ACCEPTED 13-15-00110-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 7/2/2015 12:37:54 PM CECILE FOY GSANGER CLERK
CAUSES 13-15-00110-CR
IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI, TEXAS 7/2/2015 12:37:54 PM CECILE FOY GSANGER Clerk
JAMES CORTNEY DEAN, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
APPELLANT’S BRIEF
Trial Cause 14-03-27814-A
Victoria Co. District Court
Submitted by
W. A. (BILL) WHITE Attorney for Appellant POB 7422, Victoria, TX 77903 (361) 575-1774 voice & fax TBN 00788659
ORAL ARGUMENT NOT REQUESTED 1 IDENTITY OF PARTIES AND COUNSEL
Appellant was represented at trial by Mr. Peter W. Justin, Attorney at Law, 405 Main Street, Suite 1120, Houston, TX 77002. Appellant is represented on appeal by Mr. W. A. (Bill) White, Attorney at Law, POB 7422, Victoria, TX 77903-7422.
During trial, appellant was a resident of Victoria County, Texas. Appellant is currently incarcerated in IDTDCJ.
The State was represented at trial by Mr. Brendan Guy, A.D.A. of the Victoria Co. District Attorney’s Office, 205 N. Bridge Street, Suite 301, Victoria, TX 77901. Appellant anticipates that Brendan Guy, A.D.A., will also handle the State’s reply brief in this cause.
2 TABLE OF CONTENTS
Page
Index of Authorities 4
Appellant’s Brief 5
Statement of Case and Statement of Facts 5
Issue Presented 7
Summary of Argument 7
Argument 8
Sole Issue 8
Prayer 12
Certificate of Service 12
Certificate of Compliance 13
3 INDEX OF AUTHORITIES
Cases Page
Gigliobianco v. State, 210 S.W.3d 641 (Tex.Crim.App.
2006) 10
Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.
1990) 10
Statutes
Tex.R.Evid. 401 (Vernon 2014) 8
Tex.R.Evid. 402 (Vernon 2014) 8
Tex.R.Evid. 403 (Vernon 403) 8
4 CAUSE 13-15-00110-CR Trial Cause 14-03-27814-A
JAMES CORTNEY DEAN, Appellant IN THE THIRTEENTH
VS. COURT OF APPEALS AT
THE STATE OF TEXAS CORPUS CHRISTI, TEXAS
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW APPELLANT, JAMES CORTNEY DEAN, through
counsel, W. A. (BILL) WHITE, Attorney at Law, showing:
STATEMENT OF CASE AND STATEMENT OF FACTS
Appellant was indicted in March 2014 for possession
(with intent to deliver) a controlled substance in
penalty group 1 (cocaine) between 4 and 200 grams. (RR
Vol. 2, p. 142). The crime was alleged to have taken
place on or about 1/18/14 in Victoria County, Texas
during nighttime hours. (RR Vol. 2, pp. 153-164)
Appellant was detained pursuant to a traffic stop
as he drove a vehicle with an adult female in the right
front seat. There were two traffic violations which
5 led to the stop. Appellant did not stop the car
immediately, but drove further before pulling over.
The investigating officer asked for consent to search
the car, which appellant granted. A baggie was found
inside or behind a radio/DVD player in the car’s back
seat which was later discovered to contain cocaine. (RR
Vol. 2, pp. 165-166).
Before appellant stopped the car, the female
passenger saw appellant abruptly swallow something
unknown before he conversed with the investigating
officer. This female later testified as a State’s
witness at trial. (RR Vol. 3, pp. 90-93)
A few hours later, after his arrest, appellant had
to be taken to a Victoria hospital because he began to
suffer a seizure. (RR Vol. 2, pp. 145-146)
The indictment also alleged two previous felony
convictions as enhancements, but both convictions
occurred on the same date, raising the usual first
degree felony punishment range for this crime to that
of repeat felony offender, a range of 15 to 99 years or
6 life in prison and up to a $10,000 fine. Both previous
convictions were for robbery. (RR Vol. 4, p. 133). At
his punishment phase on 3/04/15, appellant pled “true”
to both convictions.
