ACCEPTED 07-14-00340-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 1/13/2015 11:55:40 AM Vivian Long, Clerk
NO. 07-14-00340-CR
IN THE COURT OF APPEALS FILED IN 7th COURT OF APPEALS SEVENTH DISTRICT OF TEXAS AMARILLO, TEXAS 1/13/2015 11:55:40 AM Amarillo, Texas VIVIAN LONG CLERK
ALLYNE SHANE DOYLE
Appellant
V.
THE STATE OF TEXAS
Appellee
Appealed from the 69th Judicial District Court Dallam County, Texas Cause #4361
APPELLANT’S BRIEF
TIMOTHY D. SALLEY State Bar No. 00795633 Salley & Lands 102-B E 7th Street Dumas, TX 79029 (806) 934-3185 tsalley53@gmail.com NO. 07-14-00340-CR
IN THE
SEVENTH COURT OF APPEALS
Amarillo, Texas
NAMES OF ALL PARTIES AND ATTORNEYS
So the members of the Court can determine disqualification and recusal under Texas Rules of Appellate Procedure 15 and 15a, Appellee certifies that the following is a complete list of the parties, attorneys, the trial court judge, and any other person who has any interest in the outcome of the matter:
Timothy D. Salley, Appellant’s attorney at trial and on appeal 102 E 7th Street, Suite B PO Box 974 Dumas, Texas 79029 Telephone: (806) 934-3185
Nancy Nemer, Assistant Attorney General PO Box 12548 Austin, Texas 78711 Telephone: (512) 463-8376
Honorable Ron Enns, Trial Judge District Judge, 69th judicial District, Dallam County 715 S Dumas Ave. Dumas, Texas 79029 Telephone: (806) 935-2700
2 Allyne Shane Doyle Defendant/Appellant
Respectfully Submitted,
_______/s/_Tim_Salley____ Timothy D. Salley Salley & Lands, Attorneys’ at Law State Bar No. 00795633 Attorney for Appellant 102 E 7th Street, Suite B Dumas, Texas 79029 (806) 934-3185 tsalley53@gmail.com
3 TABLE OF CONTENTS
NAMES OF ALL PARTIES AND ATTORNEYS. . . . . . . . . . . . . . . . . . . . . . . . . . .2
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 6
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
APPELLANT’S AUTHORITY AND ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 9
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
4 INDEX OF AUTHORITIES
Cases
Johnson v. State, 120 S.W.3d 10
(Tex.App.-Amarillo 2003, affd 169 S.W.3d223)……………………………..9
5 STATEMENT OF THE CASE
This is an appeal from a bench trial. Defendant was accused of
Aggravated Assault with a Deadly Weapon. The Court found defendant guilty
and assessed punishment at 25 years in the Texas Department of Criminal
Justice. From this sentence Appellant appeals.
STATEMENT REGARDING ORAL ARGUMENT
Appellant is not requesting oral argument. The issue in this appeal is
straight forward. If oral argument is requested and granted to the State, then
Appellant requests same.
ISSUES PRESENTED
1. The Court erred in not granting Appellant’s Motion for a new Trial in
the punishment phase.
STATEMENT OF FACTS
On July 8, 2014, Appellant went to trial before Ron Enns, District Judge,
69th Judicial District, for aggravated assault with a deadly weapon. At the close
of testimony, the Court found Appellant guilty of the offense. RR 3:121. A
punishment hearing was immediately convened and all parties announced ready.
RR 3:121. The State announced that it would be calling Angela Reynolds and
Brandy Blanco and others as witnesses in the punishment phase. RR 3:121-2.
These witnesses were in the court room as the witness rule was invoked. RR
3:125. After the witness rule was invoked, Appellants counsel announced to the
6 Court that Appellant did not want to be present during the testimony of some of
these witnesses. RR 3:125. Appellant confirmed that wish to the Court. RR
3:126. Appellant’s reasoning was the he had been warned earlier not to look at
these witnesses because he was coercing or threatening them. RR 3:127. He
was chastised by the State’s Prosecutor and accused of glaring at them in an
attempt to intimidate them. CR 43. The Court confirmed that he had heard there
were some “rumblings” about Appellant looking angrily at witnesses. RR 3:127.
