NO. ____________________________________
`COURT APPEAL NO. 02-11-00335-CV
`
`FILED
`13-0874
`SUPREME COURT OF TEXAS
`AUSTIN, TEXAS
`2/6/2014 2:51:42 PM
`BLAKE HAWTHORNE
`CLERK
`
`IN THE TEXAS
`SUPREME COURT
`AT AUSTIN, TEXAS
`
`C.H.
`Petitioner
`
`VS.
`
`THE STATE OF TEXAS
`Respondent
` _______________________________________________________
`
`PETITION FOR REVIEW
`OF THE OPINION OF THE
`SECOND COURT OF APPEALS OF
`THE STATE OF TEXAS
`_______________________________________________________
`
`BLAKE R. BURNS
`115 North Henderson Street
`Fort Worth, Texas 76102-1940
`(817) 870-1544 FAX 870-1589
`State Bar No. 24066989
`
`TO THE HONORABLE JUDGES OF THE TEXAS SUPREME COURT:
`
`COMES NOW, C.H., Petitioner and files this his
`
`Petition for Discretionary Review of the decision of the
`
`Second Court of Appeals.
`
`

`
`LIST OF INTERESTED PARTIES
`
`JUDGES:
`The Honorable Judge Jean Boyd
`323rd Criminal District Court of Tarrant County, Texas
`
`TRIAL COUNSEL:
`
`The Honorable Ronald Huseman, Counsel for the State
`State Bar No. 24036816
`2701 Kimbo Rd.
`Fort Worth, Texas 76111
`
`The Honorable Vicky Foster, Counsel for the State
`State Bar No. 07308170
`2701 Kimbo Rd.
`Fort Worth, Texas 76111
`
`The Honorable Candace Taylor
`State Bar No. 00797542
`902 S. Jennings
`Ft. Worth, Texas 76104
`
`The Honorable Felipe Calzada
`Counsel for Respondent
`State Bar No. 24003592
`2724 Kimbo Rd.
`Fort Worth, Texas 76111
`
`APPELLATE COUNSEL:
`
`Blake R. Burns, Appellate Counsel for Defense
`115 North Henderson Street
`Fort Worth, Texas 76102
`
`STATEMENT REGARDING ORAL ARGUMENT
`
`Appellant does not request oral argument.
`
`ii
`
`

`
`TASLE OF CONTENTS
`TABLE OF CONTENTS
`
`L_ST OE NTfiRfiSTfiD PART ES .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..”
`LIST OF INTERESTED PARTIES...........................ii
`
`STATfiMfiNT REGARD:NG ORAL ARGUMENT .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..”
`STATEMENT REGARDING ORAL ARGUMENT....................ii
`
`TA%Tfi OE CONTENTS .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..i”
`TABLE OF CONTENTS...................................iii
`
`TA%Tfi OE CASES AND AJTHOR T ES .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`TABLE OF CASES AND AUTHORITIES........................v
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`. ..V
`
`STATfiM%NT OE THE CASE .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..l
`STATEMENT OF THE CASE.................................1
`
`S A.*M*N' OE FACTS .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..2
`STATEMENT OF FACTS....................................2
`
`PROCEDJRAL {:STORY .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..3
`PROCEDURAL HISTORY....................................3
`
`SSUfiS PRfiSfiNTfiD .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..3
`ISSUES PRESENTED......................................3
`
`SJMMARY OE TTE ARGUMENT .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..4
`SUMMARY OF THE ARGUMENT...............................4
`
`REASON FOR REV fiW NUN%fiR ONE .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..6
`REASON FOR REVIEW NUMBER ONE..........................6
`
`THE COJRT OF AP??A"
`THE COURT OF APPEALS DECIDED AN IMPORTANT
`QUESTION OF STATE OR FEDERAL LAW THAT HAS
`OU+sw ON 05 STATE
`NOT BEEN, BUT SHOULD BE, SETTLED BY THE
`NOT %fifiN, %UT s 0'"
`SU?R+M+ COJR: W +_
`.
`SUPREME COURT WHEN IT HELD THAT JURY
`QUESTIONNAIRES ARE NOT PART OF THE RECORD
`QUfiST ONNA RfiS A34 NOT ?ART O5 wya R+CORD
`ON A?PEAL.
`ON APPEAL.
`
`REASON FOR REV EW NUM%fiR TWO .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..l2
`REASON FOR REVIEW NUMBER TWO..........................12
`
`T{E COJRT OF APPEALS fiRRfiD WHEN
`T
`THE COURT OF APPEALS ERRED WHEN IT
`HELD THAT APPELLANT DID NOT REQUEST
`HELD TTAT APPELLANT D:D NOT REQUEST
`A COPY OF AN NTERV fiW TAPE
`A COPY OF AN INTERVIEW TAPE
`W THHETD FROM AP?ELLANT
`N V OLAT ON
`WITHHELD FROM APPELLANT IN VIOLATION
`OF BRADY.
`OF BRADY.
`
`iii
`iii
`
`

