ACCEPTED 06-14-00183-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/8/2015 8:35:37 PM DEBBIE AUTREY CLERK
No. 06-14-00183-CR IN THE COURT OF APPEALS FILED IN OF THE SIXTH SUPREME JUDICIAL6thDISTRICT COURT OF APPEALS TEXARKANA, TEXAS
OF THE STATE OF TEXAS7/9/2015 8:54:00 AM DEBBIE AUTREY __________________________________________ Clerk
Donald Ray Brown Appellant v.
The State of Texas Appellee __________________________________________ Appeal in Cause No. 11F0860-005 In the 5th Judicial District Court of Bowie County Honorable Ralph Burgess, Presiding ___________________________________ APPELLANT'S BRIEF ___________________________________ CRAIG L. HENRY Attorney at Law 723 Main Street Texarkana, Texas 75504-3226 (903) 792-4645 FAX-(903) 792-5073 Texas Bar # 09479260 Arkansas Bar # 90142 Oklahoma Bar # 016779 Attorney for Appellant
ORAL ARGUMENT IS NOT REQUESTED IDENTITY OF THE PARTIES AND COUNSEL
1. Donald Ray Brown– Appellant
2. State of Texas – Appellee
3. Butch Dunbar, Dunbar & Morgan, 5301 Summerhill Road, Texarkana, Texas 75503 – Trial counsel for Appellant.
4. Craig L. Henry, 723 Main Street, Texarkana, Texas 75501– Appellate counsel for Appellant.
5. Kelly Crisp and Samantha Oglesby, District Attorney’s Office for Bowie County, Texas, 601 Main Street, Texarkana, Texas 75563 – Trial and appellate counsel for Appellee.
i TABLE OF CONTENTS
Index of Authorities…………………………………………………………....iii-iv
Statement of the Case……………………………………………………………...v
Statement Regarding Oral Argument……………………………………………...v
Issues Presented…………………………………………………………………..vi
Statement of Facts……………………………………………………………….1-3
Summary of the Argument………………………………………………………...3
Argument and Authorities……………………………………………………...4-11
Point of Error No. 1 (Misstatement of law)……………………………………………………..3-8
Point of Error No. 2 (Ineffective assistance of counsel)……………………………………….9-11
Prayer……………………………………………………………………………...11
Certificate of Service……………………………………………………………...12
Certificate of Compliance…………………………………………………………13
ii INDEX OF AUTHORITIES Page(s) Cases
Akin v. State, 981 S.W.2d 297 (Tex. App. – Texarkana 1998, no pet)……………..7
Alejandro v. State, 493 S.W.2d 230 (Tex. Crim. App. 1973)……………………...7
Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005)…………………… 9, 10
Burke v. State, 652 S.W.2d 788 (Tex. Crim. App. 1983)………………………..7, 8
Compton v. State, 607 S.W. 2d 246 (Tex. Crim. App. 1980)………………………7
Davis v. State, 506 S.W.2d 909 (Tex. Crim. App. 1974)…………………………..7
Daywood v. State, 248 S.W.2d 479 (1952)……………………………………...6, 7
Ex parte Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991)……………………7, 8
In re Winship, 397 U.S. 358 (1970)………………………………………………...6
Jones v. State, 641 S.W.2d 545 (Tex. Crim. App. 1982)…………………………..7
Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998)…………………………..6
Lincoln v. State, 508 S.W.2d 635 (Tex. Crim. App. 1974)………………………...7
McGee v. State, 689 S.W.2d 915, (Tex. App. – Houston [14th Dist.] 1985, pet. ref’d)………………………………...5
Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001)……………………………9
Mauldin v. State, 628 S.W.2d 793 (Tex. Crim. App. 1982)………………………..7
Singleton v. State, 479 S.W.2d 672 (Tex. Crim. App. 1972)………………………6
Strickland v. Washington, 466 U.S. 668 (1984)………………………………..9, 10
Taylor v. State, 109 S.W.3d 443 (Tex. Crim. App. 2003)……………………...8, 11 iii Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000)…………………………….9
Varughese v. State, 892 S.W.2d 186 (Tex. App. – Fort Worth 1994, per ref’d)…………………………………………..7
Wells v. State, 634 S.W.2d 868 (Tex. App. – Houston [1st Dist.] 1982, pet. ref’d)………………………………….5
Whiting v. State, 797 S.W.2d 45 (Tex. Crim. App. 1990)……………………….7, 8
Wilder v. State, 111 S.W.3d 249 (Tex. App. – Texarkana 2004)…………………... 7
CONSTITUTIONS:
United States Constitution, Amendment XIV…………………………………...5, 6