Although the Court had been watching, he did not see anything that caused him
concern. RR 3:128. After discussion with his counsel, Appellant still did not wish
to be present for this part of the testimony. RR 3:129. Appellant confirmed that
there was not one particular witness that he did not want to be present for, but
that it was all of the witnesses. RR 3:129. After both sides rested in the
punishment hearing, Appellant was brought back in and sentenced to 25 years in
the Texas Department of Criminal Justice. RR 3:186-7.
On July 15, 2014, Appellant filed a Motion for a New Trial. CR 1:39. On
August 19. 2014, Appellant filed a supplement to that motion. CR 1:40. Due to a
misunderstanding, Appellant did not testify on his behalf during the punishment
hearing. CR 1:43. At the close of his punishment hearing, Appellant stated that
his counsel had done everything that he had asked counsel to do. RR 3:189.
Appellant wanted to testify but did not inform his counsel until back at the jail
after his sentencing. CR 1:43.
7 SUMMARY OF ARGUMENTS
The Court erred by not granting Appellant’s Motion for a New Trial so he
could testify in a punishment hearing.
8 STATE’S AUTHORITY AND ARGUMENT
I. The Court erred in not granting Appellant’s Motion for a new Trial
in the punishment phase.
“[A] criminal defendant has a constitutional right to testify in his own defense.”
Johnson v. State, 120 S.W.3d 10, 15 (Tex.App.-Amarillo 2003, affd 169
S.W.3d223)(Citing Rock v. Arkansas, 483 U.S. 44 (1987)). The “Supreme Court
[has] held this right arises from the fifth and sixth amendments, is personal to the
defendant, and cannot be waived by counsel.” Id. “To be effective, any waiver of
the right to testify must be made knowingly and voluntarily.” Id. (citing Emery v.
Johnson, 139 F.3d 171, 198 (5th Cir. 1997)).
On July 8, 2014, Appellant went to trial before Ron Enns, District Judge, 69 th
Judicial District, for aggravated assault with a deadly weapon. At the close of
testimony, the Court found Appellant guilty of the offense. RR 3:121. A punishment
hearing was immediately convened and all parties announced ready. RR 3:121.
The State announced that it would be calling Angela Reynolds and Brandy Blanco
and others as witnesses in the punishment phase. RR 3:121-2. These witnesses
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ACCEPTED 07-14-00340-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 1/13/2015 11:55:40 AM Vivian Long, Clerk
NO. 07-14-00340-CR
IN THE COURT OF APPEALS FILED IN 7th COURT OF APPEALS SEVENTH DISTRICT OF TEXAS AMARILLO, TEXAS 1/13/2015 11:55:40 AM Amarillo, Texas VIVIAN LONG CLERK
ALLYNE SHANE DOYLE
Appellant
V.
