PD-0835-15 PD-0835-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/6/2015 10:40:35 AM Accepted 7/7/2015 3:13:34 PM ABEL ACOSTA NO._________________ CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
EVERETT JESSE SULLENS Petitioner
v.
THE STATE OF TEXAS Respondent
Petition is in Cause No. 1303012D from Criminal District Court No. Two of Tarrant County, Texas, and Cause No. 02-13-00364-CR in the Court of Appeals for the Second District of Texas
PETITION FOR DISCRETIONARY REVIEW
Abe Factor TBN: 06768500 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Phone: (817) 222-3333 Fax: (817) 222-3330 Email: lawfactor@yahoo.com Attorneys for Petitioner July 7, 2015 Everett Jesse Sullens IDENTITY OF PARTIES AND COUNSEL
The following is a list of all parties to the trial court’s final judgment, and the names and addresses of all trial and appellate counsel.
Trial Court Judge: Hon. Wayne Salvant
Petitioner: Everett Jesse Sullens
Petitioner’s Trial Counsel: Hon. Barry Alford TBN: 00783534 Law Office of Barry J. Alford 1319 Ballinger St. Fort Worth, Texas 76102
Petitioner’s Counsel Hon. Abe Factor on Appeal: TBN: 06768500 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117 Phone: (817) 222-3333
Appellee: The State of Texas
Appellee’s Trial Counsel: Hon. Davye J. Estes TBN: 24045846 Hon. Anna Hernandez TBN: 24054098 District Attorney’s Office 401 W. Belknap Fort Worth, Texas 76196
Appellee’s Counsel Hon. Charles Mallin on Appeal: TBN: 12867400 Hon. Andy Porter TBN: 24007857 District Attorney’s Office 401 W. Belknap Street Fort Worth, Texas 76196
ii TABLE OF CONTENTS page
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 1
GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
I. The Court of Appeals erred when it held that the trial court did not abuse its discretion when it denied Petitioner’s motion for mistrial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
D. Discussion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
iii INDEX OF AUTHORITIES
Cases page
Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994). . . . . . . . . . . . . . . . . . . 5, 6
Booker v. State, 103 S.W.3d 521 (Tex. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . .5-6
Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . . . . 4
Kemp v State, 846 S.W.2d 289 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . 4-5, 7
Livingston v. State, 739 S.W.2d 311 (Tex. Crim. App. 1987). . . . . . . . . . . . . . . . . . . . . 4
Mayes v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . 5, 6
Sullens v. State, 02-13-00364-CR, 2015 WL 3523143 (Tex. App.– Fort Worth, June 4, 2015, no. pet. h.) (mem. op., not designated for publication). . . . .1 , 4
iv STATEMENT REGARDING ORAL ARGUMENT
Because Petitioner does not believe that oral argument will
materially assist the Court in its evaluation of matters raised by this
pleading, Petitioner respectfully waives oral argument.
STATEMENT OF THE CASE
Petitioner Everett Jesse Sullens (“Mr. Sullens” or “Petitioner”),
was charged in a one-count indictment for knowingly causing bodily
injury to a family member. (C.R. 5). Mr. Sullens pled not guilty to the
indictment and a jury trial was had on the merits on July 30, 2013. (R.R.
II 12). Mr. Sullens was found guilty. (R.R. II 325). Punishment was to
the trial court, which sentenced Mr. Sullens to 15 years confinement in
the Texas Department of Criminal Justice. (C.R. 66). A timely Notice of
Appeal was filed on July 31, 2013. (C.R. 72).
STATEMENT OF PROCEDURAL HISTORY
The opinion of the Second Court of Appeals Affirming Mr.
Sullens’s conviction was handed down on June 4, 2015. See Sullens v.
State, 02-13-00364-CR, 2015 WL 3523143 (Tex. App.–Fort Worth, June
4, 2015, no. pet. h.) (mem. op., not designated for publication).
