Dylan A. Tristani v. State

Opinion

ACCEPTED FILED 13-14-00422-cr IN THE 13TH COURT OF APPEALS THIRTEENTH COURT OF APPEALS CORPUS CHRISTI CORPUS CHRISTI, TEXAS 3/9/2015 12:00:00 AM DORIAN RAMIREZ 3/9/15 CLERK DORIAN E. RAMIREZ, CLERK BY DTello NO. 13-14-00422-CR

IN THE COURT OF APPEALS RECEIVED - IN 13th COURT - ---OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT OF-- TEXAS - CORPUS CHRISTI/EDINBURG, - TEXAS ---- M AT CORPUS CHRISTI --3/8/2015 - - - - - A - - ---- - ID -11:04:37 - -- - AM -- VO ---- DORIAN -- E. RAMIREZ ---- ---- Clerk

DYLAN A. TRISTANI § APPELLANT § VS. § RECEIVED IN § 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS THE STATE OF TEXAS § APPELLEE 3/9/2015 8:00:00 AM DORIAN E. RAMIREZ _____________________________________________________________ Clerk

APPEAL FROM CAUSE NO. 2-100216 IN THE COUNTY COURT AT LAW NO. 1 OF VICTORIA COUNTY, TEXAS ___________________________________________________________________

APPELLANT’S BRIEF ___________________________________________________________________

NORMAN J. SILVERMAN Texas Bar No. 00792207 917 Franklin, 4th Floor Houston, Texas 77002 (713) 526-1515 (713) 526-1798 (FAX) lawyernorm@msn.com ATTORNEY FOR APPELLANT

APPELLANT REQUESTS ORAL ARGUMENT Identity of Parties and Counsel

The following is a complete list of all parties to the trial court’s judgment, and the names and addresses of all trial and appellate counsel:

Dylan A. Tristani - Appellant.

State of Texas - Appellee.

Norman J. Silverman - Appellant’s retained counsel at trial 917 Franklin, 4th Floor and on appeal. Houston, Texas 77002

Brent Dornburg - Appellant’s retained counsel at trial. 120 N. Main St. Victoria, Texas 77901

Jacqueline Johnson - Assistant District Attorneys at trial. 205 N. Bridge St., Suite 301 Victoria, Texas 77901

Allison Marek 205 N. Bridge St., Suite 301 Victoria, Texas 77901

Stephen B. Tyler - District Attorney on appeal. 205 N. Bridge St., Suite 301 Victoria, Texas 77901

Hon. Travis H. Ernst - Trial Judge.

ii Contents

Page

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

List of Authorities .....................................................................................................iv

Statement of the Case ................................................................................................. 1

Statement Regarding Oral Argument ......................................................................... 1

Issues Presented.......................................................................................................... 2

Issue One: The trial court erred in admitting evidence of Appellant’s post-Miranda invocation of the right to counsel, in violation of due process.

Issue Two: The trial court erred in prohibiting a proper voir dire question concerning prior experience with assessing punishment.

Summary of the Arguments ....................................................................................... 2

Background Facts ....................................................................................................... 3

Arguments and Authorities ........................................................................................ 8

Issue One: Erroneous Admission of Invocation of the Right to Counsel .......................... 8

A. Facts.................................................................................................. 8

B. The admission of Appellant’s invocation violated due process. ..................................................................................... 9

C. The error was harmful, requiring reversal. .................................... 15

iii Issue Two: Erroneous Prohibition of a Proper Voir Dire Question .................................. 19

A. Facts................................................................................................ 19

B. The trial court abused its discretion in prohibiting a proper question. .......................................................................... 20

C. Reversal is required ....................................................................... 23

Prayer ....................................................................................................................... 30

Certificate of Service ................................................................................................ 31

Certificate of Compliance ........................................................................................ 31

List of Authorities

Cases:

Blackman v. State, 414 S.W.3d 757 (Tex. Crim. App. 2013) ........................... 20, 21

Brooks v. State, 132 S.W.3d 702 (Tex. App.-Dallas 2004, pet. ref'd) .................... 16

Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997) ......................................... 26

Caldwell v. State, 818 S.W.2d 790 (Tex. Crim. App. 1991) ................................... 20

Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995). .................................... 20

Chapman v. United States, 547 F.2d 1240 (5th Cir. 1977) ..................................... 18

Clay v. State, 240 S.W.3d 895 (Tex. Crim. App. 2007) .......................................... 15

Comeaux v. State, 445 S.W.3d 745 (Tex. Crim. App. 2014) ............................ 28, 29

iv Cooper v. State, 961 S.W.2d 222 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd) ............... 10, 11

Davis v. State, 313 S.W.3d 317 (Tex. Crim. App. 2010) ........................................ 12

Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) ..................................... 12

Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) ................. 10, 11

Dumas v. State, 812 S.W.2d 611 (Tex.App.—Dallas 1991, pet. ref'd) ............. 14, 17

Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014) ................................passim

Espinosa v. State, 653 S.W.2d 446 (Tex. App.—San Antonio 1982) (op. on reh’g), aff'd, 669 S.W.2d 736 (Tex. Crim. App. 1984) .................................................. 21

Gonzales v. State, 2 S.W.3d 600 (Tex. App.-Texarkana 1999, pet. ref’d) .............. 25

Gray v. State, 986 S.W.2d 814 (Tex. App.-Beaumont 1999, no pet.) ............... 10, 11

Griffith v. State, 55 S.W.3d 598 (Tex. Crim. App. 2001) ....................................... 10

Hardie v. State, 807 S.W.2d 319 (Tex. Crim. App. 1991) ...............................passim

Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989) ...................................... 15

Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001) .......................................... 23

Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) .................................... 25

Kalisz v. State, 32 S.W.3d 718 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) ..............passim

Kerley v. State, 89 Tex. Crim. 199, 230 S.W. 163, 164–65 (1921) ........................ 29

King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) ......................................... 25

v Loredo v. State, 59 S.W.3d 289 (Tex. App.-Corpus Christi 2001, no pet.) ............ 25

Loy v. State, 982 S.W.2d 616 (Tex. App.-Houston [1st Dist.] 1998, pet ref'd) ................ 10, 11

Miranda v. Arizona, 384 U.S.436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ............... 9

Mitten v. State, 228 S.W.3d 693 (Tex. App.-Corpus Christi 2002, pet. dism’d) .................. 25, 30

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999) ............. 24

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ....................................... 26

Plair v. State, 279 S.W. 267 (Tex. Crim. App. 1925) ............................................. 23

Rich v. State, 160 S.W.3d 575 (Tex. Crim. App. 2005) .......................................... 26

Rios v. State, 4 S.W.3d 400 (Tex. App.-Houston [1st Dist.] 1999, pet. dism’d) .... 26

Russell v. State, 727 S.W.2d 573 (Tex. Crim. App. 1987) ...................................... 12

Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) ....... 16

Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003) .................................... 20, 21

Tijerina v. State, 202 S.W.3d 299 (Tex. App.-Fort Worth 2006, pet. ref'd) ........... 25

United States v. Moreno, 185 F.3d 465 (5th Cir. 1999) .......................................... 18

Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) ........................................ 10

Wappler v. State, 183 S.W.3d 765 (Tex. App.-Houston [1st Dist.] 2005, no pet.) ........................ 26

vi Webb v. State, 36 S.W.3d 164 (Tex. App.-Houston [14th Dist.] 2000, pet. ref’d) .................... 25

Statutes, Codes, and Constitutional Provisions:

TEX.CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2013) ................................... 10

TEX. R. APP. P. 44.2 ..........................................................................................passim

TEX. R. APP. P. 9.4 .................................................................................................. 31

U.S. CONST. amend. V ............................................................................................... 9

U.S. CONST. amend. XIV .......................................................................................... 9

vii To the Honorable Justices of the Court of Appeals:

Statement of the Case

Appellant was charged by information with the Class B misdemeanor offense

of driving while intoxicated, alleged to have occurred on July 22, 2012. CR8.

Appellant entered a plea of not guilty and a jury found him guilty. 2RR121; CR56.

The trial court assessed punishment at 180 days confinement in the county jail,

probated for two years, and an $800 fine. CR65-65. Appellant filed timely written

notice of appeal, and the trial court certified his right to appeal. CR68, 75.

Statement Regarding Oral Argument

The Court’s decisional process would be aided by oral argument in this case

because this case presents a unique factual scenario involving the admissibility of

an officer’s express acknowledgement and comments to other officers regarding

Appellant’s invocation of the right to counsel. Additionally, this case presents a

novel factual scenario concerning the demonstration of harm from the erroneous

limitation of voir dire.

1 Issues Presented

Issue One:

The trial court erred in admitting evidence of Appellant’s post-Miranda invocation of the right to counsel, in violation of due process.

Issue Two:

The trial court erred in prohibiting a proper voir dire question concerning prior experience with assessing punishment.

Summary of the Arguments

Issue One: The trial court erred in overruling Appellant’s objection to the

portions of the videos (State’s Exhibits 6 and 7) showing Appellant’s post-Miranda

invocation of the right to counsel, as well as the police officer’s acknowledgment of

and references to the invocation. Admission of such evidence violates due process

by permitting the jury to draw an adverse inference from the exercise of a

constitutional right. Reversal is required because Appellant offered an exculpatory

explanation for his conduct: that he had been involuntarily drugged at a nightclub.

Additionally, the evidence was conflicting as to his guilt, and the jury asked to

review the videos during deliberations. Accordingly, the error is likely to have

affected the verdict.

Issue Two: The trial court abused its discretion by prohibiting a proper voir

2 dire question concerning prior jury experience assessing punishment. The trial

court’s ruling prohibiting the inquiry was not made for the purpose of setting

reasonable time limitations; instead, the trial court erroneously understood the

inquiry to be legally objectionable. The error affected Appellant’s substantial rights

because Appellant expended peremptory challenges against the potentially

objectionable panel members and identified other objectionable members who were

ultimately seated on the jury. Accordingly, reversal is required.

Background Facts

At 2:50 a.m. a McDonald’s employee called “911” after discovering a pick-

up truck in the drive-through lane with an unresponsive driver. 3RR93-94. The

occupants of the truck, who had just ordered food, failed to respond to the yelling of

employees or the honking of other vehicles. 3RR94-97, 101. Officer Strauss of the

Victoria Police Department arrived at 3:16 a.m. and found Appellant and two

passengers still unresponsive in the truck, with the engine running and the

transmission in drive. 2RR127-130; 3RR19. The encounter and subsequent arrests

were recorded by Strauss’s patrol car video equipment. 2RR130; SX6; SX7.

Officer Strauss put the vehicle in park and roused Appellant with some

effort. 3RR22, SX6-1:05. Appellant was groggy as Strauss ordered him several

times to exit the vehicle. 3RR22; SX6-1:10. Strauss noticed that Appellant was a

3 little unsteady on his feet and had glassy bloodshot eyes, and he found a twelve-

pack of beer with one empty bottle in the truck. 3RR22. Officer Nieto arrived at the

scene and requested Appellant’s driver’s license; Appellant first handed him a

credit card before producing his license. 4RR22. Appellant stated that he had been

at Cactus Canyon, a nightclub that admits underage patrons, and denied drinking

alcohol. 3RR23, 73-74, 78.

