Stanton, Luke

March 20, 2015 IN THE COURT OF CRIMINAL APPEALS OF TEXAS LUKE ADAM STANTON, SR., § A[RECEIVED IN • COURT OF CRIMINAL APPEALS Appellant/ § Cause No. PD-1482-14 v. § Cause No- PD-1483-14 MAR 19 2015 THE STATE OF TEXAS/ § Cause No. PD-1484-14 Appellee. § Abel Acosia, Clerk PETITION FOR REHEARING AND/OR REHEARING EN BANC ; WITH SUGGESTIONS IN SUPPORT TO THE HONORABLE JUSTICES OF SAID COURT: COMES NOW, LUKE ADAM STANTON, SR., Appellant, petitions the Honorable Court of Criminal Appeals to review and rehear the decision affirming his judgment and sentence's, and respectfully requests this Honorable Court to grant rehearing and/or rehearing en banc, pursuant to Texas Rules of Appellate Procedure,' Rules 4I,l{al(!b)and41,2. in support of petition, Appellant states the following: STATEMENT OF PROCEDURAL HISTORY The Court of Appeals for the Eighth District of Texas issued an OPINION on October 10, 2014, AFFIRMING Appellant's judgments and sentences. Appellant did not file a Motion for Rehearing. \. Appellant, after proper Motion for Extension of Time, filed a"timely Peti-^ tion for Discretionary Review on January 30, 2015 in the Court of Criminal App eals, and on March 04, 2015, Appellant's Petition for Discretionary Review has been refused. *" Now on this day, Appellant is filing his Petition for Rehearing and/or Rehearing EN BANC for review by this Honorable Court of Criminal Appeals. QUESTIONS PRESENTED FOR REHEARING 1. Whether Appellant can attack Complainant's credibility supported by evidence in the form of the Expert Witness' Testimony Opinion? Tex. R. Evid. Rule 608(a) 2. Whether State's Expert Witness Testimony Opinion is admissible because it embraces an ultimate issue to be decided by the trier of fact. Tx.R.Evid 704 REASONS MERITING REHEARING AND/OR REHEARING EN BANC 1. The panel's decision is in conflict with Daubert v. Merrell Dow Par- maceuticals, Inc., 509 US 579; 113 S.Ct 2786; 125 L.Ed.2d 469 (1993); and, Kelly v. State, 824 SW2d 568 (Tex. Crim. App. 1992), emphasizing that in deter mining the admissibility of scientific expert testimony, such testimony is admissible only if it is both relevant and reliable. And it held that Federal Rules of Evidence "assign to the trial Judge the task of ensuring that an expert's testimony both rest on a reliable foundation and is relevant to the task at hand. The basis of these ease's are determining truthfulness or untruthfulness of the Complainant's. Thereby, this Honorable Court must determine whether State's Witness Investigator T.Crow's ("Inv. Crow") testimony as an1 Expert Opinion is admissible because it embraces an ultimate issue to be decided by the trier of fact, within the polygraph information, not.the polygraph test or its results. This Honorable Court must also examine both the trial testimony and the Clerk Record evidence to determine whether, had the omitted evidence been. presented, there is a reasonable probability of a different outcome, in that the panel merely examined the opinion of the Eighth District Court of Appeals which states the fact in the light most favorable to the jury's verdict and all contrary evidence ignored. For example, the State's Appellee Brief states: "In 2008 R.B. was Forensically interviewed at the Children Advocate Center ("CAC") ... but she refused to tell the truth ... (RR3:i68-70) And, In 2009 R.B. again was Forensically interviewed and this time told the truth, but nothing happened — (RR3:70-71) (ST-Brf at 4). Additionally, In 2008 K.B. was Forensically interviewed at the CAC ... but she refused to tell the truth ... (RR4:57-58). And, In 2009 K.B. again was Forensi cally interviewed and this time told the truth, but Appellant did not go to jail ... (RR4:57-58)(ST-Brf at 5). The panel completely ignored the fact that Ms L. Nelson with the CAC did a through investigation back in 2008. During Appellant's trial, on direct she testified that R.B. and K.B. made no outcry of sexual abuse. (RR4:147). Additionally, Ms N.Bryant investigator with CAC, during cross-exami nation: [Defense]: "But in interviewing that current case (2011), right, you have to make your determination are these girls telling the truth or not? Correct?" [N.Bryant]: "NO". [Defense]: "... so you don't think things they said about this man (Appellant) in 2009 and 2008 that were Ruled-Out were