Chamberlain, Anthony

NO. PD-0760-15

IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
AT AUSTIN
_________________________

ANTHONY CHAMBERLAIN,
Appellant

v.
July 28, 2015
THE STATE OF TEXAS,
Appellee
_________________________

On appeal in Cause No. F12-63564-M
from the 194TH Judicial District Court
Of Dallas County, Texas
And on Petition for Discretionary Review from
the Fifth District of Texas at Dallas
In Cause No. 05-13-01213-CR
_________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
_________________________

Counsel of Record:

Lynn Richardson Nanette Hendrickson
Chief Public Defender Assistant Public Defender
Dallas County Public Defender’s Office
Katherine A. Drew State Bar Number: 24081423
Chief, Appellate Division 133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-399
(214) 653-3550 (telephone)
(214) 653-3539 (fax)

ATTORNEYS FOR PETITIONER/APPELLANT
 TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 2
STATEMENT OF FACTS ........................................................................................ 2
GROUND FOR REVIEW ......................................................................................... 2
Whether the Court of Appeals erred in holding the trial court did
not abuse its discretion by admitting Amy Shuemaker’s prior
inconsistent statement.
ARGUMENT ............................................................................................................. 3
FACTS ............................................................................................................. 3
APPLICABLE LAW ....................................................................................... 5
THE COURT OF APPEALS’ HOLDING IS INCORRECT ......................... 5
CONCLUSION ............................................................................................... 8
PRAYER FOR RELIEF ............................................................................................ 9
CERTIFICATE OF SERVICE .................................................................................. 9
CERTIFICATE OF COMPLIANCE ......................................................................... 9

ii
 INDEX OF AUTHORITIES

Cases
Chamberlain v. State,
No. 05-13-01213-CR, 2015 Tex. App. LEXIS 5310 (Tex. App.—Dallas May
27, 2015) ............................................................................................... 2, 6, 7, 8
Hughes v. State,
4 S.W.3d 1 (Tex. Crim. App. 1999) ......................................................... 3, 5, 6
Kelly v. State,
60 S.W.3d 299 (Tex. App.—Dallas 2001, no pet.) ..........................................6
Rules
TEX. R. APP. P. 68.4 (i) .........................................................................................2
Tex. R. Evid. 403 ..............................................................................................5, 6
Tex. R. Evid. 607 ..................................................................................................5

iii
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Anthony Chamberlain, Appellant, respectfully presents to this

Honorable Court his Petition for Discretionary Review of the Fifth District

Court of Appeals’ Opinion affirming the trial court’s judgment.

STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument because this case presents a question

of law on issues having statewide impact and possible reoccurrence. Oral

argument may be helpful to the members of this Court in the resolution of

the issues presented.

STATEMENT OF THE CASE

Appellant was charged by indictment with the offense of possession

of a controlled substance between four and two hundred grams with the

intent to deliver. (CR: 8).The indictment also included two enhancement

paragraphs alleging prior convictions for possession of a controlled

substance over four grams with intent to deliver and possession of a

controlled substance over one gram. (CR: 8). Appellant pled not guilty to the

primary charge in the indictment. (RR3: 8). A jury trial was held, and the

jury found Appellant guilty of the offense. (RR4: 85). After a hearing on

punishment, the court assessed punishment at thirty years. (RR5: 46).

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Judgment was entered by the trial court on August 16, 2013. (CR: 48). A

notice of appeal was timely filed. (CR: 46).

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

On May 27, 2015, in an unpublished opinion authored by Justice

Schenk, the Court of Appeals for the Fifth District of Texas affirmed the

trial court’s judgment. Chamberlain v. State, No. 05-13-01213-CR, 2015

Tex. App. LEXIS 5310, * 26 (Tex. App.—Dallas May 27, 2015). This Court

granted an extension of time to file a Petition for Discretionary Review,

which is timely if filed on or before July 27, 2015.

STATEMENT OF FACTS

The facts of this case, which are extensive, are adequately recited in

the Court of Appeal’s opinion, which is attached to this Petition as required

by TEX. R. APP. P. 68.4 (i).

Suffice it to say that Appellant was charged with and convicted of

possession of a controlled substance between four and two hundred grams

with the intent to deliver. (CR: 48; RR4: 85).

GROUND FOR REVIEW

Whether the Court of Appeals erred in holding the trial court did not
abuse its discretion by admitting Amy Shuemaker’s prior inconsistent
statement.

2
 ARGUMENT

The Court of Appeals incorrectly applied the rule in determining

whether a prior inconsistent statement is admitted “under the guise of

impeachment to introduce inadmissible evidence.” Hughes v. State, 4

S.W.3d 1, 3-4 (Tex. Crim. App. 1999).

FACTS

Amie Shuemaker (Shuemaker) was called to testify by the State.

