PD-0576-15 PD-0576-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 5/12/2015 10:32:17 AM Accepted 5/12/2015 4:09:49 PM ABEL ACOSTA NO. _____________________________ CLERK
In The Court of Criminal Appeals Of The State of Texas Austin, Texas
_____________________________________ STANLEY WAYNE ROBERTSON, Petitioner
vs.
THE STATE OF TEXAS,
_____________________________________ PETITION FOR DISCRETIONARY REVIEW _____________________________________
Petition in Cause No. 10-04337-CRF-85 from the 85th District Court of Brazos County, Texas, And Cause No. 10-13-00105-CR Court of Appeals for the Tenth District of Texas _____________________________________
GERALD E. BOURQUE Appointed Counsel for Petitioner Attorney at Law 24 Waterway Ave., Suite 660 The Woodlands, TX 77380 PHONE: (281) 379-6901 May 12, 2015 Fax: (832) 813-0321 TBL #02716500
May 12, 2015 IDENTITY OF PARTIES AND COUNSEL
The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case. These representations are made in
order that the Judges of this Court may evaluate possible disqualification or
recusal.
(a.) Stanley Wayne Robertson, appellant
(b.) John Edward Wright, P.O. Box 6547, Huntsville, TX, 77342 and Frank Blazek, 1414 11th Street, Huntsville, TX 77340, counsel for appellant at trial
( c.) Gerald E. Bourque, 24 Waterway Ave., Suite 660, The Woodlands, TX, 77380, counsel for appellant on appeal
(d.) The State of Texas represented by Jarvis Parsons and Brian Price, Office of the District Attorney, 300 East 26th Street, Suite 310, Bryan, TX, 77803, counsel for the State
(e.) Hon. J.D. Langley, Judge Presiding
/s/ Gerald E. Bourque GERALD E. BOURQUE Attorney of Record for Appellant i TABLE OF CONTENTS
Page
IDENTITY OF PARTIES...........................................................................................i
TABLE OF CONTENTS..........................................................................................ii
INDEX OF AUTHORITIES....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT.................................................1
STATEMENT OF THE CASE..................................................................................3
STATEMENT OF THE PROCEDURAL HISTORY................................................3
GROUNDS FOR REVIEW.......................................................................................4
ARGUMENTS..........................................................................................................5
GROUND FOR REVIEW NO. ONE: The Court of Appeals erred in holding the evidence to be legally sufficient to sustain the guilty verdict..............................................................................................................
GROUND FOR REVIEW NO. TWO: The Court of Appeals erred in affirming the trial court’s denial of petitioner’s motion for instructed verdict.............................................................................................
GROUND FOR REVIEW NO. THREE: The Court of Appeals erred in holding that there was no fatal variance between the allegata and the probata..............................................................................................