Rules of Appellate Procedure
Rule 44.2(a) of Texas Rules of Appellate Procedure………………………............5
iv STATEMENT OF THE CASE
On October 13, 2011, a Bowie County Grand Jury returned an indictment
against Appellant charging him with two counts of aggravated sexual assault of a
child under 6 years. (1CR22)1 On September 23, 2014, the case proceeded to jury
trial as to both guilt/innocence and punishment. At the conclusion of trial, the jury
found Appellant guilty of both counts sentenced him to life imprisonment and a
fine of ten thousand dollars ($10,000.00) on each count. The trial court ordered
that the sentence on each count would run consecutively. (1CR155-58) Thereafter,
on October 1, 2014, Appellant filed his motion for new trial. (1CR160-62)
Appellant’s motion for new trial was overruled by operation of law. Appellant
gave timely notice of appeal to this Court on October 6, 2014. (1CR168-69).
STATEMENT REGARDING ORAL ARGUMENT
Appellant does not request oral argument.
1 “CR” refers to the Clerk’s Record. The numeral to the left of “CR” refers to the Volume of the Clerk’s Record. The numeral to the right of “CR” refers to the page the document can be found within the Clerk’s Record.
“RR” refers to the Reporter’s Record. The numeral to the left of “RR” refers to the Volume of the Reporter’s Record. The numeral to the right of “RR” refers to the page the document can be found within the Reporter’s Record.
v ISSUES PRESENTED
POINT OF ERROR NO. 1
THE STATE COMMITTED REVERSIBLE ERROR WHEN IT MISREPRESENTED THE CONCEPT OF “BEYOND A REASONABLE DOUBT” TO THE VENIRE. (3RR27-32, 71).
POINT OF ERROR NO. 2
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO OBJECT TO THE STATE’S MISREPRESENTION OF THE CONCEPT OF “BEYOND A REASONABLE DOUBT” TO THE VENIRE. (3RR27-32, 71).
vi STATEMENT OF FACTS
During voir dire, the prosecutor questioned the venire in relevant part as
follows:
Beyond a reasonable doubt, that is one of the more complicated issues that
we have to deal with today. How many people have heard beyond a shadow of a
doubt? Okay. And how many people have heard beyond all reasonable doubt?
Okay, most of you have heard both. That is - - neither one of those are the legal
standard in the State of Texas. The standard in the State of Texas is beyond a
reasonable doubt…….. (3RR27)
MS. OGLESBY: Okay. Are you going to hold the state to a burden of
beyond all reasonable doubt?
VENIREPERSON EAST: No.
MS. OGLESBY: Okay. What burden are you going to hold the state to?
VENIREPERSON EAST: Beyond a reasonable doubt. (3RR29-30)
It was at this time that the trial court asked the attorneys to approach the
bench at which time the following transpired outside the hearing of the venire:
THE COURT: You’re stating the – that the – you’re stating it wrong. They
are required to find proof beyond all reasonable doubt. They’re not required to
find proof beyond all doubt.
MS. OGLESBY: Okay.
1 THE COURT: You’re asking them to distinguish between a reasonable
doubt and all reasonable doubt. They are required to find him guilty beyond all
reasonable doubt.
MS. OGLESBY: That was one of the situations that we have in the 102, is
that they - - the defense tries to define it as beyond all reasonable doubt and the
case law – I mean, I don’t know that Mr. Dunbar is going to do that, but a lot of the
case law that I found is the standard in Texas is beyond a reasonable doubt, not
beyond all reasonable doubt.
THE COURT: Well, if the jury has a reasonable doubt as to anything, then
they find him not guilty so the standard would be you have to prove it beyond all
reasonable doubt, because any reasonable doubt’s enough. But – you know, I just
don’t want to confuse the jury, but that standard is – that’s not the right standard.
