Francis, Jeremy M.

S60 -IS
jRlGINAL RECEIVED IN
COURT OF CRIMINAL APPEALS
NO.
OCT 12 2015

IN THE Abel Acosta, Clerk
COURT OF CRIMINAL APPEALS
OF TEXAS

JEREMY M. FRANCIS/
Appellant/Petitioner

VS.

THE STATE OF TEXAS/
Appellee/Respondent

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FIIFD
COURT OF CRIMINAL APPEALS
OCT 16 2015

In Appeal No .05-14-00218-CR Abel Acosta Cierk
from the
Court of Appeals
for the Fifth Judicial District
Dallas, Texas

Jeremy M. Francis
TDC#1913681
Telford Unit
3899 State Hwy 98
New Boston, Tx 75570
 TABLE OF CONTENTS

INDEX OF AUTHORITIES III

STATEMENT REGARDING ORAL ARGUMENT 1

STATEMENT OF THE CASE 2

STATEMENT OF PROCEDRAL HISTORY 2

QUESTION FOR REVIEW 3

Did the Fifth Court of Appeals correctly
evaluate the extraneous offense evidence
correctly under T.R.E. 403?

ARGUMENT NUMBER ONE 4

PRAYER FOR RELIEF 5

CERTIFICATE OF SERVICE 6

APPENDIX [Opinion]

II
 NO.

IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS

JEREMY M. FRANCIS,

VS.

THE STATE OF TEXAS,

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

Petitioner respectfully submits this Petition for Discretionary

review and moves that this Honorable Court grant review of this

cause and offers the following in support thereof:

STATEMENT REGARDING ORAL ARGUMENT

The petitioner requests oral argument in this case because

such argument may assist the Court in applying the facts to the

issues raised. It is suggested that oral argument may help

simplfy the facts and clarify the issues.
 STATEMENT OF THE CASE

The petitioner was charged with the offense of capital murder

After a trial to the jury he was convicted and sentenced to life

without' the- possibility of parole. Petitioner appealed and the

Fifth Court^of appeals affirmed.

STATEMENT OF PROCEDURAL HISTORY

In Cause No.F11-62030-L the petitioner was charged with the

offense of capital murder. The petitioner was convicted of such

offense on February 24, 2014 and appealed the conviction.

On June 23, 2015 the Dallas Court of Appeals affirmed the con

viction. No motion for rehearing was filed. This petition for

Discretionary Review was timely forwarded to the Court of Cri

minal Appeals of Texas.
 QUESTION FOR REVIEW

I.

DID THE FIFTH COURT OF APPEALS CORRECTLY EVALUATE THE
THE EXTRANEOUS OFFENSE CORRECTLY UNDER T.R.E- 403?

ARGUMENT AND AUTHORITIES
UNDER QUESTION FOR REVIEW NUBER ONE

A. REASONS FOR REVIEW

Two reasons for review are presented. First the Dallas Court

of Appeals decision here is in direct conflict with the decisions

of this Honorable Court and the lower appellate courts. T.R.A.P.

66.3(a) ;(c). Secondly, the Court of Appeals has so far departed

from the accepted and usual course of judicial proceedings, or

so far sanctioned such a departure by a lower court, as to

call for an exercise of the Court of Criminal Appeals power of

supervision. T.R.A.P.66.3(f).

B. ARGUMENT

Petitioner requests this court grant petition to exercise

it's power to supervise this State's lower courts. Specifically
this court should grant his Petition to examine the ruling of
the Dallas Court of Appeals and its holding that the extraneous
offense evidence was admissable under T.R.E. 403.
 DID THE FIFTH COURT OF APPEALS CORECTLY EVALUATE THE
EXTRANEOUS OFFENSE EVIDENCE CORRECTLY UNDER T.R.E. 403?

In the instant case the defense lodged two objections to

the introduction of evidence of an unrelated aggravated robbery. ?
(RR3:8) The Court ultimately overruled these objections.
Only relevant evidence is admissible. See TEX.R.EVID.402.
Rule 401 defines relevant evidence as "evidence having any

tendency to make the existence of any fact that is of con

sequence to the determination of the action more probable than

it would be without the evidence." Rule 404(b) provides that

evidence of an accused's "other crimes, wrongs or acts is not

admissable to prove the character of a person in order to show

action in conformity therewith." Evidence of extraneous acts

"may, however, be admissable for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowldge,

identity, or absence of mistake or accident." Rule 404(b)

When a further objection is made under Rule 403, it will

not suffice for the trial court simply to determine that the

evidence is relevant to some legitimate non-charater-related

purpose such as one of those enumerated in Rule 404(b). "The

determination must be made whether the danger of undue prejudice
outweighs the probative value of the evidence in view of the

availability of other means of proof and other factors app
ropriate for making decisions of the kind under Rule 403."

