Stanley, Andria

• Court: Texas Supreme Court
• Decided: October 22, 2015
• Docket: PD-1018-15
• Status: Published

Opinion

fonts tott-ts tents Nos. PD-1017-15, PD-1018-15, PD-1019-15 ORIGINAL IN THE COURT OF CRIMINAL APPEALS OF TEXAS

ANDRIAMARIE STANLEY n RECEIVED IN Petitioner C0URT 0F CR!^ APp6ALS vs. OCT 22 2015-

THE STATE OF TEXAS Abej Acosta C|@rk Respondent

Petition in Cause Nos. D-l-DC 12-300267, D-l-DC 12-300754, D-l-DC 12-300755 FILED IN in the 390th District Court of CcWOF CRIMINAL APPfai Travis County, Texas and n__ ^ 0CJ2Z 2;;j In the Third District Court OfAppeals at Austin bel Acoste, Clerk

PETITION FOR DISCRETIONARY REVIEW

Submitted by: Andria M. Stanley ProSe T.D.C.JJ 01861816 Mountain View Unit 2305 Ransom Road Gatesville, Texas 76528

ORAL ARGUMENT REQUESTED TABLE OF CONTENTS

Index of Authorities 3-5

Statement Regarding Oral Argument 6

Statement of the Case 6

Statement of Procedural History 6

Reasons for Review 7

Ground for Review One 8-14

The Court of Appeals erred in finding that the prejudicial and inflammatory evidence erroneously admitted by the trial court was harmless, of the Appellant's admission to Aggravated Assault on the complainant in an agreed protective order because Appellant's admission was obtained through Ineffective Assistance of Counsel.

Ground for Review Two 15-17

The Court of Appeals erred in holding that the Appellant was not harmed by a denial of a requested unanimity instruction on the Burglary of a Habitation charge because the general verdict led to a potential jeopardy violation between the burglary conviction and substantive offenses.

Prayer for Relief 18

Certificate of Service 19

Certificate of Compliance 19

Appendix 20 INDEX OF AUTHORITIES

Constitutions:

U.S. Const, Amend. 5 11

U.S. Const, Amend. 6 14

Cases:

Almanzav. State, 686 S.W.2d 157 (Tex.Cr.App. 1984) 16

Arizona v. Fulminante, 499 U.S. 279 (1991) 12

Arlinev. State, 721 S.W.2d 348 (Tex.Cr.App. 1986) 16

Ex parte Butler, 522 S.W.2d 196 (Tex. 1975) 11

Ex parte Moody, 991 S.W.2d 856 (Tex.Cr.App. 1999) 13

Ex parte Sanchez, 703 S.W.2d 955 (Tex.1986) 10

Ex parte Strickland, 724 S.W.2d 132 (Tex.App. - Eastland 1987) 10

Ex parte Welborn,7S5 S.W.2d391 (Tex.Cr.App. 1990) 11

Francis v. State, 36 S.W.3d 121 (Tex.Cr.App. 2000) 15

Frangias v. State, 450 S.W.3d 125 (Tex.Crim.App. 2013) 10

Goodspeed v. State, 187 S.W.3d (Tex.Crim.App. 2005) 10

Harris v. State, 790 S.W.2d 568 (Tex.Cr.App. 1989) 12

Hemmingwayv. State, 483 So.2d 1335 (Miss. 1986) 12

Hill v. Lockhart, 474 U.S. 52 (1986) 13 Hollowayv. State, 780 S.W.2d 787 (Tex.Cr.App. 1989) 14

In re Butler, 45 S.W.3d 268 (Tex.App.-Houston [1st Dist] 2001) 10

In re Marks, 365 S.W.3d 843 (Tex.App.- Ft. Worth 2012) , 10

Kimmelman v. Morrison, 477 U.S. 365 (1986) 8

Langs v. State, 183 S.W.3d 680 (Tex.Cr.App. 2006) 16

LaPointv. State, 750 S.W.2d 180 (Tex.Cr.App. 1986) 17

Maness v. Meyers, 419 U.S. 449 (1975) 11

Massiahv. United States, 311 U.S. 201 (1966) 14

McCarthy v. Ardstein, 266 U.S. 34 (1924) 11

Morales v. State, 910 S.W.2d 642 (Tex.App. Beaumont 1995) 13

Murphy v. State, 44 S.W3d 656 (Tex.App.-Austin 2001) 17

Navav. State, 415 S.W.3d 289 (Tex.Crim.App.2013) 9

Rowland v. Herren, 03-07-00247-CV

(Tex.App. -Austin 2-19-2010) (Unpublished) 10

Snowden v. State, 353 S.W3d815 (Tex.Cr.App 2011) 12

Strickland v. Washington, 466 U.S. 668(1986) 8-9, 14

Texas Dep 't ofPublic Safety Officers Ass 'n v. Denton,

897 S.W.2d 757 (Tex.1995) 11 Statutes, Codes and Rules:

Tex.Code Crim.Pro. 36.15 15

Tex.Penal Code § 30.02(a)(1) 15-16

Tex.Penal Code § 30.02(a)(3) 15-17

Tex.REvid. Rule 801(e)(2) 11

Tex.REvid. Rule 803(24) 11 STATEMENT REGARDING ORAL ARGUMENT

In the event this petition is granted, the Petitioner requests oral argument. Argument would assist the court because this case presents novel issues this court has not previously addressed, and the issues raised are issues of first impression that could be better discussed in the context of oral argument.

STATEMENT OF THE CASE

This case concerns a conviction of four felony offenses—two counts of family violence aggravated assault, aggravated kidnapping, and burglary of a habitation, in which Appellant's admission in an agreed protective order was obtained through Ineffective Assistance of Counsel. It also concerns the issue of whether a charge submitted to the jury allowing a conviction on less than an unanimous verdict constitutes a violation of the Double Jeopardy Clause.

STATEMENT OF PROCEDURAL HISTORY

(1) Date of opinion from Court ofAppeals: July 30, 2015 (2) Date of Motion for Rehearing: None was filed. (3) Date Motion for Rehearing Disposed: N/A GROUNDS FOR REVIEW

1. The admission of an agreed protective order in which Appellant was persuaded by counsel to agree to findings that she had committed the acts for which she would eventually be prosecuted, resulted from Ineffective Assistance of Counsel at the contempt hearing. Because the lower courts refused to find any harm in the admission of the protective order, the conviction must be overturned.

2. The Court ofAppeals erred in finding that Appellant's requested unanimity instruction for the burglary charge led to double jeopardy violation between the burglary conviction and substantive offenses. ARGUMENT

1. The Court of Appeals erred in overruling Appellant's objection to the admission of the protective order on the basis of Ineffective Assistance of Counsel. Furthermore, erring in holding that the admission of the agreed protective order was harmless beyond a reasonable doubt.

At Appellant's trial, the state offered a copy of an agreed protective order

from a family law proceeding involving Appellant and her ex-husband, which

contained a finding that Appellant caused "serious bodily injury to [Witt]."

Appellant objects to the admission of the protective order asserting that Appellant's

attorney had rendered ineffective assistance of counsel by advising her to agree to

the protective order—and the findings of family violence.

The record before the Court of Appeals reflected a strategy which was

patently unreasonable because it was facially inconsistent—counseling Appellant

to admit to criminal conduct which would be the crux of a pending felony charge

in order to avoid discussion of "ancillary" matters—and clearly reflects counsel's

misunderstanding of precedent on the scope of the privilege against self-

incrimination. Was the challenged action sound strategy? There exists a reasonable

probability that, but for counsel's unprofessional errors, result of proceeding would

have been different. Kimmelman, All U.S. at 384, 106 S.Ct. 2574.

In Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984), the Supreme Court articulates a two-prong test to be used when

analyzing a claim of Ineffective Assistance of Counsel. To have a conviction 8 reversed on the grounds of Ineffective Assistance of Counsel an Appellant must

show that:

1) Counsels representation fell below an objective standard of reasonableness and 2) The deficient performance prejudiced the appellant.

Is a deficiency in attorney performance not a general requirement that the

defendant affirmatively proves prejudice?

The basic or significant part of Appellant's complaint is that counsel in her

family law contempt hearing was deficient for counseling her to agree, in essence,

to make a written admission of having committed aggravated assault as part of a

strategy in avoiding having to testify to extraneous and ancillary matters which

might have been admissible in a pending felony trial.

The court states that the Appellant must first demonstrate that counsel's

performance fell below an "objective standard of reasonableness under prevailing

professional norms... " Strickland, 466 U.S. at 687-88; Nova, 415 S.W3d at 307.

Then, "that the result of the proceeding would have been different absent counsel's

deficient performance." Strickland, 466 U.S. at 694; Nava, 415 S.W.3d at 308.

There is no question under Strickland that Appellant had the right to the

effective assistance of counsel at her contempt hearing, even though it pertained to

a civil case. Texas law provides that because contempt proceedings in family law

involve the possibility of incarceration, the right to the assistance of counsel extends to family law enforcement proceedings. See, Ex parte Sanchez, 703

S.W.2d 955, 957 (Tex. 1986); in re Marks, 365 S.W.3d 843, 845 (Tex.App. - Ft.

Worth 2012); in re Butler, 45 S.W.3d 268, 271 (Tex.App. - Houston [1st Dist.]

2001); exparte Strickland, 724 S.W2d 132, 133-134 (Tex.App. - Eastland, 1987);

and, Rowland v. Herren, 03-07-00247-CV (Tex.App. - Austin 2-19-2010)

(Unpublished).

The Court of Appeals cites Frangias v. State, 450 S.W.3d 125,136

(Tex.Crim.App. 2013) ("[ITnless there is a record sufficient to demonstrate that

counsels conduct was not the product of an informed strategic or tactical decision,

a reviewing court should presume that trial counsel's performance was

constitutionally adequate unless the challenged conduct was so outrageous that no

competent attorney would have engaged in it.") (quoting Goodspeed, 187 S.W.3d

at 392). This case is distinct from those typical cases in which claim of ineffective

assistance of counsel is raised, and rejected, on direct appeal for lack of a sufficient

record. To the contrary, the record of attorney Trumpler's strategy was developed,

by the State, during the hearing outside the jury's presence. Trumpler's strategy is

unconvincing. First, it is disingenuous to label Trumpler's advice as "strategic".

Though claiming to be furthering his strategy of protecting appellant from an

impending charge of Aggravated Assault, Trumpler persuaded the appellant to sign

the protective order, which was admissible against her in the criminal trial as a

10 statement against interest. Tex.R.Evid.Rule 803 (24), as well as a statement by a

party opponent, Rule 801 (e)(2). This created admissible evidence against her,

something that any attorney familiar with the Rules of Evidence would have

recognized. Trumpler's decision to elicit an admission from appellant might have

been "strategy" under a broad understanding of the term, but it could not be

considered sound or objectively reasonable.