GROUND FOR REVIEW NO. FOUR: The Court of Appeals erred in affirming the trial court’s overruling of petitioner’s objections to the jury charge..................................................................................................... GROUND FOR REVIEW NO. FIVE: The Court of Appeals erred in affirming the trial court’s admission into evidence multiple autopsy photographs over petitioner’s objection........................................................ ii
PRAYER FOR RELIEF..........................................................................................22
CERTIFICATE OF SERVICE.................................................................................23
CERTIFICATE OF COMPLIANCE.......................................................................23 iii INDEX OF AUTHORITIES
CASES
Bell v. State, 693 S.W. 2d 434 (Tex. Crim. App. 1985)...........................................15
Burks v. United States, 437 U.S. 1, 98 S.Ct 2141, 57 L.Ed.2d 1 (1978).................10
Canales v. State, 98 S.W. 3d 690 (Tex. Crim. App. 2003)......................................10
Dewberry v. State, 4 S.W. 3d 735 (Tex. Crim. App. 1999)........................................5
Drichas v. State, 175 S.W. 3d 795 (Tex. Crim. App. 2005).......................................5
Ferrel v. State, 55 S.W. 3d 586 (Tex. Crim. App. 2001)....................................14, 15
Gollihar v. State, 46 S.W. 3d 243 (Tex. Crim. App. 2001)................................11, 13
Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978)...................10
Hall v. State, 619 S.W. 2d 156 (Tex. Crim. App. 1980)...........................................11
Herrin v. State, 125 S.W. 3d 436 (Tex. Crim. App. 2002).................................7, 8, 9
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)............5
Long v. State, 823 S.W. 2d 259 (Tex. Crim. App. 1991).........................................19
Malik v. State, 953 S.W. 2d 234 (Tex. Crim. App. 1997)..........................................5
Mason v. State, 905 S.W. 2d 570 (Tex. Crim. App. 1995).........................................8
Moreno v. State, 755 S.W. 2d 866 (Tex. Crim. App. 1988)......................................5
Narvaiz v. State, 840 S.W. 2d 415 (Tex. Crim. App. 1992).....................................11
iv Rose v. State, 1 Tex. App. 400 (1876)......................................................................11
Rousseau v. State, 855 S.W. 2d 666 (Tex. Crim. App. 1993)..................................14
Santellan v. State, 939 S.W. 2d 155 (Tex. Crim. App. 1997)..................................19
Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 221, 72 L. Ed. 2d 652 (1982).................11
Torres v. State, 71 S.W. 3d 758 (Tex. Crim. App. 2002).........................................18
STATUTE
Rule 403, Tex. R. Evid.......................................................................................19, 20
v STATEMENT REGARDING ORAL ARGUMENT
The grounds for review set forth in this petition concern the conflicting
opinions of different appellate courts on the same point of law, conflicts with this
decision and the U.S. Supreme Court decisions, and the misinterpretation of the
factual bases of petitioner's complaints by the Court of Appeals are adequately
addressed without the necessity of oral argument.
9 In The
Court of Criminal Appeals
Of The State of Texas
Austin, Texas
_____________________________________
STANLEY WAYNE ROBERTSON, Petitioner
PETITION FOR DISCRETIONARY REVIEW
COMES NOW, STANLEY WAYNE ROBERTSON, petitioner herein, and
petitions this Court to review the judgment affirming his conviction for capital
murder in cause no. 10-13-00105-CR, in the Tenth Court of Appeals, trial court no.
10-04337-CRD-85 in the 85th District Court of Brazos County, Texas.
10 STATEMENT OF THE CASE
Petitioner was convicted of capital murder after a jury trial upon his plea of
not guilty. Petitioner was indicted by a Brazos County grand jury for the offense of
capital murder. (CR.-2). Trial was to a jury. (R.R. XXXIV-19, et seq.). Following
the presentation of evidence, and following arguments of counsel and
deliberations, the jury found petitioner guilty of the offense of capital murder as
charged in the indictment. (R.R. XXXVII-49). After the presentation of
punishment evidence, and after further arguments of counsel and deliberations, the
jury answered special issue number one in the affirmative, special issue number
two in the negative, and special issue number three in the affirmative, resulting in
punishment being assessed at imprisonment for life without parole by operation of
law. (R.R. L-4-5). This conviction was affirmed by the Court of Appeals, Tenth
District, on April 16, 2015. A copy of said opinion is appended hereto as Appendix
A.
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals rendered its opinion affirming the conviction on April
16, 2015. No motion for rehearing was filed and this petition is filed with the clerk
of the Court of Appeals within 30 days after the final ruling, to-wit: on May 15,
2015.
11 GROUNDS FOR REVIEW
GROUND FOR REVIEW NO. ONE: The Court of Appeals erred in holding the evidence to be legally sufficient to sustain the guilty verdict.
GROUND FOR REVIEW NO. TWO: The Court of appeals erred in affirming the trial court’s denial of petitioner’s motion for instructed verdict.
