ACCEPTED
12-14-00176-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
6/25/2015 4:09:13 PM
CATHY LUSK
CLERK
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
6/25/2015 4:09:13 PM
No. 12-14-00176-CR CATHY S. LUSK
Clerk
__________________________________________________________________________
IN THE TWELFTH DISTRICT COURT OF APPEALS
AT TYLER, TEXAS
__________________________________________________________________________
TRENT MUMPHREY
Appellant,
v.
THE STATE OF TEXAS
Appealed from the 114th District Court
Smith County, Texas
__________________________________________________________________________
BRIEF OF THE APPELLANT
__________________________________________________________________________
Clement Dunn
State Bar No. 06249300
140 East Tyler, Suite 240
Longview, Texas 75601
Telephone: 903-753-7071
Fax: 903-753-8783
ORAL ARGUMENT WAIVED
IDENTITY OF PARTIES AND COUNSEL
Appellant certifies that the following is a complete list of all parties to the trial court’s
judgment and the names and addresses of their trial and appellate counsel.
1. Appellant: Trent Mumphrey
2. Appellant’s Trial Counsel: Clement Dunn
Attorney at Law
140 E. Tyler Street, Suite 240
Longview, TX 75601
TSB No. 06249300
3. Appellant’s Counsel on Appeal: Hayward M. Rigano, II
Attorney at Law
P.O. Box 3384
Longview, TX 75606
TSB No. 16915950
4. Attorney for the State: Jacob Putman
TSB No. 24065929
Christopher Gatewood
TSB No. 24062488
Assistant District Attorneys, Smith County
Smith County Courthouse, 4th Floor
Tyler, Texas 75702
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT REGARDING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE FACTS. ................................................... 2
ARGUMENT .. .............................................................. 2
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ii
INDEX OF AUTHORITIES
Cases
Leza v. State, 351 S.W. 3d 344, 357 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . . . . . . 5
Pizzo v. State, 235 S.W. 3d 711, 714 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . 5
Ngo v. State, 175 S.W. 3d 738, 745 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . 5
Almanza v. State, 686 S.E. 2d 157, 171 (Tex. Crim. App. 1985)(op. On reh’g). . . . . . . . . . . 6
Arrington v. State, –S.W. 3d– (Tex. Crim. App. 2015) (No. PD-1448-13, dec’d 1-14-15). . 6
Statutes and Codes
Article 37.07, V.A.C.C.P.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
iii
STATEMENT OF THE CASE
Offense: Aggravated Robbery
Verdict: Guilty; Life years confinement - Texas Department of Criminal Justice -
Institutional Division
Date of Verdict: April 4, 2014
Trial Court: 114th District Court, Smith County, Texas.
This case involves a prosecution for Aggravated Robbery. The case proceeded to
trial before a jury on April 1, 2014, as Cause Number 114-00-13, in the 114th District Court
of Smith County, Texas. (R.R.4, at 8.) On April 4, 2014, the jury returned a verdict finding
the Appellant guilty of Aggravated Robbery. (R.R. 9, at 104.) Following a hearing on
punishment, the jury returned a verdict assessing punishment at life imprisonment. (R.R. 10,
at 102.) It is from this conviction and sentence that this appeal is taken.
STATEMENT REGARDING ORAL ARGUMENT
Believing the instant case contains issues capable of resolution on the basis of the
record and the briefs, the Appellant respectfully waives oral argument.
ISSUES PRESENTED
1. The instructions to the jury at the guilt/innocence phase of the trial failed to require the
jury to agree unanimously that the Appellant acted either as the primary actor or as a
party; the Appellant respectfully submits this violates Due Process (federal) and Due
Course of Law (state).
2. The trial court erred in allowing the State to raise extraneous offenses alleged to have
BRIEF OF APPELLANT, TRENT
PAGE 1
been committed by the Appellant at the punishment phase of the trial when the State had
not proven the Appellant’s commission of the offenses beyond a reasonable doubt.