THE STATE OF TEXAS
Appellee
Appealed from the 69th Judicial District Court Dallam County, Texas Cause #4361
APPELLANT’S BRIEF
TIMOTHY D. SALLEY State Bar No. 00795633 Salley & Lands 102-B E 7th Street Dumas, TX 79029 (806) 934-3185 tsalley53@gmail.com NO. 07-14-00340-CR
IN THE
SEVENTH COURT OF APPEALS
Amarillo, Texas
NAMES OF ALL PARTIES AND ATTORNEYS
So the members of the Court can determine disqualification and recusal under Texas Rules of Appellate Procedure 15 and 15a, Appellee certifies that the following is a complete list of the parties, attorneys, the trial court judge, and any other person who has any interest in the outcome of the matter:
Timothy D. Salley, Appellant’s attorney at trial and on appeal 102 E 7th Street, Suite B PO Box 974 Dumas, Texas 79029 Telephone: (806) 934-3185
Nancy Nemer, Assistant Attorney General PO Box 12548 Austin, Texas 78711 Telephone: (512) 463-8376
Honorable Ron Enns, Trial Judge District Judge, 69th judicial District, Dallam County 715 S Dumas Ave. Dumas, Texas 79029 Telephone: (806) 935-2700
2 Allyne Shane Doyle Defendant/Appellant
Respectfully Submitted,
_______/s/_Tim_Salley____ Timothy D. Salley Salley & Lands, Attorneys’ at Law State Bar No. 00795633 Attorney for Appellant 102 E 7th Street, Suite B Dumas, Texas 79029 (806) 934-3185 tsalley53@gmail.com
3 TABLE OF CONTENTS
NAMES OF ALL PARTIES AND ATTORNEYS. . . . . . . . . . . . . . . . . . . . . . . . . . .2
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 6
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
APPELLANT’S AUTHORITY AND ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 9
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
4 INDEX OF AUTHORITIES
Cases
Johnson v. State, 120 S.W.3d 10
(Tex.App.-Amarillo 2003, affd 169 S.W.3d223)……………………………..9
5 STATEMENT OF THE CASE
This is an appeal from a bench trial. Defendant was accused of
Aggravated Assault with a Deadly Weapon. The Court found defendant guilty
and assessed punishment at 25 years in the Texas Department of Criminal
Justice. From this sentence Appellant appeals.
STATEMENT REGARDING ORAL ARGUMENT
Appellant is not requesting oral argument. The issue in this appeal is
straight forward. If oral argument is requested and granted to the State, then
Appellant requests same.
ISSUES PRESENTED
1. The Court erred in not granting Appellant’s Motion for a new Trial in
the punishment phase.
STATEMENT OF FACTS
On July 8, 2014, Appellant went to trial before Ron Enns, District Judge,
69th Judicial District, for aggravated assault with a deadly weapon. At the close
of testimony, the Court found Appellant guilty of the offense. RR 3:121. A
punishment hearing was immediately convened and all parties announced ready.
RR 3:121. The State announced that it would be calling Angela Reynolds and
Brandy Blanco and others as witnesses in the punishment phase. RR 3:121-2.
These witnesses were in the court room as the witness rule was invoked. RR
3:125. After the witness rule was invoked, Appellants counsel announced to the
6 Court that Appellant did not want to be present during the testimony of some of
these witnesses. RR 3:125. Appellant confirmed that wish to the Court. RR
3:126. Appellant’s reasoning was the he had been warned earlier not to look at
these witnesses because he was coercing or threatening them. RR 3:127. He
was chastised by the State’s Prosecutor and accused of glaring at them in an
attempt to intimidate them. CR 43. The Court confirmed that he had heard there
were some “rumblings” about Appellant looking angrily at witnesses. RR 3:127.
Although the Court had been watching, he did not see anything that caused him
concern. RR 3:128. After discussion with his counsel, Appellant still did not wish
to be present for this part of the testimony. RR 3:129. Appellant confirmed that
there was not one particular witness that he did not want to be present for, but
that it was all of the witnesses. RR 3:129. After both sides rested in the
punishment hearing, Appellant was brought back in and sentenced to 25 years in
the Texas Department of Criminal Justice. RR 3:186-7.
On July 15, 2014, Appellant filed a Motion for a New Trial. CR 1:39. On
August 19. 2014, Appellant filed a supplement to that motion. CR 1:40. Due to a
misunderstanding, Appellant did not testify on his behalf during the punishment
hearing. CR 1:43. At the close of his punishment hearing, Appellant stated that
his counsel had done everything that he had asked counsel to do. RR 3:189.
Appellant wanted to testify but did not inform his counsel until back at the jail
after his sentencing. CR 1:43.
7 SUMMARY OF ARGUMENTS
The Court erred by not granting Appellant’s Motion for a New Trial so he
could testify in a punishment hearing.
