PD-0217-15, PD-0218-15 & PD-0219-15 COURT OF CRIMINAL APPEALS PD-0217&0218&0219-15 AUSTIN, TEXAS Transmitted 2/24/2015 10:39:35 AM Accepted 2/26/2015 3:56:21 PM ABEL ACOSTA IN THE COURT OF APPEALS FOR THE CLERK EIGHTH APPELLATE DISTRICT OF TEXAS
PATRICK SHAUGHNESSY HATT, JR.
COA NUMBERS TRIAL COURT NUMBERS V. 08-13-00056-CR 1299763R 08-13-00057-CR 1299765R 08-13-00058-CR 1299766R
THE STATE OF TEXAS, APPELLEE
APPEALED FROM CAUSE NUMBERS 1299763R, 1299765R, AND 1299766R, IN THE CRIMINAL DISTRICT COURT NUMBER TWO, TARRANT COUNTY, TEXAS; THE HONORABLE WAYNE SALVANT, JUDGE PRESIDING.
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
WILLIAM H. "BILL" RAY TEXAS BAR CARD NO. 16608700 ATTORNEY FOR APPELLANT
February 26, 2015 LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C. 512 MAIN STREET, STE. 308 FORT WORTH, TEXAS 76102 (817) 698-9090 (817) 698-9092, FAX bill@billraylawyer.com
*ORAL ARGUMENT IS NOT REQUESTED*
PETITION FOR DISCRETIONARY REVIEW, PAGE 1 IDENTITY OF PARTIES AND COUNSEL
PATRICK SHAUGHNESSY HATT JR. APPELLANT c\o Texas Dept. of Criminal Justice, Institutional Division, Huntsville, Texas
HONORABLE GILBERT MEDINA JR. ATTORNEY FOR APPELLANT 2730 N. Stemmons Freeway AT TRIAL Dallas, Texas 75207
HONORABLE WILLIAM H. RAY ATTORNEY FOR APPELLANT 512 Main Street, Ste. 308 AT TRIAL AND ON APPEAL Ft. Worth, Texas 76102
HONORABLE SHAREN WILSON CRIMINAL DISTRICT ATTORNEY 401 W. Belknap St. TARRANT COUNTY, TEXAS Ft. Worth, Tx. 76196-0201
HONORABLE MOLLY DAVIS ASSISTANT CRIMINAL DISTRICT 401 W. Belknap St. ATTORNEY, TARRANT COUNTY, Ft. Worth, Tx. 76196-0201 TEXAS
HONORABLE ARTHUR CLAYTON ASSISTANT CRIMINAL DISTRICT 401 W. Belknap St. ATTORNEY, TARRANT COUNTY Ft. Worth, Tx. 76196-0201 TEXAS
HONORABLE WAYNE SALVANT PRESIDING JUDGE, CRIMINAL 401 W. Belknap St. DISTRICT COURT NUMBER TWO Ft. Worth, TX 76196 TARRANT COUNTY, TEXAS
HONORABLE LISA McMINN STATE PROSECUTING P.O. Box 13046 ATTORNEY Austin, Texas 78711
PETITION FOR DISCRETIONARY REVIEW, PAGE 2 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
INDEX OF AUTHORITIES 5
STATEMENT CONCERNING ORAL ARGUMENT 6
STATEMENT OF THE CASE 6
STATEMENT OF THE PROCEDURAL HISTORY 8
GROUNDS FOR REVIEW
GROUND FOR REVIEW NUMBER ONE 9
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION TO THE STATE’S ARGUMENT IN THE GUILT INNOCENCE PHASE OF THE TRIAL
PRAYER 11
CERTIFICATE OF SERVICE 12
CERTIFICATE OF COMPLIANCE 13
APPENDIX The Appendix contains the Opinion of the Court of Appeals.
PETITION FOR DISCRETIONARY REVIEW, PAGE 3 INDEX OF AUTHORITIES
Cases Page
Alejandro v. State, 493 S.W.2d 230, 231-232 (Tex.Crim.App. 1973) 8
Dubose v. State, 531 S.W.2d 330, case 2, at 331 (Tex.Crim.App. 1975) 9
Hernandez v. State, 931 S.W.2d 49, 50 (Tex.App.--Fort Worth, 8 1996, no pet.)
Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991) 8
McFarland v. State, 845 S.W.2d 824, 840 (Tex.Crim.App. 1992), 8 cert.denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993)
Robillard v. State, 641 S.W.2d 910 (Tex.Crim.App. 1978) 9
Robinson v. State, 764 S.W.2d 367, 374 (Tex.App.--Dallas 8 1989, pet. ref’d)
Salazar v. State, 716 S.W.2d 733 (Tex.App – Corpus Christi, 9 1986, pet.ref’d)
Vasquez v. State, 819 S.W.2d 932 (Tex.App.--Corpus Christi 8 1991, pet ref’d)
Wyatt v. State, 566 S.W.2d 597, 604 (Tex.Crim.App.1978) 9
PETITION FOR DISCRETIONARY REVIEW, PAGE 4 STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not necessary in this case.
STATEMENT OF THE CASE
This is an appeal from a felony conviction and sentence for three offenses of
Engaging in Organized Crime. Appellant was charged by indictment with the
offenses of Engaging in Organized Crime [Count One - each case], and
Aggravated Robbery [Count Two - each case]. A deadly weapon allegation
enhancement was alleged in each case. CR, Pages 6-7 (1299763R); CR, Pages 5-6
(1299765R); CR, Pages 5-6 (1299766R).
The jury found Appellant guilty in all counts as charged in the indictment,
and made an affirmative finding of a deadly weapon in each case. RR-7, Pgs 4-7.
Appellant elected for the court to set his punishment. The court set
Appellant’s punishment at 30 years in the Institutional Division of the Texas
Department of Criminal Justice in Count One of each case and Count Three of
Cause Number 1299765R, which had a second victim in the indictment. CR,
Pages 97-99 (1299763R); CR, Pages 125-130 (1299765R); CR, Pages 79-81
(1299766R); RR-7, Pages 14-17. The trial court did not sentence Appellant on the
Aggravated Robbery Counts, as they were lesser included offenses of the Engaging
in Organized Crime charges.
PETITION FOR DISCRETIONARY REVIEW, PAGE 5 On direct appeal, the Court of Appeals for the Eighth Appellate District
affirmed Appellant’s conviction. The opinion was not designated for publication.
PETITION FOR DISCRETIONARY REVIEW, PAGE 6 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
Appellant was sentenced on November 30, 2012. Notice of Appeal was
timely filed. A Motion for New Trial was filed on December 13, 2012, which was
overruled by operation of law. Appellant timely filed his brief in the Court of
Appeals on May 24, 2013. The State timely filed its brief on July 25, 2013.
The case was submitted to the Court of Appeals, without oral argument, on
May 29, 2014. The Court of Appeals affirmed Appellant’s conviction in each case
on January 30, 2015. That opinion is not designated for publication.
This Petition for Discretionary Review is timely filed.
PETITION FOR DISCRETIONARY REVIEW, PAGE 7 GROUND FOR REVIEW NUMBER ONE
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION TO THE STATE’S ARGUMENT IN THE GUILT INNOCENCE PHASE OF THE TRIAL
Proper jury argument is in one of four areas. They are summations of the
evidence, reasonable deductions from the evidence, a plea for law enforcement, and a
response to opposing counsel. Alejandro v. State, 493 S.W.2d 230, 231-232
(Tex.Crim.App. 1973). The jury argument must be extreme or manifestly improper, or
inject new and harmful facts into evidence to constitute reversible error. McFarland v.
State, 845 S.W.2d 824, 840 (Tex.Crim.App. 1992), cert.denied, 508 U.S. 963, 113 S.Ct.
2937, 124 L.Ed.2d 686 (1993), Hernandez v. State, 931 S.W.2d 49, 50 (Tex.App.--Fort
Worth, 1996, no pet.); Robinson v.