GROUND FOR REVIEW NO. THREE: The Court of Appeals erred in holding that there was no fatal variance between the allegata and the probata.
GROUND FOR REVIEW NO. FOUR: The Court of Appeals erred in affirming the trial court’s overruling of petitioner’s objections to the jury charge.
GROUND FOR REVIEW NO. FIVE: The Court of Appeals erred in affirming the trial court’s admission into evidence multiple autopsy photographs over petitioner’s objection.
12 ARGUMENTS
GROUND FOR REVIEW NOS. ONE and TWO:
Petitioner raised the issue of the insufficiency of the evidence and the trial
court’s error in failing to grant a motion for instructed verdict of acquittal, however
the Court of Appeals erroneously rejected that argument. The Court of Appeals
correctly cited the applicable standard to review the legal sufficiency of the
evidence under Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979). See also Drichas v. State, 175 S.W. 3d 795 (Tex. Crim. App. 2005).
While appellate courts do not re-evaluate the evidence, nor substitute the court’s
judgment for that of the fact finder, they do overturn the verdict when it is
irrational or unsupported by more than a mere modicum of the evidence.
Dewberry v. State, 4 S.W. 3d 735 (Tex. Crim. App. 1999); Moreno v. State, 755
S.W. 2d 866 (Tex. Crim. App. 1988). Lastly, the legal sufficiency of the evidence
is measured by the elements as defined by a hypothetically correct jury charge.
Malik v. State, 953 S.W. 2d 234 (Tex. Crim. App. 1997).
The jury charge in the cause sub judice charged as follows:
“Now, bearing in mind the foregoing instructions, if you find from the evidence
beyond a reasonable doubt that on or about August 13, 2010, in Brazos County,
Texas, the defendant, STANLEY ROBERTSON did intentionally cause the death
of an individual, namely, Annie Toliver, by stabbing or cutting her with a knife, and the defendant was then and there in the course of committing or attempting to
commit the offense of Kidnapping of Annie Toliver, you will find the defendant
guilty of the offense of Capital Murder in the indictment.
If you do not so find, or if you have a reasonable doubt thereof, you will find
the defendant not guilty of Capital Murder and next consider whether the
defendant is guilty of the lesser-included offense of Murder.” (R.R. XXXVII-14-
16).
Therefore, pursuant to the court’s charge, the only manner in which the jury could
find petitioner guilty of the offense of capital murder was to find that he caused the
complainant’s death while in the course of committing or attempting to commit
kidnapping. Fatal to the verdict, however, is the absence of any evidence of the
complainant’s death being caused in the course of committing kidnapping or
attempted kidnapping. Therefore, no rational trier of fact could have found all the
essential elements beyond a reasonable doubt.
The critical question is whether the murder was committed in the course of
the kidnapping or attempted kidnapping, not the other way around. Herrin v. State,
125 S.W. 3d 436 (Tex. Crim. App. 2002). In other words, the critical question is
which occurred first, the murder or the kidnapping. If the murder occurred first,
then it was not done in the course of committing or attempting to commit
kidnapping. Herrin, supra. Therefore, if the murder occurred first, the evidence is insufficient to sustain a conviction for capital murder. Herrin, supra.
