Glaze, Joshua

/60Y/Y
ORIGINAL NO. 09-14-00089-CR

In the

COURT OF CRIMINAL APPEALS OF TEXAS RECEIVED IN
COURT OF CRIMINAL APPEALS
for the
JAN 30 2015
THE STATE OF TEXAS

at

AUSTIN'--, TEXAS

FILED IN
JOSHUA GLAZE COURT OF CRIMINAL APPEALS
vs JAN 3 0 2315

THE STATE OF TEXAS
Abe! Acosta, Clerk

Appellant's Brief for Discretionary Review

ORAL ARGUMENT REQUESTED

JOSHUA GLAZE
CONNALLY UNIT
TEXAS DEPT. OF CRIMINAL JUSTICE
899 F.M. 632
KENEDY, TEXAS 78119

APPELLANT FILING PRO-SE

PAGE 1QF 15
 IDENTITY of PARTIES and COUNSEL

Appellant:

JOSHUA GLAZE

Appellee:

THE STATE OF TEXAS

Counsel for Appellant:

JOSHUA GLAZE
CONNALLY UNIT
TDCJ
899 F.M. 632
Kenedy, Tx. 78119

APPELLANT IS FILING PRO-SE

Counsel for Appellee:

Sue Korioth, P.C. ( Special Proseccutor Assisting the Hardin County)
Sate Bar No. 116975
P.O. box 600103
Dallas, Tx. 75360

C/0 David Sheffield
District Attorney Hardin County
P.O. Box 1409
Kountze, Tx. 77625

ATTORNEY FOR APPELLEE

PAGE 2 OF 15
 TABLE OF CONTENTS

IDENTITY of PARTIES and COUNSEL 2

TABLE of CONTENTS
3

INDEX of AUTHORITIES
4

STATEMENT REGARGING ORAL ARGUMENT 5

STATEMENT of the ;CASE
5
ARGUMENT
7
POINT ONE
7

Iht FN™CrUrt abVSed itS discretion by not admitting
the ENTIRE Coroner s report into evidence because the
State failed to state any relevant basis for it's •
more prejudical than probative" objection.
PRAYER

CERTIFICATE OF UNSWORN DECLARATION u
COURT OF APPEALS RULING
15

PAGE 3 OF 15
 INDEX OF AUTHORITIES

STATE CASES:

Crank v. State. 761 S.W.2d 328, 342 n. 5(Tex. Crim.App.1988) 9
Green v. State. 840 S.W.2d 394,410(Tex.Crim.App.1992) 9
Joiner v. State. 825 S.W.2d 701,708(Tex. Crim.Appl992) 9
McFarland v. State. 845 S.W. 2d 824,837(Tex.Crim.Appl991),
cert, denied,508 U.S. 963,113 S.Ct.2937,124 L.Ed.2d686(1993) 9
Montgomery y State. 810 S.W.2d 841,846 n.6(Tex.Crim.Appl999) 8-10
(op. on reh^)

Mozon v. State, 991 S.W.2d 841,846 n.6(Tex.Crim.App.1999) 8-9
n0ddaiTAootate-
Dist.J1988, pet. 745 ?-?-2d
ref'd) 415>417-18,(Tex.APP.-Houston[l4th 9

Federal Cases:

United States v. Figueroa, 618 F.2d 934,943 (2d Cir.1980) 9
United; States v. Jamil. 707 F.2d 638, 644-645 (2d Cir.1983) 8

FEDERAL STATUTES and RULES

Fed.R.Evid. 403

PAGE 4 OF 15
 NO. 09-14-00089-CR

In the

COURT OF CRIMINAL APPEALS

for the

THE STATE OF TEXAS

at

AUSTIN , TEXAS

JOSHUA GLAZE

vs.

THE STATE OF TEXAS

Appellant's Brief for DiscEetionaryPReview

TO THE HONORABLE the JUSTICE of the STATE OF TEXAS COURT OF CRIMINAL

APPEALS:

COMES NOW Appellant, JOSHUA GLAZE, and files this Discretionary
Review and, in support thereof, this

Appellant Brief.

STATEMENT REGARDING ORAL ARGUEMENT

Oral argument will not aid the Court's decision process in this
appeal.

STATEMENT of the CASE

For ease of reference, the following facts can be found generally
in the Court Reporter's transcript Volume 4, Page 11, Line 14
through Page 17, Line 19.