Officer Strauss administered field sobriety tests and observed all three clues

in each eye during the horizontal gaze nystagmus (HGN) test. 3RR53. Strauss

acknowledged that certain depressant drugs can cause nystagmus, but testified that

he smelled the odor of alcohol on Appellant’s breath during the HGN. 3RR53.

Strauss observed six out of eight possible clues during the walk-and-turn test, and

three out of four possible clues on the one-leg-stand test. 3RR58-59. Strauss

concluded that Appellant was intoxicated and placed him under arrest. 3RR59-61.

Strauss read Appellant the DIC-24 form in conjunction with requesting a breath or

blood specimen, which Appellant refused. 3RR63-68.

While Officer Strauss was administering the tests, Officer Nieto obtained

permission to move Appellant’s truck from the drive-through lane. 4RR23. Both

passengers, later identified as Michael Birdwell and Trevor Tristani (Appellant’s

brother), remained passed out while the truck was moved and for several minutes

4 thereafter. 4RR23-24. When they awoke, Officer Nieto found that they exhibited

signs of intoxication (slurred speech, bloodshot eyes, and the odor of alcohol) and

arrested them for public intoxication. 4RR23-27. The rear passenger attempted to

escape and was apprehended by several officers near the truck. SX6-29:15. Officer

Nieto testified that it was very rare (occurring only one other time in his twenty-

four-year career) to encounter a vehicle in a traffic lane with multiple occupants

unconscious and difficult to rouse. 4RR30.

Appellant exhibited odd behavior while detained in the patrol car. He asked

Officer Strauss for a ride to his house (SX7-16:25), and also asked Strauss to

scratch his nose (SX7-17:08). Appellant stated that he could not remember if he had

paid for his McDonald’s order (SX7-17:40). Minutes later, while on route to the

jail, Appellant asked Strauss why he had pulled him over (SX7-24:30). Strauss

reminded him that he had not been pulled over but was found passed out in the

McDonald’s drive-through (SX7-24:43). Appellant said, “What?”, then stated that

he must be tired from a long work day (SX7-44:46). Strauss testified that the drugs

Rohypnol and GHB are powerful sedatives that render a person unconscious and

cause deficits in short-term memory. 4RR9-12.

5 A manager with Appellant’s employer testified that employees are subject to

random drug testing and that Appellant had never failed a test in four years of

employment. 4RR48; DX2-3.

Michael Birdwell testified that he, Appellant, and Appellant’s brother Trevor

Tristani worked for the same construction company. 4RR60. The three had worked

together that day and then had dinner in a restaurant that evening. 4RR51, 61.

Birdwell had two beers with dinner but Appellant, who was underage, did not drink

alcohol. 4RR52. After dinner, Birdwell bought a twelve-pack of beer and drank

one. 4RR52. The group arrived at Cactus Canyon nightclub around 11:30 p.m.

4RR54. Birdwell had three drinks in the club but did not see Appellant drink any

alcoholic beverages. 4RR55-56. Birdwell testified that the club served alcoholic

beverages in glasses and Appellant had a drink served in a cup, indicating a non-

alcoholic beverage. 4RR56. Toward the end of the evening, Appellant, his brother,

and Birdwell met some young women who were sitting with a group of men at a

table. 4RR55-56. They danced with the women, leaving their drinks on the table

because drinks were not permitted on the dance floor. 4RR56-57. When the club

closed, the group exited the club with the women and talked with them in the

parking lot for a few minutes. 4RR57. Birdwell had no recollection of any events

between talking with the women in the parking lot and being awakened by the

6 police at McDonald’s. 4RR57-58. Birdwell testified that upon being awakened he

felt dizzy, like he could not “come to,” very confused and disoriented, and had

impaired vision; these effects were different from how he felt when intoxicated

from alcohol. 4RR59. Birdwell’s memory of being arrested and transported to jail

was vague; he recalled talking with Appellant and his brother at the jail, “trying to

piece everything together,” and then being separated. 4RR64-65.

Appellant corroborated Birdwell’s account of the evening and testified that

he drank only Coke at the nightclub. 4RR68-70. Appellant recalled dancing with

the women and getting a “funny” look from the men the women had been sitting

with. 4RR71. Appellant recalled exiting the club with the women and talking with

them in the parking lot for ten to fifteen minutes, but did not recall driving or

ordering food at McDonald’s. 4RR72. Appellant testified that his memory of being

arrested and jailed was very sketchy, and that his experience that night not

consistent with his prior experience with overconsumption of alcohol. 4RR73, 78.

Appellant testified that he telephoned a local hospital, as documented in his cell

phone records, after being released from jail to ask about obtaining a blood test

because he suspected he had been drugged, but was told that a test could not be

done without the order of a treating physician. 4RR74-75; DX1.

7 Arguments and Authorities

Issue One Erroneous Admission of Invocation of the Right to Counsel

A. Facts

After Appellant was placed under arrest, Officer Strauss read him the DIC-24

statutory warning and requested a breath or blood specimen. SX7-4:30. In response,

Appellant stated, “Could I rather get a lawyer?” SX7-7:16. Strauss informed him

that he could get a lawyer but that had no bearing on his question; Appellant

declined to provide a specimen. SX7-7:20.

Strauss then read Appellant Miranda warnings and asked if he would be

willing to answer questions. SX7-8:44. Appellant replied, “I guess I’d like a

lawyer.” SX7-10:02. Strauss asked, “You want a lawyer before you answer

questions?” and Appellant replied, “Yeah, I guess so.” SX7-10:08. Strauss stated,

“O.K., that’s fine,” then told Appellant that he was not going to ask any questions

about the DWI charges but that they needed to figure out the disposition of his

truck. SX7-10:16. Shortly thereafter, Strauss told another officer: “He’s invoked his

rights; don’t ask him nothing.” SX7-12:00.

