ACCEPTED 12-13-00136-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 1/20/2015 8:20:20 AM CATHY LUSK CLERK
No. 12-13-00136-CR
ROBERT LYNN PRIDGEN, § IN THE TWELFTH COURT FILED IN § 12th COURT OF APPEALS TYLER, TEXAS Appellant, § 1/20/2015 8:20:20 AM § OF APPEALS CATHY S. LUSK vs. § Clerk § THE STATE OF TEXAS § TYLER, TEXAS ________________________________________________________________________
APPELLANT’S MOTION FOR REHEARING ________________________________________________________________________
Respectfully, the Court’s decisional analysis falls short in three critical
respects:
• It applies a constitutionally deficient standard of review.
• It misapplies the substantive elements of self-defense.
• And it gets the admission-of-evidence analysis wrong.
Any one of these errors should require a rehearing. Together, they simply
leave no choice but to rehear the case.
I. The Court has applied a constitutionally deficient standard of review.
The Court’s expression of the no-reasonable doubt standard is correct.
But in the context of this case, that serves only as window dressing. While
announcing that murder must be proved and self-defense rejected beyond all
reasonable doubt – i.e., to a near-certainty – the Court actually has applied a
“no evidence” standard, which is prohibited by the Constitution and the U.S. Supreme Court in criminal cases. In practice, the Court searched only for a
scintilla or mere modicum of incriminating evidence and, on finding such
proof, called it a day.
This – the Court’s application of a constitutionally infirm standard of
review – is no mere technicality. The proof here misses the required mark
(i.e., the no-reasonable-doubt standard) so widely that we can negate the
State’s necessary showing by considering a single fact: Rohne was found
clutching a knife.
The scientific proof about the knife – the only probative evidence
respecting the knife – was that it was equally probable that Rohne wielded
the knife as that he didn’t. See RR12:224 (Pathologist “I wouldn’t even
speculate.”). The responding officers’ comments (about a so-called death grip,
etc.) were pure surmise, eliminated as nonsense by the pathologist.
RR12:224. Those comments thus are non-probative under established
evidentiary principles precluding bald speculation.
If Rohne held a knife, the case for murder crumbles, regardless how the
Court might analyze the other facts. The knife’s presence in Rohne’s hand
looms too large. The State has not even suggested that murder could be
sustained if Rohne wielded the knife. The remaining items of the State’s
“evidence” (such as the lack of signs of a struggle) either are so flimsy as to be
either utterly incapable of sustaining any inference in the State’s favor or, in
2 the case of the few items that will sustain some sort of favorable inference,
will sustain only the weakest sort of inference. See infra. In these
circumstances, the unresolvable uncertainty surrounding the knife simply
swamps any possibility that the State’s case eliminated the reasonable doubt
against murder. The abject uncertainty about Rhone’s use of the knife means
the case for murder can really be no more probable than the case for self
defense. No rational jury apprised by the pathologist of the probabilities
respecting Rohne’s use of the knife could find murder beyond all reasonable
doubt.
A. The Court’s favored items of proof did not come close to eliminating reasonable doubt.
The Court listed nine items of evidence that “permit[ed] a rational jury
to conclude that deadly force was not immediately necessary,” slip op. at 8:
1. Bruises on Rohne 2. Lack of signs of struggle 3. Rhone and Pridgen were intoxicated 4. 911 call 5. Absence of prior confrontations 6. Rohne’s mellow demeanor 7. Weapon discharged at elevated position 8. Rohne’s position on loveseat with ankles crossed 9. Pridgen’s testimony he thought only of Rohne and the knife
While an appellate court must presume that the trier of fact resolved
any conflicting inferences in favor of the prosecution, Jackson, 443 U.S. at
326, it isn’t within the jury’s province to speculate its way into a criminal
3 conviction. Neither the Constitution nor the Supreme Court endorses such
methods. And yet any attempt to rationalize a murder verdict in this case
hinges on speculation that the knife was planted – by the same drunk who
made the bizarre 911 call the Court quotes.
Worse, what this Court sees as conflicting inferences in the evidence
are not conflicting at all. Most of the items the Court cites just are not
probative and thus are incapable of sustaining any inference of murder. And
not one of these nine items rationally contradicts self-defense.