STATEMENT OF THE FACTS
This case involves an Aggravated Robbery that occurred in late September 2012 when
three people intruded into a house in Tyler, Texas. Apparently there to steal both drugs and
money, the intruders, armed with handguns, forcibly entered the residence, in which they
encountered a male and a female. While the female hid under the sheets on a bed in a bedroom,
the male, Dasha Webb, encountered these individuals. As a result of this encounter, Mr. Webb
was shot several times, including being shot as he ultimately fled the house. Taken that night
to a local hospital, Mr. Webb survived despite life-threatening injuries. These injuries have
long-term effects, however, including what appears to be permanent paralysis.
ARGUMENT
Issue Number One: The instructions to the jury at the guilt/innocence phase of the trial failed
to require the jury to agree unanimously that the Appellant acted either
as the primary actor or as a party; the Appellant respectfully submits this
violates Due Process (federal) and Due Course of Law (state).
Summary of the Argument: The trial court erred in failing to require the jury to find
unanimously that the Appellant was either a primary actor or a party to the offense in order to
find him guilty. This failure of the trial court’s instructions violates Due Process (federal) and
Due Course of Law (state).
BRIEF OF APPELLANT, TRENT
PAGE 2
In its instructions to the jury at the guilt/innocence phase of the trial, the trial court
charged the jurors as follows:
Application of law to facts.
You must determine whether the State has
proved beyond a reasonable doubt that the defendant is
guilty of aggravated robbery either as the primary actor
or as a party.
You can convict the defendant on the
testimony of Kendryon Smith only if:
(1) you find that Kendryon Smith was not
an accomplice;
Or (2) you find that Kendryon Smith was
an accomplice, and (A) you believe that the testimony of
Kendryon Smith is true and shows the defendant is
guilty; and (B) there is other evidence outside the
testimony of Kendryon Smith that tends to connect the
defendant, Trent Mumphrey, with the commission of the
offense charged; and (C) on the basis of all of the
evidence in the case, you believe beyond a reasonable
doubt that the defendant is guilty.
Liability as primary actor.
You must determine whether the State has
proved the defendant committed the crime by his own
conduct. To prove this, the State must prove beyond a reasonable
doubt three elements.
The elements are that:
(1A) the defendant, in Smith County,
Texas, on or about September 30, 2012, intentionally or
knowingly (A) caused bodily injury to Dasha Webb by
shooting Dasha Webb with a firearm; and (B) this bodily
injury was serious bodily injury;
Or (1B) the defendant, in Smith County,
on or about September 30, 2012, intentionally,
knowingly, or recklessly (A) caused bodily injury to
Dasha Webb by shooting Dasha Webb with a firearm; and
(B) the defendant used or exhibited a deadly weapon, a
firearm;
And (2) the defendant did this in the
course of committing theft of property owned by Dasha
Webb;
And (3) the defendant had the intent to
obtain or maintain control of the property that was the
BRIEF OF APPELLANT, TRENT
PAGE 3
subject of the theft.
If you all agree the State has proved
beyond a reasonable doubt -- beyond a reasonable doubt Elements
1A, 2, and 3 listed above, you must find the
defendant guilty.
If you-all agree the State has proved
beyond a reasonable doubt Elements 1B, 2, and 3 listed above, you
must find the defendant guilty.
Liability as party.
If any of you failed to agree the State
has proved beyond a reasonable doubt either Elements 1A,
2, and 3, or Elements 1B, 2, and 3 listed above, you
must next decide whether the State has proved beyond a
reasonable doubt that the defendant is guilty because he
is criminally responsible for the commission of a crime
committed by the conduct of another person.
This is the case that the State has
proved beyond a reasonable doubt five elements. The
elements are that:
(1A) Kendryon Smith, in Smith County,
Texas, on or about September 30, 2012, intentionally or
knowingly (A) caused bodily injury to Dasha Webb by
shooting Dasha Webb with a firearm; and (B) this bodily
injury was serious bodily injury;
Or (1B) Kendryon Smith, in Smith County,
Texas, on or about September 30, 2012, intentionally,
knowingly or recklessly (A) caused bodily injury to
Dasha Webb by shooting Dasha Webb with a firearm; and
(B) Kendryon Smith used or exhibited a deadly weapon, a
firearm;
And (2) Kendryon Smith did this in the
course of committing theft of property owned by Dasha Webb;
And (3) Kendryon Smith had the intent to
obtain or maintain control of the property that was the
subject of the theft;
And (4) the defendant solicited,
encouraged, directed, aided, or attempted to aid
Kendryon Smith to commit the offense of aggravated
robbery;
And (5) the defendant acted with the
intent to promote or assist the commission of the
offense of aggravated robbery by Kendryon Smith.