The distinction is between proof beyond all doubt and proof beyond all reasonable
doubt, that’s the difference. (3RR30-31)
Appellant’s trial attorney failed to object to the State’s misstatements
concerning its burden and the trial court failed to clarify to the venire the correct
standard. Nor did Appellant’s counsel voir dire on the issue of the State’s burden.
In fact, he purposely avoided that issue. (3RR71)
2 SUMMARY OF THE ARGUMENT
Appellant maintains that the prosecutor’s misstatements concerning the
State’s burden of proof beyond a reasonable doubt was fundamental constitutional
error which directly impacted upon the jury’s perception of the burden to which the
State was to be held before a verdict of guilty could be returned against him.
Alternatively, Appellant argues that he received ineffective assistance of counsel
when trial counsel failed to object to the prosecutor’s misstatement of the law.
THE STATE COMMITTED REVERSIBLE ERROR WHEN IT MISREPRESENTED THE CONCEPT OF “BEYOND A REASONABLE DOUBT” TO THE VENIRE. (3RR27-32, 71).
Applicable Facts:
During voir dire, the prosecutor questioned the venire in relevant part as
Beyond a reasonable doubt, that is one of the more complicated issues that
we have to deal with today. How many people have heard beyond a shadow of a
doubt? Okay. And how many people have heard beyond all reasonable doubt?
Okay, most of you have heard both. That is - - neither one of those are the legal
standard in the State of Texas. The standard in the State of Texas is beyond a
3 MS. OGLESBY: Okay. Are you going to hold the state to a burden of
MS. OGLESBY: Okay. What burden are you going to hold the state to?
It was at this time that the trial court asked the attorneys to approach the
bench at which time the following transpired outside the hearing of the venire:
THE COURT: You’re stating the – that the – you’re stating it wrong. They
are required to find proof beyond all reasonable doubt. They’re not required to
THE COURT: You’re asking them to distinguish between a reasonable
doubt and all reasonable doubt. They are required to find him guilty beyond all
MS. OGLESBY: That was one of the situations that we have in the 102, is
that they - - the defense tries to define it as beyond all reasonable doubt and the
case law – I mean, I don’t know that Mr. Dunbar is going to do that, but a lot of the
case law that I found is the standard in Texas is beyond a reasonable doubt, not
4 THE COURT: Well, if the jury has a reasonable doubt as to anything, then
they find him not guilty so the standard would be you have to prove it beyond all
reasonable doubt, because any reasonable doubt’s enough. But – you know, I just
don’t want to confuse the jury, but that standard is – that’s not the right standard.
The distinction is between proof beyond all doubt and proof beyond all reasonable
Appellant’s trial attorney failed to object to the State’s misstatements
concerning its burden and the trial court failed to clarify to the venire the correct
standard. Nor did Appellant’s counsel voir dire on the issue of the State’s burden.
Preservation of Error:
Appellant’s trial counsel failed to object to the prosecutor’s misstatement of
law. In the absence of fundamental error, Appellant has waived this issue on
appeal. McGee v. State, 689 S.W.2d 915, 919 (Tex. App – Houston [14th Dist.]
1985, pet. ref’d); Wells v. State, 634 S.W.2d 868, 874 (Tex. App. – Houston [1st
Dist.] 1982, pet. ref’d).
Standard of Review:
This court should review this issue under the standard for constitutional error
as set forth in Rule 44.2(a) of the Texas Rules of Appellate Procedure as the
Fourteenth Amendment to the United States Constitution mandates that a
5 defendant may not be convicted and deprived of his liberty except upon proof
beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970).
Argument and Authorities:
In Leday v. State, 983 S.W.2d 713, 720-26 (Tex. Crim. App. 1998), the
Court of Criminal Appeals abandoned the De Garmo doctrine as applied to certain
constitutional, legal, and social guarantees – what the court described as “due
process and those individual rights that are fundamental to our quality of life.” Id.
at 725. Among these fundamental “guarantees” is that the judgment in a criminal
trial must be supported by proof beyond a reasonable doubt. Id. The Court in
Leday went on to hold, “[i]nsofar as the De Garmo doctrine estops a defendant
from raising on appeal a violation of any of these guarantees, it cannot be justified
on the ground that the verdict of guilt was correct.” Id. at 726. This notion arises
from the fact that “the ascertainment of truth is not the only objective of our law of
criminal procedure.” Id. at 724. “We as a people have deliberately chosen to
adopt laws which interfere with the truth-seeking function of the criminal trial. Id.
