ACCEPTED 06-15-00124-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/3/2015 4:58:49 PM DEBBIE AUTREY CLERK
CASE NO. 06-15-00124-CR FILED IN 6th COURT OF APPEALS IN THE COURT OF APPEALS TEXARKANA, TEXAS 12/4/2015 8:37:00 AM FOR THE SIXTH DISTRICT DEBBIE AUTREY Clerk
AT TEXARKANA, TEXAS __________________________________________________
LARRY JOE JONES
VS.
STATE OF TEXAS __________________________________________________
Appeal from the 85th District Court of Brazos County, Texas Cause No. 14-02769-CRF-85 _________________________________________________
APPELLANT’S BRIEF __________________________________________________
ORAL ARGUMENT NOT REQUESTED
David W. Crawford State Bar No. 24031601 P.O. Box 1510 Bryan, Texas 77806 Telephone (979) 575-9871 E-fax (512) 237-779 Email: dcrawford@crawfordcruz.com
i NAMES OF ALL PARTIES
The following is a complete list of all names and addresses of all parties to the Trial Court‘s final judgment and the names and addresses of all trial counsel:
Appellant: Larry Joe Jones
Appellate Counsel: David W. Crawford State Bar No. 24031601 P.O. Box 1510 Bryan, Texas 77806 Telephone: (979) 575-9871 E-fax: (512)237-7792
Trial Counsel: Daniel Jones State Bar No. 24065512 Gray, Granbury, and Jones 103 North Main Street Bryan, Texas 77803 Telephone: (979)314-0112
Appellee: State of Texas
Counsel: Jarvis Parsons Brazos County District Attorney 300 E. 26th Street, Ste. 310 Bryan, Texas 77803 Telephone: (979)361-4320
Trial Court: The Honorable Kyle Hawthorne 85th District Court 300 E. 26th Street, Ste. 440 Bryan, Texas 77803 Telephone (979) 361-4270
ii TABLE OF CONTENTS
Names of all Parties ................................................................................ i
List of Authorities ...................................................................................iv-v
Statement of the Case .............................................................................. 1
Issues Presented ...................................................................................... 2
Statement of Facts ................................................................................... 3
Summary of Argument ........................................................................... 4
Argument................................................................................................. 6
I. TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE DEPRIVED THE APPELLANT OF THE RIGHT TO TESTIFY ON HIS OWN BEHALF
II. THE TRIAL COURT ERRED BY NOT GRANTING A MISTRIAL WHEN A JUROR REVEALED MATERIAL INFORMATION REGARDING HER RELATIONSHIP WITH WITNESSES IN THE CASE AFTER BEGINNING DELIBERATIONS
Conclusion and Relief Requested ........................................................... 16
Certificate of Service .............................................................................. 17
Certificate of Compliance ………………………………………………...18
iii LIST OF AUTHORITIES
TEXAS CASES
Franklin v. State, 12 S.W.3d 473(Tex.Crim.App. 2000) . . . . . . . . . . . . . . . . 12-13
Franklin v. State, 138 S.W.3d 351(Tex.Crim.App. 2004) . . . . . . . . . . . . . . . . . 12-13
Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . .11
Johnson v. State, 169 S.W.3d 223(Tex.Crim.App. 2005) . . . . . . . . . . . . . . . . . . 7
Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . .6
Mosley v. State, 983 S.W.2d 249(Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . . 11
Salazar v. State, 562 S.W.2d 480 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . . . . . . . 14
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . . . 6-7
Uranga v. State, 330 S.W.3d 301 (Tex. Crim. App. 2010) . . . . . . . . . . . . . ... . . 11
Von January v. State, 576 S.W.2d 43 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . .13-14
SUPREME COURT CASES
Strickland v. Washington, 466 U.S. 668 (1984)………………………….. . 6-7
UNITED STATES CONSTITUTION
Sixth Amendment
iv TEXAS CONSTITUTION
Article I, Section 10
v STATEMENT OF THE CASE
Appellant was charged with the offense of Evading Arrest with a Vehicle by
indictment filed June 5, 2014. (Cl. R. 5). The trial of the merits was heard by the
jury beginning May 4, 2015. The jury rendered its verdict of Guilty as alleged in
the indictment on May 5, 2015. (R.R. III 95). The appellant did not enter an
election regarding sentencing, and by default was sentenced by the court, and the
appellant was sentenced to 75 years in the TDJ-ID on May 5, 2015. (R.R. IV 40).
This appeal follows.
