No. PD-0099-15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN
Alejandro John Garcia
Appellant
v.
The State of Texas
Appellee
On Appeal from 368th District Court of Williamson County in Case No. 11-216-K368,
the Hon. Burt Carnes, Judge Presiding, and the Opinion of the Third Court of
Appeals in Case No. 03-12-00781-CR, Delivered December 11, 2014
Petition for Discretionary Review
Submitted by:
David A. Schulman
March 13, 2015
Attorney at Law
Post Office Box 783
Austin, Texas 78767-0783
Tel. 512-474-4747
Fax: 512-532-6282
eMail: zdrdavida@davidschulman.com
State Bar Card No. 17833400
John G. Jasuta
Attorney at Law
Post Office Box 783
Austin, Texas 78767-0783
Tel. 512-474-4747
Fax: 512-532-6282
eMail: lawyer1@johngjasuta.com
State Bar Card No. 10592300
Attorneys for Alejandro John Garcia
Table of Contents
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . vi
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . vi
Facts of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Ground for Review Number One Restated. . . . . . . . . . . . . . . . 3
The Court of Appeals Erred When it Concluded
Appellant Failed to Show the Defense’s Expert
Testimony “Was Properly Applied” to Appellant.
Facts Relevant to First Ground for Review. . . . . . . . . . . . . . . . 3
Summary of the Argument - First Ground for Review . . . . . . . 5
Argument & Authorities - First Ground for Review. . . . . . . . . . 6
The Court of Appeals Mis-Interpreted or Mis-Applied the
Appropriate Standard . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The Evidence was Necessary to Counter the State’s
Arguments .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Conclusion - First Ground for Review. . . . . . . . . . . . . . . . . . 18
i
Table of Contents
(CONT)
Ground for Review Number Two Restated. . . . . . . . . . . . . . . 18
The Court of Appeals Erred When it Resolved
Appellant's Claim of Charge Error Without Reference
to or Application of Almanza v. State.
Facts Relevant to Second Ground for Review. . . . . . . . . . . . . 18
Summary of the Argument - Second Ground for Review. . . . . 20
Argument & Authorities - Second Ground for Review. . . . . . . 20
Conclusion - Second Ground for Review.. . . . . . . . . . . . . . . . 23
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Certificate of Compliance and Delivery. . . . . . . . . . . . . . . . . . 25
ii
Index of Authorities
Federal Cases:
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Texas Cases
Allen v. State, AP-74,951
(Tex.Cr.App.; June 28, 2006). . . . . . . . . . . . . . . . . . . . . 11
Almanza v. State, 686 S.W.2d 157
(Tex.Cr.App. 1985) .. . . . . . . . . . . . . . . . . . . . 18, 20-22, 24
Arline v. State, 721 S.W.2d 348 (Tex.Cr.App. 1986). . . . . . . 23
Bass v. State, 270 S.W.3d 557 (Tex.Cr.App. 2008). . . . . 16, 17
Cargill v. State, AP-76,189
(Tex.Cr.App. November 19, 2014). . . . . . . . . . . . . . . . . . 16
E.I. du Pont de Nemours & Co. v. Robinson,
923 S.W.2d 549 (Tex. 1995). . . . . . . . . . . . . . . . . . . . . 5, 7
Garcia v. State, 03-12-00781-CR
(Tex.App. - Austin; December 11, 2014). . . vii, 5, 8, 19, 20
Griffith v. State, 983 S.W.2d 282 (Tex.Cr.App. 1998). . . . . . 10
Johnson v. State, 739 S.W.2d 299 (Tex.Cr.App. 1987). . . . . 21
Jordan v. State, 928 S.W.2d 550 (Tex.Cr.App. 1996). . . 12-14
iii
Index of Authorities
(CONT)
Texas Cases (CONT):
Kelly v. State, 824 S.W.2d 568 (Tex.Cr.App. 1992). . . . 5, 7, 8
Mata v. State, 03-12-00476-CR
(Tex.App. - Austin, June 24, 2014). . . . . . . . . . . . . . . . . 16
McBride v. State, 862 S.W.2d 600
(Tex.Cr.App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Powell v. State, 63 S.W.3d 435 (Tex.Cr.App. 2001).. . . . 16, 17
Renteria v. State, 206 S.W.3d 689 (Tex.Cr.App. 2006). . . . . 16
Sexton v. State, 93 S.W.3d 96 (Tex.Cr.App. 2002). . . . . . . . . 8
