospective juror. Thus, the prospective juror
must be able to fairly and impartially judge and decide not just one issue; he or she
must be able to fairly and impartially judge and decide both the defendant's guilt as
well as the punishment to be assessed, or, in capital murder cases, the answers to the
special issues. Cordova v. State, 733 S.W.2d 175, 186 (Tex. Crim. App. 1987)
It is not enough simply to allow the defendant to present mitigating evidence
to the sentencer. The sentencer must also be able to consider and give effect to that
evidence in imposing the sentence. Eddings v. Okla., 455 U.S. 104 (U.S. 1982) The
response of Brenda Woods indicates that she was a disabled juror in regards to her
personal beliefs when it came to answering the mitigation special issue.
-25-
The key to the analysis of the propriety of all rulings upon challenges for cause
is not the use or lack of use of a single word but the import of the voir dire of the
juror taken as a whole." Cordova v. State, 733 S.W.2d 175, 179 (Tex. Crim. App.
1987) (quoting Barrow v. State, 688 S.W.2d 860, 863 fn.1 (Tex. Crim. App. 1985).
Here, a review of the transcription of the voir dire indicates a strong opinion
concerning capital punishment which she has held most of her life. She would like
to hear the facts, but the result remains that if the defendant is actually guilty beyond
a reasonable doubt, the appropriate result would be the imposition of the death
sentence as a result of her personal views.
CONCLUSION UNDER POINT OF ERROR NUMBER THREE:
The juror record taken as a whole indicates that the trial court should have
granted the motion to strike Brenda Woods, made by the Appellant, for cause.
-26-
POINT OF ERROR NUMBER FOUR RESTATED:
The trial court erred in failing to grant the Appellant’s motion to strike for
cause the juror, Stephanie Cooper.
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER FOUR: 13
Stephanie Cooper testified that if you found someone guilty beyond a
reasonable doubt, the death sentence was more humane than life without parole. It
was a more compassionate sentence. (Reporter’s Record Vol. 27, p. 179) Then she
restates that if found guilty beyond a reasonable doubt, it is more humane to sentence
them to death, but she needed to hear everything before she makes that judgment.
(Reporter’s Record Vol 27, p.181)
Further, her belief was if there is definite proof that the defendant took a life,
then he should pay with his life. She would argue against the death penalty only if
there was a chance the Defendant was innocent. (Reporter’s Record Vol. 27, p. 182)
If there was any doubt in her mind about guilt, she would not want to send a
defendant to a lethal injection. Her personal belief is that the death penalty should
be available for all murders. (Reporter’s Record Vol 27, p. 184)
Her views about capital punishment are based on God and the bible. If you kill
somebody, you pay with your own life. (Reporter’s Record Vol 27, p.186)
13
Appendix - Attachment 8 (Reporter’s Record Vol.27, Pg. 112 to 213 )
-27-
Then towards the end of the voir dire examination she stated she could set aside
her string feelings and be “fair”. (Reporter’s Record Vol. 27, p. 201)
The Court denied the motion to strike Stephanie Cooper for cause. The Defendant
then used peremptory strike number six against her.
SUMMARY OF ARGUMENT UNDER POINT OF ERROR NUMBER FOUR:
The testimony of Stephanie Cooper taken as a whole indicated that she had a
bias or prejudice which would substantially impair her ability to serve as a juror in
the capital trial of the defendant, and the trial court should have excused her for cause
at the request of the defendant.
ARGUMENT AND AUTHORITIES UNDER POINT OF ERROR NUMBER
FOUR:
Under the Code of Criminal Procedure, a defendant may challenge a
prospective juror for cause if the juror has a "bias or prejudice in favor of or against
the defendant", or "a bias or prejudice against any of the law applicable to the case
upon which the defense is entitled to rely" Tex Code Crim. Proc. §35.16(a)(9), (c)(2).
"A challenge for cause is an objection made to a particular juror, alleging some fact
which renders the juror incapable or unfit to serve on the jury." §35.16(a). Bias
against the law includes a potential juror's refusal to consider or apply the relevant
law because the potential juror's beliefs or opinions would prevent or substantially
-28-
impair the performance of the juror's duties. Sadler v. State, 977 S.W.2d 140, 142
(Tex. Crim. App. 1998). The test of whether the juror should be dismissed is whether
the bias or prejudice would substantially impair the juror's ability to carry out his oath
and instructions in accordance with the law. Gardner v. State, 306 S.W.3d 274, 295
(Tex. Crim. App. 2009); Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App.
2002). See Comeaux v. State, 413 S.W.3d 176, 182-183 (Tex. App. Beaumont 2013)
Therefore, before a prospective juror is qualified to sit as a juror, that person
must unequivocally demonstrate for the record that he or she would not disregard his
oath or the trial court's instructions on the law in deciding both guilt and punishment.
Thus, a prospective juror who unequivocally demonstrates for the record that he
could fairly decide the issue of guilt, but would not be able to decide the issue of
punishment or answer special issues fairly and impartially based upon the evidence,
is disqualified, as a matter of law, as a prospective juror. Thus, the prospective juror
must be able to fairly and impartially judge and decide not just one issue; he or she
must be able to fairly and impartially judge and decide both the defendant's guilt as
well as the punishment to be assessed, or, in capital murder cases, the answers to the
special issues. Cordova v. State, 733 S.W.2d 175, 186 (Tex. Crim. App. 1987)
It is not enough simply to allow the defendant to present mitigating evidence
to the sentencer. The sentencer must also be able to consider and give effect to that
-29-
evidence in imposing the sentence. Eddings v. Okla., 455 U.S. 104 (U.S. 1982) The
response of Stephanie Cooper indicates that she was a disabled juror in regards to her
personal beliefs when it came to answering the mitigation special issue.
The key to the analysis of the propriety of all rulings upon challenges for cause
is not the use or lack of use of a single word but the import of the voir dire of the
juror taken as a whole." Cordova v. State, 733 S.W.2d 175, 179 (Tex. Crim. App.
1987) (quoting Barrow v. State, 688 S.W.2d 860, 863 fn.1 (Tex. Crim. App. 1985).