ADVISORY COMMITTEE'S NOTE to FED.R.EVID.404(b).
see also Montomery v. State,810 s.w.2d 372 (Tx.Cr. App. 1990 ) -•

In affirming Petitioner's conviction the Fifth Court of .£•

Appeals simply conducted another Rule 404(b) test instead of

the proper Rule 403 test. ,.^
Petitioner was found in possesion of shoes with the victims

DNA on the sole, his cellphone made calls from the immediate

area just minutes before the crime and he made an incriminating

phone call from the county jail. Prosecutions have tried and

won cases with less evidence than that. But there could have

nothing more prejudicial to Petitioner than for the jury to

hear evidence of a very similar aggravated robbery and attemted

stabbing. The inference that Petitioner is guilty of this crime

because he has engaged in similar conduct is not a inference

the jury is allowed to draw.

The admission of the extraneous offenses prejudiced Petitioner

because of the jury's natural inclination to infer guilt of the

charged offense from the extraneous offense evidence. Petitioner

lost the presumption of innocence and the possibility of the

jury reaching another verdict as the result of presentation

of inadmissable character conformity evidence.

PRAYER FOR RELIEF

For the reasons stated above, it is respectfully submitted

that the Court of Criminal Appeals of Texas should grant this

Petition for Discretionary Review.

Respectfully submitted.
 Jeremy M. Francis, PRO SE
TDC#1913681
Telford Unit
3899 State Hwy 98
New Boston, Tx 75570

CERTIFICATE OF SERVICE

The undersigned Petitioner hereby certifies that a copy of

the foregoing Petition has been mailed, U.S. MAIL postage pre

paid, to the Office of the Criminal District Attorney for Dallas

County, Frank Crowley Courts Bldg., 133 North Riverfront Blvd.

LB-19, Dallas, Tx 75207, and to the State prosecuting Attorney,

P.O. Box 12405, Austin, Tx 78711, on this 18th day of September,

2015.
Affirmed as Modified; Opinion Filed June 23, 2015.

In The

Court of Appeals
JfiftJj Hfstritt of Qtexas at Balks
No. 05-14-00218-CR

JEREMY M. FRANCIS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F11-62030-L

MEMORANDUM OPINION
Before Chief Justice Wright, Justice Myers, and Justice Evans
Opinion by Justice Myers
Appellant Jeremy M. Francis was convicted of capital murder and sentenced to life

imprisonment without the possibility of parole. In one issue, he argues the trial court abused its

discretion by admitting evidence of extraneous offenses during the guilt-innocence phase of the

trial. As modified, we affirm the trial court's judgment.

Background

During the early morning hours of Friday, September 16, 2011,1 Officer Aaron Tobkin of

the Dallas Police Department responded to a call at the Providence apartment complex about a

body. When he arrived at the complex, Officer Tobkin found a man lying face-down on the

sidewalk that ran by the pool area. The man, who was pronounced dead at the scene by Dallas

The Court takes judicial notice of the fact that September 16,2011 was a Friday.
Fire and Rescue, forty-six-year-old Martin Coronado, had two stab wounds to the chest. One of

the wounds went nine inches into the deceased's body—through the chest wall, the left lung, and

the heart—and was fatal, according to the medical examiner. The examiner testified that the stab

wounds would have been caused by an instrument that was sharp on one side and blunt on the

other—like a single-blade knife. A receipt attached to a Whataburger bag that was found near

the deceased's body showed a time-stamp of 5:17:06 a.m.

Detective Esteban Montenegro of the Dallas Police Department's Homicide Unit was

assigned to the case. He testified that there was no physical evidence other than a bloody

footprint found at the crime scene, and no eyewitnesses. One resident testified that she "heard

some friction" in front of the window of her apartment, and she heard what sounded like a man's

voice saying, "Stop. Get down. Shut up. Get down." She looked out the window and saw a

man lying in front of her window; he was not moving. She called 911. But the resident never

saw the actual commotion and there was no video footage of the scene from the apartment

complex's or nearby business's surveillance cameras.

During his investigation, Detective Montenegro also contacted the deceased's wife and

learned that the complainant's bank card had been used at a 7-Eleven on Lemmon Avenue, a

Quick Trip on Mockingbird Lane, and a Dart vending machine between 12:16 p.m. on

September 16 and 10 p.m. on September 17. Surveillance video from the 7-Eleven, taken on

September 16, 2011, showed a white car with two black males pulling up to a gas pump.