Evidence Supposition Rational Test Non-Probative Evidence Equally Consistent with Murder or Self-Defense, and Therefore Incapable of Supporting Reasonable Inference of Murder Bruises on That Pridgen Contradicted by science. The Rohne assaulted him pathologist rejected the bruises as proof of Pridgen assault. RR12:216.
The pathologist said the bruises could have existed for minutes or hours before the shot. RR12:215-16.
Rohne was tall, heavy, and .33 alcohol drunk. More logical he stumbled and hit the floor or cabinet.
Pridgen had no bruises himself. It is implausible that the smaller, weaker, sicker man inflicted bruises on the larger, stronger, younger man.
4 Evidence Supposition Rational Test Lack of signs of That Pridgen The logical conclusion is that Pridgen struggle assaulted him did not strike Rohne, there was no struggle and Rohne attempted to seduce Pridgen.
The Court ignored the officer’s testimony that a man with a knife could stab a victim quickly unless victim acted fast. RR13:50-51. Rhone and In a stupor, Why would Pridgen, in his own home, Pridgen were Pridgen decided shoot a long time friend paying him rent, intoxicated to murder his drunk or not? friend The logical conclusion is that something unexpected occurred, increasing the vital need for Rohne’s photos to explain why. 911 Call Pridgen’s The 911 call is a neutral event. Pridgen callousness was drunk and in shock, equally logical shows lack of whether a murder or self-defense. remorse Really, that he called 911 logically tilts toward self-defense because (1) he did not flee, (2) reconstruct the scene, (3) hide or rearrange the body, or (4) plant a gun. Absence of That Rohne did Proof that something astonishing must prior not pull knife have occurred to justify a shooting. confrontations Additional reason why photos were vital to show why Rohne acted.
5 Probative, Albeit Weak, Evidence Such That a Rational Jury Could Infer Murder, Although the Jury Need Not Rohne’s That Rohne was By science. Pathologist confirmed that position on sitting when if Rohne was attempting to stand with a loveseat with shot knife, and was shot by a shorter man, ankles crossed gravity and the blast could have pushed Rohne back down into the seat, RR12:239-40, precisely what Pridgen said occurred, RR14:95-96, 119, 121-22.
Police officer agreed. RR12:189.
Pathologist explained alcohol’s destruction of fine motor skills and the ability to walk. RR12:223; also officer: 12:180-81. That Rohne stumbled, tripped or crossed his feet is predictable. Pridgen’s That Pridgen The knife alone was sufficient to shoot testimony he shot Rohne only Rohne. thought only of because he had Rohne and the a large knife, Further reason for the photos. Pridgen knife, not rape not for fear of did not know at the time of Rohne’s rape secret desires. He did know his larger, younger stronger friend had a knife and was reaching for him. He did not know why. But now we do. Weapon That Pridgen Pridgen, who admitted standing, never discharged at was standing contended that Rohne was fully standing elevated while Rohne was when shot. Rohne was rising with knife, position sitting consistent with self-defense.
The knife is the reason for self-defense.
6 Rohne’s mellow That Rohne did Again, the Court ignored the knife. demeanor not pull knife on What is this mellow man doing with a 16- Pridgen or seek ounce knife? And mellow people kill to rape every day.
The government’s assertion of Rohne’s phlegmatic personality is further reason why jurors needed to see his photos.
Even if these items could establish a modicum of proof that, taken in
hindsight, deadly force was not necessary, there is nothing approaching proof
beyond a reasonable doubt that Pridgen did not in fact reasonably believe
such force was necessary when he pulled the trigger.
Here, it bears restating: Pridgen’s reasonable belief that force was
necessary can’t be disproved beyond all reasonable doubt if there was a knife.
The only credible evidence respecting the knife (and thus the only proof the
jury could credit in its deliberation) shows the presence of a knife was equally
probable with its absence. And this means no rational fact-finder could
conclude that murder was proved beyond all reasonable doubt, even upon
considering every other fact but the knife in the light most favoring the State.
7 B. The Court’s analysis ignores undisputed facts inconsistent with murder.
This Court ignored the following seven items of incontestable fact:
Evidence Proof of Self-Defense The knife Officers testified the one-pound knife is a deadly weapon. RR13:42.