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PD-0217-15, PD-0218-15 & PD-0219-15 COURT OF CRIMINAL APPEALS PD-0217&0218&0219-15 AUSTIN, TEXAS Transmitted 2/24/2015 10:39:35 AM Accepted 2/26/2015 3:56:21 PM ABEL ACOSTA IN THE COURT OF APPEALS FOR THE CLERK EIGHTH APPELLATE DISTRICT OF TEXAS
PATRICK SHAUGHNESSY HATT, JR.
COA NUMBERS TRIAL COURT NUMBERS V. 08-13-00056-CR 1299763R 08-13-00057-CR 1299765R 08-13-00058-CR 1299766R
THE STATE OF TEXAS, APPELLEE
APPEALED FROM CAUSE NUMBERS 1299763R, 1299765R, AND 1299766R, IN THE CRIMINAL DISTRICT COURT NUMBER TWO, TARRANT COUNTY, TEXAS; THE HONORABLE WAYNE SALVANT, JUDGE PRESIDING.
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
WILLIAM H. "BILL" RAY TEXAS BAR CARD NO. 16608700 ATTORNEY FOR APPELLANT
February 26, 2015 LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C. 512 MAIN STREET, STE. 308 FORT WORTH, TEXAS 76102 (817) 698-9090 (817) 698-9092, FAX bill@billraylawyer.com
*ORAL ARGUMENT IS NOT REQUESTED*
PETITION FOR DISCRETIONARY REVIEW, PAGE 1 IDENTITY OF PARTIES AND COUNSEL
PATRICK SHAUGHNESSY HATT JR. APPELLANT c\o Texas Dept. of Criminal Justice, Institutional Division, Huntsville, Texas
HONORABLE GILBERT MEDINA JR. ATTORNEY FOR APPELLANT 2730 N. Stemmons Freeway AT TRIAL Dallas, Texas 75207
HONORABLE WILLIAM H. RAY ATTORNEY FOR APPELLANT 512 Main Street, Ste. 308 AT TRIAL AND ON APPEAL Ft. Worth, Texas 76102
HONORABLE SHAREN WILSON CRIMINAL DISTRICT ATTORNEY 401 W. Belknap St. TARRANT COUNTY, TEXAS Ft. Worth, Tx. 76196-0201
HONORABLE MOLLY DAVIS ASSISTANT CRIMINAL DISTRICT 401 W. Belknap St. ATTORNEY, TARRANT COUNTY, Ft. Worth, Tx. 76196-0201 TEXAS
HONORABLE ARTHUR CLAYTON ASSISTANT CRIMINAL DISTRICT 401 W. Belknap St. ATTORNEY, TARRANT COUNTY Ft. Worth, Tx. 76196-0201 TEXAS
HONORABLE WAYNE SALVANT PRESIDING JUDGE, CRIMINAL 401 W. Belknap St. DISTRICT COURT NUMBER TWO Ft. Worth, TX 76196 TARRANT COUNTY, TEXAS
HONORABLE LISA McMINN STATE PROSECUTING P.O. Box 13046 ATTORNEY Austin, Texas 78711
PETITION FOR DISCRETIONARY REVIEW, PAGE 2 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
INDEX OF AUTHORITIES 5
STATEMENT CONCERNING ORAL ARGUMENT 6
STATEMENT OF THE CASE 6
STATEMENT OF THE PROCEDURAL HISTORY 8
GROUNDS FOR REVIEW
GROUND FOR REVIEW NUMBER ONE 9
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION TO THE STATE’S ARGUMENT IN THE GUILT INNOCENCE PHASE OF THE TRIAL
PRAYER 11
CERTIFICATE OF SERVICE 12
CERTIFICATE OF COMPLIANCE 13
APPENDIX The Appendix contains the Opinion of the Court of Appeals.
PETITION FOR DISCRETIONARY REVIEW, PAGE 3 INDEX OF AUTHORITIES
Cases Page
Alejandro v. State, 493 S.W.2d 230, 231-232 (Tex.Crim.App. 1973) 8
Dubose v. State, 531 S.W.2d 330, case 2, at 331 (Tex.Crim.App. 1975) 9
Hernandez v. State, 931 S.W.2d 49, 50 (Tex.App.--Fort Worth, 8 1996, no pet.)
Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991) 8
McFarland v. State, 845 S.W.2d 824, 840 (Tex.Crim.App. 1992), 8 cert.denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993)
Robillard v. State, 641 S.W.2d 910 (Tex.Crim.App. 1978) 9
Robinson v. State, 764 S.W.2d 367, 374 (Tex.App.--Dallas 8 1989, pet. ref’d)
Salazar v. State, 716 S.W.2d 733 (Tex.App – Corpus Christi, 9 1986, pet.ref’d)
Vasquez v. State, 819 S.W.2d 932 (Tex.App.--Corpus Christi 8 1991, pet ref’d)
Wyatt v. State, 566 S.W.2d 597, 604 (Tex.Crim.App.1978) 9
PETITION FOR DISCRETIONARY REVIEW, PAGE 4 STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not necessary in this case.
STATEMENT OF THE CASE
This is an appeal from a felony conviction and sentence for three offenses of
Engaging in Organized Crime. Appellant was charged by indictment with the
offenses of Engaging in Organized Crime [Count One - each case], and
Aggravated Robbery [Count Two - each case]. A deadly weapon allegation
enhancement was alleged in each case. CR, Pages 6-7 (1299763R); CR, Pages 5-6
(1299765R); CR, Pages 5-6 (1299766R).
The jury found Appellant guilty in all counts as charged in the indictment,
and made an affirmative finding of a deadly weapon in each case. RR-7, Pgs 4-7.
Appellant elected for the court to set his punishment. The court set
Appellant’s punishment at 30 years in the Institutional Division of the Texas
Department of Criminal Justice in Count One of each case and Count Three of
Cause Number 1299765R, which had a second victim in the indictment. CR,
Pages 97-99 (1299763R); CR, Pages 125-130 (1299765R); CR, Pages 79-81
(1299766R); RR-7, Pages 14-17. The trial court did not sentence Appellant on the
Aggravated Robbery Counts, as they were lesser included offenses of the Engaging
in Organized Crime charges.
PETITION FOR DISCRETIONARY REVIEW, PAGE 5 On direct appeal, the Court of Appeals for the Eighth Appellate District
affirmed Appellant’s conviction. The opinion was not designated for publication.
PETITION FOR DISCRETIONARY REVIEW, PAGE 6 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
Appellant was sentenced on November 30, 2012. Notice of Appeal was
timely filed. A Motion for New Trial was filed on December 13, 2012, which was
overruled by operation of law. Appellant timely filed his brief in the Court of
Appeals on May 24, 2013. The State timely filed its brief on July 25, 2013.
The case was submitted to the Court of Appeals, without oral argument, on
May 29, 2014. The Court of Appeals affirmed Appellant’s conviction in each case
on January 30, 2015. That opinion is not designated for publication.
This Petition for Discretionary Review is timely filed.
PETITION FOR DISCRETIONARY REVIEW, PAGE 7 GROUND FOR REVIEW NUMBER ONE
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION TO THE STATE’S ARGUMENT IN THE GUILT INNOCENCE PHASE OF THE TRIAL
Proper jury argument is in one of four areas. They are summations of the
evidence, reasonable deductions from the evidence, a plea for law enforcement, and a
response to opposing counsel. Alejandro v. State, 493 S.W.2d 230, 231-232
(Tex.Crim.App. 1973). The jury argument must be extreme or manifestly improper, or
inject new and harmful facts into evidence to constitute reversible error. McFarland v.
State, 845 S.W.2d 824, 840 (Tex.Crim.App. 1992), cert.denied, 508 U.S. 963, 113 S.Ct.
2937, 124 L.Ed.2d 686 (1993), Hernandez v. State, 931 S.W.2d 49, 50 (Tex.App.--Fort
Worth, 1996, no pet.); Robinson v. State, 764 S.W.2d 367, 374 (Tex.App.--Dallas 1989,
pet. ref’d). The law provides for, and presumes, a fair trial free form improper argument
by the State. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991).