Spence v. State, 795 S.W.2d 743 (Tex.Cr.App. 1990). . . . . . 11
Tillman v. State, 354 S.W.3d 425 (Tex.Cr.App. 2011).. . . 8, 12
Vasquez v. State, 389 S.W.3d 361
(Tex.Cr.App. 2012). . . . . . . . . . . . . . . . . . . . . . . 19-22, 24
Walters v. State, 247 S.W.3d 204 (Tex.Cr.App. 2007).. . . . . 16
Texas Statutes / Codes:
Rules of Evidence
Rule 401... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Rule 404(b) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Rule 702 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Rule 705(b) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
iv
Statement Regarding Oral Argument
Because of complexity of the expert witness issue involved,
the undersigned believe that oral argument will benefit the parties
and assist the Court. Appellant therefore requests the opportunity
to present oral argument in this case.
Statement of the Case
This case involves the denial of the right to put on a full
defense, to introduce evidence in support of that defense, and to
have the jury instructed in a meaningful way, such as to allow the
jury to give effect to the evidence presented.
Statement of Procedural History
Appellant was charged by indictment with the offenses of
aggravated sexual assault of a child, a first (1st) degree felony
(Count I) and Indecency with a Child by Contact (Count II), a
second (2nd) degree felony, in Cause No. 11-216-K368 in the
368th District Court of Williamson County, Texas. He was
acquitted on Count I and convicted on Count II, and sentenced to
confinement for ten (10) years. Notice of Appeal was timely given
v
on November 20, 2012. The Court of Appeals’ opinion from which
review is sought was delivered by the Third Court of Appeals.
Garcia v. State, 03-12-00781-CR (Tex.App. - Austin; December
11, 2014). By previous Order of this Court, this petition is timely
filed if presented to the Clerk of the Court on or before March 13,
2015.
vi
No. PD-0099-15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN
Alejandro John Garcia
Appellant
v.
The State of Texas
Appellee
On Appeal from 368th District Court of Williamson County in Case No. 11-216-K368,
the Hon. Burt Carnes, Judge Presiding, and the Opinion of the Third Court of
Appeals in Case No. 03-12-00781-CR, Delivered December 11, 2014
Petition for Discretionary Review
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Alejandro John Garcia, Appellant in the
instant cause, by and through David A. Schulman and John G.
Jasuta, his undersigned attorneys, and respectfully files this
“Petition of Discretionary Review,” and would show the Court as
follows:
Facts of the Case
(Gleaned From the Opinion of the Court of Appeals)
Appellant’s nine-year-old daughter went for an overnight visit
to the apartment Appellant shared with his girlfriend and their
1
four-year-old son. She watched a movie with her brother in her
brother’s room while Appellant watched a movie in the living room
with the girl’s uncle, smoking marijuana. Appellant’s girlfriend
was at work that evening.
Appellant’s daughter testified that she ordinarily slept on the
couch during her visits and that, after the movies finished,
Appellant fixed the couch as her bed that night. They watched
some television and, at around 9:36 p.m., she fell asleep on the
couch. She said that Appellant also fell asleep on the couch, which
was unusual. She woke up later when Appellant touched her,
unbuckled his belt, then did “something really gross.” She
testified, “He pulled down my pants and stuck his middle part into
my bottom. And then he put his hands on my front part.” She
testified that he put his “middle part inside my butt.” She testified
that after doing those things “he woke up, and he said, ‘Oh, my
God.’ And then he started wiping my butt and pulled up my pants.
