No. PD-0099-15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN Alejandro John Garcia
Appellant
v.
The State of Texas
Appellee
On Appeal from 368th District Court of Williamson County in Case No. 11-216-K368, the Hon. Burt Carnes, Judge Presiding, and the Opinion of the Third Court of Appeals in Case No. 03-12-00781-CR, Delivered December 11, 2014
Petition for Discretionary Review
Submitted by:
David A. Schulman
March 13, 2015 Attorney at Law
Post Office Box 783
Austin, Texas 78767-0783
Tel. 512-474-4747
Fax: 512-532-6282
eMail: zdrdavida@davidschulman.com State Bar Card No. 17833400 John G. Jasuta
Attorney at Law
Post Office Box 783
Austin, Texas 78767-0783
Tel. 512-474-4747
Fax: 512-532-6282
eMail: lawyer1@johngjasuta.com State Bar Card No. 10592300
Attorneys for Alejandro John Garcia
Table of Contents
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . vi Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . vi Facts of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Ground for Review Number One Restated. . . . . . . . . . . . . . . . 3
The Court of Appeals Erred When it Concluded Appellant Failed to Show the Defense’s Expert Testimony “Was Properly Applied” to Appellant.
Facts Relevant to First Ground for Review. . . . . . . . . . . . . . . . 3 Summary of the Argument - First Ground for Review . . . . . . . 5 Argument & Authorities - First Ground for Review. . . . . . . . . . 6
The Court of Appeals Mis-Interpreted or Mis-Applied the Appropriate Standard . . . . . . . . . . . . . . . . . . . . . . . . . . 6
The Evidence was Necessary to Counter the State’s Arguments .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Conclusion - First Ground for Review. . . . . . . . . . . . . . . . . . 18
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Table of Contents
(CONT)
Ground for Review Number Two Restated. . . . . . . . . . . . . . . 18
The Court of Appeals Erred When it Resolved Appellant's Claim of Charge Error Without Reference to or Application of Almanza v. State.
Facts Relevant to Second Ground for Review. . . . . . . . . . . . . 18 Summary of the Argument - Second Ground for Review. . . . . 20 Argument & Authorities - Second Ground for Review. . . . . . . 20 Conclusion - Second Ground for Review.. . . . . . . . . . . . . . . . 23 Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Certificate of Compliance and Delivery. . . . . . . . . . . . . . . . . . 25
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Index of Authorities
Federal Cases:
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Texas Cases
Allen v. State, AP-74,951 (Tex.Cr.App.; June 28, 2006). . . . . . . . . . . . . . . . . . . . . 11
Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1985) .. . . . . . . . . . . . . . . . . . . . 18, 20-22, 24
Arline v. State, 721 S.W.2d 348 (Tex.Cr.App. 1986). . . . . . . 23 Bass v. State, 270 S.W.3d 557 (Tex.Cr.App. 2008). . . . . 16, 17
Cargill v. State, AP-76,189 (Tex.Cr.App. November 19, 2014). . . . . . . . . . . . . . . . . . 16
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). . . . . . . . . . . . . . . . . . . . . 5, 7
Garcia v. State, 03-12-00781-CR (Tex.App. - Austin; December 11, 2014). . . vii, 5, 8, 19, 20
Griffith v. State, 983 S.W.2d 282 (Tex.Cr.App. 1998). . . . . . 10 Johnson v. State, 739 S.W.2d 299 (Tex.Cr.App. 1987). . . . . 21 Jordan v. State, 928 S.W.2d 550 (Tex.Cr.App. 1996). . . 12-14 iii
Index of Authorities
(CONT)
Texas Cases (CONT): Kelly v. State, 824 S.W.2d 568 (Tex.Cr.App. 1992). . . . 5, 7, 8
Mata v. State, 03-12-00476-CR (Tex.App. - Austin, June 24, 2014). . . . . . . . . . . . . . . . . 16
McBride v. State, 862 S.W.2d 600 (Tex.Cr.App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Powell v. State, 63 S.W.3d 435 (Tex.Cr.App. 2001).. . . . 16, 17 Renteria v. State, 206 S.W.3d 689 (Tex.Cr.App. 2006). . . . . 16 Sexton v. State, 93 S.W.3d 96 (Tex.Cr.App. 2002). . . . . . . . . 8 Spence v. State, 795 S.W.2d 743 (Tex.Cr.App. 1990). . . . . . 11 Tillman v. State, 354 S.W.3d 425 (Tex.Cr.App. 2011).. . . 8, 12
Vasquez v. State, 389 S.W.3d 361 (Tex.Cr.App. 2012). . . . . . . . . . . . . . . . . . . . . . . 19-22, 24
Walters v. State, 247 S.W.3d 204 (Tex.Cr.App. 2007).. . . . . 16
Texas Statutes / Codes:
Rules of Evidence
Rule 401... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Rule 404(b) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Rule 702 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Rule 705(b) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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Statement Regarding Oral Argument Because of complexity of the expert witness issue involved, the undersigned believe that oral argument will benefit the parties and assist the Court. Appellant therefore requests the opportunity to present oral argument in this case.