`
`REASON FOR RfiV aw NUMaER THR«
`‘.4’.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..19
`REASON FOR REVIEW NUMBER THREE........................19
`
`T E COURT OE APPEALS DEC s ON fiRRfiD
`THE COURT OF APPEALS DECISION ERRED
`w fiN
`T {fill T{AT APP?TTANE D_D
`WHEN IT HELD THAT APPELLANT DID
`NOT SJEPER {ARM EROM Tifi TR AL COJRT’S
`NOT SUFFER HARM FROM THE TRIAL COURT’S
`hA_LURfi TO NCTUD? A.SfiTE DfiEfiNSfi
`FAILURE TO INCLUDE A SELF DEFENSE
`_NsTRJCT ON
`N TTE APP1 CAT ON PARAGRAPH
`INSTRUCTION IN THE APPLICATION PARAGRAPH
`OP TPE OURY CHARGE.
`OF THE JURY CHARGE.
`
`CONCLUs:ON AND PRAYER .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..23
`CONCLUSION AND PRAYER................................23
`
`CfiRT E CA1fi OE SfiRV Cfi .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..24
`CERTIFICATE OF SERVICE...............................24
`
`A??fiND X .
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`APPENDIX.............................................25
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`. ..25
`
`JUDGMENT .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..27
`JUDGMENT.............................................27
`
`COJRT's C ARGE ON ADJUDCAT_ON .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..33
`COURT’S CHARGE ON ADJUDCATION........................33
`
`COJRT's C ARGE ON D:sPOs “ ON .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..:2
`COURT’S CHARGE ON DISPOSITION........................42
`
`OP N ON .
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`.
`. ..:7
`OPINION..............................................47
`
`iv
`iv
`
`

`
`TABLE OF CASES AND AUTHORITIES
`
`Cases:
`
`Page
`
`Copley Press, Inc. v. Superior Court, 278 Cal. Rptr. 443 (Cal. Ct. App. 1991). . 8
`
`Forum Commc’ns Co. v. Paulson, 752 N.W.2d 177 (N.D. 2008) . . . . . . . . . . . . 8
`
`Holmes v. South Carolina, 547 U.S. 319 (2006) . . . . . . . . . . . . . . . . . . . . . . 13, 15
`
`Hutch v. State, 922 S.W.2d 166 (Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . .20
`
`In re L.D.C., 400 S.W.3d 572, 574–75(Tex. 2013) . . . . . . . . . . . . . . . . . . . . . . . . 7
`
`In re Newsday, Inc. v. Goodman, 552 N.Y.S.2d 965 (N.Y. App. Div. 1990) . . . . 8
`
`In re South Carolina Press Ass’n, 946 F.2d 1037 (4th Cir. 1991) . . . . . . . . . . . . .7
`
`Kyles v. Whitley, 514 U.S. 419 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
`
`Malik v. State, 953 S.W.2d 234 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
`
`Plata v. State, 926 S.W.2d 300 (Tex.Crim.App. 1996) . . . . . . . . . . . . . . . . . . . . 20
`
`Press–Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) . . . . . . . . . . . . . . . 8
`
`State ex rel. Beacon Journal Publ’g Co. v. Bond, 781 N.E.2d 180 (Ohio 2002) . .8
`
`Stephens Media, LLC v. Eighth Judicial Dist. Court, 221 P.3d 1240 (Nev. 2009).8
`
`United States v. Bagley, 473 U.S. 667 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
`
`United States v. McDade, 929 F.Supp. 815 (E.D.Pa. 1996) . . . . . . . . . . . . . . . . . 7
`
`Vega v. State, 394 S.W.3d 514 (Tex.Crim.App. 2013) . . . . . . . . . . . . . . . . . . . . 19
`
`v
`
`