8 These conversations are contained on State’s Exhibits 6 (22:50-30:10) and 7

(4:30-12:00), video recordings of the arrest scene.1 Appellant lodged numerous

objections to the contents of the video recordings and the trial court held a hearing

outside the presence of the jury to resolve the issues. Appellant objected to the

admission of the portions of the videos portraying his invocation of counsel and the

officer’s references to Appellant’s invocation. 2RR132-134, 139, 144-145, 151.

The trial court overruled the objections. 2RR151. Appellant reurged his objections

prior to the admission of the exhibits, and the trial court again denied the objections.

3RR103. The jury requested the patrol car videos during deliberations. CR58.

B. The admission of Appellant’s invocation violated due process.

The Fifth and Fourteenth Amendments to the United States Constitution

provide a defendant the right to counsel during a custodial interrogation. U.S.

CONST. amends. V, XIV; Miranda v. Arizona, 384 U.S.436, 444, 86 S.Ct. 1602,

1612, 16 L.Ed.2d 694 (1966). In Miranda, the United States Supreme Court

interpreted this right to include the right to remain silent during a police

interrogation, to have an attorney present during custodial interrogation, and to be

informed of these rights before any custodial interrogation. 384 U.S. at 478–79, 86

1 State’s Exhibits 6 and 7 capture the pre-arrest and post-arrest interactions, respectively, with some overlap, and from different camera angles. The audio and video are somewhat out of sync in both exhibits.

9 S.Ct. at 1630. Article 38.22 of the Texas Code of Criminal Procedure statutorily

incorporates these rights. TEX.CODE CRIM. PROC. ANN. art. 38.22 (West Supp.

2013).

“The guaranty of fundamental fairness in the Due Process Clause forbids the

government from making the Miranda promises and breaking them by using a

suspect’s exercise of a right as evidence against him.” Griffith v. State, 55 S.W.3d

598, 605 (Tex. Crim. App. 2001) (citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct.

2240, 49 L.Ed.2d 91 (1976) (denial of due process to use defendant’s post-arrest,

post- Miranda silence for impeachment purposes)); see also Wainwright v.

Greenfield, 474 U.S. 284, 295, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) (“What is

impermissible is the evidentiary use of an individual’s exercise of his constitutional

rights after the State’s assurance that the invocation of those rights will not be

penalized.”). Thus, if a defendant is given Miranda warnings and subsequently

invokes his right to counsel, the State cannot use the defendant’s invocation of his

rights as evidence against him at trial. Hardie v. State, 807 S.W.2d 319, 322 (Tex.

Crim. App. 1991); Kalisz v. State, 32 S.W.3d 718, 723 (Tex. App.-Houston [14th

Dist.] 2000, pet. ref'd); Gray v. State, 986 S.W.2d 814, 815 (Tex. App.-Beaumont

1999, no pet.); Loy v. State, 982 S.W.2d 616, 617 (Tex. App.-Houston [1st Dist.]

1998, pet ref'd); Cooper v. State, 961 S.W.2d 222, 226–27 (Tex. App.-Houston [1st

10 Dist.] 1997, pet. ref'd).

This kind of due process violation is prejudicial to a defendant because the

introduction of such evidence invites the jury to draw an adverse inference of guilt

from the exercise of a constitutional right. Hardie, 807 S.W.2d at 322; Kalisz, 32

S.W.3d at 723. Stated another way, the probable collateral implication of a

defendant’s invocation of his rights is that he is guilty. Gray, 986 S.W.2d at 815;

Loy, 982 S.W.2d at 618; Cooper, 961 S.W.2d at 227.

In Hardie, after receiving his Miranda warnings, the defendant requested to

speak with an attorney or his mother before submitting to a breath test. Id. at 320.

The trial court, over the defendant’s written objection, allowed the jury to hear the

defendant, on tape, invoke his right to counsel. Id. at 320-21. The court of appeals

acknowledged that evidence of an accused’s invoking his right to counsel may be

construed against him and may improperly be considered as an inference of guilt.

Id. at 322. The court recognized it is constitutionally impermissible to adversely use

evidence that a defendant invoked a right or privilege which has been granted him,

even if the right or privilege was erroneously extended. Id. (citing Doyle v. Ohio,

426 U.S. 610, 618 n.9 (1976)). Accordingly, the court held that “evidence of one’s

invocation of the right to counsel is inadmissible as evidence of guilt.” Id. The court

noted that “[a]lthough the State did not specifically state it was offering the audio

11 portion of the videotape as evidence of guilt, no other basis for its admission was

propounded by the State and no other basis is apparent from the context of the

record.” Id. at 322 n. 6.

To benefit from these rights, a defendant must affirmatively and clearly

invoke them: “An invocation must be clear and unambiguous; the mere mention of

the word ‘attorney’ or ‘lawyer’ without more, does not automatically invoke the

right to counsel.” Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995).

While the defendant need not say “magic words,” his invocation must, under all of

the facts and circumstances, be construed as invoking his right to counsel. Russell v.

State, 727 S.W.2d 573, 575 (Tex. Crim. App. 1987). The test is objective: whether

the suspect articulated his desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would understand the statement to be

a request for an attorney. Davis v. State, 313 S.W.3d 317, 339 (Tex. Crim. App.

2010).