The prosecutor’s comment implied that the jury and the DA were part of a team.
The implication was to tell the jury that the community demanded a verdict. RR, Vol. 6,
Pages 194-196. This comment was not a response to anything that Appellant’s counsel
said during argument. The fact that the prosecutor immediately replied after Appellant
objected that “For your plea for law enforcement, I’m asking you to stand up”, does not
save this erroneous comment.
In Vasquez v. State, 819 S.W.2d 932 (Tex.App.--Corpus Christi 1991, pet ref’d),
it was held reversible error for the prosecution to argue, over objection, that he believed
PETITION FOR DISCRETIONARY REVIEW, PAGE 8 the child victim after meeting with her five times. The victim’s credibility was a critical
issue, and she had a motive to lie. Therefore, the error was therefore not harmless. In
Dubose v. State, 531 S.W.2d 330, case 2, at 331 (Tex.Crim.App. 1975), this Court
reversed the conviction when the prosecutor argued that there was no evidence presented
to challenge the credibility of the victim.
Additionally, personal beliefs of the prosecutor are not proper comments.
Robillard v. State, 641 S.W.2d 910 (Tex.Crim.App. 1978); Salazar v. State, 716 S.W.2d
733 (Tex.App -- Corpus Christi, 1986, pet.ref’d).
As a general rule, it is improper for a prosecutor to interject his personal opinion
into a statement made to the jury. The rationale behind this prohibition is that such a
statement may convey to the jury the idea that the prosecutor has a basis for such an
opinion in addition to the evidence presented at trial. See Wyatt v. State, 566 S.W.2d 597,
604 (Tex.Crim.App.1978).
The Court of Appeals held that the objection at trial initially was not specific, and
Appellant’s subsequent objection was not the same objection made on appeal. Opinion,
at pages 4-5 in each case. Appellant submits that trial counsel made a proper objection,
that is that the burden of proof was shifted. On appeal, telling the jury that the
community demands a verdict would tend to change the burden of proof. Appellant
submits that the objection is the same as on appeal, and the Court of Appeals should have
considered his complaint on appeal on the merits.
In conclusion, Appellant submits that the prosecutor’s statement was not in
PETITION FOR DISCRETIONARY REVIEW, PAGE 9 response to Appellant’s argument, was outside the facts of the case, and interjected new
facts and opinions into the case. The trial court erroneously overruled Appellant’s
objection. It was therefore harmful.
PRAYER FOR RELIEF
Appellant Prays that this Honorable Court reverse his conviction and remand
the case to the Court of Appeals with instructions to consider Appellant’s point of
error on appeal, or alternatively, remand the case for a new trial.
RESPECTFULLY SUBMITTED,
/S/ WILLIAM H. “BILL” RAY WILLIAM H. "BILL" RAY TEXAS BAR CARD NO. 16608700 ATTORNEY FOR APPELLANT
LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C. 512 MAIN STREET, STE. 308 FORT WORTH, TEXAS 76102 (817) 698-9090 (817) 698-9092, FAX
PETITION FOR DISCRETIONARY REVIEW, PAGE 10 CERTIFICATE OF SERVICE
I certify that a true copy of Appellant's Brief was delivered via the electronic filing system to the office of Sharen Wilson, Criminal District Attorney, Criminal District Attorney of Tarrant County, Texas, 401 W. Belknap St. Ft. Worth, Tx. 76196-0201 on the date of this document’s filing.
I certify that a true copy of Appellant's Petition for Discretionary Review was delivered via the electronic filing system to the State’s Prosecuting Attorney, at P.O. Box 13046, on the date of this document’s filing.
/S/ WILLIAM H. “BILL” RAY WILLIAM H. “BILL” RAY
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4 i3, of the Texas Rules of Appellate Procedure, I certify that the Brief on Direct Appeal filed in this case, has 1578 words contained therein. This count was obtained via the WordPerfect computer program.
/S/ WILLIAM H. "BILL" RAY WILLIAM H. “BILL” RAY
PETITION FOR DISCRETIONARY REVIEW, PAGE 11