The Court of Appeals incorrectly argues against counsel's testimony

betraying a misunderstanding of the scope of the Fifth Amendment privilege. A

party in a civil proceeding unmistakably retains a Fifth Amendment privilege

against self-incrimination. Maness v. Meyers,419 U.S. 449, 464 (1975) (Fifth

Amendment may be asserted in any proceeding, civil or criminal, administrative or

judicial); Texas Dep 't ofPublic Safety Officers Ass 'n v. Denton,

897 S.W.2d 757, 760 (Tex. 1995); and, ex parte Butler, 522 S.W.29 196, 198 (Tex.

1975). In civil cases, the privilege against self-incrimination may be asserted

"wherever the answer might tend to subject to criminal responsibility him who

gives it." McCarthy v. Ardstein, 266 U.S. 34, 40 (1924); Denton, 897 S.W2d at

760. If Trumpler were unaware of appellant's continuing Fifth Amendment

privilege even to ancillary incriminating matters, then his strategy was executed

without a sufficient understanding of the law. Ex parte Welborn, 785 S.W2d 391,

393 (Tex.Cr.App. 1990).

11 The Court of Appeals incorrectly finds that the error is harmless. In

considering the potential prejudice, the court must consider a wide array of factors,

including the "nature of the error ... the probable implications of the error, and the

weight of the jury would have likely assigned to it in the course of its

deliberations." Snowden. The "appellate court should not determine the

harmfulness of an error simply by examining whether there exists overwhelming

evidence to support the defendant's guilt." Harris, 990 S.W2d 568, 587; see also

Snowden 353 S. W.3d at 819 (discussing Harris).

The Court of Appeals fails to acknowledge that the admission into evidence

of appellant's admission to assaulting the complainant plainly had a prejudicial

influence upon the jury simply by nature of the error. "[A] confession is like no

other evidence." Arizona v. Fulminante, 499 U.S. 279, 296 (1991). As one State

appellate court has dryly noted, "Confessions tend to have an adverse effect on

defendants in criminal prosecutions." Hemmingway v. State, 483 So.2d 1335, 1336

(Miss. 1986) (emphasis added).

The Court of Appeals wrongly speculated that "counsels advice at the

protective order hearing was the product of an informed and strategic and tactical

decision which appellant agreed with and followed at the time but later criticized in

a self-serving attempt to exclude her admission. The lower court is trying to be

convincing that the appellant voluntarily and knowingly agreed knowing the harm

12 of such an admissible document.

The circumstances are closest by analogy to claims in which deficient

representation induces a defendant to waive the right to trial and plead guilty. See

and compare, Hill v. Lockhart, 474 U.S. 52, 58-59 (1986); and, Ex parte Moody,

991 S.W.2d 856, 858 (Tex.Cr.App. 1999). Under this type of ineffectiveness claim,

the prejudice inquiry is whether there is a reasonable probability that the defendant

would not have waived the right in the absence of counsel's recommendation.

Moody, 991 S.W2d at 858. Where a guilty plea based upon erroneous advice of

counsel is not made "voluntarily and knowingly". Morales v. State, 910 S.W2d

642 (Tex.App. Beaumont 1995).

The introduction of appellant's admission likely had a destructive influence

on the jury because it directly conflicted with her defensive theory at trial, that she

had met with her husband at his home to discuss the custody dispute over their

children, Witt became violent and a struggle ensued, during which both were

injured before appellant could escape to seek medical attention. Appellant

contested and disputed Witt's version of events, which were a fabrication for his

own assault upon her in which Witt beat her so severely that the metal of the

revolver had twisted. Witt's version of events left considerable room for the jury to

have doubted his veracity, including but not limited to the vast discrepancy

between Witt (6'1") and appellant (5'4", 120 lbs), and Witt's super-human ability

13 to break free of his multiple claims of bindings (zip ties, sheets, blankets, and

plastic wrap).

In respect to the Court of Appeals, the issue before the court is novel, of an

issue with no found precedent in which a comparable situation is addressed.

Where, as a result of counsels deficient advice in a different proceeding, a

defendant provides an inculpatory statement subsequently used against her at trial

on the merits. Granting this petition could assist in an issue of importance to the

jurisprudence of the State. Appellant would suggest that a full analysis under

Strickland would be inappropriate because Strickland addresses counsel's

representation throughout the entirety of the trial proceedings. Here, Trumpler did

not represent appellant in her full trial proceedings, but only in a proceeding which

resulted in the production of harmful evidence.

The prejudice from admitting a statement obtained in violation of the right to

counsel implicates the Sixth Amendment in a non-Strickland context. See e.g.,

Massiah v. United States, 311 U.S. 201 (1966); and, Holloway v. State, 780 S.W.2d

787 (Tex.Cr.App. 1989).

This court should conclude that the Court ofAppeals erred in finding that the

admittance of the order was harmless.

14 2. The denial of a requested Unanimity Instruction for the Burglary charge led to a potential jeopardy violation.

An objection on the lack of an unanimity instruction on the Burglary

instruction was sufficient to preserve the issue for appellate review. See Francis v.

State, 36 S.W3d 121, 123 (Tex.Cr.App. 2000) (quoting Art. 36.15 that the defense

need only call the court's attention to the omission from the charge and that "no

other exception or objection to the court's charge shall be necessary to preserve

error ...")

In this case, the appellant was charged with four counts of a Burglary of a

Habitation.1 Appellant requested unanimity instructions on one or more of the

charges, which was denied.

The general verdict form permitted the jury to retain a non-unanimous verdict on

the Burglary based on either Tex. Penal Code §30.02 (a)(1) or §30.02 (a)(3).2 Under the circumstances at Appellant's trial, the lack of unanimity between

1 Counts 1 and 2 alleged Appellant entered the complainant's home with the intent to commit the felony offenses of Aggravated Assault or Kidnapping and, Counts 3 and 4 alleged Appellant entered the complainant's home and therein formed the Intent to commit,Aggravated Assault or Kidnapping.

2 The statute provides in pertinent part: (a) A person commits an offense if, without the effective consent of the owner, the person: (1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or

(3) enters a building or habitation and commits or attempts to commit a felony, theft, or assault. Tex. Penal Code §30.02 (a)(1) & (a)(3) 15 § (a)(1) and § (a)(3), coupled with the jury charges on the substantive offenses

comprising the Burglary, opened the possibility that the jury's verdict violated

Appellant's right against Double Jeopardy.

This court has held that a defendant may not be convicted of both Burglary,

under §30.02 (a)(3) and the substantive felony underlying the Burglary. Langs v.

State, 183 S.W.3d 680, 686 (Tex.Cr.App. 2006). This is because the underlying

felony is a lesser-included offense to the Burglary and conviction on both

implicates the constitutional prohibition against punishing a defendant for greater

and lesser offenses. Ibid. By contrast, under §30.02 (a)(1), the Burglary and the

underlying substantive felony are two distinct offenses. Ibid.

The Court of Appeals rejected the claim of harm by the denial of Appellant's

jury unanimity instruction, stating that the "trial record must demonstrate that there

is some actual harm and not just a theoretical complaint." However, Appellant

objected to the omission instruction in the jury charge in a timely manner,

subjecting the harm analysis to the standard set out in Almanza v. State, 686

S.W.2d 157 (Tex.Cr.App. 1984); and, Arline v. State, 721 S.W.2d 348 (Tex.

Cr.App. 1986). "If the error in the charge was the subject of a timely objection in

the trial court, then reversal is required if the error is 'calculated to injure the rights

of the defendant,' which means no more than that there must be some harm to the

accused from the error." Almanza, 686 S.W.2d at 171. Some harm equates to "any

16 harm" regardless of degree. LaPoint v. State, 750 S.W2d 180, 191 (Tex.Cr.App.

1986); and, Murphy v. State, 44 S:W.3d 656, 666 (Tex.App.- Austin 2001).

The general verdict form for the Burglary charge permitted the jury to

convict Appellant for both the Burglary under § (a)(3), as well as the underlying

Aggravated Assault on which the Burglary was based. Appellant has experienced

some harm from the trial court's omission of the unanimity instruction for the

Burglary charge.

Because the jury charge in this case did not include the requested unanimity

instruction, Appellant experienced harm and the courts failure to correct that error

was another egregious error, requiring reversal.

17 PRAYER FOR RELIEF

Appellant prays that this court grant her petition for discretionary review and upon reviewing the judgment below, reverse this cause and dismiss the prosecution or remand for new trial.

Submitted by:

Andria M. Stanley Pro Se T.D.C.JJ 01861816 Mountain View Unit 2305 Ransom Road Gatesville, Texas 76528

UNSWORN DECLARATION

I, Andria Marie Stanley, being presently incarcerated in the Department of Criminal Justice. Mountain View Unit, do hereby declare under penalty of perjury the foregoing brief to be true and correct and executed this date of October 20, 2015.

Andria M. Stanley Pro Se T.D.C.J.# 01861816 Mountain View Unit 2305 Ransom Road Gatesville, Texas 76528

18 CERTIFICATE OF SERVICE

I hereby certify that on October 20, 2015, a copy of the foregoing Petition for Discretionary Review was served on the following by certified mail, return receipt requested:

Rosemary Lehmberg Travis County District Attorney's Office 509 W 11th Street Austin, Texas 78701

State Prosecuting Attorney P.O. Box 13406 Austin, Texas 78711

Andria M. Stanley

CERTIFICATE OF COMPLIANCE

I hereby certify that this petition conforms to the requirements of TRAP 9, and consists of 2,213 words per TRAP 9.4 (i)(2)(D).

19 IN THE COURT OF CRIMINAL APPEALS OF TEXAS

ANDRIA MARIE STANLEY Petitioner

vs. Nos. PD-1017-15, PD-1018-15, PD-1019-15

THE STATE OF TEXAS Respondent

APPENDIX- PETITION FOR DISCRETIONARY REVIEW

INDEX:

1-23 Court of Appeals Opinion dated July 30, 2015 and Judgment

20 Petitions for Discretionary Review

LISA C. McMINN P.O. Box 13046 Capitol Station Austin, Texas 78711

State Bar of Texas ADVANCED CRIMINAL LAW COURSE July 22-25, 2013 Dallas, Texas

CHAPTER Lisa C. McMinn has been the State Prosecuting Attorney since December 6, 2010. She first joined the office as an assistant in October of 2005. From 1992 to 2005, Lisa worked as a staff attorney for the Court of Criminal Appeals. She began her career at the Tarrant County District Attorney's office, where she served from 1988-1992, as an assistant district attorney in both the misdemeanor and appellate sections.