1 GROUNDS FOR REVIEW
GROUND FOR REVIEW ONE
I. The Court of Appeals erred when it held that the trial court did not abuse its discretion when it denied Petitioner’s motion for mistrial.
REASONS FOR REVIEW
1. The decision by the Second Court of Appeals has decided an
important question of state law in a way that conflicts with the
applicable decisions of the Court of Criminal Appeals.
2. The Second Court of Appeals has so far departed from the
accepted and usual course of judicial proceedings, or so far sanctioned
such a departure by a lower court, as to call for an exercise of the Court
of Criminal Appeals’ power of supervision.
ARGUMENT
GROUND FOR REVIEW ONE (Restated)
I. The Court of Appeals erred when it held that the trial court did not abuse its discretion when it denied Petitioner’s motion for mistrial.
Because this petition is predicated upon error by the Second
Court of Appeals in its review of Mr. Sullens’s complaint on appeal, a
review of the pertinent evidence presented and events which
transpired below is in order.
2 A. Facts
Mr. Sullens and Dana White were in a relationship and have
children. (R.R. II 251). Mr. Sullens and Ms. White got into an argument
where she accused him of punching her in the mouth. (R.R. II 254). A
neighbor of Mr. Sullens and Ms. White called the police at the request
of Ms. White. (R.R. II 2558). The police arrived and Ms. White pressed
charges for assault. (RR II, 302:8-9).
Defense counsel filed a motion in limine which was granted by
the trial court. (C.R. 18-21). The motion in limine required the parties
to approach the bench for a ruling prior to testimony on many issues,
most importantly, inappropriate acts of Mr. Sullens. (C.R. 19). Further,
at trial the State made an oral motion in limine requiring Mr. Sullens’
witnesses not to mention prior altercations between Mr. Sullens and
Ms. White. (R.R. II 223). Mr. Sullens’s witnesses were admonished by
the trial court. (R.R. II 224).
At trial, the State called Ms. White. (R.R. II 250). When asked
about the events of that day, she testified that she had to defend herself
“like always.” (R.R. II 253. Defense counsel objected to the statement as
it violated the motion in limine. (R.R. II). The Court instructed the State
3 to inform the witness not to mention any accusations outside of the
case at bar. (R.R. II 254). Defense counsel asked for a mistrial and the
Court denied it. (R.R. II 254).1
B. Opinion Below
The Second Court of Appeals correctly identified the standard of
review applicable to the trial court’s denial of a mistrial. See Sullens,
2015 WL 3523143 at *1 (abuse of discretion standard applies to rulings
on mistrial motions) (citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex.
Crim. App. 2004). However, the court of appeals then held that a
request for an instruction to disregard would have cured any error, the
trial court did not abuse its discretion by denying Mr. Sullens’s motion
for mistrial. Id. at *2.
C. Controlling Law
Admission of testimony in violation of a motion in limine is
improper and can usually be cured by an instruction to disregard.
Livingston v. State, 739 S.W.2d 311, 335 (Tex. Crim. App. 1987). If an
instruction to disregard would not cure the effects of the improper
testimony, a mistrial is the appropriate remedy. Kemp v State, 846
Defense counsel failed to request an instruction to disregard. (R.R. II 254).
4 S.W.2d 289, 308 (Tex. Crim. App. 1992). If improper testimony is
admitted, a mistrial is required if the testimony was calculated to
inflame the jury or is of such character that it left an incurable
impression on the minds of the jurors. Id.
D. Discussion
In this case the State’s witness made improper testimony by
stating she had to defend herself “like always” indicating prior fights
with Mr. Sullens. The motion in limine required that the State approach
for a ruling before such testimony can be introduced. (C.R. 18-21). This
was not done and thus a violation of the motion in limine. There is no
record of the State instructing this witness not to bring up such
incidents until after the damage was done.