Statement of the Case
This case involves the denial of the right to put on a full defense, to introduce evidence in support of that defense, and to have the jury instructed in a meaningful way, such as to allow the jury to give effect to the evidence presented.
Statement of Procedural History Appellant was charged by indictment with the offenses of aggravated sexual assault of a child, a first (1st) degree felony (Count I) and Indecency with a Child by Contact (Count II), a second (2nd) degree felony, in Cause No. 11-216-K368 in the 368th District Court of Williamson County, Texas. He was acquitted on Count I and convicted on Count II, and sentenced to confinement for ten (10) years. Notice of Appeal was timely given
v
on November 20, 2012. The Court of Appeals’ opinion from which review is sought was delivered by the Third Court of Appeals. Garcia v. State, 03-12-00781-CR (Tex.App. - Austin; December 11, 2014). By previous Order of this Court, this petition is timely filed if presented to the Clerk of the Court on or before March 13, 2015.
vi
No. PD-0099-15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN Alejandro John Garcia
Appellant
v.
The State of Texas
Appellee
On Appeal from 368th District Court of Williamson County in Case No. 11-216-K368, the Hon. Burt Carnes, Judge Presiding, and the Opinion of the Third Court of Appeals in Case No. 03-12-00781-CR, Delivered December 11, 2014
Petition for Discretionary Review TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Alejandro John Garcia, Appellant in the instant cause, by and through David A. Schulman and John G. Jasuta, his undersigned attorneys, and respectfully files this “Petition of Discretionary Review,” and would show the Court as follows:
Facts of the Case
(Gleaned From the Opinion of the Court of Appeals)
Appellant’s nine-year-old daughter went for an overnight visit to the apartment Appellant shared with his girlfriend and their
2
four-year-old son. She watched a movie with her brother in her brother’s room while Appellant watched a movie in the living room with the girl’s uncle, smoking marijuana. Appellant’s girlfriend was at work that evening.
Appellant’s daughter testified that she ordinarily slept on the couch during her visits and that, after the movies finished, Appellant fixed the couch as her bed that night. They watched some television and, at around 9:36 p.m., she fell asleep on the couch. She said that Appellant also fell asleep on the couch, which was unusual. She woke up later when Appellant touched her, unbuckled his belt, then did “something really gross.” She testified, “He pulled down my pants and stuck his middle part into my bottom. And then he put his hands on my front part.” She testified that he put his “middle part inside my butt.” She testified that after doing those things “he woke up, and he said, ‘Oh, my God.’ And then he started wiping my butt and pulled up my pants. And then he went and threw the paper towel away. . . . [H]e told
3
me to take a shower, but I didn’t.” She said that Appellant said, “What the F?” and “Why did I do that?” to himself.
The child testified that he did not tell her to keep quiet, did not threaten her, did not try to bribe her, and did not blame her. She said that she knew Appellant was asleep when these events occurred “because he wouldn’t have done that if he was awake.”
The girl’s grandparents came and picked her up later that night and delivered her to her mother, who then immediately took the child to the hospital for a checkup. Because of the nature of the actions reported to hospital personnel, Austin Police were notified.
Ground for Review Number One Restated
The Court of Appeals Erred When it Concluded Appellant Failed to Show the Defense’s Expert Testimony “Was Properly Applied” to Appellant.
Facts Relevant to First Ground for Review At opening, Mr. Segura promised the jury, without objection, they would hear evidence that Appellant was asleep when the acts occurred (RR Vol. 3, P. 42). To accomplish this, Appellant called
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Dr. Michel Bornemann, a medical doctor who specializes in the study of parasomnia.