Appellant’s trial lasted from 3/02/15 into 3/04/15,
with jury selection starting on 3/02/15. Trial on the
merits commenced immediately after the jury was seated
on 3/02/15. Appellant was convicted as indicted on
3/04/15 (RR Vol. 4, p. 130), and the jury later
assessed punishment at 35 years in prison and a $5,000
fine. (RR Vol. 4, pp. 166-167). The trial court
pronounced this sentence. Appellant then appealed.
ISSUE PRESENTED
THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT EVIDENCE AND EVIDENCE VIOLATIVE OF TEXAS RULE OF EVIDENCE 403
SUMMARY OF ARGUMENT
Applying legal standards from Gigilobianco and
Montgomery, evidence that appellant swallowed smoething
7 just before stopping his vehicle and talking with his
arresting officer should not have been admitted.
ARGUMENT
SOLE ISSUE
Before the State even made opening statement during
guilt/innocence, defense counsel lodged a pre-emptive
objection to the prosecutor mentioning in same that
appellant was seen swallowing something just before he
stopped his car and interfaced with his arresting
officer. (RR Vol. 2, pp. 134-136).
Defense counsel argued that this testimony or
evidence would be both irrelevant under rules 401 and
402 of the Texas Rules of Evidence, and that same
should be excluded under rule 403 of the same rules
because any probative value would be substantially
outweighed by the danger of unfair prejudice. See
Tex.R.Evid. 401 (Vernon 2014); Tex.R.Evid. 402 (Vernon
2014); Tex.R.Evid. 403 (Vernon 2014). The trial court
8 overruled this objection, but gave appellant’s trial
lawyer a “running objection”.
Later in the trial, defense counsel clarified and
better enunciated his objection for the record. (RR
Vol. 3, pp. 113-115). He was again overruled.
Defense counsel also objected still later in the
trial to written medical records and a discharge
summary offered by the State at guilt/innocence,
showing what substances were present in appellant’s
system at the hospital. (RR Vol. 3, p. 159; SX-20 and
SX-21). This objection was also overruled.
A similar objection was also made to SX-19, which
was also overruled. (RR Vol. 3, p. 208). It was
shortly thereafter revealed that appellant had tested
positive at the hospital for benzodiazapines, cocaine,
and PCP. (RR Vol. 3, p. 218, lines 24-25). Appellant
was only charged by indictment with possessing cocaine.
A trial court, when undertaking a Rule 403
analysis, must balance (1) the inherent probative force
of the proffered item of evidence along with (2) the
9 proponent’s need for that evidence against (3) any
tendency of the evidence to suggest decision on an
improper basis, (4) any tendency of the evidence to
confuse or distract the jury from the main issues, (5)
any tendency of the evidence to be given undue weight
by a jury that has not been equipped to evaluate the
probative force of the evidence, and (6) the likelihood
that presentation of the evidence will consume an
inordinate amount of time or merely repeat evidence
already admitted. Of course, these factors may blend
together in practice. Gigliobianco v. State, 210 S.W.3d
641-42 (Tex.Crim.App. 2006).
In deciding whether a particular piece of evidence
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 13-15-00110-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 7/2/2015 12:37:54 PM CECILE FOY GSANGER CLERK
CAUSES 13-15-00110-CR
IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI, TEXAS 7/2/2015 12:37:54 PM CECILE FOY GSANGER Clerk
JAMES CORTNEY DEAN, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
APPELLANT’S BRIEF
Trial Cause 14-03-27814-A
Victoria Co. District Court
Submitted by
W. A. (BILL) WHITE Attorney for Appellant POB 7422, Victoria, TX 77903 (361) 575-1774 voice & fax TBN 00788659
ORAL ARGUMENT NOT REQUESTED 1 IDENTITY OF PARTIES AND COUNSEL
Appellant was represented at trial by Mr. Peter W. Justin, Attorney at Law, 405 Main Street, Suite 1120, Houston, TX 77002. Appellant is represented on appeal by Mr. W. A. (Bill) White, Attorney at Law, POB 7422, Victoria, TX 77903-7422.
During trial, appellant was a resident of Victoria County, Texas. Appellant is currently incarcerated in IDTDCJ.