Only 2 possibilities exist, and they are equally probable: (1) Pridgen planted the knife, for which no proof exists, or (2) Rohne had the knife, and Pridgen had the right to shoot him. Pridgen’s home The shooting was not in a honky-tonk. It was inside Pridgen’s home, where he had every entitlement to self- protection.
Logically, it is implausible he would plot murder in his home, without any motive, but highly likely he would defend himself given a knife threat. The difference in Pridgen was 55, shorter (5’ 8”), and suffering from size, age and chronic obstructive pulmonary disease, RR14:38. condition of the two men Rohne was 15 years younger, 8 inches taller, and 90 lbs heavier. SX53, 63; RR14:38, 50.
It is impossible that Pridgen inflicted bruises on Rohne while receiving none, without disturbing the room.
But it does explain why Rohne selected Pridgen as a victim. Pridgen’s prison Police verified that officers are trained to fire center of guard training the chest of knife attacker within 21 feet (now 27-feet) because attacker at close range can stab faster than officer can fire. RR13:43-44, 46-47, 50-51;12:191-92. Pridgen, a former prison guard, is similarly trained and acted instantly to the threat, firing center mass. His instinctive reaction to fire tends to support that he faced a real threat by a knife.
8 Evidence Proof of Self-Defense Officer’s testimony The government supplied a officer as an that shooting in uncontroverted expert who confirmed shooting under response to knife these circumstances is self-defense. RR13:46-47; 50-51. wielder within 21 No reasonable juror can set aside that testimony feet is appropriate without reason, and none exists. self-defense Rohne changed to Proof of his intent. shorts which he unfastened Further demonstration of Pridgen’s need for the photos to show why. The government’s In the absence of the photos, it is impossible for any weak attempt at rational person to believe a homeowner killed an easily motive – to expel a evicted month-to-month tenant. renter With the photos, it is rational to believe a homeowner would shoot a larger, younger man attempting actual or simulated rape.
This Court must consider these facts if it is going to conduct a
sufficiency review consistent with the beyond-a-reasonable-doubt standard.
The Court’s refusal to consider them proves the Court applied a “scintilla” or
“mere modicum” test: having found 9 items it believes supply a modicum of
guilt evidence, the Court saw no point in examining any other record facts, no
matter how strongly they might point away from murder. Such analysis is
constitutionally wrong. “A ‘mere modicum’ of incriminating evidence cannot
‘by itself rationally support a conviction beyond a reasonable doubt.’” Jackson,
443 U.S. at 320 (citation omitted) (emphasis added); accord Brooks v. State,
323 S.W.3d 893, 916 & n.20 (Tex. 2010) (Cochran, J., concurring) (Agreeing
because, “Under a ‘no evidence’ standard, a reviewing court would affirm the
9 judgment if any evidence supported the conviction.”) (emphasis added)
(Precisely what this Court did).
The Court’s limited review of cherry-picked evidence, the kind of ‘no-
evidence’ review afforded in civil cases, is precisely barred in this criminal
suit. “[A] person accused of a crime . . . would be at a severe disadvantage, a
disadvantage amounting to a lack of fundamental fairness, if he could be
adjudged guilty and imprisoned for years on the strength of the same
evidence as would suffice in a civil case.” In re Winship, 397 U.S. 358, 363
(1970) (citation omitted) (emphasis added).
C. The murder verdict cannot withstand a proper evidentiary review.
Application of the correct beyond-reasonable-doubt standard in
Pridgen’s case is not a rhetorical exercise: he will win his freedom if the Court
rigorously applies the standard. In Jackson the Supreme Court upended
decades of case law to impose the beyond a reasonable doubt safeguard for a
clear imperative: to protect innocent people like Pridgen from conviction. As
that court explained, the reasonable-doubt standard “is a prime instrument
for reducing the risk of convictions resting on factual error” and “provides
concrete substance for the presumption of innocence [which] . . . lies at the
foundation of the administration of our criminal law.’” In re Winship, 397
U.S. 358, 363 (1970) (citation omitted); Jackson v. Virginia, 443 U.S. at 315.