When Appellant called Dr. Bornemann, the State requested and obtained a hearing under Rule 705(b), Tex.R.Evid. Through Dr. Bornemann, Appellant sought to offer evidence that he was essentially sleepwalking when he touched his daughter and, therefore, he lacked the requisite intent or voluntariness to commit the crime.
At the close of the voir dire examination, the State objected and argued that it was based on a novel and unreliable scientific theory that could mislead the jurors. The State contended the theory lacked diagnostic criteria and support in the medical community and that Dr. Bornemann did not “appropriately diagnose this defendant as having any disorder.”
The trial court refused to admit Dr. Bornemann's testimony.
At that time, the trial court stated:
Obviously, based on the motion for continuance back in the summer, I knew that this was going to be an issue or probably would be an issue, and so I’ve been looking at it as we’ve progressed through the trial of the case this week.
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It’s very interesting. But what he’s really here to say is the defense story which he gave the night in the videotape we’ve all heard he’s being truthful. And then it goes -- and that’s based solely on his and his present girlfriend’s -- or his interview of the defendant and his present girlfriend, not on all the scientific studies that he talked about if it were a clinical case.
I’m going to sustain the State’s objection. If you need a further bill, if he’ll stick around, we’ll do that at the close of business today.
RR Vol. 4, P. 115.
On appeal, Appellant claimed the trial court erred by sustaining the State’s objection to Dr. Bornemann’s testimony. The Court of Appeals rejected Appellant’s arguments, holding Appellant failed to demonstrate the admissibility of Dr. Bornemann’s testimony. Garcia, slip op. at 5.
Summary of the Argument
First Ground for Review
The Daubert / Robinson / Kelly standard does not require the testifying expert to have conducted scientific testing on the subject of his testimony, merely that he has applied the particular methodology when formulating an opinion. Additionally, otherwise inadmissible evidence becomes admissible if the actions of the opposing party “open the door.”
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Argument & Authorities - First Ground for Review
A
The Court of Appeals Mis-Interpreted or Mis-Applied the Appropriate Standard
The Rules of Evidence favor admission of all relevant evidence. Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App. 1990). Under Rule 401, relevant evidence is evidence which has “any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Bekendam v. State, 441 S.W.3d 295, 303 (Tex.Cr.App. 2014)(FN 4).
For expert testimony to be admissible, the following requirements must be met:
Ø the expert's testimony must be based on sufficient facts or data;
Ù the expert's testimony must be the product of reliable principles and methods, and
Ú the expert must apply the principles and methods reliably to the facts of the case.
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See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556-557 (Tex. 1995); Kelly v. State, 824 S.W.2d 568, 571-572 (Tex.Cr.App. 1992). Additionally, Kelly also identified a non-exclusive list of factors which could influence a trial court's determination of reliability, including
Ø the extent to which the theory and procedure are accepted as valid by the relevant scientific community;
Ù the technique's potential rate of error;
Ú the availability of experts to test and assess the method or technique;
Û the clarity and precision with which the underlying scientific premise and approach can be explained to the court; and
Ü the knowledge and experience of the person(s) who applied the methodology on the occasion in question.
Kelly, 824 S.W.2d at 573. Under Kelly, the proponent of scientific evidence bears the burden of proving to the trial court, by clear and convincing evidence, that the evidence is sufficiently
8
relevant and reliable to assist the jury in determining a fact in issue. Kelly, 824 S.W.2d at 573.
Relying on Sexton v. State, 93 S.W.3d 96, 100 (Tex.Cr.App.
2002), the Court of Appeals held Appellant failed to demonstrate the admissibility of Dr. Bornemann’s testimony. “We cannot say that the trial court abused its discretion by excluding Dr. Bornemann’s testimony because Garcia failed to show by clear and convincing evidence that a valid technique for diagnosing parasomnia was properly applied to him.” Garcia, slip op. at 5.
Appellant acknowledges that Daubert and Kelly, as well as their various progeny, require an expert to fit his testimony to the facts of the case. See Tillman v. State, 354 S.W.3d 425 (Tex.Cr.App. 2011). However, the substance of both the trial court’s and the Court of Appeals’ ruling was that, in this case, Dr. Bornemann had not applied a valid technique when formulating his opinion. It is clear that both courts based this on Dr. Bornemann’s acknowledgment that he did not perform any clinical tests on Appellant. What both courts ignored is that Dr.