And then he went and threw the paper towel away. . . . [H]e told
2
me to take a shower, but I didn’t.” She said that Appellant said,
“What the F?” and “Why did I do that?” to himself.
The child testified that he did not tell her to keep quiet, did
not threaten her, did not try to bribe her, and did not blame her.
She said that she knew Appellant was asleep when these events
occurred “because he wouldn’t have done that if he was awake.”
The girl’s grandparents came and picked her up later that
night and delivered her to her mother, who then immediately took
the child to the hospital for a checkup. Because of the nature of
the actions reported to hospital personnel, Austin Police were
notified.
Ground for Review Number One Restated
The Court of Appeals Erred When it Concluded
Appellant Failed to Show the Defense’s Expert
Testimony “Was Properly Applied” to Appellant.
Facts Relevant to First Ground for Review
At opening, Mr. Segura promised the jury, without objection,
they would hear evidence that Appellant was asleep when the acts
occurred (RR Vol. 3, P. 42). To accomplish this, Appellant called
3
Dr. Michel Bornemann, a medical doctor who specializes in the
study of parasomnia.
When Appellant called Dr. Bornemann, the State requested
and obtained a hearing under Rule 705(b), Tex.R.Evid. Through
Dr. Bornemann, Appellant sought to offer evidence that he was
essentially sleepwalking when he touched his daughter and,
therefore, he lacked the requisite intent or voluntariness to commit
the crime.
At the close of the voir dire examination, the State objected
and argued that it was based on a novel and unreliable scientific
theory that could mislead the jurors. The State contended the
theory lacked diagnostic criteria and support in the medical
community and that Dr. Bornemann did not “appropriately
diagnose this defendant as having any disorder.”
The trial court refused to admit Dr. Bornemann's testimony.
At that time, the trial court stated:
Obviously, based on the motion for continuance back in the
summer, I knew that this was going to be an issue or probably
would be an issue, and so I’ve been looking at it as we’ve
progressed through the trial of the case this week.
4
It’s very interesting. But what he’s really here to say is the
defense story which he gave the night in the videotape we’ve
all heard he’s being truthful. And then it goes -- and that’s
based solely on his and his present girlfriend’s -- or his
interview of the defendant and his present girlfriend, not on
all the scientific studies that he talked about if it were a
clinical case.
I’m going to sustain the State’s objection. If you need a
further bill, if he’ll stick around, we’ll do that at the
close of business today.
RR Vol. 4, P. 115.
On appeal, Appellant claimed the trial court erred by
sustaining the State’s objection to Dr. Bornemann’s testimony.
The Court of Appeals rejected Appellant’s arguments, holding
Appellant failed to demonstrate the admissibility of Dr.
Bornemann’s testimony. Garcia, slip op. at 5.
Summary of the Argument
First Ground for Review
The Daubert / Robinson / Kelly standard does not require
the testifying expert to have conducted scientific testing on the
subject of his testimony, merely that he has applied the particular
methodology when formulating an opinion. Additionally, otherwise
inadmissible evidence becomes admissible if the actions of the
opposing party “open the door.”
5
Argument & Authorities - First Ground for Review
A
The Court of Appeals Mis-Interpreted or
Mis-Applied the Appropriate Standard
The Rules of Evidence favor admission of all relevant
evidence. Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App.
1990). Under Rule 401, relevant evidence is evidence which has
“any tendency to make the existence of any fact of consequence to
the determination of the action more probable or less probable
than it would be without the evidence.” Bekendam v. State, 441
S.W.3d 295, 303 (Tex.Cr.App. 2014)(FN 4).
For expert testimony to be admissible, the following
requirements must be met:
Ø the expert's testimony must be based on sufficient facts
or data;
Ù the expert's testimony must be the product of reliable
principles and methods, and
Ú the expert must apply the principles and methods
reliably to the facts of the case.