10 Pridgen should be acquitted on this record. And if a Texas jury had
seen Rohne’s photographs, Pridgen would have walked from the courtroom.
II. The Court has not applied the correct substantive law of self defense.
When it comes to the matter of self-defense, the Court hasn’t even
gotten the substantive elements right. The nub of the Court’s analysis, on
page eight of its slip opinion, is that certain items of cherry-picked proof
“permit[] a rational jury to conclude that deadly force was not immediately
necessary to protect Appellant from Rohne’s alleged use or attempted use of
unlawful deadly force.” Slip op. at 8. Respectfully, the question, as concerns
self-defense, is not whether a jury could in hindsight conclude that deadly
force was unnecessary, as the Court says. Id. It is instead whether a jury
rationally could conclude that Pridgen – clearly drunk and reacting in real
time – could not have formed a reasonable belief that deadly force was
necessary, see TEX. PENAL CODE ANN. § 9.32, and, further, could conclude
that this conclusion was established so soundly as to exist beyond any
reasonable doubt, to the point of near certainty. Jackson v. Virginia, 443 U.S.
307, 319 (1979) (“[B]y impressing upon the factfinder the need to reach a
subjective state of near certitude of the guilt of the accused, the standard
symbolizes the significance that our society attaches to the criminal
sanction”).
11 The question, as respects self defense under Penal Code Section 9.32, is
what Pridgen himself, in the critical instant and faced with the particular
circumstances, might reasonably have believed, when he pulled the trigger.
TEX. PENAL CODE ANN. §9.32(a). This statute imposes a clearly subjective
standard for self defense under which deadly force is justified “when and to
the degree the actor reasonably believes the deadly force is immediately
necessary . . . to prevent the other’s use or attempted use of unlawful deadly
force” or “to prevent the other’s imminent commission of . . . murder, sexual
assault, [or] aggravated sexual assault . . .”). Id. Under this statute, the
Court’s substitute analysis – which asks whether a detached observer, in the
calm and clarity of hindsight, could “conclude that deadly force [in fact] was
not immediately necessary,” slip op. at 8, is utterly beside the point. And, as
stated, for the jury to have validly rejected self-defense the State’s proof must
have gone far, far beyond merely “permit[ting] a rational jury to conclude”
that Pridgen lacked the necessary belief. Rather, that proof must have been
so strong that a jury rationally could say it eradicated any reasonable doubt
at all as to whether Pridgen, already drunk and suddenly confronted, could
have reasonably believed his use of force was necessary when he fired.
12 III. This Court’s dismissal of Rohne’s photographs conflicts with a proper relevance analysis.
“A defendant has a fundamental right to present evidence of a defense as long as the evidence is relevant and is not excluded by an established evidentiary rule.”
Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001)
This Court rejected all the photographs taken by Rohne of himself and
offered by Pridgen to prove his statutory defense, solely on relevance
grounds. Respectfully, that evidence is relevant under Rules 401 and 402 and
thus constitutionally admissible because it is (1) material and (2) probative
toward a statutorily authorized defense.
Evidence in a criminal trial is “relevant” if it has “any tendency to
make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the
evidence.” TEX. R. CR. EVID. 401. “All relevant evidence is admissible, except
as otherwise provided by . . . these rules . . . . Evidence which is not relevant
is inadmissible.” TEX. R. CR. EVID. 402.
A. The photos are material to Pridgen’s statutorily authorized defense.
“The photographs, I’ll concede, there are some images of sexual violence. We are dealing with bondage and S&M nature, where people are in a superior position and an inferior position, where someone was being sometimes violently abused, and someone was receiving that violent abuse.”
--- Prosecutor, RR2:11-12.
13 For evidence to be material it “must be shown to be addressed to the
proof of a material proposition, i.e., ‘any fact that is of consequence to the
determination of the action.’” Miller, 36 S.W.3d at 507. The photos of Rohne
role-playing sexual fantasies directly addressed the statutory defense jurors
were charged to decide: “[a] person is justified in using deadly force . . . to
prevent the other’s imminent . . . sexual assault or aggravated sexual
assault.” Jury Charge, CR152-53. The government conceded the violent
relevance at trial. RR2:11-12. The photos counter the government’s
contention that Pridgen fired to evict a tenant, and to answer the prosecutor’s
rhetorical question to jurors: “And who knows what went on that night?”