1 ISSUES PRESENTED
I. TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE DEPRIVED THE APPELLANT OF THE RIGHT TO TESTIFY ON HIS OWN BEHALF II. THE TRIAL COURT ERRED BY NOT GRANTING A MISTRIAL WHEN A JUROR REVEALED MATERIAL INFORMATION REGARDING HER RELATIONSHIP WITH WITNESSES IN THE CASE AFTER BEGINNING DELIBERATIONS
2 STATEMENT OF FACTS
Appellant was involved in an incident that led to a charge of Evading Arrest
with a Vehicle on February 22, 2014. (Cl. R. 5). Appellant was taken into custody
in connection with that charge on April 21, 2014. (Cl. R. 73). Appellant was
formally charged by indictment for the arrested offense on June 5, 2014. (Cl. R.
5). On May 4, 2015, Appellant’s case was called to trial before a jury. The jury
rendered a verdict of Guilty as charged in the indictment. (R.R. III 95). The jury
further found that the Appellant had used a deadly weapon during the commission
of the offense. (R.R. III 95). The Appellant made no election regarding who
would sentence him prior to trial, and therefore the court rendered the sentence in
this case. (R.R. IV 8-9). The State provided notice to the defense that they would
seek the enhancement of the offense to Habitual based on two prior convictions on
April 29, 2015. (Cl.R. 101-102). The court found that the enhancement
allegations were true and the appellant was sentenced to a term of 75 years in the
TDCJ-ID on May 5, 2015. (Cl. R. 69-70). This appeal follows.
3 SUMMARY OF THE ARGUMENT
On the evening of February 22, 2014, the Appellant was driving a vehicle on
Texas Highway 6 in Brazos County. (R.R. III 17-18). During this time, DPS
Trooper Kurt Kelm observed the vehicle and did not believe that the vehicle's
headlights were on. (R.R. III 17-18). Trooper Kelm then attempted to initiate a
traffic stop on the vehicle. (R.R. III 23). The vehicle initially pulled over, and
slowed down on the shoulder of the highway. (R.R. III 23). However, before
coming to a full stop, the vehicle then accelerated, passing vehicles on the
shoulder, and continued driving at a high rate of speed on the highway. (R.R. III
23-25). The vehicle struck a pickup truck on the highway, and flipped and came to
a stop. (R.R. III 25). At the scene, the Appellant was not arrested but was taken to
the hospital due to injuries sustained in the accident (R.R. III 37). Appellant was
subsequently arrested for the offense of Evading Arrest with a Vehicle on April 21,
2014 (Cl. R. 11).
During the trial, the Appellant informed his trial counsel that he wished to
testify on his own behalf. (R.R. III 60) A hearing outside the presence of the jury
was held at which the Appellant's trial counsel informed that court that his planned
defense of the case would be harmed by the testimony of the Appellant. (R.R. III
60-1) In addition, the Appellant was informed by his counsel that by testifying, the 4 entirety of his criminal record would be made available for the jury to consider.
(R.R. III 60) After some time with both the trial counsel being quite insistent that
the Appellant should not testify, the Appellant eventually did not testify on his own
behalf. (R.R. III 63). Appellant clearly wished to testify on his own behalf, and
provide evidence regarding a defense to the charges against him, but was prevented
from doing so by the actions of his trial counsel.
After all the evidence was presented and arguments were made, the jury then
retired to the jury room to deliberate. However, within a few minutes of the jury's
retiring, it was discovered that one of the jurors realized at that time that she was
the doctor of one of parties who had been in the other vehicle at the time of the
incident. (R.R. III 90) The juror stated that she may have even delivered the child
of both of the parties in the second vehicle. (R.R. III 91). The Appellant's trial
counsel moved for a mistrial at that point, and stated that he would have struck the
juror during voir dire had it been made known at the time of the connection
between the juror and the parties in the other vehicle, and objected to the juror's
continuing deliberations. (R.R. III 89-93) The trial court did not order a mistrial,
and overruled the Appellant's objection to the juror continuing with the
deliberations. (R.R. III 93) The revelation of the juror's connection to the
witnesses to the case negated the Appellant's right to intelligently use his
challenges, violated his right to an impartial jury, and should have resulted in a 5 mistrial, and the seating of a new jury to consider the case.