If you all agree the State has failed to
prove beyond a reasonable doubt either Elements 1A, 2,
BRIEF OF APPELLANT, TRENT
PAGE 4
and 3, or Elements 1B, 2, and 3 above establishing the
defendant's guilt as primary actor, or Elements 1A
through 5 or Elements 1B through 5 listed above
establishing the defendant's guilt as a party, then you
must find the defendant not guilty.
If all of you who did not find the
defendant guilty as the primary actor agree that the
State has proved beyond a reasonable doubt each of the
five elements listed above, you must find the defendant
guilty.
You need not be unanimous about the
theory underlying either your guilty or not guilty verdict.
If you all agree the defendant is guilty
either as the primary actor, because the State has
proved all elements of primary actor beyond a -- primary
actor liability beyond a reasonable doubt or as a party
because the State has proved all elements of party
liability beyond a reasonable doubt, then you must find
the defendant guilty.
If you all agree the State has either
failed to prove all either Elements 1A, 2, and 3, or 1B,
2, and 3 of primary actor liability for all elements,
either 1A, 2, 3, 4, and 5, or 1B, 2, 3, 4, and 5 of
party liability, you must find the defendant not guilty.
RR. 9, at 30-34.
Significantly, in the midst of the above instructions, the trial court directs: “You need not be
unanimous about the theory underlying either your guilty or not guilty verdict.” Id., at 33-34.
The Appellant concedes that the appellate judiciary in this state has generally upheld
instructions that allow a jury to convict a defendant as a primary actor or as a party to the
offense without unanimous agreement among the jurors as to which he was. See, e.g., Leza
v. State, 351 S.W. 3d 344, 357 (Tex. Crim. App. 2011). Perhaps in contrast, the appellate
judiciary has emphasized the importance of the right to a unanimous verdict in criminal
cases. This emphasis centers on jury instructions that must require a unanimous verdict. See,
e.g., Pizzo v. State, 235 S.W. 3d 711, 714 (Tex. Crim. App. 2007) and Ngo v. State, 175
BRIEF OF APPELLANT, TRENT
PAGE 5
S.W. 3d 738, 745 (Tex. Crim. App. 2005).
In the instant case, jurors could find the Appellant guilty as a principal or as a party,
without unanimously agreeing on either “theory.” This means that some jurors may have
found the Appellant himself entered the house with a firearm and shot the complainant;
others may have found that Kendryon Smith performed these acts as a principal as the
Appellant accompanied and encouraged him. Yet others may have found that the Appellant
never entered the house, but acted merely as a “get-away driver,” staying outside the house,
in the car, facilitating the escape from the scene of the crime.
While each of these roles may adequately inform a finding of guilt of aggravated
robbery, each encompasses very different conduct. With differing conduct come differing
levels of culpability. A defendant in this setting must then enter the punishment phase of his
trial not knowing how the jury at guilty/innocence reached its finding of guilt, or what level
of culpability may arise from that. In sum, he enters the punishment phase not knowing what
he must defend against--or precisely for what he has been found guilty.
The Appellant concedes that his trial counsel did not object to this ( or any other)
portion of the trial court’s instruction to the jury at the guilt/innocence phase of the trial.
R.R. 9, at 6. The Appellant does concede that in the absence of objection at trial, the
Appellant must demonstrate egregious harm in the context of charge error alone. Almanza v.
State, 686 S.E. 2d 157, 171 (Tex. Crim. App. 1985)(op. On reh’g); Arrington v. State, –S.W.