PAGE 5 OF 15
On or about November 14,2012 the Defendant, Joshua Glaze, and

his cousin, Curtis Glaze, started to follow a truck unfamiliar

to them, a white Chevrolet Silverado, on their property at the

end of Glaze Road.Joshua Glaze was the driver and Curtis was the

front seat passenger of their white Dodge Durango. There were

two other passengers in the back seats of their vehicle, Mallory

Wood and Colton, Curtis's 3 year old son.

When the occupants of the Durango attempted to stop the

occupants of the Silverado, the Silverado sped away. The sil-

varado accelerated away and attempted to evade the Appellant

and Co- Defendant. A chase ensued where speeds reached between

60 mph and 80mph. At some point in the chase Curtis used a rifle

to shoot in the direction of the Chevrolet Silverado. It is

unclear how many shots were fired and how quickly this action

occurred. At some point, the Silverado veered off the road,

drove through a fence and stopped in a field. Two occupants in j

the Chevrolet Silverado, Horace Theal and Briana Herring, left

the vehicle and ran into the field/woods. The driver/decedent of

the Silverado, Brian Drake Jr., had been hit by one of the shots

and remained dead in the vehicle. The passenger called 911 on a

cell phone and reported the incident to the authorities. Alle

gedly, a vehicle resembling the white Durango returned and the

passengers of that vehicle called out to the Silverado's passen
gers in the field/woods.

A police investigation recovered two shell casing of the
same caliber as the Co-Defendant's rifle at two location along

the chase path. .The Appellant and Co-Defendant, Curtis Glaze and

Joshua Glaze, were taken into custody and questioned by author
ities. Additionally, conversations between the appellant and -

others were recorded by the Hardin County County Jail.
PAGE 6 OF 15
The appellant was tried by a jury for Murder and found guilty.

This Appeal results.

ARGUMENT

POINT ONE

The trail court abused its discretion by not admitting the ENTIRE
coroners report into evidence because the State failed to state
any relevant basis for its "more prejudical than probative" ob
jection.

The appellant attempted to admit into evidence the entirety

of the Coroner's report, which contained chemical testing of the
Decendents blood. (RR, Vol. 4, Page 142, Line 19-20) This testing
based on quantity in the blood, indicated that the Decedent had

ingested marijuana within the last few hours before his death.

(RR, Vol 4, Page 144, Line 2-5) The State objected to this port-
ionof the Coroner report as be none relevant and "more prejudical

than probative."(RR, Vol 4,Page 142, Line 21-25 and Page 145,
Line 6-8) However, the State did not explain how this report
prejudiced the State's case to the extent that it negated any
probative value of the evidence contained in the report.

The State's objections were:

"Your Honor, we don't have an objctionto the first
four pages of the report as being relevant to the
autopsy. We object to the last three pages as not
relevant to the cause of death of the autopsy or who
the shooter was or anything like that"(RR, VOL 4,
Page 142, Line 21-25);
"...it [the toxicology portion of the Coroner's re
port] clouds the issue unless the issue is that he
died from something other than a gunshot wound..."
(RR, Vol 4, Page 144, Line 13-14);
"We are objecting under 403 that the last three pages
are more prejudicaial than probative to anything in
the case."(RR, Vol 4, Pagel45,Line 6-8);
and

PAGE 7 OF 15
 And even if relevant, then it's more probative
of something for the finder than prejudical"
(RR, Vol. 4, Page 145, Line 22-24)
The above statements consist of the sum total of relevant
explanation by the State of why the toxicology report is "more
prejudical than probative." The State argued that the tocicology
report should be severed from the submitted Coroner's report
and shown to the jury with the rest of that report.
It must be remembered, however, that virtually all evidence
proffered by a party to a lawsuit will be prejudical to the opp
osing party." See Montgomry v. State. 810 S.W.2d 372,378(Tex.
Crim.App.l991)(op.on. reh'g)"In United States v. Figueroa. 618
F.2d 934,943(2d Cir.1980) the court explained:
"All Evidence introduced against a defendant,
if material to an issue in the case, tends to prove
guilt, but it is not necessarily prejudical in any
sense that matters to the rules of evidence Evidence
is prejudical only when it tends to have some adverse
ettect upon a defendant beyond tending to prove the
fact or issue that justified its admission into evidence
ihe prejudical effect may be created by the ten
dency of the evidence to prove some adverse fact not
properly in issue or unfairly to excite emotions against
the defendant Whenmaterial evidence has an additional
prejudical effect, Rule 403 requires the trail court
to make a conscientious assessment of whether the
probative value of the evidence on a disputed issue
in the case is substantially outweighed by the pre
judical tendency of the evidence to have some other
adverse effect upon the defendant."See United States
•?---. v. Figueroa. 618 F.2d 934, 943(2dCir. 1980")
The Tex. Rule of Evidencel07(Rule of Optional Completness)
may be modified by Tex. Rule of Evidence 403(Exclusion of Relevant
Evidence on Special Grounds).In Mozon v. State. 991 S.W.2d 841,
846 n.6(Tex.Crim.App.1999),the Court refers to a balancing test
'Wh'i'-ch the Court"must Apply if a TRE 403 objection is made to the
addmission of-"eyidence.