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Bornemann testified unequivocally that such testing was not necessary. Q. (Mr. McCabe) Did you perform any studies on Mr. Garcia? A. (Dr. Bornemann) No formal tests or studies were performed.
Q. Wouldn’t you agree that you authored a paper -- co-authored a paper called "Violence in Sleep" out of the Oxford Journals;
is that correct?
A. Published by -- this is the one you’re looking at. This was published in the scientific journal, Brain.
Q. Yes. In 2010? A. Correct. Q. Okay. You were a co-author of that study? A. That’s correct.
Q. Wouldn’t you agree that when you talk about -- there is a subsection called "History and Physical Examination" under "Diagnostic Procedures" about halfway through that paper. It says, "The first step in diagnosing a sleep disorder associated with violence is obtaining a complete history preferably from both the patient and the bed partner." You did those things; is that right?
A. Well, I interviewed him. A physical examination was not performed, nor was it necessary. That is a comment related to the condition as a clinical entity and not necessarily as a forensic entity.
Q. So when it says, "The clinical history should be followed by a general physical, neurological, and psychiatric examinations," none of those things were done in this case?
A. A physical examination wasn’t performed. It was not contributory to the review of the case. And there was no evidence to support further inquiry into a psychiatric condition.
Q. It references -- forgive me if I pronounce this wrong --
polysomnography.
A. Correct. We have to keep in mind that that paper also is not particularly focused on sleepwalking. It also comments upon
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unusual epilepsy. So, again, this is a clinical paper looking at violence that arises from sleep which is not necessarily particular or specific to sleep. It can also incorporate neurologic conditions such as epilepsy.
Q. But there’s an entire section on here on arousal disorders, correct?
A. That’s correct. Q. Is that what we’re talking about here is an arousal disorder?
A. We are talking about an arousal disorder which is a subset of parasomnia.
Q. So this paper is relevant to your testimony today? A. It is helpful, absolutely.
Q. And under "Polysomnography," it says, "an extensive polygraphic study with a multichannel scalp EEG, monitoring all four extremities in continuous, time-schychronized audio-visual recording is essential."
A. Essential from a clinical diagnosis. From a forensic, legal perspective, a polysomnography that’s not associated with the allegation would not be able to determine what happened on that particular evening. I could certainly do a polysomnography, or a sleep test, and find that he’s a sleepwalker. But that only tells us he’s a sleepwalker.
That’s not necessarily what may have occurred on the evening of the event. So the information to determine -- render medical opinion which is well founded in our field is based upon the behavioral -- the characteristic behavioral patterns and also the specifics to the degree of consciousness and awareness in order to render an opinion related to a particular incident, not necessarily a global clinical issue which is particularly what that paper focuses on.
The Court of Criminal Appeals has repeatedly recognized that testimony from mental health experts is relevant to the issue of future dangerousness. See Griffith v. State, 983 S.W.2d 282, 288 (Tex.Cr.App. 1998); see also McBride v. State, 862 S.W.2d 600,
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608 (Tex.Cr.App. 1993). The Court has also repeatedly made clear that there is no requirement that the mental health expert offering an opinion regarding whether a particular defendant will constitute a danger in the future have ever personally interviewed that defendant. Spence v. State, 795 S.W.2d 743, 762-763 (Tex.Cr.App. 1990); see also Allen v. State, AP-74,951 (Tex.Cr.App.; June 28, 2006)(not designated for publication).1 Being the pivotal “life or death” question in a capital case, it is clear that whether there is a probability a particular defendant “would commit criminal acts of violence that would constitute a continuing threat to society . . .,” is at least as important a question as whether Appellant’s behavior on the night in question was the result of parasomnia. If a personal interview is not required when an expert is called to offer his or her opinion on “future dangerousness” in the death penalty setting, certainly conducting a “clinical study” is not required when an expert is
1 In Allen, there were concurring opinions by Judge Womack and Judge Johnson. Neither are important to this issue.
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called to offer an opinion as to whether an individual is a parasomniac.
Additionally, as set out in Tillman, relevance is a “looser notion than reliability,” and is “a simpler, more straight-forward matter to establish.” Tillman, 354 S.W.3d at 438. The relevant inquiry is whether evidence “will assist the trier of fact and is sufficiently tied to the facts of the case.” Jordan v. State, 928 S.W.2d 550, 555 (Tex.Cr.App. 1996).