`
`Statutes and Constitutional Provisions
`
`Tex.R.App.Pro Rule 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
`
`Tex.R.App.Pro Rule 34.6(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
`
`Tex.R.Evid. Rule 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
`
`vi
`
`

`
`STATEMENT OF THE CASE
`
`Appellant, C.H. was the juvenile respondent in the
`
`current case. A Petition Regarding a Child Engaged in
`
`Delinquent Conduct was filed against him on March 23,
`
`2011. (C.R. p. 16). The petition was approved by the
`
`Grand Jury on April 20, 2011 alleging C.H. had committed
`
`the offense of murder and subjecting him to determinate
`
`sentencing. (C.R. p. 59).
`
`After jury trial, C.H. was adjudicated for the
`
`offense of murder, and sentenced to 30 years in the Texas
`
`Youth Commission with the possibility of transfer to th e
`
`Institutional Division of the Texas Department of
`
`Criminal Justice. (C.R. p. 120). Appellant gave timely
`
`notice of appeal on August 26, 2011. (C.R. p. 151). The
`
`trial court destroyed the jury questionnaires shortly
`
`after trial. (Supp. C.R. p. 10).
`
`1
`
`

`
`STATEMENT OF FACTS
`
` On February 26, 2011, Javontae Brown and his
`
`girlfriend Tanisha got into an argument. (R.R. Vol 4, p.
`
`170). Shortly afterward, Eric Robinson, Tanisha's brother,
`
`came by the apartment to pick his sister up. (R.R. Vol
`
`4, p. 168). When Jevontae saw Eric pull up to the house,
`
`he pointed at pistol at him and began yelling threats
`
`toward Eric. (R.R. Vol 4, p. 175). Tanisha then got in
`
`the car with Eric and the two drove away. (R.R. Vol 4,
`
`p. 175).
`
`Later on that day, both Jevontae and Eric met up at
`
`the Green Fields in Como, each bringing a handful of
`
`friends with them. (R.R. Vol. 4, p. 192 – 194). Among
`
`Eric's friends was Mercedes Smith, the victim in the
`
`current case. (R.R. Vol. 4, p. 192). The two groups met
`
`up and a shootout ensued, but no one was harmed. (R.R.
`
`Vol. 4, p. 196, 199).
`
`Even later that afternoon, Mercedes Smith was driving
`
`past the Community Center in Como. (R.R. Vol. 5, p. 79 –
`
`80). Smith saw Jevontae and C.H. (Appellant) sitting
`
`2
`
`