Stephanie Cooper’s religious and personal views are deeply ingrained and
believed. Although she stated several times that she could be fair and could consider
the alternatives, it would not be logical to believe that she would be able to set them
aside and answer the special issues fairly and impartially based on the evidence. She
demonstrated a deep religious belief which would prevent her from properly
considering mitigation in the punishment phase of the trial.
CONCLUSION UNDER POINT OF ERROR NUMBER FOUR:
The juror record taken as a whole indicates that the trial court should have
granted the motion to strike Stephanie Cooper, made by the Appellant, for cause.
-30-
POINT OF ERROR NUMBER FIVE RESTATED:
The trial court erred in refusing to grant the Appellant’s motion to strike for
cause the juror, Brenda Lee.
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER FIVE: 14
When asked about disregarding an illegally obtained confession in a death
penalty case when it was needed to convict, Brenda Lee indicated that she could not
say that she could disregard the confession even though she found that it was invalid.
(Reporter’s Record Vol 29, p. 138) But later said that if it is the only evidence to
prove guilt, she would not use it. (Reporter’s Record Vol 29, p. 141)
Brenda Lee stated that upon the conviction of a capital defendant, a death
penalty would definitely be on the table. (Reporter’s Record Vol. 29,p.123) She
opined that in biblical times, the law is specific. A life is a life. If you take a life,
then a life is called for. (Reporter’s Record Vol. 29, p.131) The short answer is that
she feels, an eye for an eye
“Q. Okay. Ms. Yenne said that mitigation is anything that might -- it doesn't
lessen the guilt, but it lessens the blame. Okay?
A. Okay.
Q. Guilty capital murderer, future danger. Would you ever consider
anything that would lessen the blame of that person?
14
Appendix - Attachment 9 (Reporter’s Record Vol. 29, Pg. 48 to 253 )
-31-
A. I think I could. You know, again, not being in the position, trying to
forecast myself there, I would hope that I could still -- and I think I
could still -- consider other circumstances, mitigating things that
happen.
Q. Do you have doubts?
A. Yes, I do.
Q. Tell me about that.
A. I just -- it's hard for me to picture once coming to those two things that
there is something out there. However, you know, it is a possibility that
it's out there.
Q. Okay. You said it's hard for you to consider that?
A. It's just hard to think of it. Not consider. I mean, that's probably the
wrong word. But it's hard to come up with it in my head right now. I
can't imagine it.
Q. Okay.
A. But it doesn't mean it's not there.
Q. Sure. But I need to know whether or not you can do that. It's a guilty
capital murderer. You have determined beyond a reasonable doubt they
are going to be a future danger. Can you ever consider anything that
will lessen the blame of that guilty murderer?
A. I could consider it if I can see it. I mean, I don't know what it would be.
I don't know what that mitigation could be. I don't know what it would
be. I just don't.
(Reporter’s Record Vol. 29, p. 145, l. 20 to p. 146 l. 25)
The Court denied the motion to strike Brenda Lee for cause. The Defendant then
-32-
used peremptory strike number seven against her.
SUMMARY OF ARGUMENT UNDER POINT OF ERROR NUMBER FIVE:
The testimony of Brenda Lee taken as a whole indicated that she had a bias or
prejudice which would substantially impair her ability to serve as a juror in the capital
trial of the defendant, and the trial court should have excused her for cause at the
request of the defendant.
ARGUMENT AND AUTHORITIES UNDER POINT OF ERROR NUMBER FIVE:
Under the Code of Criminal Procedure, a defendant may challenge a
prospective juror for cause if the juror has a "bias or prejudice in favor of or against
the defendant", or "a bias or prejudice against any of the law applicable to the case
upon which the defense is entitled to rely" Tex Code Crim. Proc. §35.16(a)(9), (c)(2).
"A challenge for cause is an objection made to a particular juror, alleging some fact
which renders the juror incapable or unfit to serve on the jury." §35.16(a). Bias
against the law includes a potential juror's refusal to consider or apply the relevant
law because the potential juror's beliefs or opinions would prevent or substantially
impair the performance of the juror's duties. Sadler v. State, 977 S.W.2d 140, 142
(Tex. Crim. App. 1998). The test of whether the juror should be dismissed is whether
the bias or prejudice would substantially impair the juror's ability to carry out his oath
and instructions in accordance with the law. Gardner v. State, 306 S.W.3d 274, 295
-33-
(Tex. Crim. App. 2009); Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App.
2002). See Comeaux v. State, 413 S.W.3d 176, 182-183 (Tex. App. Beaumont 2013)
Therefore, before a prospective juror is qualified to sit as a juror, that person
must unequivocally demonstrate for the record that he or she would not disregard his
oath or the trial court's instructions on the law in deciding both guilt and punishment.
Thus, a prospective juror who unequivocally demonstrates for the record that he
could fairly decide the issue of guilt, but would not be able to decide the issue of
punishment or answer special issues fairly and impartially based upon the evidence,
is disqualified, as a matter of law, as a prospective juror. Thus, the prospective juror
must be able to fairly and impartially judge and decide not just one issue; he or she
must be able to fairly and impartially judge and decide both the defendant's guilt as
well as the punishment to be assessed, or, in capital murder cases, the answers to the
special issues. Cordova v. State, 733 S.W.2d 175, 186 (Tex. Crim. App. 1987)
It is not enough simply to allow the defendant to present mitigating evidence
to the sentencer. The sentencer must also be able to consider and give effect to that
evidence in imposing the sentence. Eddings v. Okla., 455 U.S. 104 (U.S. 1982) The
response of Brenda Lee indicates that she was a disabled juror in regards to her
personal beliefs when it came to answering the mitigation special issue.
The key to the analysis of the propriety of all rulings upon challenges for cause
-34-
is not the use or lack of use of a single word but the import of the voir dire of the
juror taken as a whole." Cordova v. State, 733 S.W.2d 175, 179 (Tex. Crim. App.
1987) (quoting Barrow v. State, 688 S.W.2d 860, 863 fn.1 (Tex. Crim. App. 1985).