It is abundantly clear in the case at bar that the complainant accompanied
petitioner in his car voluntarily. (R.R.XXXIV-52-53). Nothing in the record
shows that the complainant’s movement was ever restricted by petitioner, nor
without her consent, prior to her being stabbed. The appellate court’s observation
that petitioner stabbed Toliver through her seatbelt and that could show sufficient
restraint to establish kidnapping defies logic. There is no evidence that petitioner
caused Toliver to be restrained by the seatbelt; in fact, Texas law requires the use of
seatbelts. Viewing the evidence in the light most favorable to the verdict, it was not
until after the complainant was stabbed that a kidnapping could arguably have
begun.1 The offense of kidnapping is complete when the person is restrained, and
evidence exists establishing the defendant intended to restrain the victim by either
secretion or the use or threat to use deadly force. Mason v. State, 905 S.W. 2d 570
(Tex. Crim. App. 1995). As regards capital murder as alleged herein, the
kidnapping must precede the homicide. There is nothing to show that any alleged
kidnapping occurred before the complainant was stabbed. The homicide of the
complainant began at the time she was first stabbed. The “kidnapping” did not
occur until after the homicide had begun. Therefore, the murder did not occur in
the course of committing or attempting to commit kidnapping, the kidnapping or
1Petitioner does not concede that a kidnapping actually occurred. This is only presented as argument pursuant to the Jackson standard. attempted kidnaping occurred in the course of committing murder. This is legally
insufficient to sustain the conviction for capital murder.
The facts in the cause sub judice are astonishingly similar to those in Herrin,
supra, wherein the Court of Criminal Appeals found the evidence therein to be
legally insufficient to sustain a conviction for capital murder. In Herrin, the
defendant approached the complainant’s truck with a rifle in his hand, opened the
door, and shot the complainant in the chest. The defendant then moved the
complainant’s body. In finding the evidence to be legally insufficient, the court
stated:
“Appellant’s clear and un-diverted intent was to kill (the
complainant). Nothing suggests that appellant was in the
course of attempting a kidnapping when he shot (the
complainant). Appellant did not shoot to merely disable
or harm (the complainant) so that he could abduct him,
but shot him at close range in the vital organs in an
obvious effort to kill him. In light of appellant’s intent to
murder (the complainant), appellant’s moving of (the
complainant’s) body after the shooting did not amount to
evidence that (the appellant) was in the course of
kidnapping when the murder took place.” Herrin, supra. The facts are analogous to those in the case at bar. Petitioner did
not kidnap the complainant first, and then murder her. She went willingly
with him in his vehicle to Wal-Mart. She waited in his car in the parking
lot while petitioner and her son went into the store. It was not until after
petitioner returned to his vehicle that the homicide began. Blood was
found in the parking lot of Wal-Mart where Petitioner’s vehicle had been.
Therefore, it was after the homicide began that the complainant was
moved. “Appellant’s moving of the body after the shooting in which
appellant intended to kill the victim does not amount to a kidnapping or
attempted kidnapping.” Herrin, supra. Therefore, Petitioner’s moving
the complainant after he began to stab her does not amount to a
kidnapping or attempted kidnapping herein. The murder began before
any alleged kidnapping began. Therefore, petitioner did not murder the
complainant during the course of kidnapping nor attempting to kidnap the
complainant. As such, the evidence is legally insufficient to sustain the
conviction.
At the close of the State’s case in chief, petitioner moved for an
instructed verdict of not guilty. (R.R. XXXVI-72). The trial court denied
petitioner’s motion. An appeal of the denial of a motion for an instructed
verdict is a challenge to the legal sufficiency of the evidence. Canales v.
17 State, 98 S.W. 3d 690 (Tex. Crim. App. 2003). Because the state failed
to prove beyond a reasonable doubt petitioner caused the death of the
complainant in the course of committing kidnapping nor attempted
kidnapping as alleged, and because the jury was charged to find petitioner
guilty only if they found beyond a reasonable doubt that the homicide
was committed during the course of kidnapping or attempted kidnapping,
the evidence is legally insufficient to sustain the verdict. As such, the
trial court erred in denying petitioner’s motion for an instructed verdict.
The Court of Appeals erred in its analysis of the evidence in denying
relief on these issues. The evidence is insufficient to support the
conviction of capital murder warranting an acquittal. Burks v. United
States, 437 U.S. 1, 98 S.Ct 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey,
437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). The Court of Appeals
was therefore in error by failing to reverse the conviction and enter a
judgment of acquittal. For these reasons, petitioner urges that this cause
be reversed and that a judgment of acquittal as to capital murder be
entered. Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 221, 72 L. Ed. 2d 652
(1982); Narvaiz v. State, 840 S.W. 2d 415 (Tex. Crim. App. 1992).