`
`outside the community center. (R.R. Vol. 5, p. 81). At
`
`that point, Smith stopped the car, put it in reverse
`
`toward C.H. and Jevontae, and pointed a pistol out of the
`
`window. (R.R. Vol. 5, p. 85). Gunfire ensued and Mercedes
`
`Smith was struck in the back of the head, killing him
`
`instantly. (R.R. Vol. 5, p. 89 – 90).
`
`PROCEDURAL HISTORY
`
`On September 12, 2013, the Second Court of Appeals
`
`affirmed the judgment of the trial court. In the Matter
`
`of C.H., a Minor Child, 02-11-00035. Appellant did not
`
`file a motion for rehearing.
`
`ISSUES PRESENTED
`
`1. The Court of Appeals erred in holding that the
`
`jury questionnaires are not part of the record when
`
`they are relied on by the State to demonstrate
`
`racially neutral reasons for exercising strikes
`
`after a Batson challenge.
`
`2. The Court of Appeals erred in holding that trial
`
`3
`
`

`
`counsel did not preserve error on appeal for his
`
`Brady objections, and by holding the error harmless
`
`when he was not permitted to question officers
`
`about the alleged third party confession tape that
`
`was not turned over.
`
`3. The Court of Appeals erred in holding that the
`
`trial court’s failure to include a self defense
`
`instruction in the application paragraph of the
`
`jury charge was harmless error.
`
`SUMMARY OF THE ARGUMENT
`
`1. The state relied on the jury questionnaires to
`
`provide racially neutral reasons for exercising
`
`their peremptory strikes. The trial court ordered
`
`the questionnaires destroyed immediately after
`
`trial, as per their policy, preventing Appellant
`
`from having a complete record on appeal. Appellant
`
`should be entitled to a new trial because of the
`
`destroyed record.
`
`2. Appellant requested all Brady material in a pre
`
`4
`
`

`
`trial discovery motion. At trial, it was revealed
`
`that detectives failed to turn over a taped
`
`interview of a third party who allegedly had
`
`confessed to the crime. The trial court also forbid
`
`trial counsel from inquiring about the confession
`
`in front of the jury. Appellant should be entitled
`
`to a new trial so that he can present this evidence
`
`to a jury.
`
`3. The trial court included a definition for self
`
`defense in the jury charge, but did not include an
`
`instruction for the jury in the application
`
`paragraphs of the charge, thereby preventing the
`
`jury from applying it. Appellant should be entitled
`
`to a new trial because the jury would have likely
`
`acquitted him, had the charge been properly
`
`drafted.
`
`REASONS FOR REVIEW
`
`POINT OF ERROR NUMBER ONE
`THE COURT OF APPEALS DECIDED AN IMPORTANT
`QUESTION OF STATE OR FEDERAL LAW THAT HAS
`
`5
`
`

`
`NOT BEEN, BUT SHOULD BE, SETTLED BY THE
`COURT OF APPEALS WHEN IT HELD THAT JURY
`QUESTIONNAIRES ARE NOT PART OF THE RECORD
`ON APPEAL.
`
`THE OPINION
`
`The Second Court of Appeals affirmed the trial
`
`court’s judgment, holding that the jury questionnaires
`
`are were not timely requested as an exhibit, and
`
`therefore Appellant is not entitled to a new trial as a
`
`result of their destruction. It held that the
`
`questionnaires were absent from the record not because
`
`of the trial court’s actions, but because Appellant did
`
`not timely ensure that the questionnaires were included
`
`in the record by offering them into evidence at the
`
`Batson hearing. The Court of Appeals further held that
`
`the destruction of the documents happened after the
`
`trial court lost jurisdiction.
`
`LAW
`
` This decision is in conflict with decisions made
`
`in other jurisdictions in civil matters.
`
`6
`
`

`
`Rule 34.6(f) of the Texas Rules of Appellate
`
`Procedure reads as follows:
`
`An appellant is entitled to a new trial under
`
`the following circumstances:
`
`(1) if the appellant has timely requested a
`
`reporter’s record;
`
`(2) if, without the appellant's fault, a
`
`significant exhibit or a significant portion of the
`
`court reporter's notes and records has been lost or
`
`destroyed or - if the proceedings were electronically
`
`recorded - a significant portion of the recording has
`
`been lost or destroyed or is inaudible;
`
`(3) if the lost, destroyed, or inaudible
`
`portion of the reporter’s record, or the lost or
`
`destroyed exhibit, is necessary to the appeal's
`
`resolution; and
`
`(4) if the lost, destroyed or inaudible portion
`
`of the reporter's record cannot be replaced by
`
`agreement of the parties, or the lost or destroyed
`
`exhibit cannot be replaced either by agreement of the
`
`7
`
`