Lisa graduated from Baylor University in 1984, with a B.A. in Political Science. In 1987, she received her J.D. from Baylor Law School. Lisa is Board Certified in Criminal Appellate Law and is a regular lecturer on criminal appellate law topics at CLE programs around the state. She is a member of the Texas District and County Attorneys Association. Petitions for Discretionary Review pursuant to Degrate v. State, 712 S.W.2d 755 (Tex. Crim. App. 1986), because they Drafting a good petition for discretionary fail to address the court of appeals' opinion. review (PDR) involves more than just Approximately 60 of the 100 PDRs filed are repackaging your brief in the court of "frivved" on the merits, which means the appeals. A PDR has a different purpose, is issues raised are deemed so non-meritorious addressed to a different audience, and is by central staff that they do not require a governed bydifferent rules.' Understanding "workup" by a staff attorney. The judges these differences will greatly increase the can ask for a workup on a PDR that has been odds that your PDR will be considered on its frivved, but if no workup is requested, the merits and granted. PDR is summarily refused. Out of the original 100 PDRs filed, only 15 survive the I. Process screening process and get a full workup by a staff attorney. Of those 15 PDRs worked up, Upon filing in the Court of Criminal 5-7 are typically granted. Appeals, PDRs are screened for compliance with the rules of appellate procedure, A workup is generally 3-5 pages long. It reviewed by staff attorneys, and voted on by consists of a summary the facts, court of the judges. The Court's disposition of those appeals holding, and arguments in the petitions is published on Wednesdays petition; a discussion of the applicable law; throughout the year when the Court is in and a recommended disposition of the PDR. session. The workup is attached to the PDR and circulated to the judges. Prior to Monday The Court of Criminal Appeals disposed of conference, the judges take a preliminary 1,520 PDRs in fiscal year 2012. Of those, vote on the PDRs that are "called up" for 104 were granted, 1,219 were refused, 142 that week. In addition to the vote to grant or were struck for non-compliance, and 46 refuse, the judges can request discussion of a were dismissed as untimely filed. particular case. Central staff attends conference to answer any questions about Anecdotal evidence from the Court shows the cases that have been marked for that for every 100 PDRs that are timely discussion. After discussion of a case, a filed, 25 are "non-compliant." Of those 25, revote may be taken in conference. If a case approximately 14 do not comply with the is not discussed, it is disposed of based on Rules of Appellate Procedure and are struck. the pre-conference vote tally. It takes at least Most of the stricken PDRs have an four votes to grant a PDR. insufficient number of copies or fail to attach a copy or a complete copy of the II. Rules court of appeals' opinion. The other 11 of the non-compliant PDRs are refused The Rules of Appellate Procedure are sometimes changed with very little notice to practitioners. For the most up-to-date All references to the rules are the Texas Rules of Appellate Procedure. 2http://www.txcourts.gov/pubs/AR2012/cca/2-cca- activitv.pdf version of the Rules, consult the Supreme Court of Criminal Appeals to file a reply to Court's website.3 the petition with the clerk of the Court of Criminal Appeals. The Rules of Appellate Procedure for briefs and PDRs are different, especially with Where to file: regard to deadlines, word or page limits, contents, and motions for rehearing. The Rule 68.3 Rules listed below for the most part apply only to PDRs. However, some rules that (a) The petition and all copies of the petition apply to both PDRs and briefs are included. must be filed with the clerk of the Court of Criminal Appeals. When to File: (b) Petition Filed in Court of Appeals. —If a petition is mistakenly filed in the court of Rule 68.2 appeals, the petition is deemed to have been filed the same day with the clerk of the (a) First petition. The petition must be filed Court of Criminal Appeals, and the court of within 30 days after either the day the court appeals clerk must immediately send the of appeals' judgment was rendered or the petition to the clerk of the Court of Criminal day the last timely motion for rehearing or Appeals. timely motion for en banc reconsideration was overruled by the court of appeals. Contents: (b) Subsequentpetition. Even if the time specified in (a) has expired, a party who Rule 68.4 otherwise may file a petition may do so within 10 days after the timely filing of (a) Table ofcontents. The petition must another party's petition. include a table of contents with references to (c) Extension oftime. The Court of the pages of the petition. The table of Criminal Appeals may extend the time to contents must indicate the subject matter of file a petition for discretionary review if a each ground or question presented for party files a motion complying with Rule review. 10.5 (b) no later than 15 days after the last (b) Index ofAuthorities. The petition must day for filing the petition. ' include an index of authorities arranged alphabetically and indicating the pages of *Even if you miss the deadline and your the petition where the authorities are cited. PDR is dismissed as untimely filed, you can (c) Statement regarding oral argument. The file a motion for rehearing under Rule 79.1, petition must include a short statement of requesting that the PDR be reinstated. why oral argument would be helpful, or a statement that oral argument is waived. If a Rule 68.9 reply or cross-petition is filed, it likewise must include a statement of why oral Reply. The opposing party has 15 days argument should or should not be heard.. after the timely filing of the petition in the The statement about why argument would be helpful doesn't need to be too http://www.supreme.courts.state.tx.us/rules/TRAP/tr long or involved. One or two sentences ap-all.htm#slr9 are sufficient. Example: "Because this case presents novel issues this Court has the motion for rehearing was not previously addressed, oral argument overruled or otherwise disposed of. would be helpful." More than likely, the judges will grant or deny argument ♦Example: On January 1,2010, based on their own views about whether the court of appeals reversed the argument would be helpful, not on the conviction. Jones v. State, wording of your statement. _S.W.3d_No. 02-10-0001- CR (Tex. App. -Fort Worth, (d) Statement ofthe case. The petition must delivered January 1, 2010). The state briefly the nature of the case. This State's motion for rehearing was statement should seldom exceed half a page. filed on January 13, 2010, and The details of the case should be reserved overruled on January 28, 2010. and stated, with the pertinent grounds or questions. (f) Groundsfor review. The petition must state briefly, without argument, the grounds *The statement of the case on which the petition is based. The grounds provides the Court with the must be separately numbered. If the party context in which your issue has access to the record, the petitioner must arose; very few facts are (after each ground) refer to the page of the necessary at this point. record where the matter complained of is Example: Appellant was found. Instead of listing grounds for review, indicted for murder. At trial, the the petition may contain the questions State sought a lesser- included- presented for review, expressed in the terms offense instruction for criminal and circumstances of the case but without conspiracy, which was granted unnecessary detail. The statement of over Appellant's objection. The questions should be short and concise, not jury convicted Appellant of argumentative or repetitious. conspiracy and assessed his (g) Argument. The petition must contain a punishment at 10 years. The direct and concise argument, with court of appeals affirmed the supporting authorities, amplifying the conviction, holding that reasons for granting review. See Rule 66. conspiracy to commit murder is a The court of appeals' opinions will be lesser-included offense of murder considered with the petition, and statements and was properly submitted. in those opinions need not be repeated if This petition challenges that counsel accepts them as correct. holding. (h) Prayer for relief. The petition must state clearly the nature of the relief sought, (e) Statement ofprocedural history. (i) Appendix. The petition must contain a The petition must state: (1) the date copy of any opinion of the court of appeals. any opinion of the court of appeals was handed down, or the date of any *Attach the entire opinion, including order of the court of appeals concurring or dissenting opinions. An disposing of the case without an incomplete copy of an opinion is not in opinion; (2) the date any motion for compliance, even if it is only missing rehearing was filed (or a statement one page. Many courts of appeals print that none was filed); and (3) the date their opinions on both sides of the page. If you put the opinion in the copier and counsel, statement regarding oral forget to set it to "two-sided original" argument, table of contents, index of you will get a copy with only odd- authorities, statement of the case, numbered page and your petition will statement of issues presented, statement of not be in compliance with the rules. jurisdiction, statement of procedural history, signature, proof of service, Form: certification, certificate of compliance, and appendix. Rule 9.4 (2) Maximum Length. The documents listed below must not exceed the following Except for the record, a document filed with limits: an appellate court must —unless the court (A)-(C) omitted. accepts another form in the interest of (D) A ... petition for discretionary justice ~ be in the following form: review and response in the Court of (a) Printing. A document may be produced Criminal Appeals, and a motion for by standard typographic printing or by any rehearing and response in an appellate duplicating process that produces a distinct court: 4,500 words if computer- black image. Printing may be on both sides generated, and 15 pages if not. of the paper. (E) A ... reply to a response to a petition (b) Paper Type and Size. The paper on for discretionary review in the Court of which the document is produced must be Criminal Appeals: 2,400 words if white or nearly white, and opaque. Paper computer-generated, and 8 pages if not. must be 8 1/2 by 11 inches. (c) Margins. Papers must have at least one (3) Certificate of Compliance. A inch margins on both sides and at the top computer-generated document must and bottom. include a certificate by counsel or an (d) Spacing. Text must be double spaced, unrepresented party stating the number of but footnotes, block quotations, short lists, words in the document. The person and issues or points of error may be single certifying may rely on the word count of spaced. the computer program used to prepare the (e) Typeface. A document produced on a document. computer must be printed in a conventional (4) Extensions. A court may, on motion, typeface no smaller than 14-point except for permit a document that exceeds the footnotes, which must be no smaller than prescribed limit. 12-point. A typewritten document must be printed in standard 10-character-per-inch Number of copies: (cpi) monospaced typeface. (f)-(h) omitted Rule 9.3 (i) Length. (a) omitted (1) Contents Included and Excluded. In (b)(1) Paper Copies of Document Filed in calculating the length of a document, Paper Form. A party must file the original every word and every part of the and 11 copies of any document addressed to document, including headings, footnotes, ... the Court of Criminal Appeals ... and and quotations, must be counted except the in the Court of Criminal Appeals, only the following: caption, identity of parties and original must be filed of a motion for extension of time or a response to the motion.... *Under Rule 9.2(b), the mailbox rule applies only to documents delivered to Who to serve: the U.S. Postal Service. Castillo v. State, 369 S.W.3d 196, 197 (Tex. Crim. Rule 68.11 App. 2012).

In addition to the service required by Rule III. Audience and Purpose 9.5, service of the petition, the reply, and any amendment or supplementation of a The PDR has a different audience and serves petition or reply must be made on the State a different purpose than the brief in the court Prosecuting Attorney.4 . of appeals.