Appellant articulated his desire sufficiently clearly. His request came

immediately on the heels of the Miranda warnings and in response to Officer

Strauss’s question as to whether he wished to waive those rights and answer

questions. Officer Strauss understood Appellant’s statements to be the request for

an attorney, as indicated by his immediate acknowledgement of the invocation and

12 subsequent comments, and this conclusion was not unreasonable.

However, if an officer’s questions or comments on a recording create the

impression that a defendant has invoked his rights, admission of such evidence is

constitutional error even if the invocation is not clear. In Kalisz v. State, 32 S.W.3d

718 (Tex.App.–Houston [14 Dist.] 2000, pet. ref’d), the defendant was arrested for

DWI and given Miranda warnings at the police station. Id. at 722. When the officer

asked the defendant if he understood his right to have an attorney, the defendant

attempted to exit the room and was brought back. Id. at 722-723. The defendant

then stated, “I have a lawyer” and moved toward the door; this response was muted

by the trial court when the video was played for the jury. Id. at 723. The officer

next asked, “Are you terminating the interview? [No response.] Are you

terminating the interview? [No response.] Very good then.” Id. The officer then

terminated the interview and the recording ended. Id. The court of appeals found

that the officer’s questions concerning the Miranda rights were admissible except

for the question regarding the right to counsel. Id. The trial court erred in

introducing the portion of the tape that contained the questions regarding his right

to counsel and everything thereafter because the exchange created an “inescapable

conclusion” that the defendant had invoked his rights:

Even if appellant was not terminating the interview, which is difficult to tell, the officer’s comments made it

13 appear that appellant did want to stop the interview to talk with his lawyer. The jury should not have seen or heard this last exchange because, viewing the tape in its entirety, it creates an impression that appellant had, indeed, invoked his right to counsel and to terminate the interview.

Id. at 723-24.

In Dumas v. State, 812 S.W.2d 611 (Tex.App.—Dallas 1991, pet. ref'd), the

trial court admitted into evidence the audio portion of the videotape in which the

jury was allowed to hear the interrogating officer give the defendant his Miranda

warnings and ask him if he wanted to waive his rights. Id. at 614. The volume was

then turned down to exclude the defendant’s refusal to waive his rights. The court

of appeals held that it was harmful error to allow the jury to hear the officer give the

Miranda warnings and ask the defendant if he wanted to waive them and then turn

the volume down, because it led the jury to the conclusion that the defendant had

invoked his right to remain silent. Id.

Likewise, the instant case, the recording conveyed to the jury that Appellant

had invoked his right to counsel. The exchange between Appellant and Officer

Strauss regarding his waiver of rights and request for an attorney, and Officer’s

Strauss’s subsequent comments informing another officer that Appellant had

“invoked his rights,” should not have been played for the jury.

14 C. The error was harmful, requiring reversal.

Because the error involved in this issue is constitutional in magnitude, the

court must assess harm using the standard set forth in Rule 44.2(a) of the Rules of

Appellate Procedure. Rule 44.2(a) provides that reversal is required unless the

court determines beyond a reasonable doubt that the trial court’s constitutional error

did not contribute to the conviction. In determining whether constitutional error in

the admission of evidence is harmless, the court considers several factors, including

the following: the importance of the evidence to the State’s case; whether the

evidence was cumulative of other evidence; the presence or absence of other

evidence corroborating or contradicting the evidence on material points; the overall

strength of the State’s case; and any other factor, as revealed by the record, that may

shed light on the probable impact of the error on the mind of the average juror. Clay

v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). In addition, the court may

consider: the source and nature of the error; the emphasis placed upon the evidence

by the State; the weight a juror may have placed on the evidence; and whether

finding the error harmless would encourage the State to repeat the conduct. Harris

v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989).

The court should not premise its harm analysis for constitutional error on an

examination of whether the State presented sufficient evidence, absent the

15 erroneously admitted evidence, for a rational jury to find the defendant guilty.

Satterwhite v. Texas, 486 U.S. 249, 258–59, 108 S.Ct. 1792, 100 L.Ed.2d 284

(1988) (“The question, however, is not whether the legally admitted evidence was

sufficient to support the death sentence, which we assume it was, but rather,

whether the State has proved ‘beyond a reasonable doubt that the error complained

of did not contribute to the verdict obtained.’ ”); see also Brooks v. State, 132

S.W.3d 702, 708 (Tex. App.-Dallas 2004, pet. ref'd) (“The fact that the legally

admitted evidence is sufficient to support the verdict does not demonstrate the error

was harmless.”).

Courts have routinely found the erroneous admission of the invocation of

rights to be harmful, even in the face of ample of evidence of intoxication, and

particularly where, as in this case, the jury viewed the video during deliberations.

In Hardie, supra, the Court of Criminal Appeals found that the defendant

was harmed by the error because the jury foreman submitted a note stating that the

jury had reached an impasse, then submitted a note about the video before reaching

a verdict. 807 S.W.2d at 322. Because the court not conclude that the jury would

have reached the same verdict if they had not had before them as evidence the audio

portion of the videotape wherein appellant invoked his right to counsel, reversal

was required. Id.

16 In Kalisz, supra, the court found that the defendant was harmed, requiring

reversal, even though the State did not emphasize the error in any way, and the trial

court did offer an instruction on the excluded audio portion of the tape. 32 S.W.3d

at 724. While the court found “compelling evidence” to show that appellant lacked

the normal use of his mental and physical faculties on the night in question, the

defendant presented evidence that he had taken Valium and had not imbibed any

alcohol. Id. During its deliberation, the jury specifically asked to review the

videotape a second time. Id. Because the evidence was conflicting, the court was

unable to conclude beyond a reasonable doubt that the error did not contribute to

appellant’s conviction. Id.