In Jordan, the Court specifically addressed the “fit” aspect of the relevance inquiry. There, the proffered expert “answered questions about the specific facts of the case and how they might be affected by the factors he testified to,” “stated his opinion about the reliability of the eyewitness identifications,” and “identified facts in the case that he believed impacted those identifications.” Jordan, 928 S.W.2d at 556. However, the expert “did not testify about several factors that might have affected the reliability of the eyewitness identifications,” nor did he “interview the witnesses or examine certain pieces of evidence.” Jordan, 928 S.W.2d at 555-
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556. Nevertheless, the Court held that, although the expert “did not testify as to every conceivable factor that might affect the reliability of eyewitness identification present,” his testimony “was sufficiently tied to the facts to meet the simple requirement that it be ‘helpful’ to the jury on the issue of eye witness reliability.” Jordan, 928 S.W.2d at 556.
In Jordan, the Court explained that the question under Rule 702, Tex.R.Evid., is “not whether there are some facts in the case that the expert failed to take into account, but whether the expert’s testimony took into account enough of the pertinent facts to be of assistance to the trier of fact on a fact in issue.” Jordan, 928 S.W.2d at 556. Further, the Court noted that the expert’s failure to account for some facts “is a matter of weight and credibility, not admissibility.” Jordan, 928 S.W.2d at 556.
In essence, therefore, what the Jordan Court ruled was that, whether an expert is correct in his or her opinion is a fact question for the jury to decide. In this case, Dr. Bornemann specifically testified that he did have “specialized knowledge that’s scientific,
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technical, or otherwise that will assist the jury in understanding evidence in this case and determine a fact in issue in this case” (RR Vol. 4, PP. 102-103).
In this case, the trial court undertook questioning Dr.
Bornemann - the final questions he would answer. The following occurred:
(THE COURT): Without the window dressing, tell me what you are here to render a paid expert opinion for?
(Dr. Bornemann): Right. I’m here to review and support that Mr. Garcia’s behavior was without motivation, intent, and purposefulness because his behavior is consistent with parasomnia.
RR Vol. 4, P. 110. More specifically, as he had previous testified, as part of his engagement in this case, Dr. Bornemann had rendered a “formal medical opinion related to this case,” and that opinion “indeed supports a sleep disorder, parasomnia with sexual attributes” (RR Vol. 4, P. 87).
Under the rationale of Jordan, whether he was correct or not was a question for the jury. Consequently, his opinion, that Appellant’s behavior was consistent with parasomnia (RR Vol. 4, P. 110), was relevant to the jury’s inquiry, because it tended to
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make “the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, Tex.R.Evid. The trial court erred by refusing to permit Dr. Bornemann’s testimony to be heard by the jury, and the Court of Appeals erred by failing to so find.
B
The Evidence was Necessary to Counter the State’s Arguments Appellant further asserts that even otherwise inadmissible evidence becomes admissible when it is necessary to counter the theory or argument of the opponent. See, for example, the ample amount of case law providing that evidence of extraneous bad acts, which is otherwise rendered inadmissible by Rule 404(b), Tex.R.Evid., becomes admissible when it is necessary to counter an opponent’s theory.
The Court has often said that evidence of a person's bad character may be admissible when it is relevant to a non-character conformity fact of consequence in the case, such as rebutting a
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defensive theory. Cargill v. State, AP-76,189 (Tex.Cr.App. November 19, 2014)(not designated for publication), citing Powell v. State, 63 S.W.3d 435, 438 (Tex.Cr.App. 2001). It has also held that even the defense’s opening statement may open the door to admission of extraneous-offense evidence to rebut a defensive theory raised in that opening statement. Mata v. State, 03-12- 00476-CR (Tex.App. - Austin, June 24, 2014)(not designated for publication), citing Bass v. State, 270 S.W.3d 557, 563 (Tex.Cr.App. 2008). Moreover, the concept of “opening the door” applies to both the State and the defense. See, e.g., Renteria v. State, 206 S.W.3d 689, 697 (Tex.Cr.App. 2006); Walters v. State, 247 S.W.3d 204, 220 (Tex.Cr.App. 2007).