How to file In the court of appeals

Rule 9.2 The court of appeals is required to write an opinion addressing every issue raised and (a) omitted necessary to the disposition of the appeal. (b) Filing byMail.5 Rule 47.1. It has no choice in the matter. (1) Timely Filing. A document received Even if your brief is badly written, the court within ten days after the filing deadline is of appeals must still address it. Your considered timely filed if: purpose in writing the brief is to set out the (A) it was sent to the proper clerk by facts, standard of review, and substantive United States Postal Service first class, law, and persuade the judges to rule in your express, registered, or certified mail; favor. (B) it was placed in an envelope or l wrapper properly addressed and Many court of appeals justices have stamped; and backgrounds in civil law. Long-serving (C) it was deposited in the mail on or justices on the court of appeals will be better before the last day for filing. versed in criminal law than those more (2) Proof of Mailing. Though it may recently elected. consider other proof, the appellate court will accept the following as conclusive In the Court of Criminal Appeals proof of the date of mailing: (A) a legible postmark affixed by the The members of the Court of Criminal United States Postal Service; Appeals are called judges, not justices. The (B) a receipt for registered or certified judges on the Court of Criminal Appeals are mail if the receipt is endorsed by the all former criminal defense attorneys, United States Postal Service; or prosecutors or district judges. They are well (C) a certificate of mailing by the United versed in criminal law. It is not necessary to States Postal Service. set out the standard of review or applicable law at great length in a PDR. Judges and staff attorneys are likely to skip long 4P.O. Box 13046, Capitol Station, Austin, Texas, boilerplate paragraphs setting out the 78711. standard of review. 5The Court ofCriminal Appeals does not currently accept electronic filing of PDRs. The Court of Criminal Appeals is a or has sanctioned such a departure by a discretionary review court that can cherry lower court as to call for an exercise of the pick the cases and issues it will address. Court of Criminal Appeals' power of The judges can refuse your petition for any supervision. reason. The refusal of a PDR does not necessarily mean the Court agrees with the This is not an exclusive list. For example, opinion below. Your purpose in filing the sometimes the Court grants review to PDR is to convince the Court that your issue reconsider its own precedent. These reasons is interesting enough or important enough to illustrate the types of issues the Court is examine more closely and perhaps concerned with. In a nutshell, the Court is reconsider the law. looking for issues that are important to the jurisprudence of the State. The Court's Judge Cochran's concurring opinion in primary role is not to correct every mistake Bradley v. State, 235 S.W.3d 808 made by the courts of appeals. As the court (Tex.Crim.App. 2007) explains, of last resort, its role is to be the caretaker of "Converting a direct appeal claim into a Texas criminal law. As a result, it is more discretionary review ground entails interested in legal issues than factual issues. considerably more time, effort, and analysis The Court is less concerned that there may than a minor tinkering with the original have been an injustice in a particular case direct appeal brief. 'Instead, it involves a than that the opinion could set bad precedent change of character, a recognition that this or create a conflict in the law. The Court is Court wants to know why we should, as a not likely to grant review just because a matter of sound discretion, expend our court of appeals "got it wrong" in one case. scarce judicial resources to review the court On the other hand, if more than one court of of appeals' reasoning about a particular legal appeals has gotten it wrong, if a court of issue.'" appeals keeps getting it wrong, or if a court of appeals got it really, really wrong, the Rule 66.3, provides the reasons the Court of Court of Criminal Appeals may decide to Criminal Appeals will consider in deciding correct the problem. whether to grant review: (a) the court of appeals' opinion conflicts with an opinion Familiarize yourself with the issues from another court of appeals; (b) the court currently pending before the Court of of appeals has decided an important question Criminal Appeals. The Court includes a of state or federal law that should be settled listing of all the granted PDRs and grounds by the Court of Criminal Appeals, (c) the for review. The issues are updated after court of appeals has decided an important each PDR hand down. They are listed question of state or federal law in a way that chronologically and alphabetically. The conflicts with an opinion of the Court of State Prosecuting Attorney's website Criminal Appeals or the Supreme Court; (d) provides summaries of the issues raised in the court of appeals has declared all granted, pending PDRs. They are listed unconstitutional or has misinterpreted a in alphabetical order.7 statute, rule, or regulation; (e) the justices of the court of appeals have disagreed on a material issue; or (f) the court of appeals' opinion has so far departed from the usual 6http://www.cca.courts.state.tx.us/issues/ISSUES.pdf and accepted course ofjudicial proceedings 7http://www.spa.state.tx.us/ If your issue is similar to one that has been Sometimes a single issue includes sub- granted, point out the similarity to the Court. issues, especially when the court of appeals Even if your issue is not exactly the same, it has alternative holdings. Because the may be analogous to one already granted. Court's first impression of multi-ground The Court likes to examine different facets PDR may be unfavorable, it might be wise of the same issue. to present a broad ground for review with subheadings within the body of the The Court generally prefers to address legal argument- issues such as the proper standard of review, statutory construction, search and seizure, Legal issues lesser-included offense issues, jeopardy issues, jury unanimity issues, and jury A petition arguing that the court of appeals charge issues. erred under the facts of a particular case in an unpublished opinion is not likely to be IV. Drafting granted. The PDR should demonstrate that the issue is not limited to the facts of that Because of their different purpose, PDRs are case alone but has potential to affect other written differently than briefs filed in the cajgs^ Sufficiency of the evidence and court of appeals. When filing a PDR, focus search and seizure are often fact intensive on the following: issues. If you have a sufficiency issue, emphasize the statutory construction aspect Narrowing the issues of the case. If you have a search and seizure issue, argue that the court of appeals applied A defendant who is convicted and appeals the wrong standard of review or that this the denial of a challenge for cause, the holding will have broad application. admissibility of the confession, sufficiency of the evidence, hearsay, jury charge error, Deerate and the constitutionality of the statute should not raise all of those issues in a PDR. The A PDR should address error in the court of kitchen sink method is not effective. Judge appeals' opinion, not error in the trial court. Cochran illustrates this point, stating, "I look Degrate v. State, 712 S.W.2d 755 (Tex. upon one or two well-crafted grounds for Crim. App. 1986). Don't argue that the trial review more favorably as it is most unusual court erred by granting the defendant's that a court of appeals might be seriously motion to suppress. Point out the error in wrong on numerous different issues of the court of appeals' opinion affirming the statewide importance." King v. State, 125 trial court's granting of the motion to S.W.3d 517, 518 n4 (Tex.Crim.App. suppress. A PDR arguing that the court of 2003)(Cochran, J., concurring). appeals erred by holding that the trial court did not err is in danger of being "Degrated." "Scattershot argument is ineffective. It The petition must address the court of gives the impression of weakness and appeals' analysis by arguing that it desperation, and it insults the intelligence of misapplied precedent, misconstrued a the court." —Scalia and Garner, Making statute, applied the wrong, standard.of Your Case review, conflicts with an opinion from another court of appeals, etc. About 10-12 % of all the non-compliant defendant's arrest after a traffic stop, the PDRs are refused because of Degrate. main issue in the trial court may have Those petitions are refused-not dismissed or centered on whether the defendant was struck-so the attorney doesn't know the required to use a turn signal at a particular reason the petition was refused and has no intersection. But the court of appeals may opportunity to correct the error. Some hold that even if the stop was improper, the attorneys are routinely "Degrated," because taint from the illegal stop was attenuated, they keep making the same mistake over and rendering the confession admissible. The over again. Some actually cut and paste issue on PDR will be the attenuation their entire argument from the brief and re doctrine, not the turn signal issue. label it a PDR. Even if the issue is roughly the same in the In King v. State, 125 S.W.3d 517 (Tex. trial court, court of appeals, and Court of Crim. App. 2003), Judge Cochran's Criminal Appeals, nuances in issues emerge concurring opinion discusses a PDR that as the case moves up the appellate ladder. was presumably "Degrated." The Court of Issues become more focused and complex in Appeals affirmed the trial court's ruling for the Court of Criminal Appeals. a reason not explicitly relied on by the trial judge. Judge Cochran points out how the For the most part, issues cannot be presented ground for review and the accompanying in the PDR that were not raised in the court argument provided no clue about the court of appeals because the Court of Criminal of appeals analysis. All of the argument was Appeals only addresses "decisions" of the focused on the trial judge's ruling. Judge courts of appeals. But there are exceptions Cochran proposed a viable argument the to the rule. The first is preservation of error. appellant could have made about the court Preservation of error is a systemic of appeals' analysis that involved statutory requirement that the court of appeals should construction. There was a good issue in the address on appeal, even if the issue was not case, but the appellant didn't recognize or raised by the State. Ford v. State, 305 know how to present it. S.W.3d 530, 532-33 (Tex. Crim. App. 2009). If the court of appeals did not Evolving issues address preservation, the Court of Criminal Appeals can do so if the State's PDR raises Judge Cochran's concurring opinion in King the issue. Ibid. "The State's failure to raise illustrates why parties should not be too wed preservation to the court of appeals is no to the exact formulation of the issue raised longer a bar to it raising it for the first time in the court of appeals. As pointed out in this court in a petition for discretionary above, you must discuss the court of review." Wilson v. State, 311 S.W.3d452, appeals' holding, not the trial court's ruling. 474 (Tex. Crim. App. 2010). Sometimes the sole issue in the PDR is the standard of review the court of appeals The second exception is that the winning appHecTto the trial court's ruling. party in the trial court need not argue issues Sometimes the issue the court of appeals in the court of appeals that would uphold the found dispositive may not have received trial court's ruling. "A trial court's ruling much attention in the trial court. For should be affirmed if it is right for any example, if the trial court denies a motion to reason. De La Paz v. State, 279 S.W.3d suppress a confession resulting from the 336, 344 (Tex. Crim. App. 2009). The 10 State's failure to raise an issue in the court of Criminal Appeals from addressing it on appeals does not prevent the Court of discretionary review if the State prevailed in the trial court. Volosen v. State, 227 S.W.3d Grounds (or questions) for review 77, 80 (Tex. Crim. App.2007). "Regardless of whether an appellee files a brief, a first- In the court of appeals, it doesn't matter how level appellate court has the obligation to you word your point of error because the conduct a thorough review of an appellant's court of appeals is required to address it. claims, including any subsidiary issues that But in the Court of Criminal Appeals, the might result in upholding the trial court's wording of the ground for review is your judgment." Ibid. This doesn't mean the first opportunity to make a good (or bad) Court of Criminal Appeals will grant such impression. Sometimes it's helpful to write issues, but it has the authority to do so. the ground for review aftgr_you have completed the argument portion of the PDR. Both the preservation rule and the "prevailing party" rule will usually benefit Don't make the ground for review too long, the State because the State is usually the too argumentative, or too fulToTTacts'but appellee. But defendants can rely on Ford make it specific enough so the reader has an and Volosen in State's appeals where the idea of what the issue is. defendant is the prevailing party.

It is not always necessary to say, "The court "Should the trial court's failure to execute a of appeals erred by holding...." Those are certification of right to appeal after entry of wasted words that do not focus on the issue. an appealable judgment result in Petitioner Although the argument portion of your PDR being denied his right of appeal where he must discuss what the_court of appeals did was convicted by a jury upon a plea of not wrong in its analysis, your ground for guilty." review can merely state the issue involved withoutrunning afoul of Degrate. The "Did the Legislature intend to allow separate following are examples of well-worded punishments for indecency with a child by grounds for review that were recently both exposure and contact committed granted: against the same victim when the exposure precedes the contact?" "In order to preserve error relative to a limitation on voir dire examination of a Brevity prospective juror, must a defendant object after the trial court sustains the State's "Tediousness is the most fatal of all faults." objection to a proposed question?" -Samuel Johnson.

"May a non-aggravated state jail felony The Court of Criminal Appeals disposes of conviction, previously punished under the thousands of cases every year. Judges and range for a second degree felony, be used staff attorneys read all day long. Their for purpose of enhancing punishment to that attention span is short. Grab their attention of a habitual criminal under TEX. PEN. quickly and don't make them pay attention CODE § 12.42(d)?" for too long.