ARGUMENT AND AUTHORITIES
I. TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE DEPRIVED THE APPELLANT OF THE RIGHT TO TESTIFY ON HIS OWN BEHALF
STANDARD OF REVIEW
To prevail on a claim of ineffective assistance of counsel, the defendant
must show that (1) his counsel's performance was deficient and (2) a reasonable
probability exists that the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674 (1984). The first prong of Strickland requires the defendant to show
that counsel's performance fell below an objective standard of reasonableness.
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Thus, the
defendant must prove objectively, by a preponderance of the evidence, that his
counsel's representation fell below professional standards. Mitchell v. State, 68
S.W.3d 640, 642 (Tex. Crim. App. 2002). The second prong requires the
defendant to show a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. See Strickland, 466
U.S. at 694, 104 S. Ct. at 2068; see also 6Thompson, 9 S.W.3d at 812. In reviewing counsel's performance, we look to the totality of the representation to determine the
effectiveness of counsel, indulging a strong presumption that the attorney's
performance falls within the wide range of reasonable professional assistance or
trial strategy. Thompson, 9 S.W.3d at 813. Furthermore, a claim of ineffective
assistance must be firmly supported in the record. Id.
ARGUMENT
The right to testify on one's own behalf is fundamental and personal to
the defendant. Johnson v. State, 169 S.W.3d 223, 232, 235 (Tex.Crim.App.
2005). It is the responsibility of defense counsel, and not the court, to inform
a defendant of his right to testify, including that the fact that the ultimate right
to testify belongs to him. Id. Because the right to testify is a fundamental
right, and not a structural one, it is not subject to a harm analysis. Id. at 236-7.
The harm can be assessed by looking at the anticipated testimony, the
evidence admitted at trial, and other factors. Id. at 237-8.
In this case, the Appellant wished to testify in his own defense. (R.R. III
60). A hearing outside the presence of the jury was held in which trial counsel
discussed all of the negative factors regarding testifying. (R.R. III 60-61).
During this hearing, the trial counsel explained that the expected testimony of
the Appellant would not allow him to present his theory of reasonable doubt.
(R.R. III 60-61). The Appellant indicated 7 that he did not understand what that theory was. (R.R. III 60-61). At no point during this interchange was the
Appellant told that he had the ultimate right to testify, even if it went against
the advice of his counsel.
Following the Appellant's decision to go ahead and testify, the State
orally requested a motion in limine to prevent testimony regarding a claim that
the DPS trooper involved in the case had unlawfully taken property belonging
to the Appellant while investigating the accident in this case. (R.R. III 61).
The court granted the motion, requiring the parties to approach the bench to
determine its relevance prior to testimony regarding that fact being presented
to the jury. (R.R. III 61-62). Following the court's ruling, the Appellant
ultimately decided not to testify, by saying "I guess so." (R.R. III 63).
During argument, the trial counsel's defense appears to be that due to the
multiple medications found in the car after the accident that the Appellant did
not intentionally evade arrest. (R.R. III 82-84). As the jury found the
Appellant guilty, this defense was clearly not ultimately successful.
Often, when no testimony is presented, the record is silent as to what that
testimony might have been. However, the record in this case provides insight
in two ways as to what the Appellant's testimony might have been in this case.
The first comes from the Appellant's statements on the record during the
hearing regarding his testifying on his own behalf. (R.R III 62). The 8 Appellant testified about property being missing, speaking to Texas Rangers
regarding his case, and the two month lag between the accident and his arrest.
The other insight is provided by the clerk's record. The Appellant filed a
pro se Motion for New Trial following his conviction, and within the motion
is the Appellant's version of the events that night that could have been
presented at trial had he testified. (Cl.R. 36). In the motion, the Appellant
states that he did not realize it was a police officer that was attempting to pull
him over, and that he drove away at a high speed because he was afraid that it
was a road rage incident. (Cl.R. 36).
To show ineffectiveness of counsel, a defendant must show both that the
counsel's actions fell below professional standards and also that the outcome
would have been different but for the actions of the counsel. In this case, the
first prong is easily met on the issue of testifying. The trial counsel never
informed the Appellant on the record that he had the ultimate right to decide
whether or not to testify. The trial counsel also did not explain to the
Appellant on the record the difference between a motion in limine and a ruling
that evidence and testimony would not be admissible. By not doing so in
either of these situations, he failed to meet the professional standards of
informing a defendant of his fundamental right to testify on his behalf if he so
desires. 9 The second prong, then, is that but for the actions of counsel there would
have been a different result. The trial counsel argued that there was no reason
why the Appellant would evade and that it made no sense for him to evade
arrest in his final argument. (R.R. III 84). By preventing the Appellant from
exercising his fundamental right to testify on his behalf, the trial counsel kept
the jury from having the opportunity to hear what that reason was. The
Appellant was deprived of the ability to provide a defense to the jury and to
provide explanation of his actions that led to the charges against him. Had the
Appellant been allowed to testify, a reasonable jury would have had evidence
to consider that would have allowed them to have rendered a verdict that the
Appellant did not intentionally evade arrest. The denial of this fundamental
right to the Appellant thus resulted in a different result than had he been
allowed to testify. For this reason, the case should be reversed and remanded
to the trial court for a new trial with effective counsel.