RR15:62-63. The State’s counter arguments alone can make evidence Rule
401 relevant. See Cooper v. State, 95 S.W.3d 488, 491 (Tex. App. --- Houston
[1st Dist.] 2002, no pet.). And, of course, the photos are vitally necessary to
rebut the government’s cries that Pridgen planted the knife.
B. The photos are probative of self-defense.
To be probative, “the proffered evidence must tend to make the
existence of the fact ‘more or less probable than it would be without the
evidence.’” Miller, 36 S.W.3d at 507. So what facts are made more or less
probable by the photos?
14 • That the lack of signs of struggle verify Rohne’s attempt to seduce or rape Pridgen.
• That Rohne in fact had a knife.
• That Rohne in fact grabbed Pridgen’s genitals.
• That despite his otherwise mellow disposition, Rohne was capable of and possessed intent to commit sexual assault.
• That Rohne in fact whispered ““Don’t get up. Just relax and enjoy the pleasure.”
• That Rohne in fact picked up a large knife to enforce his lust.
• That Rohne intended or simulated rape, or alternatively violence, with one man as submissive, the other dominant.
• That Rohne’s bruises, whatever their source, had nothing to do with his advances on Pridgen or were self-inflicted using his sex toys (recall his chains and clamps).
• That Rohne and Pridgen’s lack of prior confrontation is consistent and explained with the secret and threatening activities Rohne knew of but Pridgen did not.
C. The photographs speak loudly for themselves and 12 citizen jurors should be permitted to listen.
This Court’s frankly astonishing assertion that, “There are no images
contained in Defense exhibits 1 through 27 that show Rohne acting as an
aggressor or engaging in homosexual conduct,” slip op. at 10, cannot be
reconciled with the images. First, whether Rohne is homosexual is beside the
point. Is this Court declaring that for one man to rape another, he must first
be proved to be homosexual? Who is to say that Rohne did not see this
encounter with Pridgen as a fresh opportunity to branch out from female
15 prostitutes to male participants? What rational distinction can (or should) be
made between simulated violence against women and men, censuring the
one, and sanctioning the other?
Remarkably, this Court has erected an artificial barrier to sexual
assault evidence: the evidence must be of a homosexual nature when the
victim and perpetrator are of the same gender. This is not only wrong, but is
a violation of the Equal Protection Clause of the Fourteenth Amendment. See
Craig v. Boren, 429 U.S. 190 (1976).
Second, as the government conceded, RR12:11-12, the photos do show
Rohne as an aggressor:
• 7 photos following page 28 of Pridgen’s brief show Rohne inflicted pain on himself with a genital clamp (proof his bruises may be self-inflicted);
• 2 photos following page 29, and 1 following page 28, show that Rohne not only hired prostitutes, but supplied (or rented) restraint devices to simulate bondage and pain. Is payment to women to role-play in this manner not an aggressive act?
• The photos following pages 31 (DX7) and 32 (DX12) display rope, penis clamps, handcuffs and chains --- designed to inflict pain and recognized as deadly weapons --- similar to a knife. See Hill v. State, 913 S.W.2d 581, 583 (Tex. Crim. App. 1996) (chain is deadly weapon); Castro v. State, 2006 Tex. App. LEXIS 704, 7 (Tex. App. --- Houston [1st Dist.] Jan. 26, 2006, no pet.) (rope is deadly weapon); Smith v. State, 186 N.C. App. 57 (N.C. App. 2007) (handcuffs as deadly weapon). Rohne simply kept the knife elsewhere in the house.
16 D. The Court arrogated an impermissible fact-weighing and credibility assessment --- a role assigned to Pridgen’s jurors.
The Court wrote, “Appellant testified that he shot Rohne because he ―
‘was in fear of his life and thought Rhone was going to kill him.’ But as the
sole judge of witness credibility and the weight to be given their testimony,
the jury was free to disbelieve Appellant’s contention that he feared for his
life.” Slip op. at 8.