11 Unless your PDR has multiple grounds and/ Quotes or complex issues, it should not get close to the word count limit. If you have a single Long block quotes should be avoided. A big issue with 4500 words of argument, you are single-spaced, double-indented quote is a lot likely repeating yourself, over-complicating of concentrated ink in one area. The the issue, or including too many unnecessary temptation is to skim it or skip over it. facts or too much law. Paraphrase or cut the quote down to size by eliminating the parts that aren't important to ' Outlining before you begin writing helps to your case. If you need to put the quote in narrow the issue and organize your context, paraphrase that part and include argument. An outline prevents you from only the best part of the quote. Or break up skipping around or writing in a disjointed, long quotes into smaller chunks. 'stream of consciousness" style, and it -prevents repetition. Getting to the point

A brief in the court of appeals usually has a "If you start with a bang, you won't end lengthy statement of facts, setting out all the with a whimper." -T.S. Eliot pertinent facts in the case. The PDR rules don't even require a statement of facts and "Don't bury the lede." suggest that the "details of the case" be included in the argument. Rule 68.4 (d). Journalism professor, Tony Rogers, asks the Set out the facts that relate to the issue students in his classes to write a newspaper you're raising, but don't include account of a doctor giving a speech to a unnecessary or irrelevant facts. If your business group about fad diets and physical petition is limited to whether the State's fitness. Midway through the speech, the notice of appeal was adequate, you don't doctor collapses from a heart attack and dies need to recite the facts of the offense itself. on the way to the hospital. Invariably, A petition with several pages of facts gives Rogers says, some of his students will begin the impression that that issue is limited to its the story with "Dr. Wiley Perkins gave a facts and is less likely to be granted. speech to a group of business people yesterday about the problems with fad Don't include details that are unnecessary, diets." The story of course, is not about the such as the date of arraignment, what district speech, but about the doctor's death. court the case was tried in, and the judge who presided. Also, don't name all the It is easier to write the opening to a news parties and witnesses unless necessary. story than a PDR because a news story is When the reader sees a name or date, he only reporting facts. A PDR, however, has assumes there's a need to remember it. The facts, law, the court of appeals' holding, and purpose of a PDR is to get the judges a central issue. It is sometimes difficult to interested. If they use up all their available start with your issue without providing some attention on your overly long and detailed background. Nevertheless, it is important to recitation of the facts, they won't have any tell the Court what your issue is and why it left for your actual issue. is important early on. The reader's attention span drops with each page, sometimes exponentially beyond a certain number of

12 pages. If the reader can't find the heart of and understand how the authority you've your argument, he may start skimming in an cited supports it. effort to find it, in which case, he might skim over something important. Or, worse Tone yet, he may simply lose interest. Credibility is important at any phase of a Footnotes proceeding, but it is especially so when the Court's decision to grant review is Some writers include case cites or the text discretionary. Do not be overly critical of of statutes in footnotes. Footnotes are also the court of appeals, even if you believe used to make the reader aware of something their opinion was nonsensical. Avoid any that is interesting but not essential to the suggestion that the court intentionally erred. argument. A footnote is also a good place to If the court omitted facts from its analysis, it dispel any qualms the Court might have is much more tactful to say it overlooked about granting review in your case. rather than ignored them. Sometimes the Footnotes are often used extensively in court of appeals may not adequately explain briefs and opinions, where an exhaustive its rationale, but resist the urge to belittle the approach to an issue is appropriate. But opinion. The judges on the Court of they should be used sparingly in a PDR and Criminal Appeals are more likely to be no longer than a few sentences unless empathize with the court of appeals justices they contain the text of a statute. than with snarky appellate lawyers.

Authority V. Odds and Ends

One case is generally enough for each A. When to file a Motion for Rehearing proposition of law. String cites are before filing a PDR: unnecessary unless you are tracing the history of a particular principle, showing Some judges prefer that the parties give the how other jurisdictions treat an issue, or courts of appeals an opportunity to correct showing how many courts of appeals are on their mistakes by filing a motion for one side of an issue or the other. rehearing. Most of the time, a motion for rehearing will be denied, but pointing out to State the primary holding of the opinions the Court of Criminal Appeals that you gave you cite and explain how they apply to your the lower court that opportunity could be case. If your issue depends on a particular beneficial. statute, quote the pertinent part of it. Don't just cite a case or statute and expect the Motions for rehearing are always a good judge or staff attorney to pick up a book or idea if the court of appeals incorrectly stated go to Lexis or Westlaw to read it. Always crucial facts, misstated the law, or missed use jump cites to pinpoint the page where recent, binding opinion from the Court of the holding appears and always use Criminal Appeals or the U.S. Supreme parentheticals setting out the holding when Court. you use a "see" cite. The key is to make it easy for the reader to follow your argument B. When your opponent files a PDR:

13 You have three options: file a reply, do Another example is if the trial court grants a nothing, or file a cross-petition. new trial on two bases, the State appeals, and the court of appeals holds that reason A 1. Reply: A reply to a party's PDR is due for granting a new trial was valid, and 15 days after the opposing party's petition is reason B was not. If the State files a PDR timely filed in the court of appeals. Rule challenging the court of appeals' holding as 68.7 (b)v to reason A, Appellee should file a cross- petition challenging the holding as to reason 2. Do nothing: As a general rule, a reply to B.3 a PDR is needed only if your opponent's PDR misrepresents the law or the facts or The importance of the cross-petition was there is a procedural problem with the case recently illustrated in Payne v. State, PD- that would make it difficult for the Court of 1214-11, (Tex.Crim.App. 2013) (not for Criminal Appeals to address the issue or publication) 2013 Tex. Crim. App. Unpub. grant the relief sought. Very little is gained LEXIS 237. The victim's hearsay by filing a reply that merely says the court statements were admitted at trial. The State of appeals was correct. argued error was not preserved, the statements were not hearsay, and their 3. "Cross-petition": Rule 68.2(b) admission was harmless. The Court of provides for a "subsequent petition," stating, Appeals held that Appellant's objections "Even if the time specified in (a) has were sufficient and the statements were expired, a party who otherwise may file a inadmissible, but error was harmless. petition may do so within 10 days after the Appellant's petition for discretionary review timely filing of another party's petition." addressed the harm analysis. The State did not file a cross-petition on preservation and A cross-petition is often filed when the court error, but after the Court granted Appellant's of appeals affirms the conviction, but PDR on the harm analysis, the State raised reverses on punishment; reverses one those issues in its brief. The Court however, conviction, but affirms another; or affirms declined to consider the State's arguments the conviction, but deletes a deadly weapon on those topics because it did not file a cross finding or restitution order. In these cases, petition. The Court assumed error was both parties won in part and lost in part. preserved that that the statements were One party may not care enough about the hearsay, and it reversed due to a faulty harm loss to file a PDR unless the other party files one. On PDR, the parties keep the same designation they had in the court of appeals. A cross-petition might also be called for If the State appealed to the court of appeals even if you won the case outright in the and wins, the style in the Court of Criminal court of appeals. File a cross-petition when Appeals is still State v. Doe and the the court of appeals' ultimate holding is in defendant remains the Appellee, even if he your favor, but it disagreed with you on an is the one filing the PDR. If the defendant issue and your opponent files a PDR, which, appealed, he remains the Appellant if decided in his favor, would change the throughout the process, even if the State outcome of the case. loses in the court of appeals and files a PDR.

14 analysis. The State's motion for rehearing the lack of a certified bill of costs in the arguing that the Court's should reconsider record when a specific amount of court costs its policy of requiring a cross-petition to does not have to be included on the raise such issues was denied. judgment." "The Fourteenth Court of Appeals erred in B. If your PDR is granted: deleting court costs on the written judgment You must file a brief within 30 days after based upon the lack of a certified bill of review is granted. Rule 70.1. This is costs in the record when appellant failed to mandatory. You cannot simply rely on preserve his claim for appellate review and your PDR. Rule 38.1 applies to your brief the issue is not ripe for review." on the merits. "The Fourteenth Court of Appeals erred in deleting the court costs on the written C. If your opponent's PDR is granted: judgment based upon the lack of a certified You must file a brief within 30 days after bill of costs in the record when there is no the petitioner's brief is filed. Rule 70.2. requirement that the record include a This is mandatory. Rule 38.2 applies to certified bill of costs." your brief. Also, there is no motion for "The Fourteenth Court of Appeals erred in rehearing from the granting of a PDR. Rule deleting the court costs on the written 79.2 (b). But if you think the PDR should judgment based upon the lack of a certified not have been granted, you can argue that in bill of costs in the record when the evidence your brief and suggest that the Court dismiss was otherwise sufficient to sustain the the PDR as improvidently granted. assessed court costs." "The Fourteenth Court of Appeals erred in D. If your PDR is refused: deleting the court costs on the written You have 15 days to file a motion for judgment based upon the lack of a certified rehearing from the refusal of a PDR under bill of costs in the record when the district Rule 79.1. You must certify that your clerk's office has no authority to create a motion is based on "substantial intervening new document for the appellate record after circumstances" or "other significant the notice of appeal has been filed." circumstances." Rule 79.2(c). "The Fourteenth Court of Appeals erred in deleting the court costs on the written VI. Current Trends in PDR issues judgment based upon the lack of a certified bill of costs in the record when the district Court costs and fees clerk's office did supplement the appellate record with a certified bill of costs." "The Court of Appeals erred by creating an (Johnson, PD-0193-13) exception to Mayer v. State, and holding that withholding money from an indigent "Is an objection concerning repayment of inmate's trust account to pay court- special prosecutor fees required to preserve appointed attorney's fees does not violate error?" (Landers, PD-1673-12). the statute." (Cates, PD-0861-12) "May a final judgment revoking community "The Fourteenth Court of Appeals erred in supervision assess an attorney fee incurred deleting the specific amount of court costs at the imposition of community supervision, on the judgment of conviction based upon if neither evidence nor a court finding

15 indicates the defendant has ever been able to attempted tampering with or fabricating pay such a fee?" (Wiley, PD-1728-12) physical evidence." (Rabb, PD-1643-12)

Lesser included offenses Defenses

"Did the Legislature intend to allow separate "Is a defendant who, at trial, both flatly punishments for indecency with a child by denies the elements of aggravated sexual both exposure and contact committed assault of a child and recants his pre-trial against the same victim when the exposure admission entitled to an instruction on the precedes the contact?" medical-care defense based upon that pre "Was the exposure in this case subsumed by trial admission?" (Villa, PD-0792-12) the sexual contact?" (Loving, PD-13 34-12) "Whether Section 22.021 of the Texas Penal "Whether the Court of Appeals erred in Code is unconstitutional, under the Due holding that criminal trespass should have Process Clause of the Fourteenth been submitted as a lesser included offense Amendment, due to its failure to require the to burglary of a habitation, when the State to prove that Defendant had a culpable defendant's entire body did not enter the mental state ("mens rea") relating to the habitation, such he could not have been alleged victim's age when engaging in the guilty of a criminal trespass?" (Meru, PD- conduct alleged? 1635-12) Whether Section 22.021 of the Texas Penal Code is unconstitutional, under the Due "The Ninth Court of Appeals erred when it Process Clause of the Fourteenth upheld the trial court's denial of Appellant's Amendment, due to its failure to recognize request for an instruction on a lesser an affirmative defense based on Defendant's included offense where evidence had been reasonable belief that the alleged victim at presented at trial which supported the the time was 17 years of age or older? submission of the lesser included in the jury Whether Section 22.021 of the Texas Penal charge." (Wortham, PD-0765-12 Code is unconstitutional, under the Due Course of Law provision of the "Should the court of appeals have reformed Texas Constitution, Article I, Section 19, the verdict to the lesser-included offense of due to its failure to require the State to prove criminally negligent homicide rather than that Defendant had a culpable mental state rendering a verdict of acquittal?" (Britain, ("mens rea") relating to the victim's age PD-0175-13) when engaging in the conduct alleged? Whether Section 22.021 of the Texas Penal "In the alternative, the Court of Appeals Code is unconstitutional, under the Due reversibly erred by failing to reform the Course of Law provision of the Texas judgment to reflect a conviction for the Constitution, Article I, Section 19, due to its lesser included offense of attempted failure to recognize an affirmative defense manufacture:" (Canida, PD-0003-13) based on Defendant's reasonable belief that the alleged victim at the time was 17 years "The Court of Appeals reversibly erred by of age or older?" (Fleming, PD-1250-12) failing to reform the judgment to reflect a conviction for the lesser included offense of