GROUND FOR REVIEW NO. THREE:
The Court of Appeals likewise erred in failing to recognize the fatal
18 variance between the allegations and the proof offered at trial. As pointed
out to the Court of Appeals, a variance occurs when there is a
discrepancy between the allegations in the charging instrument and the
proof at trial. In a variance situation, the State has proven the defendant
guilty of a crime, but has proven its commission in a manner that varies
from the allegations in the charging instrument.” Gollihar v. State, 46
S.W. 3d 243 (Tex. Crim. App. 2001). This has been true in Texas
jurisprudence for well over 100 years. Rose v. State, 1 Tex. App. 400
(1876). A variance is material and fatal if it misleads a defendant to his
prejudice. Hall v. State, 619 S.W. 2d 156 (Tex. Crim. App. 1980).
Petitioner was indicted for causing the death of the complainant by
“stabbing and cutting her with a knife . . . .” (R.R. XXXIV-18-19). The
jury was charged to find petitioner guilty if they found beyond a
reasonable doubt that he, inter alia, “. . . caused the death of an individual
- - namely Annie Toliver - - while stabbing or cutting her with a
knife. . . .” (R.R. XXXVII-14-15). The evidence adduced by the State,
however, wholly fails to show that petitioner caused the death of the
complainant in the manner alleged.
The forensic pathologist, Shiping Bao, testified that the
complainant had a total of approximately 38 stab wounds on her body.
19 (R.R. XXXVI-21). However, none of the injuries the complainant
suffered caused her death. Bao specifically testified as reflected at R.R.
XXXVI-26, to-wit:
“Actually the conclusion was since there's no
single fatal injury on the body, there's clotted
blood, I would think Annie Toliver could have
survived if there were emergency treatment
during this period of time by removing the air
and blood in the pleural cavities and blood
transfusion.”
He further testified that the complainant would have survived her injuries
if she had received proper medical treatment, which, according to Bao,
were standard medical procedures. (R.R. XXXVI-27-28). He
specifically testified that the wounds were only potentially fatal because
of a lack of medical treatment. (R.R. XXXVI-33).
The Court of Appeals erred in finding that the variance, if any, was
immaterial. The allegations as to the manner and means of cause of death
was a factual issue of which the State was required to give notice and
against which petitioner was able to prepare a defense. The Court of
Appeals stated that Toliver would not have required medical attention at
20 all if petitioner had not stabbed her, but that conclusion is superfluous.
There are a number of conceivable factors that would have prevented
Toliver from requiring medical attention, none of which constituted the
cause of death. Clearly, there is a fatal variance between the allegata and
the probata. The State alleged that petitioner caused the complainant’s
death by cutting and stabbing her. The evidence, however, clearly
establishes the complainant died as a result of a lack of medical
treatment. Contrary to the opinion of the Court of Appeals, this variance
was extremely material. The proof of the complainant’s death, the failure
to seek medical care, was not alleged in the indictment. Therefore, the
State has proven petitioner “ . . . guilty of a crime, but has proven its
commission in a manner that varies from the allegations in the charging
instrument.” Gollihar, supra. As the trial court charged the jury to
convict petitioner if they believed beyond a reasonable doubt that
petitioner caused her death by cutting and stabbing her, and as the State
proved, arguendo, that petitioner caused the complainant’s death by
failing to seek medical care for her, a fatal variance exists. The Court of
Appeals failed to appreciate the insufficiency of the evidence due to this
fatal variance. The Court of Appeals therefore erred in failing to grant
relief because of the fatal variance between the allegations and proof,
21 warranting a reversal by this Court of Criminal Appeals.