(RR3: 195). Shuemaker testified she was sitting in the back seat of the

minivan when they were pulled over by the police. (RR3: 196). Shuemaker

also stated that she was not there testifying because she wanted to. (RR3:

195). Shuemaker was asked to tell the jury about what happened in the van

when they were pulled over to which she repeatedly replied she did not

know or did not remember. (RR3: 196, 197, 198, 200, 201, 203, 204).

Eventually, Shuemaker refused to answer the prosecutor’s questions and

said she “d[idn’t] have anything else to say to [her].” (RR3: 202).

The prosecutor asked Shuemaker if she remembered writing a

statement for the police. (RR3: 198). Shuemaker said she did not. (RR3:

198). When asked if she recognized a copy of a statement the prosecutor

showed her, Shuemaker replied “I recognize that you said that’s the one I

wrote the day this happened.” (RR3: 198). She acknowledged that the

3
handwriting on the statement “could be” hers. (RR3: 199). However, she did

not remember writing it. (RR3: 199).

The prosecutor’s main goal was to establish Appellant as the owner of

the drugs found in the vehicle underneath Shuemaker’s seat. (RR3: 200).

The prosecutor told Shuemaker “the main thing I need to know is whether or

not the brown—the black satchel that contained the methamphetamine came

from Mr. Chamberlain.” (RR3: 200). Shuemaker responded that she did not

know. (RR3: 200).

Eventually, the State called Detective Conway to the stand to offer

Shuemaker’s prior written statement into evidence. (RR4: 6). Appellant

objected to the admission of Shuemaker’s prior inconsistent statement based

on the lack of foundation presented by the prosecutor, hearsay, relevance,

and if admitted, that the statement’s prejudicial effect outweighed the

probative value. (RR4: 5-6). The trial court overruled the objection. (RR4:

8). Shuemaker’s statement was admitted which stated that the “dope that

was found was not [hers] it was Anthony Chamberlains.” (State’s Exhibit 9).

The statement goes on to say, “Please do not let anyone know I have said

these things or I will deny all of this I have kids & I do not want anything to

happen to them.” (State’s Exhibit 9).

4
APPLICABLE LAW

Any party may use a witness’ prior inconsistent statement to impeach

her credibility. See Tex. R. Evid. 607; Hughes v. State, 4 S.W.3d 1, 5 (Tex.

Crim. App. 1999). A party may not use a prior inconsistent statement as a

subterfuge for admitting evidence that would otherwise be inadmissible. Id.

A party’s knowledge that a witness will testify unfavorably is one factor a

trial court must consider when determining admissibility under Rule 403.

Id.; Tex. R. Evid. 403.

Rule 403 states that even when evidence is relevant, it may still be

excluded if its probative value is outweighed by “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. Evidence

must be excluded “under Rule 403’s balancing test because the State profits

from the witness’ testimony only if the jury misuses the evidence by

considering it for its truth. Consequently, any probative value the

impeachment testimony may have is substantially outweighed by its

prejudicial effect.” Id

THE COURT OF APPEALS’ HOLDING IS INCORRECT

The Court of Appeals’ decision is in conflict with the holding of this

Court.

5
 In applying the Rule 403 balancing test, the Court of Appeals failed to

correctly determine if the State deliberately put Shuemaker on the stand to

elicit previously inadmissible testimony in the form of her written statement.

The Court of Appeals relied heavily on the prosecutor’s self-serving

statement to the trial court that it felt its witness would “reluctantly testify

consistent with the statement.” Chamberlain, Tex. App. LEXIS at *15-16. In

support of this reliance, the Court of Appeals cited its reasoning in Kelly v.

State. Id. (citing Kelly v. State, 60 S.W.3d 299, 302 (Tex. App.—Dallas

2001, no pet.)). Kelly interpreted Hughes v. State wherein this Court

reasoned that the State’s knowledge is key to the analysis and to merely

suspect the witness might turn is not enough. Kelly, 60 S.W.3d at

302(explaining Hughes, 4 S.W.3d at 5). However, contrary to the Court of

Appeals opinion in the case at bar, the State had much more than mere

suspicion that Shuemaker would not testify according to her written

statement. On Shuemaker’s written statement, she stated unequivocally that

she would lie if later asked about the contents of the statement. The Court of

Appeals did not analyze the State’s knowledge of Shuemaker’s testimony by

considering all of the facts surrounding it, but merely accepted as fact the

State’s self-serving assertion of its knowledge.

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 The purpose of the analysis is to prevent the State from receiving the

benefit of otherwise inadmissible evidence under the pretense of an

uncooperative witness. Therefore, the reviewing court should analyze the

facts known to the State at the time the witness testifies. In the present case,

the State knew Shuemaker would lie when she testified because she

specifically said so in her written statement. This was born out when

Shuemaker testified. When the State broached the subject of where in the

front seat the drugs came from Shuemaker immediately “refused to answer

questions, became argumentative, and stated she did not want to answer

questions.” Chamberlain, Tex. App. LEXIS at *16. The Court of Appeals

did not consider Shuemaker’s assertion in her written statement when

determining the State’s knowledge regarding her testimony. Therefore, the

Court of Appeals misapplied this Court’s standard regarding whether the

State had knowledge of the witnesses’ recantation.