6
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 591 (1993); E.I. du Pont de Nemours & Co. v. Robinson,
923 S.W.2d 549, 556-557 (Tex. 1995); Kelly v. State, 824 S.W.2d
568, 571-572 (Tex.Cr.App. 1992). Additionally, Kelly also
identified a non-exclusive list of factors which could influence a
trial court's determination of reliability, including
Ø the extent to which the theory and procedure are
accepted as valid by the relevant scientific community;
Ù the technique's potential rate of error;
Ú the availability of experts to test and assess the method
or technique;
Û the clarity and precision with which the underlying
scientific premise and approach can be explained to the
court; and
Ü the knowledge and experience of the person(s) who
applied the methodology on the occasion in question.
Kelly, 824 S.W.2d at 573. Under Kelly, the proponent of
scientific evidence bears the burden of proving to the trial court,
by clear and convincing evidence, that the evidence is sufficiently
7
relevant and reliable to assist the jury in determining a fact in
issue. Kelly, 824 S.W.2d at 573.
Relying on Sexton v. State, 93 S.W.3d 96, 100 (Tex.Cr.App.
2002), the Court of Appeals held Appellant failed to demonstrate
the admissibility of Dr. Bornemann’s testimony. “We cannot say
that the trial court abused its discretion by excluding Dr.
Bornemann’s testimony because Garcia failed to show by clear
and convincing evidence that a valid technique for diagnosing
parasomnia was properly applied to him.” Garcia, slip op. at 5.
Appellant acknowledges that Daubert and Kelly, as well as
their various progeny, require an expert to fit his testimony to the
facts of the case. See Tillman v. State, 354 S.W.3d 425
(Tex.Cr.App. 2011). However, the substance of both the trial
court’s and the Court of Appeals’ ruling was that, in this case, Dr.
Bornemann had not applied a valid technique when formulating
his opinion. It is clear that both courts based this on Dr.
Bornemann’s acknowledgment that he did not perform any clinical
tests on Appellant. What both courts ignored is that Dr.
8
Bornemann testified unequivocally that such testing was not
necessary.
Q. (Mr. McCabe) Did you perform any studies on Mr. Garcia?
A. (Dr. Bornemann) No formal tests or studies were performed.
Q. Wouldn’t you agree that you authored a paper -- co-authored a
paper called "Violence in Sleep" out of the Oxford Journals;
is that correct?
A. Published by -- this is the one you’re looking at. This was
published in the scientific journal, Brain.
Q. Yes. In 2010?
A. Correct.
Q. Okay. You were a co-author of that study?
A. That’s correct.
Q. Wouldn’t you agree that when you talk about -- there is a
subsection called "History and Physical Examination" under
"Diagnostic Procedures" about halfway through that paper. It
says, "The first step in diagnosing a sleep disorder
associated with violence is obtaining a complete history
preferably from both the patient and the bed partner." You did
those things; is that right?
A. Well, I interviewed him. A physical examination was not
performed, nor was it necessary. That is a comment related to
the condition as a clinical entity and not necessarily as a
forensic entity.
Q. So when it says, "The clinical history should be followed by
a general physical, neurological, and psychiatric
examinations," none of those things were done in this case?
A. A physical examination wasn’t performed. It was not
contributory to the review of the case. And there was no
evidence to support further inquiry into a psychiatric
condition.
Q. It references -- forgive me if I pronounce this wrong --
polysomnography.
A. Correct. We have to keep in mind that that paper also is not
particularly focused on sleepwalking. It also comments upon
9
unusual epilepsy. So, again, this is a clinical paper looking
at violence that arises from sleep which is not necessarily
particular or specific to sleep. It can also incorporate
neurologic conditions such as epilepsy.
Q. But there’s an entire section on here on arousal disorders,
correct?
A. That’s correct.
Q. Is that what we’re talking about here is an arousal disorder?
A. We are talking about an arousal disorder which is a subset of
parasomnia.
Q. So this paper is relevant to your testimony today?
A. It is helpful, absolutely.
Q. And under "Polysomnography," it says, "an extensive
polygraphic study with a multichannel scalp EEG, monitoring
all four extremities in continuous, time-schychronized
audio-visual recording is essential."