GROUND FOR REVIEW NO. FOUR:
The appellate court also erred in failing to grant relief on the basis
that the trial court failed to instruct the jury regarding certain lesser
included offenses. As noted herein above, Petitioner was indicted for the
offense of capital murder. (R.R. XXXIV-19). The trial court provided a
jury charge which included the charged offense, and the lesser included
offenses of murder, felony murder, and manslaughter. (R.R. XXXVII-14-
17). Petitioner objected that the charge also did not include a lesser
included charge of aggravated kidnapping and kidnapping. (R.R.
XXXVII-5).
The Court of Appeals correctly recognized that a defendant is
entitled to a lesser included offense instruction if proof of the charged
offense includes the proof required to establish the lesser included
offense, and there is some evidence in the record that would permit a jury
to rationally find that if the defendant is guilty, he is guilty only of the
lesser included offense. Ferrel v. State, 55 S.W. 3d 586 (Tex. Crim. App.
2001). The appellate court must review all the evidence produced at trial
in arriving at this determination. Rousseau v. State, 855 S.W. 2d 666
(Tex. Crim. App. 1993). If the evidence raises an issue of a lesser
22 included offense, a jury charge on that offense is mandatory, regardless of
whether the evidence is from the State or the defendant, or whether it is
strong, weak, unimpeached, or contradicted. Bell v. State, 693 S.W. 2d
434 (Tex. Crim. App. 1985).
First, as alleged in the case at bar, kidnapping is a lesser included
offense of capital murder. The Court defined kidnapping for the jury in
its charge. (R.R. XXXVII-13-14). Additionally, the Court charged the
jury it could convict petitioner if it believed that he caused the death of
the complainant by committing an act clearly dangerous to human life in
the course of committing kidnapping. (R.R. XXXVI-16). Therefore,
petitioner has met his burden under the first prong. Ferrel, supra.
Furthermore, it is obvious that evidence existed that Ppetitioner
was not guilty of the charged offense as alleged, but, if at all, only of a
lesser included offense. The evidence adduced at trial established,
arguendo, that petitioner did not cause the death of complainant in the
manner alleged by the State, but by another means. 2 The indictment
alleged that petitioner caused the death of the complainant by cutting and
stabbing her with a knife, while in the course of committing or attempting
to commit kidnapping. The evidence, as discussed infra, shows that the
2Petitioner does not concede that the State proved he caused the death of the complainant, but presents this theory by way of argument.
23 complainant died from a lack of proper medical care, a manner not
alleged in the indictment. Therefore, it is clear that while petitioner was
not guilty of the offense of capital murder as alleged, there was evidence
that he was guilty of the offense of kidnapping only.
The Court of Appeals, in concluding that petitioner committed capital
murder, substituted its judgment for what the jury could have determined.
The Court of Appeals based its erroneous opinion on its conclusion that a
rational juror or could have determined that the stab wounds were a cause
of Toliver’s death, consistent with the allegations in the indictment.
Ignored by the Court of Appeals is the fact that a rational juror could
likewise have determined that the lack of medical care was the cause of
death as detailed by the State’s expert witness, acquitted petitioner of
capital murder, and found him guilty of kidnapping. The jury was denied
the opportunity to make that factual determination, which issue
apparently escaped the Court of Appeals. The Court of Appeals
concluded that because the jurors had sufficient evidence to convict
petitioner of capital murder, there was no evidence of a lesser included
offense. That determination by the Court of Appeals ignores the salient
portions of the record that challenged the cause of death. The trial court’s
jury charge requires the jury to find that petitioner caused the
24 complainant’s death in order to convict him of either the charged offense,
or any of the lesser included offenses included in the jury charge.
Therefore, according to the charge, the jury must have found petitioner
caused a homicide to convict him of anything. However, the jury charge
does not allow the jury to convict petitioner of the offense that the State
actually proved: kidnapping. The only difference between the charged
offense of capital murder and the requested lesser included offense of
kidnapping is the existence of a homicide. The jury could have found,
based upon the evidence adduced by the State, that petitioner did not
cause the death of the complainant in the manner alleged by the State, and
is therefore not guilty of committing a homicide, but did, in fact, kidnap
the complainant.