16 "The Court of Appeals erred by affirming the trial court when it, over objection, failed to include in the court's charge to the jury on guilt/innocence the affirmative defense that the actor was not more than three years older than the victim at the time of the offense." (Sanchez, PD-1289-12)

"When the evidence established only that appellant "felt threatened" before he raised his gun and began firing, must the trial court instruct on sudden passion? Had the trial court erroneously failed to instruct on sudden passion, did a sentence above 20 years automatically demonstrate harm, even after the jury rejected appellant's claim that he "felt threatened" by finding against self-defense?" (Wooten, PD-1437- 12)

"Was appellant entitled to a jury instruction on "voluntary act?" (Farmer, PD-2620-12)

17 \

18 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00390-CR NO. 03-13-00391-CR NO. 03-13-00392-CR

Andria Stanley, Appellant

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT NOS. D-l-DC-12-300267, D-l-DC-12-300754, & D-l-DC-12-300755 THE HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Andria Stanley of four felony offenses—two counts of

familyviolence aggravated assault, see Tex. Penal Code § 22.02(a)(1), (2), aggravatedkidnapping,

see id. § 20.04, and burglary of a habitation,see id. § 30.02(a)(1)—all arising out of a visit she made

to her ex-husband's home in the middle of the night. The jury assessed appellant's punishment at

confinement in the Texas Department of Criminal Justice for 50 years and 20 years for the assault

offenses, see id. §§ 12.32, 12.33, 22.02(b)(1), 50 years for the kidnapping offense, see id. §§ 12.32,

20.04(c), and 50 years for the burglary offense, see id. §§ 12.32, 30.02(d). On appeal, appellant

complains about the admission of evidence and the denial of a requested jury charge instruction.

Finding no reversible error, we affirm the judgments of conviction for the first count of family

violence aggravated assault (Count I in appeal number 03-13-00390-CR), the aggravated i

* '

kidnapping (appeal number 03-13-00391-CR), and the burglary of a habitation (appeal number

03-13-00392-CR). However, through our own review of the record, we have found non-reversible

clerical error in the written judgment of conviction for the second count of family violence

aggravated assault (Count III in appeal number 03-13-00390-CR1). We modify that judgment to

correct the error and affirm that judgment of conviction as modified.

DISCUSSION2

In two points of error, appellant asserts that the trial court erred by (1) admitting an

agreed protective order from a family law proceeding involving appellant and her ex-husband, and

(2) failing to include her requested instruction regarding jury unanimity on the burglary of a

habitation in the jury charge.

Admission of Protective Order

At the time the instant offenses were committed, appellant and her ex-husband, Jason

Witt, were involved in post-divorce family law proceedings concerning the custody of their two

children. At appellant's trial, the State offered a copy of an agreed protective ordered entered in

those proceedings, State's Exhibit #71, which contained a finding that appellant "caused serious

bodily injury to [Witt]." Appellant objected tothe admission ofthe protective order, asserting that

her family law attorney provided ineffective assistance of counsel by advising her to agree to the

1 The State abandoned Count II of the indictment, which also alleged family violence aggravated assault, during trial priorto closing its case-in-chief. 2 Because the parties are familiar with the facts ofthese cases, their procedural histories, and theevidence adduced at trial, we limit recitation of them in this opinion to those necessary to advise the parties ofthe Court's decisions and the basic reasons for them. See Tex. R. App. P. 47.1, 47.4. protective order in the family law proceedings. The trial court overruled appellant's objection and

admitted the order as a statement against interest as well as an admission of a party opponent. See

Tex. R. Evid. 803(24) (providing that statement against penal interest not excluded by hearsay rule),

801(e)(2) (providing that admission by party opponent is not hearsay).

We review a trial court's decision to admit or exclude evidence for an abuse of

discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Sandoval v. State,

409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). A trial court abuses its discretion only

if its determination "lies outside the zone of reasonable disagreement." Martinez v. State,

327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim.

App. 2007); Sandoval, 409 S.W.3d at 281. We consider the ruling in light of what was before the

trial court at the time the ruling was made and uphold the trial court's decision if it lies within the

zone of reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009);

Sandoval, 409 S.W.3d at 281. If the trial court's evidentiary ruling is correct on any theory of law

applicable to that ruling, we will uphold that decision. De La Paz v. State, 279 S.W.3d 336, 344

(Tex. Crim. App. 2009); Sandoval, 409 S.W.3d at 297.

To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence bothdeficient performance by counsel andprejudice suffered bythe

appellant.3 Strickland v. Washington, 466 U.S. 668,687 (1984); Nava v. State, 415 S.W.3d 289,307

3 For the sake of our discussion,we will assumewithout decidingthat appellantwas entitled to the effective assistance of counsel under Strickland at the protective order hearing, a civil proceeding separate from the criminal proceeding. See Strickland v. Washington, 466 U.S. 668,687 (1984) (setting forth standard of review for analyzing claim of ineffective assistance ofcounsel in criminal case). (Tex. Crim. App. 2013). The appellant must first demonstrate that counsel's performance fell below

an objective standardof reasonableness under prevailing professional norms. Strickland, 466 U.S.

at 687-88; Nava, 415 S.W.3d at 307. The appellant must then show the existence of a reasonable

probability—one sufficient to undermine confidence in the outcome—that the result of the

proceeding wouldhavebeendifferentabsentcounsel's deficient performance. Strickland, 466U.S.

at 694; Nava, 415 S.W.3d at 308. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700;

see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

Appellate reviewof counsel's representation is highlydeferential; we must "indulge

in a strong presumption that counsel's conduct was not deficient." Nava, 415 S.W.3d at 307-08;

see Strickland, 466 U.S. at 686. To rebut that presumption, a claim of ineffective assistance must

be "firmly founded in the record," and"the record must affirmatively demonstrate" the meritorious

nature of the claim. See Menefield v. State, 363 S.W!3d 591, 592 (Tex. Crim. App. 2012);

Goodspeedv. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Moreover, "[t]he mere factthat

another attorney might have pursued a different course ofaction... does notsuffice toprove a claim

of ineffective assistance of counsel." Exparte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App.

2012);5eeMwnozv.5tote,No.03-12-00809-CR,2014WL6208654,at*5(Tex.App.—Austin Nov.

14, 2014, pet. refd) (mem. op., notdesignated for publication); Harris v. State, 125 S.W.3d 45, 54

(Tex. App.—Austin 2003, pet. ref d, untimely filed).

At trial, appellant called the attorney who represented her in the family law

proceedings to testify, outside the jury's presence, about his advice to her that she agree to the protective order in lieu of testifying at the protective order hearing.4 Her attorney testified that he

advised her to agree to the protective order in lieu oftestifying at the hearing based on "[his] concern

that she would state something inadvertently on the record that would harm her greatly in her

criminal case." He said that he "didn't want any more information being put on the record in a case

related to anything related to this relationship because I didn't want it to be used against her in the

criminal case." In her objection at trial and in her argument on appeal, appellant maintains that this

was faulty legal advice because she could have invoked her Fifth Amendment right against

self-incriminationas to any topics that might adverselyaffect her criminal case. However, her family

law counsel averred that he and appellant had been "very close friends for a long period of time"

before he began representing her in the family law matters. He expressed his understanding that the

family law judge presiding over the protective order hearing would have granted appellant's

invocation of the Fifth Amendment right regarding the events forming the basis of the instant

criminalcharges, but indicated that "there were ancillarymatters that possibly could have affected

what went on." Appellant's family law attorney stated:

At that point, honest to goodness, my only concern to her was to avoid her stepping in land mines that she set for herself, which she has a tendency to do, and

4 At the time of the instant offenses, a hearing regarding final arrangements for custody and child support was pending. Also pending was a contemptproceedingrelating to appellant's failure to comply with the family law court's previously entered order. Upon learning that his client had been assaulted and shot, Witt's family law attorney filed an application for a protective order. All of these issues were taken up at the final hearing. In her brief, appellant conflates the contempt hearing and the protective orderhearing. However, it is clearfrom the record that these hearings, relating to mutually exclusive issues, were separate and distinct, although scheduled on the same date, and the legal advice at issue related only to the protective order hearing. I didn't want something to happen to her in the criminal case [sic] that affected her here. That was my biggest concern.

Because my concern was that she would say something that would harm her in this criminal case in some way, shape or form. Because I had recently just gone over the whole family law case. It's voluminous. It's a huge file.

I read everythingin that file and there [were] a lot of things that were said and done during the course of the family law case that concerned me, and my concern was she's going to do something like this again on the witness stand and it's going to hurt her in the criminal case.

Appellant asserts in her brief that counsel's testimony "betrays a misunderstanding

of the scope of the Fifth Amendment privilege." This argument assumes that the ancillary matters

counsel referenced were matters to which she could have invoked her Fifth Amendment right and

remained silent. However, while appellant's family law attorney repeatedly expressed his concern

about appellant testifying about matters that could be used against her in the criminal proceeding,

hedid notexpress thatthese were matters exposing herto criminal liability orcriminal responsibility

to which she could have invoked her rightto remain silent. This is an assumption appellant makes,

which is not founded in the record. See Villa v. State, All S.W.3d 455,463 (Tex. Crim. App. 2013)

("[Counsel's alleged deficiency must be affirmatively demonstrated in thetrialrecord."). In fact,

the tenor of counsel's testimony suggested otherwise.

Furthermore, in testifying aboutthe circumstances underwhichhe advised appellant

to agree to the protective order, counsel indicated that it was ultimately appellant's decision:

I strongly suggested that she sign it. Ididn'tforce hertodo anything, butI said inmy legal opinion I think you need to sign this, I think the Court isgoing togrant it either way, and I think that it's in your best interest to sign this to keep from getting into any ancillary matters that may hurt you in your criminal case. Counsel also recounted the fact that appellant insisted on making some changes to the order before

signing it.

Based on the testimony of appellant's family law attorney regarding his personal

acquaintance with appellant, his familiarity with the family law case, and his knowledge of the

relationship between appellantand her ex-husband, the trial court could have reasonably concluded

that counsel's advice to her at the protective order hearing was the product of an informed strategic

and tactical decision, which appellant agreed with and followed at the time but later criticized in a

self-serving attempt to exclude her admission. Based on the record before it, the trial court could

have reasonably found that counsel's performance did not fall below an objective standard of

reasonableness under prevailing professional norms—that is, that appellant failed to demonstrate

deficient performance on the part ofher family lawcounsel. SeeFrangias v. State, A50 S.W.3d 125,

136 (Tex. Crim. App. 2013) ("[U]nless there is a record sufficient to demonstrate that counsel's

conduct was not the product of an informed strategic or tactical decision, a reviewing court should

presume that trial counsel's performance was constitutionally adequate 'unless the challenged

conduct was so outrageous that no competent attorney would have engaged in it.'") (quoting

Goodspeed, 187 S.W.3d at 392). Accordingly, we conclude that the trial court did not abuse its

discretion in admitting the protective order into evidence at appellant's trial.