On September 21, 2011, Officer Russell Barrett of the Dallas Police Department was

working in an undercover capacity driving down Douglas Avenue in an unmarked police car. He

saw two males, later identified as appellant and William Langrum, appellant's uncle, involved in

an altercation with another male. Langrum had a knife and was swinging at the man, who fell

backwards. Barrett saw Langrum grab the man's bag. Francis was "kind of jumping around,
grabbing at the bag, too, looking around."

Appellant and Langrum fled on foot to a vehicle in the nearby parking lot. Langrum

drove the vehicle and appellant was in the passenger's seat. Officer Barrett followed them in his

unmarked vehicle from Douglas to northbound Maple Avenue, where a squad car got behind the

vehicle and attempted to stop it. From the radio traffic, Officer Barrett could hear officers saying

that the two suspects had gotten out of their car, been chased on foot by officers, and then got

back in the car and drove away. Police pursued the suspects as they drove northbound on Cedar

Springs to Mockingbird, and then northbound on Lemmon Avenue, where the vehicle was

disabled after hitting the curb. Appellant and Langrum got out of the car and fled. Barrett

chased the driver, Langrum, who was holding either a large butcher knife or a hunting-style knife

in his hand. Langrum dropped the knife near a car dealership and continued running. Officer

Barrett apprehended Langrum and then went back and recovered the knife, which was admitted

at appellant's trial.

Officer Jeffrey Eggleston, who was working in plainclothes with Officer Barrett and two

other officers on September 21, 2011, testified that he assisted the other officers after he heard

about the chase. He saw the vehicle hit the curb and the two occupants get out of the car and

flee. He chased the passenger, whom he identified as appellant, and apprehended him.

Appellant's and Langrum's clothing was taken from them at the jail and tested. Alex

Nham, a forensic biologist with the Southwestern Institute of Forensic Sciences (SWIFS),

confirmed the presence of blood on swabs taken from Langrum's T-shirt, underwear, shorts, and

a towel. The presumptive test for blood was positive for swabs taken from appellant's T-shirt

and right shoe,2 but there was not enough of a sample to confirm the presence of blood.

2
In the reporter's record, Nham described this as appellant's "red" shoe, but his written report, which was admitted without objection,
stated that it was actually appellant's right shoe that tested positive using the presumptive test.
Appellant's shorts, left shoe, and blue and white T-shirts also tested positive for traces of blood.

Kenneth Balagot, a forensic biologist with SWIFS, tested the autopsy blood sample taken

from Coronado and DNA buccal swabs taken from Langrum and appellant. In a DNA swabbing

from the knife, Balagot found a mixture of at least two individuals, and Langrum was a possible

contributor to that sample. Coronado and appellant were excluded as contributors. A stain from

appellant's blue T-shirt likewise contained a mixture of at least two contributors—one major and

the other minor. The major contributor matched the DNA profile of Langrum; Coronado and

appellant were excluded as the minor contributor. The swabbing of a stain from appellant's right

shoe included a low level of DNA, but Balagot was able to do a comparison using that sample,

and he found that Coronado was a possible contributor of that sample. The conservative random

match probability with that sample for Coronado was one in 11.2 million, i.e., one would expect

to see that DNA profile or contribution once in a population of 11.2 million people. Balagot also

detected a single genetic marker that corresponded to the DNA profiles of appellant and

Langrum. But the random match probability for Langrum was 68 in 100; in other words, one

could include 68 percent of a population as being a possible contributor. As Balagot recognized,

one in 11.2 million is a stronger match or inclusion than 68 in 100.

Shaqundra Brown, appellant's girlfriend, testified that around the time of her birthday,

September 14, 2011, appellant purchased a new pair of Converse tennis shoes to attend a high

school football game on Friday night. Appellant left his cell phone at her home on Thursday

night and later called her from Langrum's phone at around 5:15 a.m. the following morning.

After talking briefly, appellant told her, "I'll call you back. I'm fixing to go do something." He

later retrieved his cell phone and walked Brown to school. In a jail phone call to Brown that was

made after he was arrested, appellant told Brown he had a murder case for a Mexican man and

that "murder is the easiest case to beat." Appellant added that "as long as there's no witness

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around, you can beat it."

The trial court admitted into evidence detailed Metro PCS cell phone records for the cell

phones belonging to appellant and Langrum. The call records showed several cell phone calls

between Langrum and appellant's cell phones on the day of the offense, one of which was an

outgoing call from Langrum to appellant at 5:15 a.m. that lasted for thirteen minutes and twenty-

one seconds. Using the information in the call records and the locations of the cell phone towers

with which each cell phone communicated, Michael Bosillo, a custodian of records for Metro

PCS and a retired police detective, prepared Google maps showing that certain calls made to and

from appellant's cell phone on the day of the offense used cell phone towers that were within the

general area of the crime scene at the 1800 block of W. Mockingbird Lane as well as the 7-

Eleven, Quick Trip, and Dart transactions involving Coronado's bank card. One map, in

particular, showed that the 5:15 a.m. call used a cell phone tower that was located within a one

mile radius of the crime scene. During cross-examination, however, Bosillo acknowledged that

there was no technology that determined exactly where a person was located within a sector, and

that a given cell phone tower could, given the right set of circumstances, cover up to 8.4 miles.