“Due process and those individual rights that are fundamental to our quality of life
co-exist with, and sometimes override, the truth-finding function.” Id.
Generally, “[e]rror in argument does not lie in going beyond the court’s
charge, but lies in stating law contrary to the same.” Singleton v. State, 479
S.W.2d 672, 674 (Tex. Crim. App. 1972) (citing Daywood v. State, 248 S.W.2d
6 479 (1952); Wilder v. State, 111 S.W.3d 249, 253 (Tex. App. – Texarkana 2004).
Statements by the prosecution, whether in final argument or voir dire examination,
are governed by the same rules. Id. at footnote 2; Akin v. State, 981 S.W.2d 297
(Tex. App. – Texarkana 1998, no pet.); Varughese v. State, 892 S.W.2d 186 (Tex.
App. – Fort Worth 1994, pet. ref’d).
The scope of proper jury argument is: (1) summation of the evidence; (2)
any reasonable deduction from the evidence; (3) an answer to the argument of
opposing counsel; and (4) pleas for law enforcement. Compton v. State, 607
S.W.2d 246 (Tex. Crim. App. 1980); Alejandro v. State, 493 S.W.2d 230 (Tex.
Crim. App. 1973). It is not error for the State to quote or paraphrase the jury
charge, even if the charge presents a negative instruction to the panel. Jones v.
State, 641 S.W.2d 545 (Tex. Crim. App. 1982), However, it is error for the State
to present a statement that is contrary to that presented in the charge to the jury. Ex
parte Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991); Whiting v. State, 797
S.W.2d 45, 48 (Tex. Crim. App. 1990); Burke v. State, 652 S.W.2d 788 (Tex.
Crim. App. 1983); Mauldin v. State, 628 S.W.2d 793 (Tex. Crim. App. 1982);
Davis v. State, 506 S.W.2d 909 (Tex. Crim. App. 1974); Lincoln v. State, 508
S.W.2d 635 (Tex. Crim. App. 1974).
In Burke, the prosecutor misrepresented the law with respect to self-defense.
The Court held that, under the circumstances, the remark was not only erroneous,
7 but was so manifestly improper as to require reversal of the judgment. See Burke,
652 S.W.2d at 791.
In Drinkert, the Court found the defendant received ineffective assistance of
counsel because his lawyer failed to object to the prosecutor’s incorrect statement
of law with respect to the defendant’s right to use deadly force. See Drinkert, 821
S.W.2d at 957.
Again, in Whiting, the prosecutor misrepresented the law of self-defense.
The Court held that such a mistake was error and remanded the case to the court of
appeals for a harm analysis in accordance with the Texas Rules of Appellate
Procedure. See Whiting, 797 S.W.2d at 49.
Here, as in Whiting, “the misstatement of law directly impacted upon the
jury’s perception of the burden to which the State was to be held before a verdict
of guilty could be returned against [A]ppellant.” Whiting at 48. “Relieving the
State of [its burden of proof] at the guilt stage implicates at least two constitutional
guarantees: a due process or due course of law right not to be convicted on proof
of less than the elements of the crime and the right to jury trial on all elements of
the crime.” Taylor v. State, 109 S.W.3d 443, 451(Tex. Crim. App. 2003). As this
implicates a fundamental guarantee of the United States Constitution, Appellant’s
conviction must be reversed and his case remanded to the trial court for a new trial.
8 POINT OF ERROR NO. 2
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO OBJECT TO THE STATE’S MISREPRESENTION OF THE CONCEPT OF “BEYOND A REASONABLE DOUBT” TO THE VENIRE. (3RR27-32, 71).
Appellant incorporates by reference the foregoing facts from Point of Error
No.1 as if set forth in full in this his second point of error.