The Court of Appeals also found that the State elicited some favorable

testimony from Shuemaker, which weighed in favor of using her prior

statement. According to the Court of Appeals, “Shuemaker testified that she

was in the back seat of the van when it was pulled over by the police. She

also testified that the black case started in the front seat, was handed to her,

and she threw it in the back.” Id.

7
 The Court of Appeals reasoned that this one statement was

“favorable” to the State, “thus supporting a finding by the trial court that the

State did not call Shuemaker for the primary purpose of eliciting otherwise

inadmissible testimony.” Id. However, the purpose of Shuemaker’s

testimony was to prove that the drugs found under her seat in the vehicle

originated, specifically, with Appellant. Indeed, the prosecutor told

Shuemaker during questioning “the main thing I need to know is whether or

not the brown—the black satchel that contained the methamphetamine came

from Mr. Chamberlain.” (RR3: 200). Therefore, the testimony was only

favorable, or probative, for the State if it proved Appellant’s knowledge, or

actual possession, of the methamphetamine. Otherwise, Shuemaker’s

testimony that the drugs came from the front seat would have been all the

testimony the State needed making admission of the prior statement

unnecessary. As such, this one general statement from Shuemaker was not

enough to show whether she would testify consistent with her prior

statement.

CONCLUSION

The Court of Appeals’ decision to affirm the trial court’s ruling admitting

Shuemaker’s prior consistent statement is in conflict with this Court’s ruling.

8
This Court should grant discretionary review to resolve this discrepancy

between the Court of Appeal’s ruling and the ruling of this Court.

PRAYER FOR RELIEF

For the reasons herein alleged, Appellant prays this Court grant this
petition and, upon reviewing the judgment entered below, remand the case
for a new trial.
Respectfully submitted,
Lynn Richardson
Chief Public Defender

/s/ Nanette Hendrickson
Nanette Hendrickson
Assistant Public Defender
State Bar No. 24081423

CERTIFICATE OF SERVICE

I hereby certify that on the 27th day of July, 2015, a true copy of the
foregoing petition for discretionary review was served on Lori Ordiway,
Assistant District Attorney, Dallas County Criminal District Attorney’s
Office, 133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207,
by electronic and hand delivery; and was also served on, Lisa C. McMinn,
State Prosecuting Attorney, P.O. Box 13046, Austin, Texas, 78711 by
electronic delivery and by depositing same in the United States Mail,
Postage Prepaid.
/s/ Nanette Hendrickson
Nanette Hendrickson

CERTIFICATE OF COMPLIANCE

I certify that the foregoing Petition for Discretionary Review contains
2,064 words.
/s/ Nanette Hendrickson
Nanette Hendrickson

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Envelope Details

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Case # PD-0760-15
Case Information
Location Court Of Criminal Appeals
Date Filed 07/27/2015 02:33:36 PM
Case Number PD-0760-15
Case Description
Assigned to Judge
Attorney Nanette Hendrickson
Firm Name Dallas County Public Defender
Filed By Nanette Hendrickson
Filer Type Not Applicable
Fees
Convenience Fee $0.00
Total Court Case Fees $0.00
Total Court Filing Fees $0.00
Total Court Service Fees $0.00
Total Filing & Service Fees $0.00
Total Service Tax Fees $0.00
Total Provider Service Fees $0.00
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Payment
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Transaction Response
Transaction ID
Order #

Petition for Discretionary Review
Filing Type EFileAndServe
Filing Code Petition for Discretionary Review
Filing Description Petition for Discretionary Review
Reference Number PD-0760-15
Comments
Status Rejected
Fees
Court Fee $0.00
Service Fee $0.00
Rejection Information
Rejection Time Rejection Comment
Reason
07/28/2015 The petition for discretionary review does not contain the identity of Judge, Parties
Other 04:42:59 and Counsel [Rule 68.4(a)]. You have ten days to tender a corrected petition for

https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=3732e589-07fb-4f69-be69-913a222248ec[7/28/2015 4:43:32 PM]
Envelope Details

PM discretionary review.
Documents
Lead Document Chamberlain.PDR.opinon.pdf [Original]

eService Details
Date/Time
Name/Email Firm Service Type Status Served
Opened
District Attorney Appellate 07/28/2015
Division EServe Sent Yes 08:11:38 AM
DCDAAppeals@dallascounty.org
Lisa C McMinn State Prosecuting EServe 07/28/2015
Sent Yes
Lisa.McMinn@spa.texas.gov Attorney 08:48:24 AM

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