A. Essential from a clinical diagnosis. From a forensic, legal
perspective, a polysomnography that’s not associated with the
allegation would not be able to determine what happened on
that particular evening. I could certainly do a
polysomnography, or a sleep test, and find that he’s a
sleepwalker. But that only tells us he’s a sleepwalker.
That’s not necessarily what may have occurred on the evening
of the event. So the information to determine -- render
medical opinion which is well founded in our field is based
upon the behavioral -- the characteristic behavioral patterns
and also the specifics to the degree of consciousness and
awareness in order to render an opinion related to a
particular incident, not necessarily a global clinical issue
which is particularly what that paper focuses on.
The Court of Criminal Appeals has repeatedly recognized that
testimony from mental health experts is relevant to the issue of
future dangerousness. See Griffith v. State, 983 S.W.2d 282, 288
(Tex.Cr.App. 1998); see also McBride v. State, 862 S.W.2d 600,
10
608 (Tex.Cr.App. 1993). The Court has also repeatedly made clear
that there is no requirement that the mental health expert offering
an opinion regarding whether a particular defendant will
constitute a danger in the future have ever personally interviewed
that defendant. Spence v. State, 795 S.W.2d 743, 762-763
(Tex.Cr.App. 1990); see also Allen v. State, AP-74,951
(Tex.Cr.App.; June 28, 2006)(not designated for publication).1
Being the pivotal “life or death” question in a capital case, it
is clear that whether there is a probability a particular defendant
“would commit criminal acts of violence that would constitute a
continuing threat to society . . .,” is at least as important a
question as whether Appellant’s behavior on the night in question
was the result of parasomnia. If a personal interview is not
required when an expert is called to offer his or her opinion on
“future dangerousness” in the death penalty setting, certainly
conducting a “clinical study” is not required when an expert is
1
In Allen, there were concurring opinions by Judge Womack and Judge
Johnson. Neither are important to this issue.
11
called to offer an opinion as to whether an individual is a
parasomniac.
Additionally, as set out in Tillman, relevance is a “looser
notion than reliability,” and is “a simpler, more straight-forward
matter to establish.” Tillman, 354 S.W.3d at 438. The relevant
inquiry is whether evidence “will assist the trier of fact and is
sufficiently tied to the facts of the case.” Jordan v. State, 928
S.W.2d 550, 555 (Tex.Cr.App. 1996).
In Jordan, the Court specifically addressed the “fit” aspect of
the relevance inquiry. There, the proffered expert “answered
questions about the specific facts of the case and how they might
be affected by the factors he testified to,” “stated his opinion about
the reliability of the eyewitness identifications,” and “identified
facts in the case that he believed impacted those identifications.”
Jordan, 928 S.W.2d at 556. However, the expert “did not testify
about several factors that might have affected the reliability of the
eyewitness identifications,” nor did he “interview the witnesses or
examine certain pieces of evidence.” Jordan, 928 S.W.2d at 555-
12
556. Nevertheless, the Court held that, although the expert “did
not testify as to every conceivable factor that might affect the
reliability of eyewitness identification present,” his testimony “was
sufficiently tied to the facts to meet the simple requirement that it
be ‘helpful’ to the jury on the issue of eye witness reliability.”
Jordan, 928 S.W.2d at 556.
In Jordan, the Court explained that the question under Rule
702, Tex.R.Evid., is “not whether there are some facts in the case
that the expert failed to take into account, but whether the
expert’s testimony took into account enough of the pertinent facts
to be of assistance to the trier of fact on a fact in issue.” Jordan,
928 S.W.2d at 556. Further, the Court noted that the expert’s
failure to account for some facts “is a matter of weight and
credibility, not admissibility.” Jordan, 928 S.W.2d at 556.
In essence, therefore, what the Jordan Court ruled was that,
whether an expert is correct in his or her opinion is a fact question
for the jury to decide. In this case, Dr. Bornemann specifically
testified that he did have “specialized knowledge that’s scientific,
13
technical, or otherwise that will assist the jury in understanding
evidence in this case and determine a fact in issue in this case”
(RR Vol. 4, PP. 102-103).