Both Powell and Bass provide that an opening statement can open the door to the admission of otherwise inadmissible evidence. That is important, because, in this case, as he concluded his opening statement, counsel for the State told the jury:
What the State anticipates the evidence is going to show is this fantastic tale from the defendant about night terrors, sleepwalking, and out-of-body experiences and wet dreams and this perfect storm of how all these complex acts of undressing yourself, undressing another person, sexual intercourse and
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ejaculation all occurred while the defendant was not conscious and that, therefore, he didn’t intend to do any of these things. I’ll submit to you at the end of this evidence that it’s a load of crap. Thank you very much.
RR Vol. 3, P. 40. Additionally, during its opening final argument, the State attacked Appellant’s claim that he was asleep at the time of the incident (RR Vol. 5, P. 21, L. 4-11; P. 23, L. 12-19). More importantly, in his closing final argument, counsel for the State emphasized the lack of “medical evidence” supporting the defensive theory:
(Mr. McCabe): There has been no medical evidence. There has been no scientific evidence. There has been nothing for you to consider that he didn’t act consciously, that he didn’t do these things on purpose, that he had some sort of disorder or wasn’t in his right mind. This was an intentional, knowing, voluntary act.
RR Vol. 5, P. 41, L. 9-14.
Under the rationale of both Powell and Bass, the testimony offered by the defense regarding Dr. Bornemann’s opinion on Appellant’s behavior was admissible to rebut the argument made by the State in its opening statement, that the claim Appellant was asleep was a “load of crap.” This is further reinforced by the statements made by counsel for the State during both opening and closing final argument, also attacking Appellant’s defense.
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The trial court erred by refusing to permit Dr. Bornemann's testimony to be heard by the jury, and the Court of Appeals erred by failing to so find.
Conclusion - First Ground for Review Appellant proved, by clear and convincing evidence, that Dr.
Bornemann’s testimony would assist the jury in determining whether Appellant acted while sleeping or not. The trial court erred by excluding his opinion testimony, and the Court of Appeals erred by affirming the trial court’s actions. Discretionary review should be granted.
Ground for Review Number Two Restated
The Court of Appeals Erred When it Resolved Appellant's Claim of Charge Error Without Reference to or Application of Almanza v. State.
Facts Relevant to Second Ground for Review (Gleaned from the Opinion of the Court of Appeals)
In his second point of error, below, Appellant argued the trial court erred by refusing to include the words “intentionally or knowingly” in the application paragraph of the indecency charge.
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The charge given was as follows,2 and Appellant requested that the terms “intentionally or knowingly” be included where asterisks inside of brackets have been inserted:
Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, ALEJANDRO JOHN GARCIA, on or about December 24, 2010, in Williamson County, Texas, [***] engaged in sexual contact with a child younger than 17 years of age, namely, any touching by the defendant, including touching through clothing, of any part of the genitals of [KG], with intent to arouse or gratify the defendant’s sexual desire, then you will find the defendant guilty of the offense of Indecency with a Child by Contact, as alleged in Count Two of the indictment, and so say by your verdict.
As he did in the trial court, Appellant asserts, that without the words “knowingly or intentionally” in the application paragraph, the jury was free to treat the case as a strict liability offense and convict Appellant even if they believe he did not act intentionally.
Citing Vasquez v. State, 389 S.W.3d 361, 366 (Tex.Cr.App.
2012), the Court of Appeals held that the jury charge must contain an accurate statement of the law and must set out all of the essential elements of the offense. It also held that, in examining the charge for possible error, it was required to “view the charge as a whole instead of as a series of isolated and unrelated
2 Copied verbatim from the Court of Appeals opinion. See Garcia, slip op. at 6.
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statements.” Garcia, slip op. at 6. The Court of Appeals thereafter found the trial court did not abuse its discretion and overruled Appellant’s point of error. Garcia, slip op. at 7.
Summary of the Argument
Second Ground for Review
By considering Appellant’s claim under only Vasquez, the Court of Appeals applied the wrong standard. Had it correctly applied the long standing and still valid Almanza test, it would have found that the trial court erred as claim by Appellant, and that Appellant suffered “some harm.” Argument & Authorities - Second Ground for Review In Vasquez, the defendant was charged with aggravated robbery. The evidence at trial showed that he and his two roommates hatched a scheme to steal money at gunpoint from a woman driving a taqueria truck. He was the designated getaway driver.
The abstract section of the jury charge defined the law of parties, and the application paragraph stated that the jury should
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find appellant guilty if he was “acting alone or as a party (as herein defined)” in committing aggravated robbery. The defense presented was that the defendant was merely present when his roommates committed the robbery.