The testimony was highly prejudicial and undoubtedly impacted
the jury. This is because extraneous offense evidence can have a
devastating impact on the jury’s rational disposition towards other
evidence because of the jury’s natural inclination to infer guilt to the
charged offense from the extraneous offenses. See Abdnor v. State, 871
S.W.2d 726, 738 (Tex. Crim. App. 1994); Mayes v. State, 816 S.W.2d 79,
86 (Tex. Crim. App. 1991); see also Booker v. State, 103 S.W.3d 521, 539
5 (Tex. App. 2003).
Testimony about prior incidents in the guilt/innocence phase of
a trial is discouraged and for obvious reasons. It effectively introduces
outside influence to the jurors by encouraging them to use their past
experiences in passing judgment. The past experience of “if they did it
once, they must have done it this time” is of foremost concern when
such testimony is introduced. See Abdnor, 871 S.W.2d at 738; Mayes, 816
S.W.2d at 86; see also Booker, 103 S.W.3d at 539. The court in this case
acknowledged such prejudice by requiring the State to instruct its
witness not to bring up such instances. The testimony offered was not
merely about an extraneous offense or a statement that Mr. Sullens has
a criminal record. The extraneous bad acts were of the same character
as the charged offense. In fact, it was about the exact same conduct
against the exact same person, Ms. White. This is the most damaging
of improper extraneous offense testimony. See Abdnor, 871 S.W.2d at
738; Mayes, 816 S.W.2d at 86; see also Booker, 103 S.W.3d at 539. This was
incurable and unrecoverable.
At this point the testimony was already out, permanently
damaging Mr. Sullens’ case. This testimony cast a negative light on the
6 remaining trial. It tainted and skewed the jury’s perspective. The genie
could not be put back in the lamp. The damage done was
unrecoverable and defense counsel was right to demand a mistrial.
Because the harm from the State’s violation of the motion in limine
could not have been cured by a motion to disregard, the trial court
abused its discretion in denying Mr. Sullens’s motion for mistrial. See
Kemp, 846 S.W.2d at 308. Finding that, the Second Court of Appeals
erred in affirming the conviction below.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully
prays that this Court grant discretionary review and allow each party
to fully brief and argue the issues before the Court of Criminal
Appeals, and that upon reviewing the judgment entered below, that
this Court reverse the opinion of the Second Court of Appeals and
reverse the conviction entered below.
Respectfully submitted,
/s/Abe Factor Abe Factor TBN: 06768500 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway
7 Fort Worth, Texas 76117 Phone: (817) 222-3333 Fax: (817) 222-3330 Email: lawfactor@yahoo.com Attorneys for Petitioner Everett Jesse Sullens
CERTIFICATE OF COMPLIANCE
I hereby certify that the word count for the portion of this filing covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is 1,864.
/s/Abe Factor Abe Factor
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been furnished to counsel for the State’s Prosecuting Attorney and the Tarrant County District Attorney by a manner compliant with the Texas Rules of Appellate Procedure, on this 6th day of July , 2015.
8 APPENDIX
1. Opinion of the Second Court of Appeals.
9 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-13-00364-CR
EVERETT JESSE SULLENS APPELLANT
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 1303012D
MEMORANDUM OPINION 1
Appellant Everett Jesse Sullens appeals his conviction and sentence for
assault bodily injury family member. 2 We affirm.
1 See Tex. R. App. P. 47.4. 2 This case was originally submitted without oral arguments on January 31, 2014, before a panel consisting of Chief Justice Livingston, Justice Dauphinot, and Justice Gardner. The court, on its own motion of January 15, 2015, ordered this case reset without oral argument on February 5, 2015; assigned this case to a new panel, consisting of Chief Justice Livingston, Justice Dauphinot, and Justice Gabriel; and assigned the undersigned to author this opinion. Background Facts
On October 2, 2012, Appellant and Dana White, the mother of his two
children, got into an altercation on the front porch of Appellant’s home. Appellant
hit White in the mouth with his fist. White ran next door and asked a neighbor to
call the police. White then went back into Appellant’s house, and Appellant ran
off down the street. White ran after him.
Police arrived and questioned White and Appellant’s brother, Stacy. Both
said that Appellant had punched White in the mouth. Appellant was
subsequently arrested and charged.