In Dumas, supra, the error was harmful, requiring reversal, even though there

was ample evidence of intoxication. 812 S.W.2d at 614. The defendant was seen

behind the wheel in a parking lot apparently passed out, then was seen weaving

while driving. Id. at 613. After being stopped, the defendant, who smelled of

alcohol, failed two sobriety tests. Id. Because the jury requested to view the video

during deliberations, the court of appeals could not conclude beyond a reasonable

doubt that the error was harmless. Id. at 614.

As in the above cases, harm cannot be ruled out beyond a reasonable doubt

here. The jury requested both videos during deliberations, and thus had the

17 opportunity to hear evidence of the invocation twice, in addition to hearing the

recordings during trial. As in Kalisz, Appellant presented evidence that he had not

imbibed any alcohol. Numerous unusual circumstances supported Appellant’s

theory that he had been involuntarily drugged: the fact that he and his companions

lost consciousness suddenly and simultaneously and were difficult to rouse, their

reports of strange symptoms, and Appellant’s apparent short term memory deficits

and confusion.

The Fifth Circuit has explained that evidence concerning the invocation of

the right to counsel is particularly damaging in cases where the defendant intends to

offer an exculpatory story at trial:

[T]he substantive use of a defendant’s invocation of counsel or silence before the defendant has the opportunity to offer her exculpatory story places her in an untenable position. “If she does not take the stand, an inference of guilt by the jury is a possible inference; if she does take the stand, her credibility will already be in question and the jury might simply discount as fabricated a story the defendant neglected to tell the police on the scene.”

United States v. Moreno, 185 F.3d 465, 473 (5th Cir. 1999) (internal alterations

omitted) (quoting Chapman v. United States, 547 F.2d 1240, 1243 n. 5 (5th Cir.

1977)).

These damaging inferences are present here. Repeatedly hearing Appellant’s

18 invocation of the right counsel likely influenced the jury’s consideration of

Appellant’s defensive theory, and thus its ultimate verdict. The error was not

harmless beyond a reasonable doubt; Appellant’s conviction must be reversed.

Issue Two: Erroneous Prohibition of a Proper Voir Dire Question

During Appellant’s voir dire, defense counsel attempted to ask several panel

members with prior criminal jury service whether the judge or jury had assessed

punishment in those cases. 2RR68-69. The trial court stopped defense counsel and

informed him that he could not ask that question because the answer would imply

what the verdicts were in the prior cases. 2RR69-71. Appellant objected to the

court’s refusal to allow a proper question, and the objection was overruled. 2RR70-

71.

Appellant resumed voir dire and identified four panel members who had

served on juries in criminal cases in which verdicts had been reached. 2RR71-74.

At the close of voir dire, Appellant identified three of those four panel members

who were within the strike zone, used his peremptory challenges against those three

members, identified three additional members within the strike zone who were

objectionable, stated the reasons why they were objectionable, and requested three

additional peremptory challenges. 2RR113-114. The trial court denied the requested

19 additional peremptory challenges. 2RR114.

B. The trial court abused its discretion in prohibiting a proper question.

When an appellant challenges a trial court’s limitation of his voir dire, the

reviewing court analyzes this challenge under an abuse-of-discretion standard, “the

focus of which is whether the appellant proffered a proper question concerning a

proper area of inquiry.” Caldwell v. State, 818 S.W.2d 790, 793 (Tex. Crim. App.

1991), overruled on other grounds, Castillo v. State, 913 S.W.2d 529 (Tex. Crim.

App. 1995). A trial court has broad discretion over jury selection, including the

right to impose reasonable limits on the voir dire examination. Sells v. State, 121

S.W.3d 748, 755 (Tex. Crim. App. 2003). But a trial court’s discretion is abused

when it prohibits a proper question about a proper area of inquiry. Id. at 755-56.

The Court of Criminal Appeals has recently clarified that questions inquiring

about prior verdicts are proper. In Blackman v. State, 414 S.W.3d 757 (Tex. Crim.

App. 2013), the court held that a veniremember’s response to questions about prior

jury service provided a race-neutral basis for a peremptory challenge. The court

corrected a misconception regarding the propriety of voir dire questions inquiring

about specific verdicts:

The parties seemed to operate under the assumption that the law would absolutely prohibit any inquiry during voir dire into what specific verdict, if any, the prospective jurors had actually reached in the course of their prior

20 jury service. We note that, while it may be within a trial court’s discretion to prohibit such a question, in the interest of placing reasonable limitations upon the length of voir dire, there is no absolute legal impediment to posing it.

Id. at 761 & n. 7.

In the instant case, the trial court prohibited the question not for the purposes

of setting reasonable time limitations, but because it believed the question was

legally improper. The trial court permitted Appellant to ask the panel members

whether the prior service involved a felony or misdemeanor, whether they served as

foreman, and whether the jury reached a verdict. 2RR69-74. Only four panel

members had served on juries that reached verdicts; permitting Appellant to ask one

more question of those four members would not have unduly prolonged voir dire.

See Espinosa v. State, 653 S.W.2d 446, 450 (Tex. App.—San Antonio 1982) (op.

on reh’g), aff'd, 669 S.W.2d 736 (Tex. Crim. App. 1984) (“We fail to see how time

is saved by permitting inquiries as to prior jury service, which court, what offense,

and when, but not permitting the question as to the verdict.”).