PAGE 8 OF 15
 "The trail Court need not engage in [a] balancing
test unless the opponent of the evidence further
objects based upon Rule 403, that the probative
value of the evidence is substanially outweighted
by the danger of unfair prejudice, confusion
of the issues, or needless presentation of cum
ulative evidence. Once Rule 403objection is raised
, however, the trail Court has no discretion as
to whether or not to engage in the balancing
process." See Id at 846.

"A discussionof the evidence's prejudice is necessary
because Rule403 creates a presumption of admiss
ibility of all relevant evidence and authorizes
a trial judge to exclude such evidence only when
there is "clear disparity between the degree of
prejudice of the offered evidence and its probative
value.") See Id at848; Joiner v. State, 825 S.W.2d
824, 837(Tex.Crim.Appl992),cert, denied,508 U.S.963,
113,S.Ct.2937,124 L.Ed.2d 686(1993);Green v. State,
840 S.W.2d 394, 410 (Tex.Crim.App.199TJ
The State wholly failed to make any relevant arguments in
support of this balancing test,

(see above arguments by state's attorney).
"The only proper basis for the trail court to
exclude the evidence in this case is that provided
in the only proper basis for an appellate court
to reverse a trail court's decision is when the
record demonstrates that the trail court has abused
its discretion." See Montgomery v. State, 810
S.W.2d 372,383(Tex.Crim.App.1991)(op.on reh'g);
"...there has been a alteration in focus; now
it is the opponet's burden to not only demonstrate
the proffered evidence's negative attributes but
to show also that these negatives attributes"sub-
stantially outweigh"any probative value.Crank
v. State, 761 S.W.2d 328,342 n.5(Tex.Crim.App.1988);
Rodda v. State; 745 S.W.2d 415-18(Tex.App.-Houston
L14thDist.J 1988,pet.ref'd);
and

"As such,only "unfair"prejudice provides the basis
for exclusion of relevant evidence. See United States
v. Jamil, 707 F.2d 638, 644-45(2nd Cir.1983)("pre-
judice" does not constitute showing of "unfair '
prejudice). See also Advisory Committee's note
to Fed.REvid.403("Unfair" prejudice means an
"undue tendency to suggest decision on an improper
basis,commonly,though not necessarily, an emotional
one")See Montgomery v. State, 810 S.W 2d 372,378
TTex.Crim.Xppf71uyi7(opon reh'g)

PAGE 9 OF 15
 Absent any specific arguments by the State conforming to
balancing test in Mozan, it is impossible to determine exactly
what evidence, if any, the Judge used in arriving.at his decision
under the balancing test. THE State's generalized its " more
prejudical than probative" objection alone is insufficient to

support the evidentiary requirements of the mandatory balancing
test required by these cases.

The job of an attorney, in any case, is to tell a story
to the trier of fact and attempt to explain the actions of the
participants of that story using known facts. The State objects
to the use of the toxicology report because it has no direct
bearing on the cause of death of the Decedent. However, the State
neglects to also point out that there are other factors relevant

to the Appellant's defense, such as credibility of the witnesses
the motives of the parties involved and the actions of the parties
if their capacity was diminished at the time of the crime. Having
the toxicology report in evidence would have allowed the Appellant's
attorney to inquire into the drug use of the Decedent and some

of the state witnesses. It is relevant credibility evidence for
cross examination of some of the State's witnesses(i.e. the Decedent's

Companions).(RR, Vol.4,Page 143,Line 21 through Page 144,Line 10)
The complained of toxicology report was prepared by a State
employee at the behest of the State in preparation for this trail.
(RR,Vol. 4,Page 135, Line 10 through Pagel36, Line 22) It is
not an addendum but PART of the Coroner's report.(RR,VOL. 4,Page
145,Linell-17) Additionally, it indicatedthat the Decendent used
illegal drugs within hours of his death at a time when he was

in the company of some of the State's witnesses. The complained

PAGE 10 OF 15
of portion of the Coroner's report was not some outside evidence

or other related writing; it was PART of the report submitted

by the examining physician. The balancing test should always

be more intensively weighed against a party trying to exclude

parts of a document prepared by one of their agents(i.e. the
Coroner is employed by the State). The balancing testshould always
be more intensively weighed against redacting sections of admissible

documents as opposed to keeping out related separate documents.