Brenda Lee’s answers to the questions and her expression of her opinions
indicated a strong belief is giving a death penalty as punishment for a capital murder
offense. She could follow the law with regard to the use of invalid confessions only
if it was the “only” evidence of guilt. If there was other evidence, she would not
disregard it. It is difficult to imagine that if she would not disregard an illegally
obtained confession when there was other evidence, that she would not be tempted
to disregard it when a capital murder would be set free.
Additionally, her answers concerning mitigation in a death penalty case
strongly indicate that she was an impaired juror in regards to finding and considering
mitigation evidence which was presented at trial.
CONCLUSION UNDER POINT OF ERROR NUMBER FIVE:
The juror record taken as a whole indicates that the trial court should have
granted the motion to strike Brenda Lee, made by the Appellant, for cause.
-35-
POINT OF ERROR NUMBER SIX RESTATED:
The trial court erred in refusing to grant the Appellant’s motion to strike for
cause the juror, Donna Vanscoy.
STATEMENT OF FACTS UNDER UNDER POINT OF ERROR NUMBER SIX:
15
Donna Vanscoy at first said that she could listen to all evidence before she
decided on the punishment. Then as she was being questioned she became more
definite about the sentence she would give. If no reason for a murder or two people
were murdered, her only verdict would be death. In those instances, she would be
automatic death. (Reporter’s Record Vol. 32, p.81) She has felt that way for the last
20 years. And she feels strongly about those punishments. (Reporter’s Record Vol
32, p. 82)
The Court denied the motion to strike trial court erred in failing to grant the
Appellant’s motion to strike the juror, Donna Vanscoy, for cause. The Defendant
then used peremptory strike number eight against her.
SUMMARY OF ARGUMENT UNDER POINT OF ERROR NUMBER SIX:
The testimony of Donna Vanscoy taken as a whole indicated that she had a bias
or prejudice which would substantially impair her ability to serve as a juror in the
capital trial of the defendant, and the trial court should have excused her for cause at
15
Appendix - Attachment 10 (Reporter’s Record Vol. 32, Pg. 34 to 109 )
-36-
the request of the defendant.
ARGUMENT AND AUTHORITIES UNDER POINT OF ERROR NUMBER SIX:
Under the Code of Criminal Procedure, a defendant may challenge a
prospective juror for cause if the juror has a "bias or prejudice in favor of or against
the defendant", or "a bias or prejudice against any of the law applicable to the case
upon which the defense is entitled to rely" Tex Code Crim. Proc. §35.16(a)(9), (c)(2).
"A challenge for cause is an objection made to a particular juror, alleging some fact
which renders the juror incapable or unfit to serve on the jury." §35.16(a). Bias
against the law includes a potential juror's refusal to consider or apply the relevant
law because the potential juror's beliefs or opinions would prevent or substantially
impair the performance of the juror's duties. Sadler v. State, 977 S.W.2d 140, 142
(Tex. Crim. App. 1998). The test of whether the juror should be dismissed is whether
the bias or prejudice would substantially impair the juror's ability to carry out his oath
and instructions in accordance with the law. Gardner v. State, 306 S.W.3d 274, 295
(Tex. Crim. App. 2009); Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App.
2002). See Comeaux v. State, 413 S.W.3d 176, 182-183 (Tex. App. Beaumont 2013)
Therefore, before a prospective juror is qualified to sit as a juror, that person
must unequivocally demonstrate for the record that he or she would not disregard his
oath or the trial court's instructions on the law in deciding both guilt and punishment.
-37-
Thus, a prospective juror who unequivocally demonstrates for the record that he
could fairly decide the issue of guilt, but would not be able to decide the issue of
punishment or answer special issues fairly and impartially based upon the evidence,
is disqualified, as a matter of law, as a prospective juror. Thus, the prospective juror
must be able to fairly and impartially judge and decide not just one issue; he or she
must be able to fairly and impartially judge and decide both the defendant's guilt as
well as the punishment to be assessed, or, in capital murder cases, the answers to the
special issues. Cordova v. State, 733 S.W.2d 175, 186 (Tex. Crim. App. 1987)
It is not enough simply to allow the defendant to present mitigating evidence
to the sentencer. The sentencer must also be able to consider and give effect to that
evidence in imposing the sentence. Eddings v. Okla., 455 U.S. 104 (U.S. 1982) The
response of Donna Vanscoy indicates that she was a disabled juror in regards to her
personal beliefs when it came to answering the mitigation special issue.
The key to the analysis of the propriety of all rulings upon challenges for cause
is not the use or lack of use of a single word but the import of the voir dire of the
juror taken as a whole." Cordova v. State, 733 S.W.2d 175, 179 (Tex. Crim. App.
1987) (quoting Barrow v. State, 688 S.W.2d 860, 863 fn.1 (Tex. Crim. App. 1985).
Donna Vanscoy’s strong feelings concerning capital murder defendants and the
appropriate sentence formed by those feelings even before she had heard the evidence
-38-
would prevent her from fairly and impartially answering the legal issues in the case.
CONCLUSION UNDER POINT OF ERROR NUMBER SIX:
The juror record taken as a whole indicates that the trial court should have
granted the motion to strike Donna Vanscoy made by the Appellant.
-39-
POINT OF ERROR NUMBER SEVEN RESTATED:
The trial court erred in failing to allow the Defendant additional peremptory
challenges upon his request before the 12th juror was seated with the selected jury
because the trial court has erred by refusing to strike one or more jurors for cause and
thereby forced the Defendant to use one or more of his peremptory strikes because of
the error.
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER SEVEN: 16
Before the time that the 12th juror was seated, the Defendant made known to the
trial court that the Defendant was out of peremptory challenges and that the juror was
objectionable to the Defendant. He then filed and submitted to the Court a motion for
additional peremptory challenges, before the juror was seated. His motion was
overruled by the court. (Reporter’s Record Vol. 49, Pg. 231 )
Prior to the motion for additional peremptory challenges, the trial court had
erroneously failed to grant the Defendant’s challenge for cause against the jurors,
Brenda Woods, Stephanie Cooper, Brenda Lee, and Donna Vanscoy.