10 II. THE TRIAL COURT ERRED BY NOT GRANTING A MISTRIAL WHEN A JUROR REVEALED MATERIAL INFORMATION REGARDING HER RELATIONSHIP WITH WITNESSES IN THE CASE AFTER BEGINNING DELIBERATIONS
STANDARD OF REVIEW
The standard of review of the denial of a motion for mistrial uses an abuse of
discretion standard. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App.
2004) (en banc). When evaluating the conduct of the trial court in denying the
motion for a mistrial, the court should apply the three Mosley factors which
balance: (1) the severity of the misconduct, (2) the measures adopted to cure the
misconduct, and (3) the certainty of conviction absent the misconduct. Hawkins,
135 S.W.3d at 75 (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.
1998) (en banc) (op. on reh'g)).
ARGUMENT
Criminal defendants have the right to an impartial jury under both the
Sixth Amendment and Article I, Section 10 of the Texas Constitution,
Uranga v. State, 330 S.W.3d 301, 304 (Tex.Crim.App. 2010). During voir
dire, if a venire member withholds material information, the defendant is
unable to intelligently exercise his challenges and peremptory strikes and his 11 ability to select an impartial jury is hindered. Franklin v. State, 12 S.W.3d
473, 477-78 (Tex.Crim.App. 2000). The good faith of a juror is largely
irrelevant when considering the materiality of information withheld. Id. at 478.
Juror misconduct is shown when the juror withheld information during voir dire
despite the complainant's due diligence. Franklin v. State, 138 S.W.3d 351, 355-
56 (Tex.Crim.App. 2004). Material information is that which has a tendency to
show a bias. Id. at 356.
In Franklin, an aggravated sexual assault of a child case, a juror who did not
respond during voir dire about knowing the victim, recognized the victim when
the victim was called to testify. 12 S.W.3d at 475-76. After informing the trial
court that she knew the victim because she had a daughter in the same girl scout
troop as the victim and was the troop's assistant leader, the trial court asked
the juror if she could listen to the evidence in the case and base her judgment
solely on the evidence presented at trial rather than her prior relationship with
the victim. Id. at 476. The juror indicated that she could. Id. The defendant then
moved for a mistrial, which was denied. Id.
The defendant alternatively asked for additional questioning of
the juror about the nature of her relationship with the victim, the duration of that
relationship, whether she could put aside that relationship, and whether that
relationship would tend to give more or less credibility to 12 the victim's testimony. Id. The trial court denied the defendant's request. Id. The
Court of Criminal Appeals found the trial court erred in denying the defendant the
opportunity to ask questions of the juror and remanded the case for a harm
analysis. Id. at 479. On review of the appellate court's opinion on remand, the
Court affirmed the court of appeals' conclusion that reversible error occurred
because the trial court prevented proper development of the record regarding
whether the relationship between the juror and the victim had a tendency to show
bias, and that the record did not establish error to be harmless beyond a reasonable
doubt. Franklin v. State, 138 S.W.3d 351, 354, 355-56 (Tex.Crim.App. 2004).
Another example of juror misconduct by not providing material information
is Von January v. State, 576 S.W.2d 43 (Tex. Crim. App. 1978). In that case, the
Court of Criminal Appeals considered whether the trial court erred by failing to
grant defendant a new trial when it later became apparent that a juror knew the
family of the deceased victim. Juror Dunn did not respond when defense counsel
asked if the venire knew the victim's family. This Court stated that "when a
partial, biased, or prejudiced juror is selected without fault or lack of diligence on
the part of defense counsel, who has acted in good faith upon the answers given to
him on voir dire not knowing them to be inaccurate, good ground exists for a new
trial." Id. at 45. If Juror Dunn had answered the questions correctly, the defendant
could have pursued further questioning and, in all probability, Juror Dunn would 13 not have served on the jury. Id.
