Cade, Tyrone

• Court: Court of Appeals of Texas
• Decided: March 12, 2015
• Docket: AP-76,883
• Status: Published

Opinion

AP-76,883 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS March 12, 2015 Transmitted 3/11/2015 5:16:52 PM Accepted 3/12/2015 8:56:18 AM ABEL ACOSTA NO. AP-76,883 CLERK

T.C. No. F11-33962-R

TYRONE CADE, * IN THE COURT

Appellant * OF CRIMINAL

VS. * APPEALS

STATE OF TEXAS, * IN

Appellee * AUSTIN, TEXAS

APPELLANT'S MOTION FOR REHEARING

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW, the Appellant in the above-styled and numbered

cause, by and through his attorney of record, and moves this Court to

reconsider its decision in this case pursuant to Tex. R. App. P. 79.1. In

support of this motion, Appellant argues the following:

I.

In August 2012, a jury convicted Appellant of capital murder for

stabbing his girlfriend and her teenage daughter to death during the same

criminal transaction or pursuant to the same scheme or course of conduct.

Tex. Penal Code § 19.03(a)(7). Pursuant to the jury’s answers to the special issues set forth in Tex. Code Crim. Proc. art. 37.071 §§2(b), (e)(1), the trial

judge sentenced Appellant to death. Tex. Code Crim. Proc. art. 37.071 §

2(h). This Court affirmed this conviction and sentence in an unpublished

opinion issued February 25, 2015.

II.

Ground for Rehearing

THE COURT ERRED IN FINDING THAT DR. VIGEN DID NOT BASE

HIS OPINION ON INFORMATION SPECIFIC TO APPELLANT.

In Point of Error Number Eight, Appellant argued that the trial court

erred in not allowing a defense expert, Dr. Mark Vigen, to testify that there

was a high probability that prison could control Mr. Cade. This Court found

no abuse of discretion in the trial court’s decision to exclude this testimony,

in part, because the Court did not believe that Dr. Vigen’s opinion was based

on any information specific to Appellant. This belief was wrong.

During the admissibility hearing, there appeared to be some confusion

about the opinion that Dr. Vigen was offering. Initially, it seems that he was

prepared to testify that TDCJ had good record for controlling inmates in

general. (L. R.R. at 218). When the State asked for the basis of this opinion,

Dr. Vigen did not mention any information that was specific to Appellant. (L

R.R. at 219). However, toward the end of the hearing, the State specifically asked Dr. Vigen if he was offering an opinion about TDCJ’s ability to

control Mr. Cade. Dr. Vigen said he could also offer that opinion. (L RR. at

234.). During the hearing, the State asked Dr. Vigen what information he

had reviewed about Appellant. Dr. Vigen stated that he reviewed Mr. Cade’s

prison records and offense reports related to his prior prison stay. (L R.R. at

222). Additionally, he stated that he had been present in court when both

Travis Turner and S.O. Woods had testified. Both of these witnesses were

prison classification experts. Turner testified for the State, and Woods for

the defense.(L R.R. at 223, 234). Although both the State and this Court

assert that Travis Turner and S.O. Woods did not offer any testimony

specific to Appellant, this assertion is incorrect.

Both Turner and Woods testified that they had reviewed Mr. Cade’s

disciplinary records from his prior prison stay. Travis Turner testified that

Mr. Cade’s prison records reflected that he had been transferred to a

different unit because of a potential conflict with another inmate. (XLIX

R.R. at 296). He also discussed a fight that Mr. Cade had with another

inmate and the resulting injuries. (XLIX R.R. at 297). Similarly, Mr. Woods

also testified that he had reviewed Mr. Cade’s prison records and found only

two incidents where he had been disciplined. (L R.R. at 150-51). The State objected to Dr. Vigen’s opinion about Mr. Cade because he

had “reviewed very few things in this case”. This objection was sustained.

(L R.R. at 235). This Court found that ruling to be within the zone of

reasonable disagreement, noting that the record did not support Appellant’s

assertion that Vigen based his opinion on any information specific to

Appellant. Appellant would respectfully point out that the Court’s reading of

the record was not correct. Dr. Vigen had reviewed Mr. Cade’s prison

records and listened to testimony from two witnesses who both talked about

Mr. Cade’s prior behavior in prison. Certainly a person’s prior behavior in

prison is predictive of that person’s future behavior in prison.

Appellant respectfully requests that this Court reexamine its holding

on Appellant’s Point of Error Number Eight. Given Dr. Vigen’s review of

Mr. Cade’s prior prison records, and his extensive knowledge of TDCJ and

psychology, he should have been allowed to testify that there was a high

probability that prison could control Mr. Cade. This Court should find that

excluding his testimony was an abuse of discretion. The erroneous exclusion

of this constitutionally relevant mitigating evidence requires reversal of Mr.

Cade’s sentence of death. Tex. R. App. P. 44.2(a). WHEREFORE, PREMISES CONSIDERED, the Appellant prays that

this Honorable Court grant this Motion for Rehearing and reverse

Appellant's case accordingly.

Respectfully submitted,

_ _______ Catherine Clare Bernhard P. O. Box 2817 Red Oak, Texas 75154 972-617-5548 fax – 972-617-6055 cbernhard@sbcglobal.net State Bar No. 02216575

ATTORNEY FOR APPELLANT CERTIFICATE OF SERVICE

I hereby certify that the foregoing Motion was served on Grace Shin,

Assistant District Attorney, Dallas County District Attorney’s Office, 133 N.

Riverfront Blvd., LB 19, Dallas, Texas 75207, by service through the

electronic filing system to grace.shin@dallascounty.org on March 11, 2015.

__ _____ Attorney for Appellant

CERTIFICATE OF COMPLIANCE WITH RULE 9.4

I hereby certify that the forgoing motion contains 899 words.

_ _____ Attorney for Appellant