SUMMARY OF ARGUMENT UNDER POINT OF ERROR NUMBER SEVEN
The trial court should have granted the defendant’s motion to strike for cause
one or more of the following jurors: Brenda Woods, Stephanie Cooper, Brenda Lee,
sand/or Donna Vanscoy. When the defendant’s peremptory strikes were exhausted,
the trial court should have given the defendant additional peremptory strikes to use.
16
Appendix - Attachment 11 (Reporter’s Record Vol. 49, Pg. 201 to 232 )
-40-
By refusing to do so, the trial court denied the Defendant a legally constituted jury.
ARGUMENT AND AUTHORITIES UNDER POINT OF ERROR NUMBER
SEVEN:
In order to preserve error because of the failure of the trial court to grant
additional peremptory strikes, an appellant must show:
“1. The voir dire of the individual venire person was recorded and
transcribed.
2. The appellant at trial asserted a clear and specific challenge for cause
clearly articulating the grounds therefore.
3. After the challenge for cause is denied by the trial court, appellant
uses a peremptory challenge on that juror.
4. All peremptory challenges are exhausted.
5. When all peremptory challenges have been exhausted, appellant
makes a request for additional peremptory challenges.
6. Finally, the defendant must assert that an objectionable juror sat on
the case. The appellant should point out to the trial court that he is being
forced to try the case with a juror seated whom he would have exercised
a peremptory challenge had he had one.
Harris v. State, 790 S.W.2d 568 (Tex.Cr.App. 1989); see also Cumbo v.
State, 760 S.W.2d 251, 254 (Tex.Cr.App. 1988); Bell, 724 S.W.2d at
796; East v. State, 702 S.W.2d 606, 612 (Tex.Cr.App. 1985), cert.
denied, 474 U.S. 1000, 106 S.Ct. 418, 88 L. Ed. 2d 368; White v. State,
629 S.W.2d 701, 707 (Tex.Cr.App. 1981), cert. denied, 456 U.S. 938,
102 S. Ct. 1995, 72 L. Ed. 2d 457 (1982).” Cooks v. State, 844 S.W.2d
697, 721 (Tex. Crim. App. 1992)
The Defendant complied with this requirement.
-41-
Additionally, a Defendant must also show that there were other jurors with
whom he had to use his peremptory strikes whom the trial court erroneously refused
to excuse for cause. It is clearly within the discretion of the trial court to grant
additional peremptory challenges upon exhaustion of the statutory number of strikes.
No abuse of discretion will be found for overruling a defendant's request for
additional strikes in the absence of "wrongdoing" on the part of the trial court.
Thomas v. State, 701 S.W.2d 653, 658 (Tex.Cr.App. 1985) Such “wrongdoing” may
exist if the trial court has improperly overruled a defendant's challenge for cause and
the defendant has accordingly used a strike on a juror who is subject to a challenge
for cause. Cooks v. State, 844 S.W.2d 697 (Tex. Crim. App. 1992)
The Appellant has assigned as error, the refusal of the trial court to grant a
challenge for cause to several jurors on whom he had to use peremptory strikes to
insure that they were not on the jury. In the event that any of the challenges for cause
complained of in this appeal should have been granted, the trial court committed an
error which deprived the Defendant of a lawfully constituted jury, because of the lack
of the ability to have the use of the proper number of peremptory challenges to strike
jurors.
CONCLUSION UNDER POINT OF ERROR NUMBER SEVEN:
The refusal of the trial court to grant additional peremptory challenges to the
-42-
Defendant has caused the Defendant substantial harm, and the Defendant is entitled
to have the judgment reversed and a new trial ordered, or to have the judgment
reformed to reflect a sentence of life without parole.
-43-
POINT OF ERROR NUMBER EIGHT RESTATED:
The trial court erred in preventing the defendant from acquiring from Donna
Vanscoy information with which to intelligently exercise his peremptory challenges
and challenges for cause during jury selection.
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER EIGHT: 17
During the questioning of the potential juror Donna Vanscoy, the following
occurred:
Q. Now when we talk about this mitigation, where would you -- as far as
the way this goes, where would you -- I know it says taking into
consideration all the evidence, including the circumstances of the
offense, Defendant's character and background, personal moral
culpability of the Defendant, where would you expect the mitigation to
come from?
MS. ALDOUS: Your Honor, I'm going to object. May we approach on this?
THE COURT: You may.
(The following discussion was held at the bench.)
THE COURT: We're at a bench conference. The venire person cannot hear.
MS. ALDOUS: Judge, this question is misleading to the juror. It's a
deliberate backdoor attempt to get her to say that she can't
follow the law. She repeatedly said that she would not
require the defense to produce any evidence at all, that they
don't have a burden on Special Issue No. 2, and that neither
party has a burden.
17
Appendix - Attachment 12 (Reporter’s Record Vol. 32, Pg. 101 to 102 )
-44-
MR. WOOTEN: Actually, Judge, the reason I'm asking this question is
because what a juror said yesterday or the day before.
Because they actually said that and it occurred to me that,
I mean, that's what the juror said. It's not a backdoor
attempt. I'm asking her if she assumes that we're going to
bring it, then that would be putting the burden on us.
MS. ALDOUS: Judge, he also just asked her would you require them to
produce any mitigation evidence, and she said no. And
now they are attempting to –
THE COURT: So what's your legal objection?
MS. ALDOUS: That the question is confusing to the juror and –
MS. YENNE: Additionally, Your Honor –
THE COURT: One lawyer.
MS. ALDOUS: And there may or may not be mitigation in a case
depending on the evidence.
MR. WOOTEN: Judge, it's not a trial. There is no asked and answered in
voir dire.
THE COURT: Okay. I'm going -- I'm going to go ahead and sustain the
objection.
MR. WOOTEN: We pass the juror, Judge.
SUMMARY OF ARGUMENT UNDER POINT OF ERROR NUMBER EIGHT:
The trial court denied the defendant’s attorney the right to ask and secure
information from a question asked of a juror during voir dire. The question asked
was a valid question and the court thereby denied the defendant’s attorney the right
-45-
to discover the juror’s views pertinent to the issues being tried. In such a case, harm
is presumed and the abuse of the trial court’s discretion requires a new trial. The
recent decision in Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014) is
distinguishable from the case on appeal, and in a death penalty case, the error should
cause a reversal of the judgment and the granting of a new trial.