Moreover, even assuming the trial court erred in admitting the protective order into

evidence,we would nevertheless conclude that the error did not constitute reversible error. See Tex.

R. App. P. 44.2(b). The erroneous admission ofevidence isnon-constitutional error. Kirby v. State,

208 S.W.3d 568, 574 (Tex. App.—Austin 2006, no pet.); see Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Casey, 215 S.W.3d at 885. Non-constitutional error is reversible only if

it affects the substantial rights of the defendant. See Tex. R. App. P. 44.2(b); Barshaw v. State,

342 S.W.3d 91, 93 (Tex. Crim. App. 2011). We will not overturn a criminal conviction for

non-constitutional error if, after examining the record as a whole, we have fair assurance the error

did not influencethe jury, or influenced the jury only slightly. Barshaw, 342 S.W.3d at 93; Kirby,

208 S.W.3d at 574.

In assessing potential harm, our focus is not on whether the outcome of the trial was

proper despite the errorbut on whether the errorhad a substantial or injurious effector influence on

the jury's verdict. Barshaw, 342 S.W.3d at 93-94. We review the entire record to ascertain the

effect or influence on the verdict of the wrongfully admitted evidence. Id. at 93; see Coble,

330 S.W.3d at 280 (in conducting harm analysis "we examine the entire trial record and calculate,

as much as possible, the probableimpactof the errorupon the rest of the evidence"); see alsoMoon

v. State, AA S.W.3d 589, 595 (Tex. App.—Fort Worth 2001, pet. ref d). We consider all the

evidence that was admitted at trial, the nature of the evidence supporting the verdict, the character

of the alleged error, and how the evidence might be considered in connection with otherevidence

in the case. Barshaw, 342 S.W.3d at 94. We may also consider the jury instructions, the parties'

theories of the case, closing arguments, voir dire, and whether the State emphasized the error. Id.;

Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

In his testimony at trial, appellant's ex-husband described the events of that night,

providing details ofappellant's unauthorized entry into his home and the ensuing attack. He testified

that he awoke during thenightto sounds in hisbedroom. He saw a figure andthenwas struck inthe head with awooden baton-like object. Heattempted todefend himself, struggling with hisassailant.

His attacker yelled, and Witt recognized the voice as appellant. Appellant then fired a gun atWitt,

and he turned on the lights and saw appellant standing with a gun in her hand. Holding the gun on

him, appellant demanded that he make concessions in their ongoing custody battle. Witt recounted how appellant then forced him at gunpoint to lie face down on the bed and bound his hands behind his back andbound his feet at the ankles. She next wrapped him up in the bed sheets, sat him up on

the bed, and wrapped plastic wrap around his head. Panicked, Witt began to struggle and fell tothe

floor. As he lay on the floor, appellant struck him repeatedly on the back of the head with the

wooden object. As he struggled, Witt managed to free one hand and his feet. He then attempted to get the gun, which was at the end of the bed, as did appellant. As they struggled for the gun, appellant fired the gun at Witt, striking him in the face. They continued to struggle over the gun, and eventually Witt gained control ofthe gun. He struck appellant with the barrel ofthe gun, pushed her out ofhis bedroom, and managed to secure and lock his bedroom door. He then locked himself in

his bathroom and called 911.

Witt's testimony was corroborated by physical evidence recovered from his home

(including abroken wooden baton and roll ofplastic wrap, both with appellant's and Witt's DNA on them) and from appellant (blood containing Witt's DNA on the bottom ofone ofthe shoes she wore that night), photographic evidence depicting Witt's injuries (which included agunshot wound to his cheek as well as contusions and lacerations to his face and head, some of which required

staples and sutures, and ligature marks on his wrists), medical evidence from treating hospital physicians, police officers' testimony regarding Witt's condition and demeanor when they arrived at his home (including his initial refusal to come out ofhis locked bathroom until he was convinced

it was in fact the police, and the fact that he was covered in blood when he eventually emerged), as

well as the testimony of appellant's mother regarding admissions appellant made upon her return

from Austin (that she went to visit Witt, that she had her mother's gun with her, that the gun "went

off," and that Witt "might have been hit"). The prosecutors did not mention the protective order in

closing argument, nor did the State overly emphasize the protective order otherwise.

After examining the record as a whole, including the strength of the State's case, we

have fair assurance that the admission of the protective order, if it was error, did not influence the

jury or had but a slight effect. Therefore, any error in admitting the order was harmless.

We overrule appellant's first point of error.

Denial of Requested Jury Charge Instruction

In her second point of error, appellant complains about the trial court's failure to

include her requestedjury charge instruction concerning unanimity on the burglary of a habitation

charge and argues that she was harmed by the omission of such an instruction. The burglary

10 indictment in this case chargedappellantwith burglary of a habitation in four separate paragraphs,5

alleging (in relevant part) that appellant did then and there

with intent to commit the felony offense of Aggravated Assault, enter a habitation, without the effective consent of Jason Witt, the owner thereof. . .

intentionally or knowingly enter a habitation, without the effective consent of Jason Witt, the owner thereof, . . . and attempted to commit or committed the felony of Aggravated Assault,...

with intent to commit the felony offense of Kidnapping, enter a habitation, without the effective consent of Jason Witt, the owner thereof,. . . [or]

intentionally or knowingly enter a habitation, without the effective consent of Jason Witt, the owner thereof, . . . and attempted to commit or committed the felony of Kidnapping,.. . .6

s The four paragraphs were originally contained in the indictment as separate counts. However, prior to the start of trial, the State abandoned—without objection from appellant—the count language in order to present four alternative paragraphs. See Martinez v. State, 225 S.W.3d 550, 554 (Tex. Crim. App. 2007) ("When the State wishes to charge multiple offenses in a single indictment, it is required by statute to set out each separateoffense in a separate"count." Then separate "paragraphs" within a single count may allege different methods of committingthe same offense." (citing Tex. Code Crim. Proc. art. 21.24(a), (b))); Owens v. State, 96 S.W.3d 668,673 (Tex. App.—Austin 2003, no pet.) ("As a general rule, a 'count' is used to charge the offense itself and a 'paragraph' is that portion of a count which alleges the method of committing the offense.").

6 Each of the paragraphs also contained an allegation that Witt was a family member with whom appellant had had a datingrelationship, see Tex. Fam. Code §§ 71.0021(b) (defining "dating relationship" as "a relationship between individuals whohaveor havehada continuing relationship of a romantic or intimate nature"), .003 (defining "family" to include "individuals who are former spouses of each other [or] individuals who are the parents of the same child"), as well as a deadly weapon allegation, see Tex. Code Crim. Proc. art. 42.12, § 3g(a)(2) (providing for affirmative finding upon showing that defendant used orexhibited deadly weapon during commission offelony or immediate flight therefrom), which we omit here because they are not relevant to the complaint appellant raises in this point of error.

11 See Tex. Penal Code § 30.02(a)(1) (providing that offense of burglary is committed by entering

habitation without consent of owner with intent to commit felony, theft, or assault), (3) (providing

that offense of burglary is committed by entering habitation and then committing or attempting to

commit felony, theft, or assault).

At trial, appellant asked for language to be included in the jury charge instructing the

jurors that in order to convict appellant of burglary of a habitation, they must unanimously agree as

to how she committed the burglary. Concluding that the jury did not have to unanimously agree on

the manner and means by which appellant committed burglary of a habitation, the trial court denied

appellant's requested instruction.

We review alleged jury charge error in two steps: first, we determine whether error

exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.

Price v. State, 457 S.W.3d 437,440 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743-44

(Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the jury

charge error was preserved in the trial court. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (op. on reh'g) (setting forth analysis for determining whether jury charge error requires

reversal). If the jury charge error has been properly preserved by an objection or request for

instruction, reversal is required if the appellant has suffered "some harm" from the error. Vega

v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); see Barrios v. State, 283 S.W.3d 348, 350

(Tex. Crim. App. 2009) ("If there was error and appellant objected to the error at trial, reversal is

required if the error 'is calculated to injure the rights of the defendant,' which we have defined to

mean that there is 'some harm.'").

12 Texas law requires a unanimous jury verdict in all criminal cases. See Tex. Code

Crim. Proc. art. 36.29(a); Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011). More

specifically,"the jury must be unanimous in finding everyconstituent element ofthe chargedoffense

in all criminal cases." Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014) (citing Pizzo

v. State, 235 S.W.3d 711,714 (Tex. Crim. App. 2007)). Unanimity in this context means that each

and every juror agrees that the defendant committed the same, single, specific criminal act. Ngo,

175 S.W.3d at 745; see Cosio, 353 S.W.3d at 771 (unanimous verdict "means that the jury must

'agree upon a single and discrete incident that would constitute the commission of the offense

alleged'") (quotingStuhlerv. State,2l% S.W.3d706,717 (Tex. Crim. App. 2007)). "[T]hejury must

be instructed that it must unanimously agree on one incident of criminal conduct (or unit of

prosecution), based on the evidence, that meets all of the essential elements of the single charged

offense beyond a reasonable doubt." Saenz v. StateyASl S.W.3d 388, 390 (Tex. Crim. App. 2014)

(quoting Cosio, 353 S.W.3d at 776).

However, the requirement of jury unanimity is not violated by a jury charge that

presents the jury with the option of choosing among various alternative manner and means of

committing the same statutorily defined offense. Jourdan, 428 S.W.3d at 94; Pizzo, 235 S.W.3d at

715. "A jury must unanimously agree about the occurrence of a single criminal offense, but

they need not be unanimous about the specific manner and means of how that offense was

committed." Young v. State, 341 S.W.3d417, 423 (Tex. Crim. App. 2011);see Landrian v. State,

268 S.W.3d 532, 535 (Tex. Crim. App. 2008) ("The jury must agree that the defendant committed

one specific crime. That does not mean, however, that the jury must unanimously find that the

13 defendant committed that crime in one specific way or even with one specific act." (internal citations

omitted)); Miranda v. State, 391 S.W.3d 302, 310 (Tex. App.—Austin 2012, pet. ref d) ("Jury

unanimity is required with respect to all essential elements of the offense at issue; however, the jury

need not unanimously agree on the specific method of committing a single offense.").

"'[M]anner or means' describes how the defendant committed the specific statutory

criminal act." Ngo, 175 S.W.3d at 745. The State is permitted to plead alternate manner and means

of committing the same offense. Landrian, 268 S.W.3d at 535-36. '"Therefore, different modes

of commission may be presented in a jury instruction in the disjunctive when the charging

instrument, in a single count, alleged the different means in the conjunctive.'" Jourdan, 428 S.W.3d

at 94 (quoting Pizzo, 235 S.W.3d at 715). "Determining whether a statute creates multiple offenses

(which requires unanimity as to one offense) or merely a single offense that may be committed by

one of multiple manner and means (which do not require unanimity) 'is a function of legislative

intent, and in examining statutory language for legislative intent, we inquire into the 'gravamen' of

the offense.'" Irielle v. State, 441 S.W.3d 868, 874 (Tex. App.—Houston [14th Dist.] 2014, no pet.)