The State was represented at trial by Mr. Brendan Guy, A.D.A. of the Victoria Co. District Attorney’s Office, 205 N. Bridge Street, Suite 301, Victoria, TX 77901. Appellant anticipates that Brendan Guy, A.D.A., will also handle the State’s reply brief in this cause.
2 TABLE OF CONTENTS
Page
Index of Authorities 4
Appellant’s Brief 5
Statement of Case and Statement of Facts 5
Issue Presented 7
Summary of Argument 7
Argument 8
Sole Issue 8
Prayer 12
Certificate of Service 12
Certificate of Compliance 13
3 INDEX OF AUTHORITIES
Cases Page
Gigliobianco v. State, 210 S.W.3d 641 (Tex.Crim.App.
2006) 10
Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.
1990) 10
Statutes
Tex.R.Evid. 401 (Vernon 2014) 8
Tex.R.Evid. 402 (Vernon 2014) 8
Tex.R.Evid. 403 (Vernon 403) 8
4 CAUSE 13-15-00110-CR Trial Cause 14-03-27814-A
JAMES CORTNEY DEAN, Appellant IN THE THIRTEENTH
VS. COURT OF APPEALS AT
THE STATE OF TEXAS CORPUS CHRISTI, TEXAS
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW APPELLANT, JAMES CORTNEY DEAN, through
counsel, W. A. (BILL) WHITE, Attorney at Law, showing:
STATEMENT OF CASE AND STATEMENT OF FACTS
Appellant was indicted in March 2014 for possession
(with intent to deliver) a controlled substance in
penalty group 1 (cocaine) between 4 and 200 grams. (RR
Vol. 2, p. 142). The crime was alleged to have taken
place on or about 1/18/14 in Victoria County, Texas
during nighttime hours. (RR Vol. 2, pp. 153-164)
Appellant was detained pursuant to a traffic stop
as he drove a vehicle with an adult female in the right
front seat. There were two traffic violations which
5 led to the stop. Appellant did not stop the car
immediately, but drove further before pulling over.
The investigating officer asked for consent to search
the car, which appellant granted. A baggie was found
inside or behind a radio/DVD player in the car’s back
seat which was later discovered to contain cocaine. (RR
Vol. 2, pp. 165-166).
Before appellant stopped the car, the female
passenger saw appellant abruptly swallow something
unknown before he conversed with the investigating
officer. This female later testified as a State’s
witness at trial. (RR Vol. 3, pp. 90-93)
A few hours later, after his arrest, appellant had
to be taken to a Victoria hospital because he began to
suffer a seizure. (RR Vol. 2, pp. 145-146)
The indictment also alleged two previous felony
convictions as enhancements, but both convictions
occurred on the same date, raising the usual first
degree felony punishment range for this crime to that
of repeat felony offender, a range of 15 to 99 years or
6 life in prison and up to a $10,000 fine. Both previous
convictions were for robbery. (RR Vol. 4, p. 133). At
his punishment phase on 3/04/15, appellant pled “true”
to both convictions.
Appellant’s trial lasted from 3/02/15 into 3/04/15,
with jury selection starting on 3/02/15. Trial on the
merits commenced immediately after the jury was seated
on 3/02/15. Appellant was convicted as indicted on
3/04/15 (RR Vol. 4, p. 130), and the jury later
assessed punishment at 35 years in prison and a $5,000
fine. (RR Vol. 4, pp. 166-167). The trial court
pronounced this sentence. Appellant then appealed.
ISSUE PRESENTED
THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT EVIDENCE AND EVIDENCE VIOLATIVE OF TEXAS RULE OF EVIDENCE 403
SUMMARY OF ARGUMENT
Applying legal standards from Gigilobianco and
Montgomery, evidence that appellant swallowed smoething
7 just before stopping his vehicle and talking with his
arresting officer should not have been admitted.
ARGUMENT
SOLE ISSUE
Before the State even made opening statement during
guilt/innocence, defense counsel lodged a pre-emptive
objection to the prosecutor mentioning in same that
appellant was seen swallowing something just before he
stopped his car and interfaced with his arresting
officer. (RR Vol. 2, pp. 134-136).