ARGUMENT AND AUTHORITIES UNDER POINT OF ERROR NUMBER
EIGHT:
“Appellate courts apply unique standards with respect to
preservation of error during voir dire. If a party asks a proper question
of the venire, the other party objects, and the court sustains the
objection, then error is preserved. Campbell, 685 S.W.2d at 25.
"Appellant asked the question, and the State objected to the question.
The trial court sustained the objection. Appellant was thus prevented, by
a ruling of the court, from asking a proper voir dire question of the jury
panel. The error was preserved for review." Id. Appellant was not
required to further develop or exhaust the subject at issue by engaging
in further questioning. Id. at 26. See also Nunfio v. State, 808 S.W.2d at
484, overruled on other grounds in Barajas, 93 S.W.3d at 40, and
Gonzales v. State, 994 S.W.2d 170, 172 (Tex. Crim. App. 1999). The
State mischaracterizes our holding in Campbell as determining that error
is preserved in such circumstances only when the court has made a
solitary ruling to disallow a proffered question. We stated in Campbell
that further questioning or development of the subject at issue is not
required to preserve error. 685 S.W.2d at 26. However, it does not
follow that engaging in further questioning or development causes error
to be forfeited” Samaripas v. State, 2014 Tex. Crim. App. LEXIS 1559,
11 (Tex. Crim. App. Oct. 15, 2014)
“In Smith, 703 S.W.2d at 643, we reiterated the proposition that
HN18 the trial court must not restrict proper questions which seek to
discover a juror's views on an issue applicable to the case. See Powell
-46-
v. State, 631 S.W.2d 169 (Tex.Cr.App. 1982) (punishment philosophy
is a proper question); Clark v. State, 608 S.W.2d (Tex.Cr.App. 1980)
(conclusion about guilt or innocence is a proper area); Smith v. State,
513 S.W.2d 823 (Tex.Cr.App. 1974) (bias against parts of the range of
punishment is a proper matter); Mathis v. State, 167 Tex.Cr.R. 627, 322
S.W.2d 629 (1959) (juror's views relative to a defendant's defense is a
proper question).” Boyd v. State, 811 S.W.2d 105, 118 (Tex. Crim.
App. 1991)
The scope of permissible voir dire examination is necessarily broad to enable
litigants to discover bias or prejudice so that they may make challenges for cause or
peremptory challenges. Sanchez v. State, 165 S.W.3d 707, 711-12 (Tex. Crim. App.
2005). Zavala v. State, 401 S.W.3d 171, 175 (Tex. App. Houston 14th Dist. 2011)
Villarreal v. State, 2014 Tex. App. LEXIS 8589 (Tex. App. Austin Aug. 7, 2014)
The question was not a commitment question and not a global fishing
expedition. If it turned up a reason to strike the juror for cause, then it is most
certainly a valid question. The question posed by the attorney for the Defendant was
designed to probe the mind of the juror to assess her feelings. Additionally, it
inquired in the ability of the juror to consider mitigation in arriving at a response to
the mitigation special issue.
The objection of the state’s attorney was: (1) that the question was confusing
and (2) there may or may not be mitigation in the case. Neither objection was a valid
reason that the defendant's attorney should not have been able to get an answer.
A trial court's decision to restrict voir dire may only be reviewed to determine
-47-
whether the restriction constituted an abuse of discretion. The test for reviewing a
trial court's restriction of voir dire is:
"If the question is proper, an answer denied prevents intelligent use of
the peremptory challenge and harm is shown. Therefore, to show an
abuse of discretion, a defendant must demonstrate that the question he
sought to ask was proper. If the question was proper and the defendant
was prevented from asking it, then harm is presumed because the
defendant could not intelligently exercise his peremptory challenges
without the information gained from an answer.” Smith v. State, 703
S.W.2d 641, 643 (Tex. Crim. App. 1985)
Harm Analysis
In Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014) , the
court of criminal appeals held that while there may be instances in which a judge's
limitation on voir dire is "so substantial" as to rise to the level of a constitutional
error, such instances are generally the exception rather than the rule. The correct
inquiry to determine is whether the error was of a constitutional nature, and therefore,
was not whether defense counsel was prevented from exercising his "preferred
method" of questioning. The actual language of the opinion was:
“For these reasons, we overrule Plair to the extent it holds that
erroneously limiting an accused's or counsel's voir dire presentation is
constitutional error because the limitation is a per se violation of the
right to counsel. This, of course, is different from holding that such an
error may never rise to the level of constitutional magnitude. There may
be instances when a judge's limitation on voir dire is so substantial as to
warrant labeling the error as constitutional error subject to a Rule
44.2(a) harm analysis. This case, however, does not present one.”
Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014)
-48-
In this case, the question was intended to gather information about the attitudes
and bias of the potential trial juror concerning mitigation in deciding whether a
sentence of life or a sentence of death would be an appropriate sentence for the
defendant. The United States Supreme Court has held that a defendant is
constitutionally entitled to a mitigation instruction in a death penalty case, and the
evidence of mitigation can be any relevant factor. As stated in Lockett v. Ohio,
“We are now faced with those questions and we conclude that the Eighth
and Fourteenth Amendments require that the sentencer, in all but the
rarest kind of capital case, not be precluded from considering, as a
mitigating factor, any aspect of a defendant's character or record and any
of the circumstances of the offense that the defendant proffers as a basis
for a sentence less than death. We recognize that, in noncapital cases,
the established practice of individualized sentences rests not on
constitutional commands, but on public policy enacted into statutes.
The considerations that account for the wide acceptance of
individualization of sentences in noncapital cases surely cannot be
thought less important in capital cases. Given that the imposition of
death by public authority is so profoundly different from all other
penalties, we cannot avoid the conclusion that an individualized
decision is essential in capital cases.” Lockett v. Ohio, 438 U.S. 586,
604-605 (U.S. 1978)
Appellant believes that the court of appeals decision in distinguishing the
Easley case in answers to voir dire questions is the correct application of Easley. And
is the correct rule of law in the case now before this court and in all death penalty
cases. In explaining the distinction, Hill v. State held:
“We think this situation is distinguishable from Easley and the cases it
overruled and is more like Martinez v. State, where the court held that
-49-
the trial court erred when it refused to permit defense counsel to
question the venire panel about the full range of punishment. Martinez
v. State, 588 S.W.2d 954, 956-57 (Tex. Crim. App. [Panel Op.] 1979).