important?" [N.Bryant] : "I did not view the videotapes, NO". (RR4:22). Therefore, Inv. Crow's expert opinion to his 2009 through investigation, the polygraph information to how Appel- - 2 - lant answered, ?.u; are relevant to trier of fact, there is a reasonable proba bility of a different outcome. Did the panel completely ignore the fact when Inv. Crow testified that: "The qnly thing I had the benefit of in 2009 was testimony of ... . There was no other evidence." (RR4:183) Under the Rule of Optional Completeness, Appellant:is enti tled to clear any false impression which may have been left with a jury. Inv.Crow testified to a through investigation of testimony's into the sexual abuse of K.B. and R.B. in 2009. But in fact, there was other evidence, the questions within the polygraph information. The jury was improperly left with a harmful impression that Inv. Crow made a decision purely on the testimony of the alleged victims when, in fact, it was Appellant's polygraph information, and Appellant showing no signs of deception that persuaded Inv. Crow to unfound his case in 2009. (See Texas Department of Family Protective Services Case #33997830 at 18). Here, the record does not include any details about circumstances of Appellant's/examination, informational questions from 2009, due to the trial courts excluding any mention of a polygraph. The probative value of the polygraph questions, even with-out the jury knowing a polygraph existed would have allowed the jury to hear how Inv. crow performed his investigation, therefore, Inv. Crow's expert opinion testimony was needed to be presented before the jury, there is a reasonable probability of a different outcome. Appellant contends that by not allowing Inv. Crow's expert opinion allowed the jury to beleave Appellant was only asked simple questions, with nothing more, allowed the State to unfairly benefit from the evidence. The panel further ignored counteractive evidence. For example, the State's opinion states: "Statements made during a polygraph pretest interview or during an interview after examination may.be admissible evidence, but the proper pro cedure for introducing such evidence is to redact all reference to the polygraph examination." Wriqht-Hoppes v. State, 725 SW2d 532,536 (Tex. App -Houston [1st Dist] 1981); Donaldson v. State, 03-04-0000175/178-CR 2005, Tex. App. LEXIS 6985 at *12-15 (Tex. App.-Austin 2005). (STate's Appellee Brief at 13). The panel completely ignored that Inv. Grow interviewed and video recorded Appellant in 2009. (RR4:169). The video was played to the jury, except for the "polygraph portion" which was redacted, (RR4:171). The polygraph portion showed Inv. Crow requesting Appellant to take a polygraph exam and the logistics behind it. Appellant relied on the State for a fundamental fair trial, but instead they withheld polygraph informational evidence from the jury, there is a reasonable probability of a different outcome. - 3 - 2. The panel's decision is in conflict with the Texas Supreme Court in E.I, dupont de Nemours & Co. v. Robinson/ 923 SW2d 549 (Tex. 1995); Tillman v. State, 354 SW3d 425, 2011 Tex. Crim. App. LEXIS 1343; and Leonard v. State, 2012 Tex. Crim. App. LEXIS 477, which all eases are both legally and factually similar that the same result was reached in Tillman is also required here. (See suggestions in support herein). 3. The panel overlooked or misapprehended both matter of material facts and law, if the polygraph information was permitted, the most that could have hap- pened would be for the jury to establish:whether Complainant's K.B. and R.B. were telling the truth, the there would be a reasonable probability that the result of the proceeding would have been different. Or Complainant's would have lacked cre dibility as each time they told their story or made a statement to various State Officials, it changed, even before the time of trial. (See Defense trl-exhibit:5) (The State changes the Indictment). Further,, Inv.Crow would have testified only to matters collateral to the events on his investigation in 2009. Thereby, the ques tion of K.B. and R.B.'s credibility are for a jury to decide, not the Court. A jury could find Appellant credible simply because his polygraph information dir ectly refutes K.B. and R.B.'s statements that they were sexually abused for years starting in 2002 