Salazar v. State, 562 S.W.2d 480 (Tex. Crim. App. 1978), also provides an
example of material information being withheld from a defendant during voir
dire. In that case, the defendant was charged with exposing his genitals to a young
girl. Id. at 481. During voir dire, the defendant asked whether any of the jurors
had been a witness in or involved in a criminal proceeding. Juror Wooley did not
respond to this question. Id. After the State rested its case, Juror Wooley told the
trial judge that he had been an eyewitness to a sexual assault on his own daughter,
and he had testified in that prosecution. Id. at 482. The defendant moved for a
mistrial stating that had he known the truth, he would have struck Juror Wooley
either by challenge for cause or peremptorily. Id. The trial court denied the motion
because Juror Wooley stated he could be fair and impartial regardless of his
previous experiences. Id.
The Court of Criminal Appeals held that the trial court erred in finding Juror
Wooley fair and impartial. "That a juror will state that the fact that he withheld
information will not affect his verdict is not dispositive of the issue where the
information is material and therefore likely to affect the juror's verdict." Id.
Because the defendant acted in good faith on the answers given to him during voir
dire, the Court concluded he was deprived of his right to peremptorily challenge
Juror Wooley. Id. at 483. 14 In this case, Juror Appleton did not realize until final arguments or
immediately thereafter that one of the occupants of the vehicle struck during the
accident was patient of hers. (RR. III 90-1). Juror Appleton did not recall
whether or not she was present at the birth of the child of both of the occupants of
the vehicle. (R.R. III 92). The court allowed for a brief questioning of Juror
Appleton and the juror testified that her prior relationship would not affect her
deliberations in this case. (R.R. III 93). Prior to this questioning, the Appellant
requested a mistrial based on the information. (R.R. III 91). Following the
questioning of the juror, the Appellant objected to her being allowed to continue
deliberating. (R.R. III 93). At both times, the Appellant stated that had he known
the information about the prior relationship, he would not have let her remain on
the jury.
While Juror Appleton testified that the relationship would not affect her
deliberations, her prior relationship with the witnesses was material information
that was withheld from the Appellant and did not allow him to intelligently
exercise his challenges in this case. The fact that her testimony would not support
a challenge for cause is irrelevant. The Appellant stated twice on the record that
had he known about this during voir dire that Juror Appleton would not have been
on the jury. The fact that the information was not withheld due to bad faith does
not affect the materiality of the information. The Appellant had a right to know 15 that information during voir dire, and act accordingly.
The trial court abused its discretion in not granting the mistrial to the
Appellant when requested, and not excusing the juror from deliberations when
asked. Juror Appleton would not have served on the jury had the relationship
been known during voir dire, and the Appellant was deprived of his right to utilize
his challenges because of the withholding of that information, whether in good
faith or not. The case should be remanded to the trial court and a new trial
granted, giving the Appellant the full rights of a trial by impartial jury.
CONCLUSION AND PRAYER
Wherefore, Appellant prays that the Court of Appeals will grant
leave to file the foregoing brief on appeal, and that the court will
review the record of trial and grant any relief to which Appellant may
be entitled.
RESPECTFULLY SUBMITTED,
/s/ David W. Crawford David W. Crawford State Bar No. 24031601 P.O. Box 1510 Bryan, Texas 77806 Telephone (979) 575-9871 E-fax (512) 237-779 Email: dcrawford@crawfordcruz.com Attorney for Appellant 16 CERTIFICATE OF SERVICE
As Attorney of Record for Appellant, I do hereby Certify by my signature
above that a true and correct copy of the above and foregoing document was this
date provided to the Attorney for the State, Jarvis Parsons, Brazos County District
Attorney, 300 E. 26th Street, Ste. 310, Bryan, Texas 77803, and to the Appellant,
Larry Joe Jones, Polunsky Unit, 3872 FM 350 South, Livingston, Texas 77351,
Via Certified Mail, Return Receipt Requested.
Date: December 3, 2015
17 Certificate of Compliance
As Attorney of Record for Appellant, I do hereby Certify by my signature
that this brief contains 3,202 words, in accordance with Tex. Rules of Appellate
Procedure 9.4(i).
Date: December 3, 2015
/s/ David W. Crawford David W. Crawford State Bar No. 24031601 P.O. Box 1510 Bryan, Texas 77806 Telephone (979) 575-9871 E-fax (512) 237-779 Email: dcrawford@davidwcrawford.com Attorney for Appellant