Although Martinez relied on Mathis v. State, 576 S.W.2d 835, 839 (Tex.
Crim. App. 1979), overruled by Easley, 2014 Tex. Crim. App. LEXIS
272, 2014 WL 941451, at *5, and on Mathis v. State, 167 Tex. Crim.
627, 322 S.W.2d 629, 631-32 (Tex. Crim. App. 1959), which relied on
Plair, and so also is overruled, both Mathis cases dealt with peremptory
challenges, while Martinez did not. It is our view that HN9 the refusal
to permit defense counsel to ask all venire members if they could
consider the minimum punishment, as enhanced, is a constitutional
violation.” Hill v. State, 426 S.W.3d 868, 877 (Tex. App. Eastland 2014)
Petition for discretionary review refused
Rule 44.2(a) applies to constitutional errors subject to harmless-error review
and mandates that "the court of appeals must reverse a judgment of conviction or
punishment unless the court determines beyond a reasonable doubt that the error did
not contribute to the conviction or punishment." Tex. R. App. P. 44.2(a) Prior to
Easley v. State, supra, the refusal to allow an answer to a proper voir dire question
was reversible error per se. Because in this instance, the error in not allowing the
attorney to gain information about the jurors feelings concerning the issue of
mitigation was a constitutional area of inquiry, the analysis under Rule 44.2(a)
requires reversal.
-50-
CONCLUSION UNDER POINT OF ERROR NUMBER EIGHT:
Because of the error committed by the trial court, the judgment should be
reversed and a new trial ordered. In the alternative, the sentence should be reformed
to life without parole.
-51-
POINT OF ERROR NUMBER NINE RESTATED:
The trial court erred in preventing the defendant from acquiring from Stephanie
Cooper information with which to intelligently exercise his peremptory challenges
and challenges for cause during jury selection.
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER NINE:
During the questioning of the potential juror Stephanie Cooper, the
Defendant’s attorney gave the juror a hypothetical occurrence where a defendant had
been convicted in the guilt stage of a capital murder. In the hypothetical, the crime
was intentional and there were no defenses to the commission of the crime. After
being given the hypothetical, the juror was asked: “What are your feelings in that
hypothetical about the death penalty being the only appropriate remedy for that guilty
murderer?”
The State objected to the form of the question as an improper commitment to
an improper hypothetical. After a discussion out of the hearing of the juror, the trial
court sustained the objection. 18
At the end of questioning and before she had made any response to acceptance
18
Appendix - Attachment 13 (Reporter’s Record Vol. 27, Pg. 190 to 195 )
-52-
or rejection of the juror, the defendant’s attorney revised the question to take out any
part that was objectionable to the state’s attorney and requested the trial court to allow
her to re-ask the question. The trial court refused to do so saying that he had already
ruled. 19
SUMMARY OF ARGUMENT UNDER POINT OF ERROR NUMBER NINE:
The trial court denied the defendant’s attorney the right to ask and secure
information from a question asked of a juror during voir dire. The question asked
was a valid question and the court thereby denied the defendant’s attorney the right
to discover the juror’s views pertinent to the issues being tried. In such a case, harm
is presumed and the abuse of the trial court’s discretion requires a new trial. The
recent decision in Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014) is
distinguishable from the case on appeal, and in a death penalty case, the error should
cause a reversal of the judgment and the granting of a new trial. ARGUMENT AND
AUTHORITIES UNDER POINT OF ERROR NUMBER NINE:
“In Smith, 703 S.W.2d at 643, we reiterated the proposition that
the trial court must not restrict proper questions which seek to discover
a juror's views on an issue applicable to the case. See Powell v. State,
631 S.W.2d 169 (Tex.Cr.App. 1982) (punishment philosophy is a proper
question); Clark v. State, 608 S.W.2d (Tex.Cr.App. 1980) (conclusion
about guilt or innocence is a proper area); Smith v. State, 513 S.W.2d
823 (Tex.Cr.App. 1974) (bias against parts of the range of punishment
19
Appendix - Attachment 14 (Reporter’s Record Vol. 27, Pg. 204 to 207 )
-53-
is a proper matter); Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629
(1959) (juror's views relative to a defendant's defense is a proper
question).” Boyd v. State, 811 S.W.2d 105, 118 (Tex. Crim. App. 1991)
“Appellate courts apply unique standards with respect to
preservation of error during voir dire. If a party asks a proper question
of the venire, the other party objects, and the court sustains the
objection, then error is preserved. Campbell, 685 S.W.2d at 25.
"Appellant asked the question, and the State objected to the question.
The trial court sustained the objection. Appellant was thus prevented, by
a ruling of the court, from asking a proper voir dire question of the jury
panel. The error was preserved for review." Id. Appellant was not
required to further develop or exhaust the subject at issue by engaging
in further questioning. Id. at 26. See also Nunfio v. State, 808 S.W.2d at
484, overruled on other grounds in Barajas, 93 S.W.3d at 40, and
Gonzales v. State, 994 S.W.2d 170, 172 (Tex. Crim. App. 1999). The
State mischaracterizes our holding in Campbell as determining that error
is preserved in such circumstances only when the court has made a
solitary ruling to disallow a proffered question. We stated in Campbell
that further questioning or development of the subject at issue is not
required to preserve error. 685 S.W.2d at 26. However, it does not
follow that engaging in further questioning or development causes error
to be forfeited” Samaripas v. State, 2014 Tex. Crim. App. LEXIS 1559,
11 (Tex. Crim. App. Oct. 15, 2014)
The question was not a commitment question. It was designed to probe
the mind of the juror to assess her feelings. Additionally, if it turned up a reason to
strike the juror for cause, then it is most certainly a valid question.
"A trial court's decision to restrict voir dire may only be reviewed
to determine whether the restriction constituted an abuse of discretion.