The jury convicted him and the Court of Appeals, relying on the Court's plurality opinion in Johnson v. State, 739 S.W.2d 299 (Tex.Cr.App. 1987), found reversible error because the trial judge, over the defendant’s objection, declined to apply the law of parties more explicitly in the application paragraph. Vasquez, 342 S.W.3d at 363.
The Court granted the State's petition to decide whether objected-to error in the application paragraph is subject to the “usual harm analysis” set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App. 1985), “or a per se finding of harm.” Vasquez, 342 S.W.3d at 363. The Court ultimately concluded that the “usual Almanza factors” applied.3
3 Although the Court found that “any error in the present application paragraph” was harmless, unrelated to the instant case, the Court overruled Johnson “to the extent that it suggests a per se finding of harm.” Vasquez, 342 S.W.3d at 363.
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Vasquez does not and cannot stand as the standard for addressing claims of jury charge error. The “usual Almanza factors” remain the proper way to address such claims. Thus, contrary to the Court of Appeals’ statement that it “must view the charge as a whole instead of as a series of isolated and unrelated statements,” the Court was, in fact, required to look not at the charge “as a whole,” but at the particular part of the charge identified by Appellant as being in error. Had it done so, the Court of Appeals would have found, for the reasons set out in Appellant’s brief below, that the trial court erred by its actions.
In this case, Appellant properly objected to the trial court’s failure to include the terms “intentionally or knowingly” in the court’s charge as requested. Thus, when it found jury charge error, as Appellant asserts it would have been required to do, the “usual Almanza factors” would require the Court of Appeals to determine whether Appellant suffered “some harm.” Almanza, 686 S.W.2d at 171. “Some harm” means any harm, regardless of
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degree. See Arline v. State, 721 S.W.2d 348, 351 (Tex.Cr.App. 1986).
Taking the application paragraph which was actually given to the jury, then reading it as the common person would read it, one would believe that they were authorized to convicted Appellant if he “engaged in sexual contact with the complainant,” regardless of whether they believed he did so knowingly or intentionally. Indecency with a child is not a strict liability offense, yet the court’s charge, as given, authorized the jury to convict as if it were. Thus, Appellant did, in fact, suffer “some harm,” because the application paragraph given to the jury in this case authorized them to convict Appellant simply because he engaged in sexual contact, even if they believed he was unaware he was doing it and had no intention to do it.
Conclusion - Second Ground for Review The trial court erred by refusing to include terms “intentionally or knowingly” in the court's charge as requested by Appellant’s trial counsel. The Court of Appeals erred by applying
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what it perceived to be the Vasquez standard, rather the “usual Almanza factors” which the Court’s opinion in Vasquez mandates. Had it utilized the “usual Almanza factors,” the Court below would have found that the trial court erred in its charge to the jury, and that Appellant was harmed by that error. Discretionary review should be granted, and a new trial ordered.
Prayer
WHEREFORE, PREMISES CONSIDERED, Alejandro John Garcia, Appellant in the above styled and numbered cause respectfully prays that the Court will grant Discretionary Review of the instant case, and upon submission of the case will vacate the judgments of the courts below, and remand this case for a new trial.
Respectfully submitted,
_______________________________ _______________________________ John G. Jasuta David A. Schulman Attorney at Law Attorney at Law Post Office Box 783 Office Box 783 Austin, Texas 78767-0783 Austin, Texas 78767-0783 lawyer1@johngjasuta.com zdrdavida@davidschulman.com Tel. 512-474-4747 Tel. 512-474-4747 Fax: 512-532-6282 Fax: 512-532-6282 State Bar No. 10592300 State Bar No. 17833400
Attorneys for Alejandro John Garcia
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Certificate of Compliance and Delivery This is to certify that: (1) this document, created using WordPerfect™ X7 software, contains 4,499 words, excluding those items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on March 13, 2015, a true and correct copy of the above and foregoing “Petition for Discretionary Review” was transmitted via the eService function on the State’s eFiling portal, to John Prezas (jprezas@wilco.org), counsel for the State of Texas, and the Hon. Lisa McMinn (lisa.mcminn@spa.state.tx.us), State’s Prosecuting Attorney.
______________________________________
David A. Schulman
Exhibit “A” Court of Appeals’ Opinion of December 11, 2014