Discussion

In his issue, appellant contends the trial court abused its discretion by admitting evidence

of extraneous offenses during the guilt-innocence phase of the trial. Appellant challenges the

admission of the September 21, 2011 aggravated robbery and evading arrest/flight offenses,

arguing they were inadmissible under rules 404(b) and 403 of the Texas Rules of Evidence. The

State responds that appellant failed to preserve error and that, alternatively, the trial court did not

abuse its discretion.

The record shows that, on February 7, 2014, the prosecutor filed an amended notice of

extraneous offenses that listed twelve extraneous offenses, including those that occurred on
September 21, 2011—e.g., aggravated robbery in cause number Fl 1-60159, and evading arrest

in a vehicle in cause F11-60433. On February 19, 2014, prior to opening statements, the trial

court held a hearing out of the jury's presence to discuss the extraneous offenses that the State

intended to introduce. The record reads in part as follows:

[DEFENSE COUNSEL]: Your, Honor, I've been advised by the State they plan
on introducing an extraneous in this case. Particularly, another agg robbery and
an evading arrest. We would object to the introduction of that evidence, the
extraneous conduct, under 401, 402, 403 and 404 of the evidence code.

THE COURT: State's response.

[THE PROSECUTOR]: Judge, the suspect in this case, Jeremy Francis, because
of the events that occurred on 9/21—even though this Court has already heard the
events of 9/21 for this particular record, and not William Langrum's record, I will
reiterate the proffer of Jeremy Francis is alleged to have murdered Martin
Coronado on September 16th. However, on September 21st, another murder
occurred of a woman by the name of Shearl Bennett.3 Subsequent to this murder,
the two suspects, Jeremy Francis and William Langrum, were observed by a
covert police officer engaged in an aggravated robbery, using a knife that is
similar to the knife used in the murder of Martin Coronado.

On view of the aggravated robbery led to a vehicle chase, as well as a foot chase,
which led to the apprehension of both Jeremy Francis and William Langrum,
which led to the subsequent finding of the knife, as well as the clothing, including
the shoe of Jeremy Francis, which had the blood of Martin Coronado on it.

We believe that, pursuant to cases such as Galvez v. State. Crocket[t] v. State and
Williams vs. State, that those—the offenses of the aggravated robbery and the
evading vehicle and evading on foot should be admissible so that the case is
viewed in its entirety and not in a vacuum.

[DEFENSE COUNSEL]: If I may respond, Your Honor. The State's planning to
introduce evidence of another murder, or just the aggravated robbery and the
chase?

[THE PROSECUTOR]: We are not doing the other murder, Judge. Just the
aggravated robbery and the chase.

[DEFENSE COUNSEL]: And if the Court were to deem that is somehow
relevant and admissible, we will ask the Court to do a balancing test of 403.

Langrum was tried separately and convicted of the capital murder of Shearl Bennett. The conviction was affirmed by this Court. See
Langrum v. State, No. 05-13-01489-CR, 2015 WL 468403 (Tex. App—Dallas Feb. 2, 2015, pet. refd) (not designated for publication).

-6-
 Because we believe, even if it may be relevant, the prejudicial effect is
outweighed by its probative value.

THE COURT: The Court will evaluate the—evaluate at a future time. For the
time being, Defense's objection is overruled.

Just before the State made its opening statement, the parties held an off-the-record discussion at

the bench. In its opening statement, the State told the jury that the testimony would show how

appellant came to be arrested for the capital murder of Martin Coronado:

You're going to hear that, at first, Dallas Police Department had no leads. They
had a trail of bloody footprints, because the individuals responsible for killing
Martin Coronado stepped in his blood while they were robbing him, and they left
their mark behind.

You're going to hear that five days later, on September 21st, Jeremy Francis and
his friend William Langrum were observed by Dallas Police Department covert
officers engaged in an aggravated robbery of another individual here in Dallas:
Charles Starks, with a knife.

You're going to hear that Charles Starks managed to luckily stumble backwards
on a rock and fell to the ground and lived. But you're going to hear that Jeremy
and William took off running with his property, got into their car and took off.
Dallas Police Department got behind them. At first, it was the covert officer in a
covert vehicle. And then once a patrol car got behind them, it was on. And it was
a chase. And William and Jeremy drove—£ \
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