Smith, supra. The test for reviewing a trial court's restriction of voir dire
was recently reaffirmed: "If the question is proper, an answer denied
prevents intelligent use of the peremptory challenge and harm is shown."
Powell, supra at 170, quoting Mathis, 576 S.W.2d at 837. See also
-54-
Smith, supra. Therefore, to show an abuse of discretion, a defendant
must demonstrate that the question he sought to ask was proper. If the
question was proper and the defendant was prevented from asking it,
then harm is presumed because the defendant could not intelligently
exercise his peremptory challenges without the information gained from
an answer." Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App.
1985)
Harm Analysis
The next question is whether the denial of the question is sufficient to require
reversal pursuant to Tex. R. App. P. Rule 44.2.
In Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014) , the court of
criminal appeals held that while there may be instances in which a judge's limitation
on voir dire is "so substantial" as to rise to the level of a constitutional error, such
instances are generally the exception rather than the rule. The correct inquiry to
determine is whether the error was of a constitutional nature, and therefore, was not
whether defense counsel was prevented from exercising his "preferred method" of
questioning. The actual language of the opinion was:
“For these reasons, we overrule Plair to the extent it holds that
erroneously limiting an accused's or counsel's voir dire presentation is
constitutional error because the limitation is a per se violation of the
right to counsel. This, of course, is different from holding that such an
error may never rise to the level of constitutional magnitude. There may
be instances when a judge's limitation on voir dire is so substantial as to
warrant labeling the error as constitutional error subject to a Rule
44.2(a) harm analysis. This case, however, does not present one.”
Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014)
-55-
The Easley Court went on to say that unless there was constitutional error, the
harm analysis should be under 44.1(b), “that the complained of error affects the
substantial rights of the Defendant”. Since there is no mechanism for the Appellant
to show what the answer would be, it is almost impossible for him to show that he
was substantially harmed by the failure to allow an answer to the question which
would have been given by the juror. A trial where the death penalty is sought is a
special case because a sentence of death has an irreversible finality. It is a type of
case where many potential jurors have strong emotions and opinions. It is only in this
kind of case that individual voir dire is required. This Court's prior opinion that harm
must be assessed under Rule 44.2(b) should be visited again when the question was
asked on individual voir dire in a death penalty case.
In the Easley case, the purpose was to explain the various presumptions of
proof. In the Appellant’s case, the purpose of the question was intended to gather
information about the attitudes and bias of the potential fact finder concerning the
decision of whether a sentence of life or a sentence of death would be an appropriate
sentence for the defendant.
Appellant agrees with the distinction which was drawn in Hill v. State when
the court of appeals stated:
"We think this situation is distinguishable from Easley and the
cases it overruled and is more like Martinez v. State, where the court
-56-
held that the trial court erred when it refused to permit defense counsel
to question the venire panel about the full range of punishment.
Martinez v. State, 588 S.W.2d 954, 956-57 (Tex. Crim. App. [Panel Op.]
1979). Although Martinez relied on Mathis v. State, 576 S.W.2d 835,
839 (Tex. Crim. App. 1979), overruled by Easley, 2014 Tex. Crim. App.
LEXIS 272, 2014 WL 941451, at *5, and on Mathis v. State, 167 Tex.
Crim. 627, 322 S.W.2d 629, 631-32 (Tex. Crim. App. 1959), which
relied on Plair, and so also is overruled, both Mathis cases dealt with
peremptory challenges, while Martinez did not. It is our view that HN9
the refusal to permit defense counsel to ask all venire members if they
could consider the minimum punishment, as enhanced, is a
constitutional violation." Hill v. State, 426 S.W.3d 868, 877 (Tex. App.
Eastland 2014) Petition for discretionary review refused
As applied to the instant appeal, the trial court's action in refusing to allow the
answer to the question of the defendant's attorney is subject to a Rule 44.2(a) analysis.
Under a Rule 44.2(a) analysis, the abuse of discretion by the trial court would be
reversible error.
CONCLUSION UNDER POINT OF ERROR NUMBER NINE:
Because of the error committed by the trial court, the judgment should be
reversed and a new trial ordered. In the alternative, the sentence should be reformed
to life without parole.
-57-
POINT OF ERROR NUMBER TEN RESTATED:
The trial court erred in preventing the defendant from acquiring from Audrey
Holt information with which to intelligently exercise his peremptory challenges and
challenges for cause during jury selection.
STATEMENT OF FACTS UNDER POINT OF ERROR NUMBER TEN: 20
During the questioning of the potential juror Audrey Holt, the following
occurred:
Q. Okay. You said you live here in Angleton. Is that right?
A. Yes.
Q. Okay. Do you have a feel for what the community thinks about the death
penalty? Do you think most of the community is in favor of it?
MS. YENNE: Your Honor, I'm going to object to relevancy and improper
form of the question by venire about the Angleton
community.
THE COURT: Sustained.
MS. MALLON: Can we approach, please?
THE COURT: You may.
(The following discussion was held at the bench.)
THE COURT: Your response? We're at a bench conference. The venire
person cannot hear.
MS. MALLON: Your Honor, this is not a witness in a case. It's a juror in a
20
Appendix - Attachment 15 (Reporter’s Record Vol. 23, Pg. 99 to 100 )
-58-
Capital Murder case. There is no relevancy objection to
determining a juror's feelings on all the issues at stake in
this case. Voir dire is intended to be very broad.
THE COURT: I agree. But to elicit facts.
MS. YENNE: It's her feelings, not a community's feelings, on their
perspective in an effort to put pressure on the venireman.
THE COURT: I'm going to sustain the objection as to the community's
feelings.
(Bench discussion concluded
SUMMARY OF ARGUMENT UNDER POINT OF ERROR NUMBER TEN:
The trial court denied the defendant’s attorney the right to ask and secure
information from a question asked of a juror during voir dire. The question asked
was a valid question and the court thereby denied the defendant’s attorney the right
to discover the juror’s views pertinent to the issues being tried. In such a case, harm
is presumed and the abuse of the trial court’s discretion requires a new trial. The
recent decision in Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim. App. 2014) is
distinguishable from the case on appeal, and in a death penalty case, the error should
cause a reversal of the judgment and the granting of a new trial.