3d– (Tex. Crim. App. 2015) (No. PD-1448-13, dec’d 1-14-15). The Appellant respectfully
contends, however, that this error is of constitutional dimension, and thus requires a showing
of only “some harm.”
BRIEF OF APPELLANT, TRENT
PAGE 6
As noted above, the lack of a requirement of unanimity of the jury in deciding
whether the Appellant acted as a principal or as a party leaves a vacuum regarding the
Appellant’s actions for which he will be punished. He is, in effect, left with no notice of the
acts for which he must defend himself at the punishment phase. If Due Process entails a
requirement of “notice and a hearing,” then this has been denied to the Appellant, as he
enters his punishment “hearing” without reasonable or adequate “notice” of what acts will
form the basis of that punishment. This amounts to, at a minimum, “some harm,” as
constitutional error, and egregious harm as “charge error.” (See and cf. Ngo, supra.)
Issue Number Two: The trial court erred in allowing the State to raise extraneous offenses
alleged to have been committed by the Appellant at the punishment
phase of the trial when the State had not proven the Appellant’s
commission of the offenses beyond a reasonable doubt.
Summary of the Argument: Article 37.07, V.A.C.C.P., disallows consideration of
extraneous offenses unless proven beyond a reasonable doubt; in the instant case the State
brought forth extraneous matters without meeting the specific requirements of the statute.
At the punishment phase of the trial, the Appellant called as a witness his mother,
Patricia Mumphrey. R.R. 10, at 48. On cross-examination of the Appellant’s mother by the
State, the following occurred:
Q. Okay. So were you in his life in 2005 when
he was arrested for burglary of a vehicle?
A. Yes.
Q. Okay. And that's when he was a juvenile,
right?
A. Yes.
Q. Okay. Were you in his life in 2000- --
later in 2005, when he was arrested for forgery?
BRIEF OF APPELLANT, TRENT
PAGE 7
A. I've always been in his life.
R.R. 55.
No further documentation or proof regarding these matters appears in the record at the
punishment phase.
Article 37.07, V.A.C.C.P., states as follows, in pertinent part:
Sec. 3 (a)(1) Regardless of the plea and whether the
punishment be assessed by the judge or the jury, evidence may be offered by
the state and the defendant as to any matter the court deems relevant to
sentencing, including but not limited to the prior criminal record of the
defendant, his general reputation, his character, an opinion regarding his
character, the circumstances of the offense for which he is being tried, and,
notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other
evidence of an extraneous crime or bad act that is shown beyond a reasonable
doubt by evidence to have been committed by the defendant or for which he
could be held criminally responsible, regardless of whether he has previously
been charged with or finally convicted of the crime or act.
Article 37.07, V.A.C.C.P.
The State interjected a juvenile case – burglary of a vehicle – and an arrest for
forgery, in 2005. Nowhere does the State prove the Appellant committed either of these
offenses – beyond a reasonable doubt or otherwise. This does not meet the explicit criteria
of Article 37.07, V.A.C.C.P., supra.
The Appellant concedes that his trial counsel failed to object to the State’s reference
to these offenses or the attribution of their commission to the Appellant. R.R. 10, at 55. Yet,
the Appellant respectfully contends that the harm created enters the realm of the egregious.
See: Almanza, supra. By bringing a juvenile matter into consideration, then adding an
“arrest” for forgery, the State created a picture of Appellant as one who had a long and
varied history of criminal conduct.
BRIEF OF APPELLANT, TRENT
PAGE 8
PRAYER
The Appellant respectfully asks this case be reversed and remanded to the Trial
Court for a new hearing on punishment
Respectfully submitted,
__/s/ Clement Dunn_______________
140 East Tyler Street, Suite 240
Longview, Texas 75601
(903) 753-7071 Fax: 903-753-8783
State Bar No. 06249300
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this brief was delivered to the Smith
County District Attorney’s Office, Tyler, Texas on this 25th day of June 2015.
__/s/ Clement Dunn_______________
CERTIFICATE OF WORD COUNT
I hereby certify that a total of 2747 words are included in this brief.
__/s/ Clement Dunn_______________
BRIEF OF APPELLANT,TRENT
PAGE 9