The trial court charged the jury on a plethora of lesser included
offenses. (R.R. XXXVII-15-17). Therefore, the trial court acknowledged
that some evidence of the charged offense of capital murder was absent.
However, the trial court’s charge of the lesser included offense of felony
murder still requires the jury to find that petitioner committed the offense
of kidnapping. Other charged lesser included offenses allowed the jury to
convict petitioner of a homicide offense without requiring the jury to find
petitioner also committed the offense of kidnapping. However, there was
25 evidence in the record that a rational juror or could have believed
demonstrated that petitioner did not cause the death of the complainant in
the manner alleged in the indictment. This is true, regardless of the
opinion by the Court of Appeals regarding guilt. Therefore, because of
the fatal variance between the allegata and the probata regarding the
complainant’s death, the jury could have rationally found that petitioner
kidnapped the complainant, but did not cause her death in the manner
alleged. The Court of Appeals even failed to address the fact that the trial
court recognized the possibility of an acquittal of capital murder and
instructed the jury regarding some lesser included offenses. Because the
trial court already concluded that a genuine issue as to the lack of
evidence proving beyond a reasonable doubt that petitioner committed
the offense of capital murder, demonstrated by the court’s lesser included
instructions, it erred in not also providing an instruction on kidnapping
over petitioner’s objection. (R.R. XXXVII-5). The Court of Appeals
erred in its analysis of this issue based on its opinion that appellant was
guilty of capital murder. Just because a rational juror could have found
petitioner guilty of capital murder does not necessarily mean that another
rational juror could have acquitted petitioner of capital murder and found
him guilty of kidnapping. Because of this failure of the Court of Appeals
26 to grant relief on this issue, this court should reverse the conviction.
GROUND FOR REVIEW NO. FIVE:
Regarding the introduction of prejudicial photographs, the Court of
Appeals erred in its analysis of the issue. The Court of Appeals correctly
recognized the standard of review as abuse of discretion standard. Torres
v. State, 71 S.W. 3d 758 (Tex. Crim. App. 2002). The trial court’s ruling
is overturned when it falls outside the zone of reasonable disagreement.
Santellan v. State, 939 S.W. 2d 155 (Tex. Crim. App. 1997). Rule 403,
Tex. R. Evid., requires that photographs introduced into evidence to have
some probative value that is not outweighed by their inflammatory
nature. Long v. State, 823 S.W. 2d 259 (Tex. Crim. App. 1991). Factors
the court uses in making this determination included the number of
exhibits offered, their gruesomeness, their detail, their size, whether they
are black and white or in color, whether the body is naked or clothed, the
availability of other means of proof, and any circumstances unique to an
individual case. Long, supra. Applying this to the case at bar leads to the
inescapable conclusion that the trial court abused its discretion in
admitting into evidence several autopsy photographs over Appellant’s
objection.
The State tendered State’s Exhibits Number 148, 149 and 150.
27 Petitioner objected to their admission, observing that any possible
probative value was outweighed by the effect of the unfair prejudice.
(R.R. XXXV-188). The complained of photographs were large, full color
closeups of the complainant’s bloody face in two photographs, and of the
complainant’s entire bloody body in the third photograph. The State
offered them into evidence purportedly to demonstrate the condition in
which the complainant’s body was found. However, the State introduced
other photographs demonstrating the condition of the complainant’s body
to which petitioner did not object. The complained of photographs,
therefore, were not needed in order for the State to establish the condition
of the complainant’s body. As such, they had no probative value.