till 2009, in that, Inv. Crow's testimony on his investigation is consistent with his expert opinion unfounding his case in 2009. The victims tes timony that were given to the jury were misleading and were clearly contradicted by the polygraph information and Clerk Record.. STATEMENT OF FACTS At trial/ Luke Stanton was convicted by a jury for multiple sex crimes and the jury elected punishment sentencing Appellant to a total of one hundred and fifty five (155) years to the Texas Department of Criminal Justice system. The panel overlooked or misapprehended matter of material facts of these cases. There are two stages (2008-2009) and (2011) pertaining to Appellant's convictions. Appellant will disjoin to better assist this Honorable Court in the matter of material facts. 1. (2008-2009): First in 2008; There was NO cases/ NO evidence of any sort to support the alleged allegations that mislead, the trier of fact/ Complainant's have only offered conclusory assertions, which are not sufficient to support the - 4 - Appellant's convictions. In addition/ the State's harmful improper Opening: "The evidence is going to show you that for years ... Luke Stanton/, sexually abused both of his step-daughters." (RR3:19). And/ "you will hear evidence that the defendant is guilty." (RR3:30). The State's own witness Ms L.Nelson and Ms. N Bryant with the CAC contradicts any proposition Complainant's or State offered. Next in 2009/ with regards to R.B.; There's NO case/ NO evidence of any sort to support the alleged allegation that mislead the trier of fact. However/ there is an investigation done by CAC/ in that/ the conclusion was NO sexual abuse took place, from R.B.'s own statement/ additionally/ she stated the only problems in the house is with K.B. and M.B. (boyfriend). Subsequently/ Inv. Crow did his own investigation into the matter/ and the conclusion ended the same. Ruled-Out. Next 2009 facts is K.B.; September 18; [M.B./ K.B.'s boyfriend was found hidden in K.B.'s closet. After Appellant came home to discover they had had sex, Appl^enat became concerned because M.B. was not supposed to be there. (RR4:63). And the Denton County Sheriff's Office (!'DGS0") removes M.B.. (Appendix A). On September 25; Appellant goes to DGSO about the problems, he was having with his step-daughters/ in addition to keeping M.B. from coming over while the parents were, not home. (RR4:170) (Appendix B) (RR4:33). On October 30/ during Parent/Senior night on the football field/ K.B. and M.B. argued, arised from Appellant and K.B.'s issue earlier. (RR4:34). Then rolled over to October 31 where K.B. could not go to any Holloween Parties. On November 02/ K.B. reports to State's witness Ms. E.Chupp/ school counselor which files a report with the CAC/ K.B. made allegations that Appellant was jea lous of M.B. and he only wants her for himself/ however/ made No outcry,of sexual abuse only improper comments. (Appendix D). On November 05/ prior to Appellant and Kim Stanton ("Kim") taking K.B. to the Healing Place Counselor/ State's witness Ms. B.Herrian (RR7:6), K.B. tells her, and Ms. Herrian puts in her report: ['when step-father moved in when she was in the forth grade he fondled her and tried to penetrate her while in the pool.] But yet, Kim and her daughters moved into Appellant's home. (RR4:119). Additionally, in Ms. Herrian's report: [during the summer, K.B. came out of the shower and was in a towel. Stepfather made inappropriate comments and pushed her down on the bed. (Appendix C). - 5 On November 09/ in sum/ in midst of false statements/ K.B. goes to CAC for interviewing. K.B. reported::Stepfather's fingers would go inside her several different time periods. And/ one day K.B. got out of the shower, with a towel on/ Stepfather pushed her shoulders down on bed and put his finger inside her." (See CR-MNT to admit hearsay ...F-2011-1911-C). But yet/ days before the trial K.B. does not remember if that really happened/ in that/ the State changes the Indictment. (See Def-Exhibit 5). As further/ K.B..informs CAC that: One time in the pool/ she sat on Appellant's lap and she felt "IT". She said "it". (MNT to admit hearsay ... 