Defense counsel argued that this testimony or
evidence would be both irrelevant under rules 401 and
402 of the Texas Rules of Evidence, and that same
should be excluded under rule 403 of the same rules
because any probative value would be substantially
outweighed by the danger of unfair prejudice. See
Tex.R.Evid. 401 (Vernon 2014); Tex.R.Evid. 402 (Vernon
2014); Tex.R.Evid. 403 (Vernon 2014). The trial court
8 overruled this objection, but gave appellant’s trial
lawyer a “running objection”.
Later in the trial, defense counsel clarified and
better enunciated his objection for the record. (RR
Vol. 3, pp. 113-115). He was again overruled.
Defense counsel also objected still later in the
trial to written medical records and a discharge
summary offered by the State at guilt/innocence,
showing what substances were present in appellant’s
system at the hospital. (RR Vol. 3, p. 159; SX-20 and
SX-21). This objection was also overruled.
A similar objection was also made to SX-19, which
was also overruled. (RR Vol. 3, p. 208). It was
shortly thereafter revealed that appellant had tested
positive at the hospital for benzodiazapines, cocaine,
and PCP. (RR Vol. 3, p. 218, lines 24-25). Appellant
was only charged by indictment with possessing cocaine.
A trial court, when undertaking a Rule 403
analysis, must balance (1) the inherent probative force
of the proffered item of evidence along with (2) the
9 proponent’s need for that evidence against (3) any
tendency of the evidence to suggest decision on an
improper basis, (4) any tendency of the evidence to
confuse or distract the jury from the main issues, (5)
any tendency of the evidence to be given undue weight
by a jury that has not been equipped to evaluate the
probative force of the evidence, and (6) the likelihood
that presentation of the evidence will consume an
inordinate amount of time or merely repeat evidence
already admitted. Of course, these factors may blend
together in practice. Gigliobianco v. State, 210 S.W.3d
641-42 (Tex.Crim.App. 2006).
In deciding whether a particular piece of evidence
is relevant, a trial court judge should ask “would a
reasonable person, with some experience in the real
world believe that the particular piece of evidence is
helpful in determining the truth or falsity of any fact
that is of consequence to the lawsuit.” Montgomery v.
State, 810 S.W.2d 372, 376 (Tex.Crim.App. 1990).
10 The main problem with the admitted evidence about
swallowing illegal substances, including two substances
other than the cocaine appellant was accused of
possessing, fall under factors (2) and (3) of the
Gigliobianco analysis. Under factor (2), the State did
not need to offer this evidence. It had evidence of
possession by the presence of a baggie of cocaine in
appellant’s backseat, along with appellant’s reluctance
to stop his car as soon as the policeman initiated a
traffic stop.
Factor (3) of Gigliobianco is more problematic.
This evidence created a grave danger that appellant’s
jury made its decision (verdict) on an improper basis.
Appellant may well have been convicted for being a
drug-user or drug-dealer in general because of this
evidence, rather than because the State proved every
element of its alleged offense beyond a reasonable
doubt.
Under Montgomery, appellant’s hasty swallowing of
any substance, including those for which he later
11 tested positive, is not a fact of consequence to the
lawsuit. It was merely an attempt to sensationalize an
otherwise factually mundane felony trial and instill
appellant’s jury with fear and disgust.
PRAYER
Appellant prays that conviction be reversed.
Respectfully submitted,
/s/ W. A. White W. A. (BILL) WHITE ATTORNEY FOR APPELLANT POB 7422, Vict., TX 77903 (361) 575-1774 voice/fax TBN 00788659
CERTIFICATE OF SERVICE
I certify that a true and correct copy or duplicate
original of the foregoing has been provided to Brendan
Guy, A.D.A., Victoria Co. District Attorney’s Office,
205 N. Bridge St., Suite 301, Victoria, TX 77901 via
U.S. mail, fax, electronic delivery, or hand-delivery
on this the 2nd day of July 2015.
/s/ W. A. White W. A. White
12 CERTIFICATE OF COMPLIANCE
I certify that this brief contains 1,404 words.