(quoting Jourdan, 428 S.W.3d at 95-96).

The gravamen of a burglary offense is the unauthorized entry with the requisite

mental state or further requisite act. See DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App.

1988) ("The gravamen of the offense of burglary clearly remains entry of a building or habitation

without the effective consent of the owner, accompanied by either the required mental state, under

§§ 30.02(a)(1) and (2)... or the furtherrequisite acts or omissions, under § 30.02(a)(3)."); see also

Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006) (unlawful entry is gravamen of

14 burglary because offense is complete once unlawful entry is made). Burglary of a habitation may

be committed three different ways. See Tex. Penal Code § 30.02(a)(l)-(3) (offense of burglary is

committed by (1) entering habitation with intent to commit felony, theft, or assault; (2) remaining

concealedin habitation with intent to commit felony, theft, or assault; or (3) entering habitation and

then committing or attempting to commit felony, theft, or assault); see also Shaw v. State,

557 S.W.2d 305, 306 (Tex. Crim. App. 1977), overruled in part on other grounds by Almanza,

686 S.W.2d at 174. These different ways are not separate burglary offenses; they are alternative

means of committing the single offense of burglary. Washington v. State, No. 03-11-00428-CR,

2014 WL 3893060, at *3-4 (Tex. App.—Austin Aug. 6,2014, pet. refd) (mem. op., notdesignated

for publication); Martinez v. State, 269 S.W.3d 777, 783 (Tex. App.—Austin 2008, no pet.).

Tracking the indictment in this case, the application paragraphs of the jury charge

concerning the burglary offense instructed the jurors that they could convict appellant of burglary

ofa habitation if they found that she entered the home ofJason Witt, a family member, without his

effective consent:

with intent to commit the felony offense of aggravated assault;

and attempted to commit or committed the felony of aggravated assault;

with intent to commit the felony offense of kidnapping;

and attempted to commit or committed the felony of kidnapping.

The charge, in other words, submitted the four burglary allegations, relating to the different sections ofthe burglary of a habitation statute, disjunctively. Thus, the jury charge set forth the single,

15 specific statutory offense ofburglary ofa habitation and included four alternative manner and means

of committing that offense. Alternate manner and means of committing the same offense may be

submitted to the jury without violating the right to a unanimous jury verdict. See Martinezv. State,

129 S.W.3d 101, 103 (Tex. Crim. App. 2004) ("The unanimity requirement is not violated by

instructing the jury on alternate theories of committing the same offensef.]").

At trial, appellant asserted that the failure to include the jury unanimity instruction

denied her the opportunity to have a unanimous verdict on the burglary of a habitation, which was

"a violation of [her] rights under the U.S. Constitution and the Texas Constitution due course of

law." In this case, however, whether appellant entered Witt's home with the intent to commit

aggravated assault or kidnapping, or entered Witt's home and committed (or attempted to commit)

aggravated assault or kidnapping, only a single unlawful entry into the home was committed.

Therefore, the jury charge instructing the jury to find appellant guilty if it found eitherthat she had

unlawfully entered the victim's habitationwith intent to commit a felony or that she had unlawfully

entered the victim's habitation and then committed or attempted to commit a felony did not deprive

appellant of her constitutional right to a unanimous verdict. The unauthorized entry with intentto

commit a felony or the unauthorized entry and the commission (or attempted commission) of a

felony were simply alternative methods of committing the same burglary offense. Hence, the trial

court did not err by denying appellant's requested jury unanimity instruction as no such unanimity

was required.

On appeal, appellant maintains that the failure to instruct the jury that its verdict

required unanimous agreement astothe manner and means ofcommitting theburglary ofhabitation

16 possibly subjected her to double jeopardy because the predicate offense in two of the paragraphs of

the burglary charge (the aggravated assault) was also charged in a separateindictment.7 SeeLangs

v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006) (defendant may not be punished for both

underlying felony and burglary ifburglary allegation is that defendant entered home without consent

of owner and then committed underlying felony within home; conversely, substantive felony and

burglary by entering home without consent of owner and with felonious intent to commit that

substantive felony are two distinct offenses not constituting double jeopardy violation). Although

acknowledging that the subsections of the burglary statute are merely alternative manner and means

of committing burglary, appellant argues that "under the circumstances" of this case, the lack of

unanimity between the statutory subsections, "opened the possibility" that the jury's general verdict

resulted in a double jeopardy violation.

However, even had the trial court included the requested unanimity instruction, the

double jeopardy "possibility" would not have been resolved. The verdict form for the burglary

charge required the jury to return a general verdict: "We, the Jury, find the defendant, [appellant],

(guilty or not guilty) of the offense of Burglary of a Habitation." Even had the court included

7 Initially, we note that the record does not reflect that appellant raised her double jeopardy concerns at trial—during the charge conference when requesting the unanimity instruction on the burglary offense or at any other time during trial. See Tex. R. App. P. 33.1(a)(1)(A) (to preserve error, party must not only present timely request or objection to trial court but must also state grounds for request or objection "with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context"); Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (general or imprecise objection suffices to preserve error"onlyif the legal basis for the objection is obvious to the courtand to opposing counsel"); see also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014), cert, denied, 135 S. Ct. 1158 (2015) (point of error on appeal mustcomport with objection made at trial). Arguably, appellant's complaint on appeal was not properly preserved for appellate review.

17 appellant's requested unanimity instruction and required the jury to be unanimous as to the manner

and means by which appellant committed the burglary, there would be no way of knowing from the

general verdict which manner and means the jury was unanimous about. There is no requirement

that the jury designate which of the alternate manner and means of committing the specific offense

the jurors found to have been proven. Thus, appellant's requested jury unanimity instruction did not

address, and certainly did not eliminate, the double jeopardy concern appellant now raises for the

first time on appeal. Even with the requested instruction, the "possibility" that the jury's general

verdict resulted in a double jeopardy violation still existed. With or without the requested

instruction, appellant was in the same position regarding a potential double jeopardy violation.

For that reason, even assuming the denial of the requested instruction was error,

which we conclude it was not, we reject appellant's claim that she suffered "some harm" because

the trial court denied her jury unanimity instruction. Once again, if jury charge error has been

properly preserved by an objection or request for instruction, as in this case, reversal is required if

the appellant has suffered "some harm" from the error. Vega, 394 S.W.3d at 519. "This means that

the trial record must demonstrate that there is some actual harm and not just a theoretical complaint."

Cornet v. State, All S.W.3d 446, 449 (Tex. Crim. App. 2013). Appellant's contention that she was

harmed by the omission of the requested jury unanimity instruction is based solely on the

hypothetical possibility of a double jeopardy violation—a wholly theoretical complaint. Because

the jury charge submitted four alternative burglary theories, only one of which posed a possible

double jeopardy violation, the record fails to demonstrate actual harm. SeeLangs, 183 S.W.3d at

687 ("[W]hen separate theories foranoffense areissued to thejurydisjunctively, a double jeopardy

18 violation is not clearly apparent on the face of the record if one of the theories charged would not

constitute a double jeopardy violation and there is sufficient evidence to support that valid theory.

The fact that the jury's verdict could have relied on a theory that would violate the Double Jeopardy

Clause, is not sufficient to show a constitutional violation 'clearly apparent on the face of the

record.'"); Wilson v. State, No. 05-11-01195-CR, 2012 WL 5504025, at *3 (Tex. App.—Dallas

Nov. 14, 2012, pet. ref d) (not designated for publication) ("When both theories of burglary

described above are submitted to the jury disjunctively, a double jeopardy violation is not clearly

apparent on the face ofthe record if there is sufficient evidence to support the theory that would not

constitute a double jeopardy violation.").

We overrule appellant's second point of error.

Clerical Error in Judgment

On review of the record, we observe that the written judgment of conviction for the

second count of family violence aggravated assault in this case (Count III in appeal number

03-13-00390-CR) contains a clerical error. The judgment states that the "Statute for Offense" is

"22.02(a)(1) Penal Code." The statute for the family violence aggravated assault offense as alleged

in Count III of the indictment in this case, however, is section 22.02(a)(2) of the Penal Code. This

Court has authority to modify incorrect judgments when the necessary information is available to

do so. See Tex. R. App. P. 46.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993).

Accordingly, we modify the incorrectjudgment ofconviction for the secondcount offamilyviolence

aggravated assault (Count III in appeal number 03-13-00390-CR) to reflect the correct Penal

Code section.

19 «

4 •• .

CONCLUSION

Having overruled appellant's two points of error, we affirm the judgments of

conviction for the first count of family violence aggravated assault (Count I in appeal number

03-13-00390-CR), the aggravated kidnapping (appeal number 03-13-00391-CR), and the burglary

of a habitation (appeal number 03-13-00392-CR). To correct non-reversible clerical error in the

judgment of conviction for the second count of family violence aggravated assault (Count III in

appealnumber03-13-00390-CR), we modifythatjudgment asnoted above and affirmthatjudgment

of conviction as so modified.

Cindy Olson Bourland, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

03-13-00390-CR Affirmed; Modified and, as Modified, Affirmed

03-13-00391-CR Affirmed

03-13-00392-CR Affirmed

Filed: July 30, 2015

Do Not Publish

20 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

JUDGMENT RENDERED JULY 30, 2015

NO. 03-13-00390-CR

APPEAL FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY BEFORE CHIEF JUSTICE ROSE, JUSTICES GOODWIN AND BOURLAND AFFIRMED; MODIFIED AND, AS MODIFIED, AFFIRMED ~ x OPINION BY JUSTICE BOURLAND

This is an appeal from the judgments of conviction entered by the trial court. Having reviewed

the record and the parties' arguments, the Court holds that there was no error in the trial court's

judgments requiring reversal. Accordingly, the Court affirms the trial court's judgment of

conviction for Count I. However, there was error in the judgment of conviction for Count III

that requires correction. Therefore, the Court modifies the trial court's judgment of conviction

for Count III to reflect that the "Statute for Offense" is "22.02(a)(2) Penal Code." The judgment,

as modified, is affirmed. Because appellant is indigent and unable to pay costs, no adjudication

of costs is made. TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00391-CR

APPEAL FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY BEFORE CHIEF JUSTICE ROSE, JUSTICES GOODWIN AND BOURLAND AFFIRMED - OPINION BY JUSTICE BOURLAND

This is an appeal from the judgment of conviction entered by the trial court. Having reviewed

the record and the parties' arguments, the Court holds that there was no reversible error in the

trial court's judgment of conviction. Therefore, the Court affirms the trial court's judgment of

conviction. Because appellant is indigent and unable to pay costs, no adjudication of costs

is made. TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00392-CR

APPEAL FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY BEFORE CHIEF JUSTICE ROSE, JUSTICES GOODWIN AND BOURLAND AFFIRMED -- OPINION BY JUSTICE BOURLAND

This is an appeal from the judgment of conviction entered by the trial court. Having reviewed

the record and the parties' arguments, the Court holds that there was no reversible error in the

trial court's judgment of conviction. Therefore, the Court affirms the trial court's judgment of

conviction. Because appellant is indigent and unable to pay costs, no adjudication of costs

is made.