8 STATE’S AUTHORITY AND ARGUMENT
I. The Court erred in not granting Appellant’s Motion for a new Trial
in the punishment phase.
“[A] criminal defendant has a constitutional right to testify in his own defense.”
Johnson v. State, 120 S.W.3d 10, 15 (Tex.App.-Amarillo 2003, affd 169
S.W.3d223)(Citing Rock v. Arkansas, 483 U.S. 44 (1987)). The “Supreme Court
[has] held this right arises from the fifth and sixth amendments, is personal to the
defendant, and cannot be waived by counsel.” Id. “To be effective, any waiver of
the right to testify must be made knowingly and voluntarily.” Id. (citing Emery v.
Johnson, 139 F.3d 171, 198 (5th Cir. 1997)).
On July 8, 2014, Appellant went to trial before Ron Enns, District Judge, 69 th
Judicial District, for aggravated assault with a deadly weapon. At the close of
testimony, the Court found Appellant guilty of the offense. RR 3:121. A punishment
hearing was immediately convened and all parties announced ready. RR 3:121.
The State announced that it would be calling Angela Reynolds and Brandy Blanco
and others as witnesses in the punishment phase. RR 3:121-2. These witnesses
were in the court room as the witness rule was invoked. RR 3:125. After the
witness rule was invoked, Appellants counsel announced to the Court that Appellant
did not want to be present during the testimony of some of these witnesses. RR
3:125. Appellant confirmed that wish to the Court. RR 3:126. Appellant’s reasoning
was the he had been warned earlier not to look at these witnesses because he was
coercing or threatening them. RR 3:127. He was chastised by the State’s
Prosecutor and accused of glaring at them in an attempt to intimidate them. CR 43.
9 The Court confirmed that he had heard there were some “rumblings” about Appellant
looking angrily at witnesses. RR 3:127. Although the Court had been watching, he
did not see anything that caused him concern. RR 3:128. After discussion with his
counsel, Appellant still did not wish to be present for this part of the testimony. RR
3:129. Appellant confirmed that there was not one particular witness that he did not
want to be present for, but that it was all of the witnesses. RR 3:129. After both
sides rested in the punishment hearing, Appellant was brought back in the court
room and sentenced to 25 years in the Texas Department of Criminal Justice. RR
3:186-7. It was the understanding that Appellant did not want to be present during
his punishment hearing. The State confirms this understanding in its response to
Appellant’s supplement to his Motion for a New Trial. CR 1:50-51.
On July 15, 2014, Appellant filed a Motion for a New Trial which was
presented to the trial court. CR 1:39. No hearing was scheduled on that motion, so
on August 19. 2014, Appellant filed a supplement to that motion in order to preserve
his affidavits for the record. CR 1:40. Said affidavits were of the complaining
witness and the Appellant in order to inform the trial court of a misunderstanding.
Said supplement was also presented to the trial court. Due to the misunderstanding,
Appellant did not testify on his behalf during the punishment hearing. CR 1:43. At
the close of his punishment hearing, Appellant stated that his counsel had done
everything that he had asked counsel to do. RR 3:189. Appellant wanted to testify
but did not inform his counsel until back at the jail after his sentencing. CR 1:43.
For these reasons, Appellant asks this Court to grant him a new punishment
hearing.
10 PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that this Court
reverse the trial court’s judgment in this cause.
_____/s/__Tim Salley____ TIMOTHY D. SALLEY State Bar No. 00795633 Asst. 69th District Attorney 715 S. Dumas Avenue, Room 304 Dumas, Texas 79029 (806) 935-5654 tsalley53@gmail.com
CERTIFICATE OF WORD COUNT
I hereby certify that this brief contains a total of 1,940 words.
________/s/ Tim Salley_ TIMOTHY D. SALLEY
11 CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing instrument was provided to all counsel of record in this matter on the 13th day of January, 2015, in accordance with the Texas Rules of Appellate Procedure.