1911). K.B. never said penetrate - She sat on SF's lap. Incredibily at trial K.B.'s Testimony was contradictory and/or harmfuK(RR4:49) 4:^ [State]: Was there ever an incident where you came out of the shower wearing a towel that you recall? [K.B.]: YES [K.B.]: I got out of the shower .../, and he had sat me down on the side of bed ... And I just got up really fast and left the room ... [State]: Did he actually do anything to you ...? [K.B.]: NO (RR4:39) [State]: Why don't you tell us ... the pool ...? [K.B.]: ... He had pulled me on his.lap and moved my swimming bottoms and he tried to penetrate me with his — with his penis. ... I kept trying to pull away because it hurt alot/ but he wouldn't let me go. And the State Prosecutor continued to bolster K.B.'a requesting for details. Did the panel overlook State's Expert witness Inv.Crow's testimony under 702? Inv.Crow testified to his full Resume/ which included qualifications/ knowledge/ and experiences. Inv. Crow's testimony before the court and jury included Twenty Seven (27) years at DSCO as the primarily investigator, and spent an extended time in investigating Juvenile Crimes. He's kind of — and maybe still are even regarded as the Juvenile "GURU" over there."(RR4:167). As further, Inv.Crow explains to the jury that "anybody calls the DCSO and includes the word Juvenile in their conversation, the call gets transfered to me."(RR4:167). Inv. Crow's 2008-2009 ease involvement: "November 09, 2009, is when I actually went to the CACLand observed the forensic interviews with Child Protective Services ("GPS") investigator-(RR4:168). AClaims he sat behind the and observed the interviews of R.B. and K.B.(RR4:169). As part of his investigation, Inv. Crow interviewed Appellant on November 13,2009. Inv. Crow recalls the September 2009 problems with the kids prior to his inter- o view with Appellant.(RR4:170). Before the Alleged Sexual abuse allegations.(RR4:170) As stated above, Inv.Crow misleads the jury when he tells the factfinder that the 6 - Appellant's videotape interview containing a fair and accurate depiction of the interview that he conducted back in 2009..(RR4:176-77). When, in fact, there is polygraph information that was included within.his investigation. Inv. Crow claims he spoke with Kim and explains her demeanor in his own opinion,(RR4:177) then goes on to explain whats not in his investigating report. Moreover, Inv.Crow explains to the court that he did not file the case until the State prosecutor called his office on August 16, 2011. (RR4:179-80). On December 02, 2009, Inv. Crow scheduled the polygraph examination to be conducted at the DCSO. Appellant underwent the polygraph examination, the exam iner Mr.Harden ask specific questions pertaining the alleged offenses of Sexual Assault on Child against K.F.B. and Aggravated Sexual Assault on Child against R.D.B.. At the conclusion of the polygraph examination Mr.Harden met with Inv. Crow and told him Mr.Stanton had passed the polygraph examination during which time he denied the allegations without showing to be deceitful. (See CR-Inv.. :o Crow's Grand Jury PC Report - dated 8/16/2011). On December 03,2011, Inv. Crow UNFOUNDED AND CLOSED his case. (Appendix D/F). 2. (2011): Appellant will disjoin these Three (3) cases to better assist this Honorable Court: (A) PD-1482-14; (B) PD-1483-14; and (C) PD-1484-14: (A) PD-1482-14: This case is related.to the above 2008-2009 on K.B. and has already been addressed for relief requested in need of the Experts Opinion. (B) PD-1483-14: This case is also related, in part, to the above 2008-2009 on R.B., and is a more complicated due to the alleged criminal act in a recorded video. The panel merely examined the opinion of the Eighth District Court of Appeals and all contrary evidence ignored. For example, the State's Appellee Brief states: "In early JLna^2Qll showed K.B. the videos R.B. (secretly) took with her cell phone; K.B. decided to take R.B to the sheriff's department with the videos ..'.'(RR3:62-68)(St.Brf :4). The panel completely ignored the fact that R.B. testified during cross-examination that: [Defense]: did you, on occasion, ... did you ask him to rub your legs — feet? [R.B.]:I have asked him to rub my feet, yes. [Defense]:Now in that video, that we?:reitalking about, does it show him touching your vagina? breast? penetrating your vagina ...? performing oral sex on you? you performing oral sex on him? you touching his penis? [R.B.] answers "NO" to all questions. [Defense]: Basically, it's a videotape of him rubbing your legs? [R.B.]"YES" [Defense] taken in June 2011? [R.B.]"YES".v.