Moreover, the trial court’s comments in regards to its ruling indicate that it

prohibited the question because it believed it to be legally objectionable:

THE COURT: [Defense Counsel] asked a question of the jurors, have you been on a jury. The answer was yes. A next question was, did you reach a verdict? The answer was, yes. The next question became did you or did a

21 judge assess the penalty. I’ve admonished [Defense Counsel] that that indicates that verdict was a guilty in nature and I’m just simply admonished him that you cannot ask what the verdict was. He’s getting awfully close. He has asked the question. It was answered, and I think we’re fine right now especially since the State didn’t object. * * * DEFENSE COUNSEL: All right. Just so – just making sure I’m preserved, the question I wanted to ask was, did the court or jury assess punishment, and Your Honor is instructing me not to ask that question, correct?

THE COURT: That is correct.

DEFENSE COUNSEL: Okay.

THE COURT: Because it implies as to what the verdict was.

DEFENSE COUNSEL: Yes, sir, I’ll follow the Court’s instructions. Note my objection. Thank you.

2RR70-71. These comments clarify that the trial court’s ruling was not made in the

interest of setting reasonable time limits.

There was no other valid reason to prohibit the question. It was not an

improper commitment question, nor was it repetitious, nor so vague or broad in

nature as to constitute a global fishing expedition. Sells, 121 S.W.3d at 756.

Because the question concerned a proper area of inquiry, the trial court abused its

discretion in prohibiting it.

22 C. Reversal is required.

It is not an appellant’s burden to show harm, but the “duty of the reviewing

court to assess harm from the context of the error.” Johnson v. State, 43 S.W.3d 1, 4

(Tex. Crim. App. 2001). The Texas Court of Criminal Appeals recently held that

erroneously limiting voir dire does not necessarily equate to a violation of the

constitutional right to be heard. Easley v. State, 424 S.W.3d 535, 541 (Tex. Crim.

App. 2014) (overruling Plair v. State, 279 S.W. 267, 269 (Tex. Crim. App. 1925),

to extent that it held that erroneously limiting voir dire is constitutional error

because such limitation is per se violation of right to counsel). In Easley, the Court

of Criminal Appeals held that there may be instances in which a judge’s limitation

on voir dire is “so substantial” as to rise to the level of a constitutional error. Id. The

proper analysis is not to apply a per se rule to a voir dire error but to determine if

the error is substantial enough to warrant a Rule 44.2(a) analysis for constitutional

error; if not, then the error is reviewed under Rule 44.2(b) for non-constitutional

error. Id.; TEX. R. APP. P. 44.2.

The Court in Easley affirmed the appellate court’s application of the more

lenient non-constitutional harm analysis under Rule 44.2(b) to the trial court’s

erroneous refusal to allow the defendant’s counsel to compare the criminal burden

of proof beyond a reasonable doubt to other burdens of proof during voir dire. Id.

23 The court agreed with the appellate court’s holding that the trial court’s error did

not rise to the level of a constitutional error because defense counsel was not

“foreclosed from explaining the concept of beyond a reasonable doubt and

exploring the veniremembers’ understanding and beliefs of reasonable doubt by

other methods.” Id.

In this case, Appellant was wholly prevented from ascertaining whether the

panel members had prior experience assessing punishment. The trial court did not

permit Appellant to phrase his inquiry differently and to effectively explore the

issue, as in Easley. Accordingly, the error here should be analyzed under the

standard for constitutional harm: reversal is required unless the court determines

beyond a reasonable doubt that the error did not contribute to the conviction or

punishment. TEX. R. APP. P. 44.2(a).

Appellant asserts, however, that the error here was harmful even under the

less stringent standard for non-constitutional harm. Applying Rule 44.2(b), the

court should disregard the error if it did not affect the appellant’s substantial rights.

TEX. R. APP. P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.

1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550

(1999). A substantial right is affected, requiring reversal pursuant to Rule 44.2(b),

when the error had a substantial and injurious effect or influence on the jury’s

24 verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error

had no influence or only a slight influence on the verdict, it is harmless. Johnson v.

State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). If it is unclear whether the

error affected the outcome, the court should treat it as harmful. Mitten v. State, 228

S.W.3d 693, 696-97 (Tex. App.-Corpus Christi 2002, pet. dism’d); Webb v. State,

36 S.W.3d 164, 182 (Tex. App.-Houston [14th Dist.] 2000, pet. ref’d).

When an error occurs in the questioning that results in the selection of the

jury, there is a probability that the error will skew every act taken by counsel in

connection with the denied questions because counsel has been improperly denied

the right to have insight into the jurors’ reactions to that area. Loredo v. State, 59

S.W.3d 289, 293 (Tex. App.-Corpus Christi 2001, no pet.) (holding trial court error

in refusing to allow defense counsel to ask proper questions about parole was

harmful and noting such error will rarely be harmless); Gonzales v. State, 2 S.W.3d

600, 606 (Tex. App.-Texarkana 1999, pet. ref’d) (noting that prudent defense

counsel—when faced with trial court error preventing him from questioning

potential jurors about their attitudes toward a specific defense—would not attempt

to present evidence of that defense to jury). Accordingly, this type of error will

rarely be harmless. Loredo at 293; Tijerina v. State, 202 S.W.3d 299, 305 (Tex.

App.-Fort Worth 2006, pet. ref'd) (error in prohibiting the defense from asking the

25 jury venire if anyone would automatically disbelieve somebody simply because

they were a convicted felon affected defendant’s substantial rights); Wappler v.

State, 183 S.W.3d 765, 779 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (holding

trial court error in prohibiting defendant from asking proper voir dire questions on

various issues harmful); Rios v. State, 4 S.W.3d 400, 403–04 (Tex. App.-Houston

[1st Dist.] 1999, pet. dism’d) (noting that the issue “defies analysis” but holding

error harmful under Rule 44.2(a)); Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim.