The State additionally tendered eight photographs from the autopsy
on the complainant as State’s Exhibits Numbers 206, 207, 209, 210, 211,
212, 214, and 216, with the State’s forensic pathologist, Shiping Bao,
serving as the sponsor. (R.R. XXXVI-5, 14). Petitioner objected to their
introduction, complaining that any probative value they might have was
outweighed by their inflammatory nature. Rule 403, Tex. R. Evid. (R.R.
XXXVI-6, 14). The trial court overruled petitioner’s objection. (R.R.
XXXVI-6, 14). The photographs were gruesome in nature, in that they
were large, full color detailed closeups of numerous puncture wounds on
28 complainant’s body. The State’s theory for their introduction was that
they demonstrate the wounds inflicted by petitioner. Unique to the cause
sub judice, however, is the fact that these wounds did not cause the death
of the complainant according to the State’s own evidence.
29 According to the forensic pathologist’s testimony, these wounds did not
cause the death of the complainant. Bao testified that none of these wounds was
fatal, nor did they cause the death of the complainant. (R.R. XXXVI-26). A lack
of proper medical care caused the complainant’s death, according to Bao. (R.R.
XXXVI-27-28, 33). Therefore, these photographs had minimal probative value at
best. As such, any putative probative value was grossly outweighed by the
photographs’ prejudicial effect. Bao testified that the gruesome wounds depicted
in the photographs did not cause the death of the complainant. Therefore, their
introduction only served to inflame the minds of the jury. The opinion of the Court
of Appeals simply described the photographs with insufficient analysis of the
prejudicial effects and lack of probative value. The Court of Appeals then simply
summarily stated that there was no abuse of discretion in the admission of the
photographs in contravention of the authorities cited by petitioner above. The
Court of Appeals therefore erred in failing to properly address the factual
complaints concerning the photographs and in summarily finding no abuse of
discretion. The error of the Court of Appeals requires this court to reverse the
The reasons compelling review by this Court are therefore several. The
decision of the Court of Appeals conflicts with decisions of other appellate courts,
the same appellate court, and with applicable decisions of this Court and the United States Supreme Court. The Court of Appeals has in effect decided
important questions of State law which should be settled by this Court of Criminal
Appeals. The decision of the Court of Appeals is therefore in conflict with the
decisions cited above and additionally has so far departed from the accepted and
usual course of judicial proceedings, or so far sanctioned such a departure by a
lower court, as to call for an exercise of this Court's power of supervision.
PRAYER FOR RELIEF
For the reasons herein alleged, petitioner was denied a fair trial in Cause No.
10-04337-CRF-85 and Cause No. 10-13-00105-CR before the Court of Appeals.
This Court should grant review in order to address and correct the errors of the
Court of Appeals. Therefore, petitioner prays that this Court grant this petition,
and upon reviewing the judgment entered below, reverse this cause and render a
judgment of acquittal, or in the alternative, remand it to the trial court for a new
trial.
Respectfully submitted,
/S/ Gerald E. Bourque
GERALD E. BOURQUE Appointed Counsel for Petitioner Attorney at Law 24 Waterway Ave., Suite 660 The Woodlands, TX 77380 PHONE: (281) 379-6901 FAX: (832) 813-0321 TBL #02716500 CERTIFICATE OF SERVICE
This is to certify that copies of the above entitled and numbered petition for discretionary review have been served on the State by providing a copy to the Office of the District Attorney, 300 East 26 th Street, Suite 310, Bryan, Texas, 77803, by United States Mail, postage prepaid, and the State Prosecuting Attorney, P.O. Box 12405, Austin, TX 78711, by United States Mail, postage pre-paid, on the 12th day of May, 2015.
GERALD E. BOURQUE Attorney for Petitioner
CERTIFICATE OF COMPLIANCE
Pursuant to Rules 9.4(i)(1), 9.4(i)(2)(A), and 9.4(i)(3), Tex. R. App. Proc, I
hereby certify that the word count of the program used to prepare this document is
4,139 words.
GERALD E. BOURQUE APPENDIX A