A jury found Appellant guilty of assault bodily injury to a family member
and that he had been previously convicted of assault bodily injury to a family
member. Appellant pleaded true to the repeat offender paragraph of the
indictment, and the trial court assessed punishment of fifteen years’ confinement.
Appellant then filed this appeal.
Discussion
1. White’s testimony
Appellant’s first two issues concern White’s testimony. In his first issue,
Appellant argues that the trial court erred by not granting a mistrial when White
violated Appellant’s motion in limine. We review a trial court’s ruling on a motion
for mistrial for an abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.
Crim. App. 2004). An appellate court must uphold the trial court’s ruling if it was
2 within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126,
129 (Tex. Crim. App. 2004).
To preserve error regarding the admission of evidence in violation of a
motion in limine, the preferred procedure is: (1) a timely, specific objection; (2) a
request for an instruction to disregard; and (3) a motion for mistrial. Young v.
State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). Generally, a prompt
instruction to disregard will cure a witness’s inadvertent reference to an
extraneous offense. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).
Unless the extraneous offense is so calculated to inflame the minds of a jury or is
of such a nature as to suggest the impossibility of withdrawing the impression
produced, an instruction to disregard can cure any improper impression. Kemp
v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). “The party who fails to
request an instruction to disregard will have forfeited appellate review of that
class of events that could have been ‘cured’ by such an instruction.” Young,
137 S.W.3d at 70.
At trial, the following exchange between White and the State took place:
Q. And what happened then when he accused you of being at the neighbor’s house?
A. I just—I went to defend myself, like always, and—
Appellant objected and the following bench conference occurred:
[APPELLANT’S COUNSEL]: I think they better get their witness under control, because she’s violating the motion in limine. She’s violating the motion in limine.
3 [STATE]: Okay.
[APPELLANT’S COUNSEL]: We need to take the jury out, and we need to talk about this.
[STATE]: I think that actually I can limit the damage by telling her—
[APPELLANT’S COUNSEL]: I want to take the jury out.
[STATE]: We’ll listen [to] the Judge. What would you like to do?
[APPELLANT’S COUNSEL]: She said “as usual,” Judge. She said, “I defended myself as usual.” She’s violating the motion in limine.
THE COURT: Uh-huh. Tell her that, please.
[STATE]: Okay.
THE COURT: Not to mention anything.
[STATE]: Yes.
[APPELLANT’S COUNSEL]: We’re going to object and we’re going to move for a mistrial.
THE COURT: All right. I’m denying that.
Assuming without deciding that White’s testimony violated the motion in
limine, an instruction to disregard the comment would have been sufficient to
cure the harm. See Kemp, 846 S.W.2d at 308 (holding that “uninvited and
unembellished reference to appellant’s prior incarceration” was cured by
instruction to disregard); Hudson v. State, 179 S.W.3d 731, 738 (Tex. App.—
Houston [14th Dist.] 2005, no pet.) (holding that harm of testimony of “repeated
beatings in the days preceding the incident” was cured by instruction to
4 disregard); Drake v. State, 123 S.W.3d 596, 603–04 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref’d) (holding reference to extraneous bad acts harmless
because trial court instructed jury to disregard). Because an instruction to
disregard White’s testimony would have cured the prejudicial effect, if any, of her
comment, the trial court did not abuse its discretion by denying Appellant’s
motion for mistrial. See Young, 137 S.W.3d at 72. We overrule Appellant’s first
issue.
In his second issue, Appellant argues that the trial court erred by overruling
Appellant’s objection that White’s testimony violated rule of evidence 404(b)’s
prohibition of evidence of prior bad acts. See Tex. R. Evid. 404(b). If the trial
court’s ruling was within the “zone of reasonable disagreement,” then there is no
abuse of discretion, and the appellate court must uphold the trial court’s ruling.
Sanders v. State, 255 S.W.3d 754, 758 (Tex. App.—Fort Worth 2008, pet. ref’d).