App. 1997) (applying former Rule 81(b)(2) harm analysis to hold that some errors

will never be harmless because “data is insufficient to conduct a meaningful

harmless error analysis”).

When analyzing harm from the prohibition of a proper question, the court

generally reviews the entire record, and to the extent applicable, uses the following

factors as context for our consideration of the error's effect on the jury’s

deliberations: (1) any testimony or physical evidence admitted for the jury’s

consideration; (2) the nature of the evidence supporting the verdict; (3) the

character of the alleged error and how it might be considered in connection with

other evidence in the case; (4) the jury instructions; (5) the State’s theory and any

defensive theories; (6) closing arguments; (7) voir dire; and (8) whether the State

emphasized the error. Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim. App.

26 2005) (citing Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002)

(setting forth factors to consider in harm analysis and applying relevant factors to

analysis of erroneous admission of evidence)).

In Easley, the Court of Criminal Appeals found that voir dire and the nature

of the evidence supporting the verdict to be the most applicable and significant

factors in this type of error. 242 S.W.3d at 542. The court found that defense

counsel, while prohibited from comparing different standards of burden of proof

using a stair-step analogy, was still permitted to contrast the criminal standard from

the civil standard and to question the venire members individually regarding their

concept of reasonable doubt. Id. Because the defense was permitted to adequately

explore the jurors’ views on the issue, and because evidence of guilt was

“substantial,” the error was harmless. Id. at 542-43.

In the instant case, Appellant was not permitted to ascertain by any means

whether the panel members had prior experience assessing punishment; thus, the

court cannot exclude the possibility that the error had a substantial effect on the

verdict.

Moreover, in this case, harm is not merely theoretical. Appellant identified

on the record three panel members within the strike zone whom the defense was

prevented from questioning about prior experience assessing punishment. Appellant

27 informed the trial court that the defense exercised peremptory challenges against

those three members, and identified three additional members within the strike zone

who were objectionable. Additionally, Appellant stated the reasons why they were

objectionable, and requested three additional peremptory challenges, which the trial

court denied. 2RR113-114.

Two of those objectionable panel members, Jurors 10 (Huber) and 13

(Knipling), sat on the jury. 2RR115. Juror 10 stated that he would give police

officers more credibility than other witnesses from the outset, “all other things

being equal.” 2RR99-100. Juror 10 also volunteered that he believed a suspect’s

refusal to submit to alcohol testing was a “tactic to buy time.” 2RR101. Appellant’s

challenge for cause against Juror 10 was denied. 2RR103. Juror 13 indicated that

she might give police officers more credibility at the outset, and that because of

their experience their testimony might be “more valid.” 2RR104. Juror 13 was also

objectionable to the defense because she was a child care manager. 2RR114.

A defendant is “actually harmed” if, due to the trial court’s error, he suffers

the loss of a peremptory strike. Comeaux v. State, 445 S.W.3d 745, 749 (Tex. Crim.

App. 2014) (explaining harm analysis for erroneous denial of challenge for cause).

“Peremptory strikes are given to each side to use as they see fit. The defendant may

strike any member of the venire panel for any reason (except a prohibited reason

28 such as race or sex) or no reason at all.” Id. “It is the privilege of accused to

exclude from jury service one [who], in his judgment, is unacceptable to him.”

Id., quoting Kerley v. State, 89 Tex. Crim. 199, 230 S.W. 163, 164–65 (1921).

In this case, the error resulted in Appellant’s inability to identify

objectionable panel members. Accordingly, Appellant was harmed because he was

forced to expend peremptory challenges against potentially objectionable panel

members while other objectionable members were seated on the jury. A defendant

need not even identify why a panel member is objectionable in order to demonstrate

harm; it is sufficient that “he did not want him on the jury.” Comeaux at 750 & n.

17.

Moreover, having jurors with a tendency to favor the testimony of police

officers was likely to substantially influence the verdict in this case. According to

police testimony, Appellant’s breath smelled of alcohol. 3RR53. This testimony

was the only evidence that directly contradicted Appellant’s testimony that he did

not drink any alcohol and therefore believed he had been involuntarily drugged.

The remaining evidence of Appellant’s loss of mental and physical faculties was

consistent with Appellant’s defensive theory, and other evidence (the sudden and

simultaneous loss of consciousness of Appellant and his two companions, unusual

memory lapses) favored Appellant’s theory. Accordingly, the jury’s assessment of

29 the officer’s credibility was critical.

In these circumstances, it is at least unclear whether the error affected the

outcome; accordingly the court should treat it as harmful and reverse the conviction.

Mitten v. State, 228 S.W.3d 693, 696-97 (Tex. App.-Corpus Christi 2002, pet.

dism’d).

PRAYER

Appellant respectfully requests that the Court reverse his conviction and

remand for a new trial.

Respectfully submitted,

/s/ Norman J. Silverman NORMAN J. SILVERMAN Texas Bar No. 00792207 917 Franklin, 4th Floor Houston, Texas 77002 (713) 526-1515 (713) 526-1798 (FAX) lawyernorm@msn.com

ATTORNEY FOR APPELLANT

30 CERTIFICATE OF SERVICE

This document has been electronically served on the following parties contemporaneously and in conjunction with e-filing on March 8, 2015.

Stephen B. Tyler Victoria County Criminal District Attorney 205 N. Bridge St., Suite 301 Victoria, Texas 77901 stephenbtyler@hotmail.com

/s/ Norman J. Silverman

CERTIFICATE OF COMPLIANCE

This document has been prepared with Microsoft Word 2010, and the sections covered by Texas Rule of Appellate Procedure 9.4(i)(1) contain 6,395 words according to the program’s word-count function.