We heartily agree. The problem is that this Court is withholding from
the jurors an entire class of evidence necessary for them to decide whether
Pridgen in fact “feared for his life.” Why did Rohne sit next to him on a
loveseat with shorts unfastened? Did Rhone in fact reach for his genitals? Did
Rhone in fact whisper in his ear? The photos were critical to that “witness
credibility” and “weight” determination assessment.
Respectfully, and counter to this Court’s conservative credentials, this
Court has decided to act as a thirteenth juror and decide the fact question
itself, and this is wrong. Brooks, 323 S.W.3d at 911; see also Eaves v. State,
141 S.W.3d 686, 693-94 (Tex. App. -- Texarkana 2004, pet. ref’d) (“The court’s
reasoning does not go to the admissibility of the evidence, but to its
believability, or the weight that jurors might place on such testimony. That is
a call to be made not by the trial court, but by the fact-finder.”); accord
United States v. McClure, 546 F.2d 670, 673 (5th Cir. 1977) (“a jury could not
17 properly convict him absent the opportunity to hear the proffered testimony
bearing upon the theory of defense and weigh its credibility along with the
other evidence in the case.”); Miller v. State, 36 S.W.3d 503, 508 (Tex. Crim.
App. 2001) (“A rational jury could find that this evidence helps to prove that
appellant was under a constant state of duress from Magee when she
delivered the cocaine, that this duress caused her to fear for her safety, and
that her fear was reasonable.”).
“[T]he Constitution guarantees criminal defendants ‘a meaningful
opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S. 683,
690 (1986). As the Court of Criminal Appeals explained in Miller, exclusions
of evidence under Rules 401 and 402 implicate the Due Process and
Confrontation Clauses of the Sixth and Fourteenth Amendments. See Miller,
36 S.W.3d at 506 (these rights “basic in our system of jurisprudence”). By
dismissing the photographs of Rohne on mere relevance grounds and refusing
retrial, this Court has violated Pridgen’s right to present a complete defense,
in contravention of Holmes v. South Carolina, 547 U.S. 319 (2006), and the
Due Process and Confrontation Clauses of the Sixth and Fourteenth
Amendments. See California v. Trombetta, 467 U.S. 479, 485 (1984);
Washington v. Texas, 388 U.S. 14 (1967) (right to present complete defense
that another committed the crime violated); Chambers v. Mississippi, 410
U.S. 284, 302-303 (1973) (same). “The Constitutional right of confrontation is
18 violated when appropriate cross-examination is limited.” Carroll v. State, 916
S.W.2d 494, 497 (Tex. Crim. App. 1996); accord Evans v. State, 519 S.W.2d
868, 873 (Tex. Crim. App. 1975) (defendants were denied effective cross-
examination when prohibited from cross-examining a state’s witness about
pending charge).
CONCLUSION
A citizen with no criminal record, former prison official, shot a
transsexual who pulled a knife on him in his own home with plans for
simulated or actual rape. Every rational Texan would say this is fair reason
for self-defense. When jurors see the photos they will acquit Pridgen. This
Court --- which asserts its conservative credentials --- should not stand in the
way of the most important right we have, to have accusations decided by a
jury of peers with full presentation of evidence. The Court should acquit or
remand for trial.
Respectfully submitted this 20 of January 2015, /s/ James W. Volberding By: ____________________________ JAMES W. VOLBERDING SBN: 00786313
100 E. Ferguson Street Suite 500 Tyler, Texas 75702 (903) 597-6622 (866) 398-6883 (Fax) e-mail: jamesvolberding@gmail.com
19 Attorney for Appellant, Mr. Robert Lynn Pridgen
CERTIFICATE OF COMPLIANCE
I certify that this document is written in 13-point font and contains 4,083 words, as measured from the first sentence of the motion through the Conclusion. /s/ James W. Volberding ____________________________ James W. Volberding
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this pleading has been delivered this 20 day of January 2015 to:
Anderson Co. District Attorney Courthouse 500 North Church Street Palestine, TX 75801
by the following means:
_____ By U.S. Postal Service Certified Mail, R.R.R. _____ By First Class U.S. Mail _____ By Special Courier _______________________ _____ By Hand Delivery __X__ By Fax before 5 p.m. to (903) 723-7818 _____ By Fax after 5 p.m. _____ By email. /s/ James W. Volberding ____________________________ JAMES W. VOLBERDING