At trial, the State asked White why the punch to her face did not cause her
pain. Before White responded, Appellant objected. Outside the presence of the
jury, the State again asked White the question. She responded, “Because I
became numb to it.” Appellant objected that it was evidence of prior bad acts by
Appellant. The trial court overruled the objection. When the jury returned, the
State again asked White why she did not feel pain when Appellant hit her in the
mouth. White answered, “High tolerance . . . of pain.”
Appellant argues that the only inference that the jury could make from
White’s testimony that she has a high tolerance for pain is that “she has
5 experienced a lot of physical pain at the hands of [Appellant].” To constitute an
extraneous offense, the evidence must show a crime or bad act, and that the
defendant was connected to it. Lockhart v. State, 847 S.W.2d 568, 573 (Tex.
Crim. App. 1992). White’s statement does not show how Appellant was
connected to her high tolerance for pain or that her tolerance was the result of
some bad act on Appellant’s part. See Johnson v. State, 190 S.W.3d 838, 840
(Tex. App.—Fort Worth 2006, no pet.) (holding that audiotape of phone message
of defendant talking to victim while she was crying was not any evidence of an
extraneous offense or bad act); Mathis v. State, 650 S.W.2d 532, 534 (Tex.
App.—Dallas 1983, pet. ref’d) (holding that testimony that implied that
defendant’s photograph was on file with police department was not evidence of
prior criminal conduct). The trial court did not abuse its discretion in allowing
White’s statement. We overrule Appellant’s second issue.
2. Prior judgments
In his third issue, Appellant argues that the trial court erred by admitting
four prior judgments during the punishment phase of trial because the State did
not link them to Appellant.
The State elicited testimony from a Tarrant County sheriff’s deputy that
State’s Exhibits 10 through 19 (criminal dockets, judgments, and sentences)
were all attributed to Appellant. The State offered into evidence the ten prior
convictions, and Appellant objected that the State failed to link Appellant through
the inked fingerprints on the documents. The trial court overruled the objection.
6 Appellant later admitted to six of the judgments. On appeal, he complains only of
the four judgments to which he did not admit.
To establish that a defendant has been convicted of a prior offense, the
State must prove beyond a reasonable doubt that (1) a prior conviction exists
and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d
919, 921 (Tex. Crim. App. 2007). These two elements may be established by
certified copies of a judgment and a sentence, including fingerprints, supported
by expert testimony identifying them as identical with known prints of the
defendant. See Vessels v. State, 432 S.W.2d 108, 117 (Tex. Crim. App. 1968)
(op. on reh’g). There is no required “mode of proof,” however, for the two
elements; the State may prove them in a number of different ways. Flowers,
220 S.W.3d at 921–22. In proving the elements, the State may use “[a]ny type of
evidence, documentary or testimonial.” Id. at 922; see Human v. State,
749 S.W.2d 832, 836 (Tex. Crim. App. 1988). The factfinder looks at the totality
of the admitted evidence to determine whether there was a previous conviction
and whether the defendant was the person convicted. Flowers, 220 S.W.3d at
923.
The four complained-of judgments all contain Appellant’s full name and the
same date of birth and county identification number. The same name, date of
birth, and identification number appear in the convictions that Appellant
acknowledged. This was sufficient to link Appellant to the four judgments. See
Goode v. State, No. 02-10-00465-CR, 2011 WL 4502333, at *2 (Tex. App.—Fort
7 Worth Sept. 29, 2011, pet. ref’d) (mem. op., not designated for publication)
(“Given that appellant’s unique, nonrecycled CID appeared in relation to two
Tarrant County convictions concerning a defendant with appellant’s full name
and birth date, we hold that a rational trier of fact could have found the evidence
sufficient to link appellant to the two prior judgments submitted by the State.”).
We overrule Appellant’s third issue.
Conclusion
Having overruled Appellant’s three issues, we affirm the trial court’s
judgment.
/s/ Lee Gabriel
LEE GABRIEL JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: June 4, 2015