-.;-.; -_\ (RR3:10-11). - 7 - The panel completely, ignored.the contradictory statements and/or testimony evidence. State's Appellee Brief states: K.B. decided to take R.B. to DCSO. State's witness Deputy B.Nelson's testimony: ^State]'On June 04,2011, ... you got dispatched back to DCSO ... who was there, what did they report? [Nelson] "I made contact with K.B. and R.B."(RR7:25). "I spoke to K.B., and she wanted to know the status in reference to R.B. because she had reported a sexual, con tact to her school, in turn/ made contact with CPS." "From that point she said the reason she was doing that was because between that time and that day that she was speaking to me/ she had been — had another sexual contact with her stepfather."(RR7:26). But yet/ State's witness B.Adams school counselor puts in. his report/ statement of events: In sum/ on May 31/2011/ R.B. had nothing to say so R.B. was excused back to class; on June 01/2011/ "R.B. informed me that.when she was in 5th grade her stepfather/ touched her and her older sister inappro priately." Then stated the behavior has not happened since the 5th grade. And/ on June 02/2011/ R.B. reported stepfather touched her upper thigh inappropriately afterwards/ tried to grab her crotch/vagina.(See CR-MNT to admit hearsay No.1913). As further/ for this June .04,2011/ K.B. reported incident to occur after R.B.'s alleged outcry on June 02/2011/ is irrealizable. The records reflect Appellant move out of his home on June 01/ 2011. (4RR at 128:23) (C) PD-1484-14: This case is on A.A./ and not related to 2008-2009. However/ is inherent. There.is NO evidence of any sort to support the alleged allegation made that mislead the factfinder. Clearly it was based on K.B. and R.B.'s cases misleading the trier of fact of credibility and the State's improper closing. The panel completely ignored the contradictory testimony of A.A.. State's witness B.Adams (A.A.'s outcry) report states: On May 31/2011/ A.A. and R.B. came to his office to report R.B.'s stepfather rubbed her feet/ legs, and only grabbed her butt for a moment, thai grabbed her crotch/vagina. R.B. could not see because she was watching TV with her back to A.A. and stepfather. At this time R.B.'s mom, Kim walks into the room and A.A. leaves,Ithen-tells R.B. what happens then the two girls leave returning to A.A. house.(CR-MNT to admit hearsay F^2011-1913-C). Conflicting State's witnesses testimony: [R.B.] "I was on the computer."(RR3:57) and "I could see him rubbing her feet." (RR3:58). [Kim] "I walked in the room ... No, Luke did not get up. And I recall, sit ting on the bed." [Defense] Did ... Alyssa jump up and leave the room? [Kim] "... I know they both eventually ... got up and left the room, yes." (RR4:136). - 8 - [A.A.] (RR4 at 88) [State] "What happened when Kim left?" [A.A.] "He started rubbing on ... on my private areas. My butt and my vagina." And [A.A.] Kim came back, I got up. I left the room., and told,Rib.;.let's go. And I went into her bedroom and I. told her I was ready to go to my house. [State] When you were in R.B.'s room, did you tell her what, just happened? [A.A.] NO! [A.A.] Luke took us home to my house. And I told R.B. what happened. She was like/ I -- I can't believe that. She was Surprised. (RR4:91-92). State's Prosecutors improperly vouching Victim's Testimony: Closing argument by the State: !">And let's talk a little bit about.Alyssa's story and why we know we can believe Alyssa. The first thing is the Alyssa has no reason to lie. Right? ... There's no reason for her to lie. .... Now/ we either have to believe that somebody is lying about that/ which doesn't make sence. That's not a fact that there's any reason to lie about. .... None of that makes sence unless she's telling the truth. ( RR6: 5-6,). Suggestions in Support of Rehearing and/or Rehearing En Banc The Eighth District Court of Appeals' decision that Appellant could not over come the presumption that the decision of Polygraph Information are inadmissible was arbitiary or unreasonable as to an Experts Opinion resulted in both an unrea sonable determination of the facts in light of the evidence presented and an unreasonable application of Daubert v. Merrell Dow Pharmaceuticals/ Inc./ because trial court's failure to even allow defense counsel to ask the State's Expert witness Inv. Crow's opinion pertaining to the polygraph information and before the conclusion of unfounding and closing his case in 2009 was unreasonable on the attack of Complainant's credibility supported by testimony evidence. Expert Inv. Crow re-opened his cases in 2011/ based on the same alleged allegations presented in 2009 without explanation or his decision to go against other Experts in the field. As in Jorden, the expert had been told the facts of the case/ applied the theories to specific facts, and explained how they might undermine the reliability of the identification process. 