In this case, the trial court undertook questioning Dr.
Bornemann - the final questions he would answer. The following
occurred:
(THE COURT): Without the window dressing, tell me what you are
here to render a paid expert opinion for?
(Dr. Bornemann): Right. I’m here to review and support that
Mr. Garcia’s behavior was without motivation, intent, and
purposefulness because his behavior is consistent with
parasomnia.
RR Vol. 4, P. 110. More specifically, as he had previous testified,
as part of his engagement in this case, Dr. Bornemann had
rendered a “formal medical opinion related to this case,” and that
opinion “indeed supports a sleep disorder, parasomnia with sexual
attributes” (RR Vol. 4, P. 87).
Under the rationale of Jordan, whether he was correct or not
was a question for the jury. Consequently, his opinion, that
Appellant’s behavior was consistent with parasomnia (RR Vol. 4,
P. 110), was relevant to the jury’s inquiry, because it tended to
14
make “the existence of any fact of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” Rule 401, Tex.R.Evid. The trial
court erred by refusing to permit Dr. Bornemann’s testimony to be
heard by the jury, and the Court of Appeals erred by failing to so
find.
B
The Evidence was Necessary to Counter the State’s Arguments
Appellant further asserts that even otherwise inadmissible
evidence becomes admissible when it is necessary to counter the
theory or argument of the opponent. See, for example, the ample
amount of case law providing that evidence of extraneous bad
acts, which is otherwise rendered inadmissible by Rule 404(b),
Tex.R.Evid., becomes admissible when it is necessary to counter
an opponent’s theory.
The Court has often said that evidence of a person's bad
character may be admissible when it is relevant to a non-character
conformity fact of consequence in the case, such as rebutting a
15
defensive theory. Cargill v. State, AP-76,189 (Tex.Cr.App.
November 19, 2014)(not designated for publication), citing Powell
v. State, 63 S.W.3d 435, 438 (Tex.Cr.App. 2001). It has also held
that even the defense’s opening statement may open the door to
admission of extraneous-offense evidence to rebut a defensive
theory raised in that opening statement. Mata v. State, 03-12-
00476-CR (Tex.App. - Austin, June 24, 2014)(not designated for
publication), citing Bass v. State, 270 S.W.3d 557, 563
(Tex.Cr.App. 2008). Moreover, the concept of “opening the door”
applies to both the State and the defense. See, e.g., Renteria v.
State, 206 S.W.3d 689, 697 (Tex.Cr.App. 2006); Walters v. State,
247 S.W.3d 204, 220 (Tex.Cr.App. 2007).
Both Powell and Bass provide that an opening statement can
open the door to the admission of otherwise inadmissible evidence.
That is important, because, in this case, as he concluded his
opening statement, counsel for the State told the jury:
What the State anticipates the evidence is going to show is
this fantastic tale from the defendant about night terrors,
sleepwalking, and out-of-body experiences and wet dreams and
this perfect storm of how all these complex acts of undressing
yourself, undressing another person, sexual intercourse and
16
ejaculation all occurred while the defendant was not conscious
and that, therefore, he didn’t intend to do any of these
things. I’ll submit to you at the end of this evidence that
it’s a load of crap. Thank you very much.
RR Vol. 3, P. 40. Additionally, during its opening final argument,
the State attacked Appellant’s claim that he was asleep at the time
of the incident (RR Vol. 5, P. 21, L. 4-11; P. 23, L. 12-19). More
importantly, in his closing final argument, counsel for the State
emphasized the lack of “medical evidence” supporting the
defensive theory:
(Mr. McCabe): There has been no medical evidence. There has
been no scientific evidence. There has been nothing for you to
consider that he didn’t act consciously, that he didn’t do
these things on purpose, that he had some sort of disorder or
wasn’t in his right mind. This was an intentional, knowing,
voluntary act.
RR Vol. 5, P. 41, L. 9-14.