If information was contained in a report then the information, was

considered sufficiently important to the preparer to include

the information rather than omit it.

The Appellant's attorney argued that the report would go
to the credibility of the State's witnesses,Briana Herring's
testimony, as follows (RR,Vol. 4,Page 146,Line 16 through Page

147,Line 5) :
"Mr.Hoffer (state): What difference is it
whether somebody else smoked[illegal drugs]
Mr.Crocker (defense): It's her preception,
your honor. lean ask her then,"Well were you
smoking with him and were you out in the woods
they are calling your name when, in fact, they
were not?"

Mr.Sheffield (state): I think Briana takes the
stand, any question he has, you know, can be fair
game;but this has no relevance to what his client
did not do and to the cause of death.

Mr.Crocker (defense): Your Honor, if I'm A witness
to a cause and I'm inebriated through whatever
source,alcohol or otherwise,I have the right 1
anticipate I'm going to be questioned about that,
if there is scientific evidence."

The State virtually acknowledges the relevance of their
witness's knowledge of the Decedent's us eof illegal drugs just
prior to his demise. For a State Prosecutor to argue that the

PAGE 11 OF 15
commission of a crime(i.e. "What difference is it whether somebody

else smoked [illegal drugs]?")by a witness, in relation to her
preceptions, has no bearing on her credibility is patently ridiculous

Briana Herring did not testify but Horace Theal did and

was present with both Briana and _the Decendent during the hours
preceding the incident(RR,Vol. 5, Page7,Line 11 through Page
33,Line 14) This same credibility evidence could also have been
used in the cross-examination of Horace Theal.

Even if the witness did not use illegal drugs, he would

have been aware that the Decendant used shortly before his demise.

The witness did not disclose that the fact to law enforcement,

which creates questions about his credibility.If he failed to
disclose criminal acts by the Decendent and possibly his companions,

what else might he be concealing about that night.

Additiionally, it creates questions about the State's evidence
collected in this case, rather the LACK of evidence. For instance

no mention is made in the State's reports of the "smell" of
marijuana, and no evidence is collected as to the presence of
marijuana use(i.e containers, paraphernalia, etc.) All this
creates a question of whether the passengers in the Silverado

"sanitized" some of the evidence in the vehicle when they removed

the Decedent's cell phone to call the police on, before the police
officers arrived on the scene. This would all go to witness credi

bility and possible exculpatory evidence destruction/removal
by those witnesses.

One of the Appellant's primary arguements was that the shooting
portion of the chase happened so quickly that the driver,Joshua
Glaze, was unable to stop the shooter, Curtis^Glaze.(RR,Vol.

PAGE 12 OF 15
4,Page 201, Line 11 through 202, Line 24) Some of this argument
was based on the perception of one of the passengers of the
Silverado, Horace Theal. (RR,Vol. 5, Page 27, Line 14 through
Page 29, Line 5) If the State's witness was intoxicated, then
his time perception may have affected by the ingestion of mind
altering substances.

In conclusion, the States and the Court failed to addresss

how the evidence was more prejudicial, much less why it was so
prejudicial that it had to be excluded under Tex. Rules of Evidence

403 (Exclusion of Relevant Evidence on Special Grounds).

PRAYER

For the foregoing reasons, Appellant prays that this Court

vacate the current judgement and dismiss this case. Or in the

alternative, dismiss the current judgement and send this case
back to the trail Court with instructions to retry this case
pursuant this Court's instructions. The Appellant also prays
for any and all other relief that this Honorable Court deems

necessary to a fair and final determination in this case.

Respectfully Submitted,

Joshua Glaze
899 FM 632
Kenedy,Texas 78119

PAGE 13 OF 15
 UNSWORN DECLARATION

I, Joshua Glaze, do hereby Certify and Declare that all
statements her, are true and correct to my belief and knowledge.

I am of sound mind and under no duress nor impediment to make

such, this Declartion is made voluntarilly.

I am incarcerated at the Texas Department of Criminal Justice

and am at the Connally Unit in Kenedy Texas.