ARGUMENT AND AUTHORITIES UNDER POINT OF ERROR NUMBER TEN:
“Appellate courts apply unique standards with respect to
preservation of error during voir dire. If a party asks a proper question
of the venire, the other party objects, and the court sustains the
objection, then error is preserved. Campbell, 685 S.W.2d at 25.
-59-
"Appellant asked the question, and the State objected to the question.
The trial court sustained the objection. Appellant was thus prevented, by
a ruling of the court, from asking a proper voir dire question of the jury
panel. The error was preserved for review." Id. Appellant was not
required to further develop or exhaust the subject at issue by engaging
in further questioning. Id. at 26. See also Nunfio v. State, 808 S.W.2d at
484, overruled on other grounds in Barajas, 93 S.W.3d at 40, and
Gonzales v. State, 994 S.W.2d 170, 172 (Tex. Crim. App. 1999). The
State mischaracterizes our holding in Campbell as determining that error
is preserved in such circumstances only when the court has made a
solitary ruling to disallow a proffered question. We stated in Campbell
that further questioning or development of the subject at issue is not
required to preserve error. 685 S.W.2d at 26. However, it does not
follow that engaging in further questioning or development causes error
to be forfeited” Samaripas v. State, 2014 Tex. Crim. App. LEXIS 1559,
11 (Tex. Crim. App. Oct. 15, 2014)
The inquiry had relevance in that if the juror had a feel for what the attitudes
of the community was, it might lead to more questions as what effect that knowledge
would have on her fitness to serve as a juror in the trial in a death penalty case. The
question was not a global fishing expedition but was limited in scope and related to
the area where the juror resided. It was intended to find out what her perception of
the community attitudes was and what influence that knowledge would have on her
decisions as a juror. The future questions were intended to flush out what, if any, her
bias might have been as a result of the influences of the community where she resided
and worked.
"A trial court's decision to restrict voir dire may only be
reviewed to determine whether the restriction constituted an abuse of
discretion. Smith, supra. The test for reviewing a trial court's restriction
-60-
of voir dire was recently reaffirmed: "If the question is proper, an
answer denied prevents intelligent use of the peremptory challenge and
harm is shown." Powell, supra at 170, quoting Mathis, 576 S.W.2d at
837. See also Smith, supra. Therefore, to show an abuse of discretion,
a defendant must demonstrate that the question he sought to ask was
proper. If the question was proper and the defendant was prevented from
asking it, then harm is presumed because the defendant could not
intelligently exercise his peremptory challenges without the information
gained from an answer." Smith v. State, 703 S.W.2d 641, 643 (Tex.
Crim. App. 1985)
Harm Analysis
The next question is whether the denial of the question is sufficient to require
reversal pursuant to Tex. R. App. P. Rule 44.2. Recently, the Court of Criminal
Appeals determined that the harm as a result of the error should be analyzed pursuant
to a non-constitutional harm analysis under Rule 44.2(b). In that case, the Appellant
was trying to explain a concept when the trial court refused to allow him to do so. In
this case, the Appellant was trying to determine the feelings of the juror through the
use of questioning. Since there is no mechanism for the Appellant to show what the
answer would be, it is almost impossible for him to show that he was substantially
harmed by the failure to allow an answer to the question to be given by the juror.
This Court's prior opinion that harm must be assessed under Rule 44.2(b) should be
visited again at least in death penalty cases. Appellant agrees with the distinction
which was drawn in Hill v. State when the court of appeals stated:
"We think this situation is distinguishable from Easley and the
-61-
cases it overruled and is more like Martinez v. State, where the court
held that the trial court erred when it refused to permit defense counsel
to question the venire panel about the full range of punishment.
Martinez v. State, 588 S.W.2d 954, 956-57 (Tex. Crim. App. [Panel Op.]
1979). Although Martinez relied on Mathis v. State, 576 S.W.2d 835,
839 (Tex. Crim. App. 1979), overruled by Easley, 2014 Tex. Crim. App.
LEXIS 272, 2014 WL 941451, at *5, and on Mathis v. State, 167 Tex.
Crim. 627, 322 S.W.2d 629, 631-32 (Tex. Crim. App. 1959), which
relied on Plair, and so also is overruled, both Mathis cases dealt with
peremptory challenges, while Martinez did not. It is our view that HN9
the refusal to permit defense counsel to ask all veniremembers if they
could consider the minimum punishment, as enhanced, is a
constitutional violation." Hill v. State, 426 S.W.3d 868, 877 (Tex. App.
Eastland 2014) Petition for discretionary review refused
As applied to the instant appeal, the trial court's action in refusing to allow the
answer to the question of the defendant's attorney is subject to a Rule 44.2(a) analysis.
Under a Rule 44.2(a) analysis, the abuse of discretion by the trial court would be
reversible error.
CONCLUSION UNDER POINT OF ERROR NUMBER TEN::
Because of the error committed by the trial court, the judgment should be
reversed and a new trial ordered. In the alternative, the sentence should be reformed
to life without parole.
-62-
PRAYER
WHEREFORE, Premises Considered, the Appellant requests and prays that
the judgment of the trial court be reversed and that a new trial should be granted.
Respectfully submitted,
/s/ Jimmy Phillips Jr.
Jimmy Phillips, Jr.
P. O. Drawer 29
Angleton, Texas 77516-0029
979 849-8511
Fax 979 849-1409
Bar Card #15953000
ATTORNEY FOR APPELLANT
JAMES HARRIS JR.
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of Appellant’s Brief was
personally served on the Brazoria County District Attorney, 111 E. Locust, Suite
408A, Angleton, TX 77515 on February 3rd, 2015.
/s/ Jimmy Phillips Jr.
Jimmy Phillips, Jr.
Attorney for Appellant
CERTIFICATE OF DOCUMENT WORD COUNT
I do hereby certify that the word count of the Appellant's Brief is 16,098 words
pursuant to the word count by Word Perfect 7.
/s/ Jimmy Phillips Jr.
Jimmy Phillips, Jr.
Attorney for Appellant
-63-
Harris, James Jr.
Combined Opinion