Chamberlain, Anthony

Opinion

PD-0760-15

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 7/29/2015 12:12:09 PM Accepted 7/30/2015 2:25:45 PM ABEL ACOSTA

NO. PD-0760-15 CLERK

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

AT AUSTIN

_________________________

ANTHONY CHAMBERLAIN,

Appellant

v.

July 30, 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 ............................................... 2 STATEMENT OF THE CASE ................................................................................. 2 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 3 STATEMENT OF FACTS ........................................................................................ 3 GROUND FOR REVIEW ......................................................................................... 3 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 ............................................................................................................. 4 FACTS ............................................................................................................. 4 APPLICABLE LAW ....................................................................................... 6 THE COURT OF APPEALS’ HOLDING IS INCORRECT ......................... 6 CONCLUSION ............................................................................................... 9 PRAYER FOR RELIEF ..........................................................................................10 CERTIFICATE OF SERVICE ................................................................................10 CERTIFICATE OF COMPLIANCE .......................................................................10

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INDEX OF AUTHORITIES

Cases Chamberlain v. State, No. 05-13-01213-CR, 2015 Tex. App. LEXIS 5310 (Tex. App.—Dallas May 27, 2015) ............................................................................................... 3, 7, 8, 9 Hughes v. State, 4 S.W.3d 1 (Tex. Crim. App. 1999) ......................................................... 4, 6, 7 Kelly v. State, 60 S.W.3d 299 (Tex. App.—Dallas 2001, no pet.) ..........................................7 Rules TEX. R. APP. P. 68.4 (i) .........................................................................................3 Tex. R. Evid. 403 ..............................................................................................6, 7 Tex. R. Evid. 607 ..................................................................................................6

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LIST OF PARTIES

TRIAL COURT JUDGE Pat McDowell, Judge, sitting for Ernest White, Presiding Judge

APPELLANT Anthony Chamberlain

APPELLANT’S ATTORNEYS AT TRIAL J. Daniel Oliphant, State Bar No. 00797173

ON APPEAL Nanette Hendrickson, State Bar No. 24081423

Assistant Public Defenders Dallas County Public Defender’s Office 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207-4399

STATE’S ATTORNEYS AT TRIAL Brooke Grona-Robb, State Bar No. 24027356 Terrance Downs, State Bar No. 24071598

ON APPEAL Alexis E. Hernandez, State Bar No. 24055658

Assistant District Attorneys Dallas County District Attorney’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399

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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.

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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

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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).

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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.

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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.

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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.

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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 2,163 words.

/s/ Nanette Hendrickson

Nanette Hendrickson