Executed on this day the 20 of January 2015,

o/-i0-/5~

PAGE 14 OF 15
 IN THE NINTH COURT OF APPEALS

09-14-00089-CR

Joshua Glaze
v.

The State of Texas

On Appeal from the
356th District Court of Hardin County, Texas
Trial Cause No. 22030

JUDGMENT

THE NINTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. IT
IS THEREFORE ORDERED, in accordance with the Court's opinion, that
the judgment of the trial court is affirmed.
Opinion of the Court delivered by Chief Justice Steve McKeithen
November 19, 2014

AFFIRMED

Copies of this judgment and the Court's opinion are certified for
observance.

Carol Anne Harley
Clerk of the Court

PAGE 15 OF 15
 In The

Court ofAppeals

Ninth District of Texas at Beaumont

NO. 09-14-00089-CR

JOSHUA GLAZE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 356th District Court
Hardin County, Texas
Trial Cause No. 22030

MEMORANDUM OPINION

A jury convicted Joshua Glaze of murder and sentenced Glaze to life in

prison. In one appellate issue, Glaze challenges the trial court's refusal to admit a

toxicology report into evidence at trial. We affirm the trial court's judgment.

"A trial court has broad discretion in determining the admissibility of the

evidence[.]" Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991). We

review a trial court's evidentiary rulings for abuse of discretion. Oprean v. State,

201 S.W.3d 724, 726 (Tex. Crim. App. 2006)."Error may not be predicated upon a
ruling which admits or excludes evidence unless a substantial right of the party is

affected[.]" Tex. R. Evid. 103(a); see Tex. R. App. P. 44.2(b).

The medical examiner testified that the victim died of a gunshot wound to

the back of the neck. On cross-examination, Glaze sought to admit a toxicology

report into evidence. The State argued that the report was irrelevant to the victim's

cause of death or to who shot the victim and was more prejudicial than probative.

Glaze argued that the report showed that the victim ingested marihuana before the

murder and was, thus, relevant to the surviving witnesses' veracity regarding the

details surrounding the murder. The trial court excluded the report. During a

subsequent bill of exception, Glaze re-urged his contention that the report called

the surviving witnesses' veracity into question. The trial court found that any

probative value of the evidence was outweighed by the danger of unfair prejudice

and confusion of the issues.

Even relevant evidence may be excluded when "its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence." Tex. R. Evid. 403. "'Unfair prejudice' refers

to a tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one." Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim.
App. 2007). '"Confusion of the issues[]' refers to a tendency to confuse or distract

the jury from the main issues in the case[]" and lead to consideration of factual

disputes that are only tangentially related to the issues in the case. Id. at 880; Wiley

v. State, 1A S.W.3d 399, 407 n.21 (Tex. Crim. App. 2002).

According to the record, the victim was with two friends, Horace Theal and

Briana Herring, at the time of the murder. Only Theal testified at trial. Glaze

argues that Theal failed to disclose that the victim had used drugs before the

murder; thus, Glaze maintains that Theal might have concealed other information

if he failed to disclose any criminal acts by the victim, Theal, or Herring. Glaze

contends that the toxicology report was necessary to allow him to challenge

Theal's credibility. Even without the report, however, questions asked of a witness

on cross-examination, which may have a tendency to affect the witness's

credibility are considered proper. Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim.

App. 1984). Assuming questions about drug use would have had a tendency to

affect Theal's credibility, the record does not demonstrate that Glaze attempted to

question Theal about any drug use on the night of the murder.

1Glaze also complains that the toxicology report creates questions regarding
the evidence, or lack thereof, collected by the State. However, Glaze did not
present this argument at trial. See Tex. R. App. P. 33.1(a).
3
 Moreover, the issue before the jury was whether Glaze intentionally or

knowingly caused the victim's death. See Tex. Penal Code Ann. § 19.02(b)(1)

(West 2011). Evidence that the victim ingested marihuana before the murder is, at

best, tangentially related to whether Glaze murdered the victim, and such evidence

carried with it the danger of the jury making a decision based on emotion or

prejudice against the victim. See Casey, 215 S.W.3d at 879; see also Wiley, 74

S.W.3d at 407 n.21. Accordingly, we conclude that the trial court did not abuse its

discretion by excluding the toxicology report. See Oprean, 201 S.W.3d at 726. We

overrule Glaze's sole issue and affirm the trial court's judgment.

AFFIRMED.

STEVE McKEITHEN
Chief Justice

Submitted on November 10, 2014
Opinion Delivered November 19, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Horto'n, JJ.