Under the rationale of both Powell and Bass, the testimony
offered by the defense regarding Dr. Bornemann’s opinion on
Appellant’s behavior was admissible to rebut the argument made
by the State in its opening statement, that the claim Appellant was
asleep was a “load of crap.” This is further reinforced by the
statements made by counsel for the State during both opening and
closing final argument, also attacking Appellant’s defense.
17
The trial court erred by refusing to permit Dr. Bornemann's
testimony to be heard by the jury, and the Court of Appeals erred
by failing to so find.
Conclusion - First Ground for Review
Appellant proved, by clear and convincing evidence, that Dr.
Bornemann’s testimony would assist the jury in determining
whether Appellant acted while sleeping or not. The trial court
erred by excluding his opinion testimony, and the Court of Appeals
erred by affirming the trial court’s actions. Discretionary review
should be granted.
Ground for Review Number Two Restated
The Court of Appeals Erred When it Resolved
Appellant's Claim of Charge Error Without Reference
to or Application of Almanza v. State.
Facts Relevant to Second Ground for Review
(Gleaned from the Opinion of the Court of Appeals)
In his second point of error, below, Appellant argued the trial
court erred by refusing to include the words “intentionally or
knowingly” in the application paragraph of the indecency charge.
18
The charge given was as follows,2 and Appellant requested that the
terms “intentionally or knowingly” be included where asterisks
inside of brackets have been inserted:
Now bearing in mind the foregoing instructions, if you believe from the
evidence beyond a reasonable doubt that the defendant, ALEJANDRO
JOHN GARCIA, on or about December 24, 2010, in Williamson County,
Texas, [***] engaged in sexual contact with a child younger than 17 years
of age, namely, any touching by the defendant, including touching through
clothing, of any part of the genitals of [KG], with intent to arouse or gratify
the defendant’s sexual desire, then you will find the defendant guilty of the
offense of Indecency with a Child by Contact, as alleged in Count Two of
the indictment, and so say by your verdict.
As he did in the trial court, Appellant asserts, that without the
words “knowingly or intentionally” in the application paragraph,
the jury was free to treat the case as a strict liability offense and
convict Appellant even if they believe he did not act intentionally.
Citing Vasquez v. State, 389 S.W.3d 361, 366 (Tex.Cr.App.
2012), the Court of Appeals held that the jury charge must contain
an accurate statement of the law and must set out all of the
essential elements of the offense. It also held that, in examining
the charge for possible error, it was required to “view the charge as
a whole instead of as a series of isolated and unrelated
2
Copied verbatim from the Court of Appeals opinion. See Garcia, slip op. at 6.
19
statements.” Garcia, slip op. at 6. The Court of Appeals thereafter
found the trial court did not abuse its discretion and overruled
Appellant’s point of error. Garcia, slip op. at 7.
Summary of the Argument
Second Ground for Review
By considering Appellant’s claim under only Vasquez, the
Court of Appeals applied the wrong standard. Had it correctly
applied the long standing and still valid Almanza test, it would
have found that the trial court erred as claim by Appellant, and
that Appellant suffered “some harm.”
Argument & Authorities - Second Ground for Review
In Vasquez, the defendant was charged with aggravated
robbery. The evidence at trial showed that he and his two
roommates hatched a scheme to steal money at gunpoint from a
woman driving a taqueria truck. He was the designated getaway
driver.
The abstract section of the jury charge defined the law of
parties, and the application paragraph stated that the jury should
20
find appellant guilty if he was “acting alone or as a party (as herein
defined)” in committing aggravated robbery. The defense presented
was that the defendant was merely present when his roommates
committed the robbery.
The jury convicted him and the Court of Appeals, relying on
the Court's plurality opinion in Johnson v. State, 739 S.W.2d 299
(Tex.Cr.App. 1987), found reversible error because the trial judge,
over the defendant’s objection, declined to apply the law of parties
more explicitly in the application paragraph. Vasquez, 342 S.W.3d
at 363.