928 SW2d 550 (Tex. Crim. App. 1996). Here/ the case at bar/ Expert Inv. Crow exhibited knowledge of specific facts of his case and could tie the scientific principles on which he could have testified to within the facts of his case, other than to postulate generally. Thus, Appellant has demon strated that Expert Inv. Crow's testimony would have "Assisted the trier of fact" and was "sufficiently tied" to the pertinent facts of his case. In Leonard, this Court of Criminal Appeals' permitted the Polygraph Examination and its Results, the Expert was qualified to testify to his opinion in the field of sex offenders, he testified that polygraph exams are commonly used and reasonably - 9 - relied upon by experts in the field in forming opinions. This Court concluded that even if the evidence was generally inadmissible, it was admissible as basis of an expert's opinion.. 2012 Tex. Crim. App. LEXIS.477.. As here, case at bar, The State pointed out, Inv. Crow's an Expert in his field, has the qualifications, experience and knowledge of thirty one (31) years, as the "GURU" Juvenile crime investigations. And Law Enforcement rely on commonly used polygraph exams in their investigation and are reasonably relied upon by other experts in the field. Moreover, Appellant's polygraph, exam was the basis for Inv. Crow's opinion of unfounding and closing his case in 2009, before re-opening it in 20 Date Entered: 1/10/2010 Person(s) Contacted: Law Enforcement Purpose: Gather/Obtain Info Narrative: TCF Inv. Crow 4}£liiilIiM%§i?^ Crow is unfbunding his case; y TCF Kim Stanton-left message TCF Luke Stanton-left message Date of Contact: 12/3/2009 Date Entered: 1/10/2010 Person(s) Contacted: Stanton,Kim Purpose: Gather/Obtain Info Stanton.Luke A Texas Department Of Family and Protective Services Page 16 of 18 APPENDIX F CAC/CPS INVESTIGATION REPORT Pg 18 OF 18 INVESTIGATION REPORT Case Name: Stanton,Kim Case #: 33997830 could as long as I could send her a letter stating that it would be closed and the matter was investigated. I agreed to do so and faxed it over. Date of Contact: 1/14/2010 Date Entered: 1/14/2010 Person(s) Contacted: FPS Staff Purpose: Staffed Case Narrative: Staffed case with Supervisor Brenda Brooks Sexual abuse of Kayla Bennett (17yr old) by Luke Stanton (Stepfather) is,-unable to determine/Kayla reported that her stepfather digitally penetrated her several times beginning in the 4th grade arid enrjfrrcrThe summer of 2009. These allegations came about after Kayla's stepfather and mother tried to sever her relationship with a boy who they thought was a bad influence on Kayla. Law enforcement investigated and polygraphedthe stepfather who passed the polygraph without showing any signs of deception. Law enforcement unfounded and closed their case. Kayla has since turned 18 and was moving out of her mother and stepfather's home into her father or boyfriend's home. Counseling was obtained by the family at Counseling Center of Denton. 'A ^^^^abijsexjf Rachea[Bennett (13yr old)>by Luke Stanton (Stepfather) is_ruled out. Racheal reported that * ^fefistepolcno^icrTec! herfirivate area on top ofjhe clothes when he was .putting medication on a bug bite on her 'yfflp!!|egTRacrfeafhacTprevtously made the same outcry and it was investigated and ruled out. Date of Contact: 1/15/2010 Date Entered: 1/15/2010 Person(s) Contacted: Herrian,Rachel E Purpose: Reporter Narrative: Date of Contact: 1/15/2010 Date Entered: 1/15/2010 Person(s) Contacted: Stanton,Luke A Purpose: Parent/Guardian Narrative: Date of Contact: 1/15/2010 Date Entered: 1/15/2010 Person(s) Contacted: Stanton.Kim Purpose: Parent/Guardian Narrative: Texas Department Of Family and Protective Services Page 18 of 18