Appellate review of defense counsel’s representation is highly deferential
and presumes that counsel’s actions fell within the wide range of reasonable and
professional assistance. Mallett v. State. 65 S.W.3d 59, 63 (Tex. Crim. App.
2001); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). However, “[i]n
making [its] determination, the [reviewing] court should keep in mind that
counsel’s function, as elaborated in prevailing professional norms, is to make the
adversarial testing process work in the particular case.” Andrews v. State. 159
S.W.3d 98, 102 (Tex. Crim. App. 2005) (quoting Strickland v. Washington, 466
U.S. 668, 690 (1984).
In Strickland v. Washington, 466 U.S. 668, 694 (1984), the Supreme Court
articulated a two-prong test to be used when analyzing a claim of ineffective
9 assistance of counsel. To have his conviction reversed on the grounds of
ineffective assistance of counsel, an appellant must show that (1) counsel’s
representation fell below an objective standard of reasonableness and (2) the
deficient performance prejudiced the appellant. Unless the appellant makes both
showings, it cannot be said that his conviction is rendered unreliable by a
breakdown in the adversarial process.
To satisfy the second prong of the Strickland test, a reviewing court does not
require that the appellant show that there would have been a different result if
counsel’s performance had not been different. Id. at 690. The defendant must
show only that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome. Id.
Defense counsel has a duty to correct misstatements of the law that are
detrimental to his client. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App.
2005). “This duty derives from counsel’s function ‘to make the adversarial testing
process work in the particular case.’” Id. (quoting Strickland at 690). “There can
be no reasonable trial strategy in failing to correct a misstatement of the law that is
detrimental to the client.” Andrews, at 102.
10 As stated previously, trial counsel’s failure to object to the State’s
misstatement of the law “reliev[ed] the State of [its burden of proof] at the guilt
stage implicat[ing] at least two constitutional guarantees: a due process or due
course of law right not to be convicted on proof of less than the elements of the
crime and the right to jury trial on all elements of the crime.” Taylor v. State, 109
S.W.3d 443, 451(Tex. Crim. App. 2003). Not only did trial counsel fail to object,
he purposely failed to address the State’s burden of proof during the defense’s voir
dire. (3RR71). As a direct result of such unprofessional conduct, Appellant was
deprived of one of the fundamental “guarantees” he is afforded under the United
States Constitution. Namely, the guarantee that no citizen will be deprived of his
liberty except on a verdict supported by proof beyond a reasonable doubt.
Accordingly, Appellant’s judgment must be reversed and his case remanded for a
new trial.
PRAYER
Based on the arguments and authorities cited above, Appellant respectfully
requests that his points of error be sustained and his case be remanded to the trial
court for a new trial.
Respectfully submitted,
CRAIG L. HENRY Attorney at Law 11 723 Main Street P.O. Box 3226 Texarkana, Texas 75504-3226 (903) 792-4645 FAX-(903) 792-5073 Lawyrntx@aol.com
By /s/ Craig L. Henry CRAIG L. HENRY Arkansas Bar # 90142 Oklahoma Bar # 016779 Texas Bar # 09479260 Attorney for Appellant
CERTIFICATE OF SERVICE
I, Craig L. Henry, do hereby certify that on this 8th day of July, 2015, a true
and correct copy of the foregoing Appellant’s Brief has been served on opposing
counsel by depositing same in the United States mail, postage prepaid, addressed
to Mr. Jerry Rochelle, District Attorney for Bowie County, Texas, 601 Main Street,
Texarkana, Texas 75501.
/s/ Craig L. Henry Craig L. Henry
12 CERTIFICATE OF COMPLIANCE
I, Craig L. Henry, do hereby certify that this Brief complies with the type-
volume limitation set forth in Rule 9.4 of the Texas Rules of Appellate Procedure.
Appellant’s Brief contains 2, 381 words excluding the caption, identity of parties
and counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of the issues presented, statement of
the jurisdiction, statement of the procedural history, signature, proof of service,
certification, certificate of compliance, and appendix. .
Appellant’s Brief was prepared using Microsoft Word software using Times
New Roman 14-point font. The Brief has been scanned for viruses and is virus
free.