The Court granted the State's petition to decide whether
objected-to error in the application paragraph is subject to the
“usual harm analysis” set out in Almanza v. State, 686 S.W.2d
157, 171 (Tex.Cr.App. 1985), “or a per se finding of harm.”
Vasquez, 342 S.W.3d at 363. The Court ultimately concluded
that the “usual Almanza factors” applied.3
3
Although the Court found that “any error in the present application
paragraph” was harmless, unrelated to the instant case, the Court overruled
Johnson “to the extent that it suggests a per se finding of harm.” Vasquez, 342
S.W.3d at 363.
21
Vasquez does not and cannot stand as the standard for
addressing claims of jury charge error. The “usual Almanza
factors” remain the proper way to address such claims. Thus,
contrary to the Court of Appeals’ statement that it “must view the
charge as a whole instead of as a series of isolated and unrelated
statements,” the Court was, in fact, required to look not at the
charge “as a whole,” but at the particular part of the charge
identified by Appellant as being in error. Had it done so, the
Court of Appeals would have found, for the reasons set out in
Appellant’s brief below, that the trial court erred by its actions.
In this case, Appellant properly objected to the trial court’s
failure to include the terms “intentionally or knowingly” in the
court’s charge as requested. Thus, when it found jury charge
error, as Appellant asserts it would have been required to do, the
“usual Almanza factors” would require the Court of Appeals to
determine whether Appellant suffered “some harm.” Almanza, 686
S.W.2d at 171. “Some harm” means any harm, regardless of
22
degree. See Arline v. State, 721 S.W.2d 348, 351 (Tex.Cr.App.
1986).
Taking the application paragraph which was actually given to
the jury, then reading it as the common person would read it, one
would believe that they were authorized to convicted Appellant if
he “engaged in sexual contact with the complainant,” regardless
of whether they believed he did so knowingly or intentionally.
Indecency with a child is not a strict liability offense, yet the
court’s charge, as given, authorized the jury to convict as if it were.
Thus, Appellant did, in fact, suffer “some harm,” because the
application paragraph given to the jury in this case authorized
them to convict Appellant simply because he engaged in sexual
contact, even if they believed he was unaware he was doing it and
had no intention to do it.
Conclusion - Second Ground for Review
The trial court erred by refusing to include terms
“intentionally or knowingly” in the court's charge as requested by
Appellant’s trial counsel. The Court of Appeals erred by applying
23
what it perceived to be the Vasquez standard, rather the “usual
Almanza factors” which the Court’s opinion in Vasquez
mandates. Had it utilized the “usual Almanza factors,” the Court
below would have found that the trial court erred in its charge to
the jury, and that Appellant was harmed by that error.
Discretionary review should be granted, and a new trial ordered.
Prayer
WHEREFORE, PREMISES CONSIDERED, Alejandro John
Garcia, Appellant in the above styled and numbered cause
respectfully prays that the Court will grant Discretionary Review
of the instant case, and upon submission of the case will vacate
the judgments of the courts below, and remand this case for a new
trial.
Respectfully submitted,
_______________________________ _______________________________
John G. Jasuta David A. Schulman
Attorney at Law Attorney at Law
Post Office Box 783 Office Box 783
Austin, Texas 78767-0783 Austin, Texas 78767-0783
lawyer1@johngjasuta.com zdrdavida@davidschulman.com
Tel. 512-474-4747 Tel. 512-474-4747
Fax: 512-532-6282 Fax: 512-532-6282
State Bar No. 10592300 State Bar No. 17833400
Attorneys for Alejandro John Garcia
24
Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 4,499 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies
with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on
March 13, 2015, a true and correct copy of the above and
foregoing “Petition for Discretionary Review” was transmitted via
the eService function on the State’s eFiling portal, to John Prezas
(jprezas@wilco.org), counsel for the State of Texas, and the Hon.
Lisa McMinn (lisa.mcminn@spa.state.tx.us), State’s Prosecuting
Attorney.
______________________________________
David A. Schulman
25
Exhibit “A”
Court of Appeals’ Opinion of December 11, 2014