`
`parties of with a copy determined by the trial court to
`
`accurately duplicate with reasonable certainty the
`
`original exhibit.
`
`The Family Code provides that in juvenile justice
`
`cases, the requirements governing an appeal are as in
`
`civil cases generally. In re L.D.C., 400 S.W.3d 572,
`
`574–75(Tex. 2013). Every court in the United States
`
`that has decided the issue has held that jury
`
`questionnaires are as much part of the voir dire
`
`process as oral questioning. See In re South Carolina
`
`Press Ass’n, 946 F.2d 1037, 1041 (4th Cir. 1991)
`
`(applying the presumption of access to jury
`
`questionnaires, thereby including them as part of the
`
`court proceedings); United States v. McDade, 929 F.
`
`Supp. 815, 817 n.4 (E.D. Pa. 1996) (finding that Press–
`
`Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)
`
`“encompass[es] all voir dire questioning — both oral
`
`and written”); Copley Press, Inc. v. Superior Court,
`
`278 Cal. Rptr. 443, 451 (Cal. Ct. App. 1991) (“The fact
`
`that the questioning of jurors was largely done in
`
`8
`
`

`
`written form rather than orally is of no constitutional
`
`import.”); Stephens Media, LLC v. Eighth Judicial Dist.
`
`Court, 221 P.3d 1240, 1249 (Nev. 2009) (“[T]he use of
`
`juror questionnaires does not implicate a separate and
`
`distinct proceeding . . . . [It is] merely a part of
`
`the overall voir dire process.”); In re Newsday, Inc.
`
`v. Goodman, 552 N.Y.S.2d 965, 967 (N.Y. App. Div. 1990)
`
`(“[Q]uestionnaires completed by the petit jurors in
`
`this criminal action were an integral part of the voir
`
`dire proceeding.”); Forum Commc’ns Co. v. Paulson, 752
`
`N.W.2d 177, 185 (N.D. 2008) (holding that use of jury
`
`questionnaires “serves as an alternative to oral
`
`disclosure of the same information in open court”);
`
`State ex rel. Beacon Journal Publ’g Co. v. Bond, 781
`
`N.E.2d 180, 188 (Ohio 2002) (“Because the purpose
`
`behind juror questionnaires is merely to expedite the
`
`examination of prospective jurors, it follows that such
`
`questionnaires are part of the voir dire process.”).
`
`9
`
`
`
`
`

`
`FACTS
`
`During the voir dire stage of the trial,
`
`prosecutors exercised peremptory strikes on the only
`
`two black panel members within striking range. (R.R.
`
`Vol. 2 p. 152). Trial counsel for Appellant issued a
`
`Batson challenge to the State’s strikes. Prosecutors
`
`referenced the jury questionnaires as their racially
`
`neutral reason for striking these jurors.
`
`The trial court ordered the jury questionnaires to
`
`be destroyed. (Supp. C.R. p. 10). It is the policy of
`
`the court to do this at the conclusion of every trial.
`
`(Supp. C.R. p. 10). This policy of the court deprives
`
`Respondents of the opportunity to preserve them for
`
`appeal.
`
`ARGUMENT
`
`The trial court had no authority to destroy the
`
`voir dire questionnaires because they are just as much
`
`a part of the record as the transcript of the oral voir
`
`dire questioning. Destroying these amounts to a
`
`10
`
`

`
`destruction of a portion of the record which entitles
`
`Appellant to a new trial under the Family Code and Rule
`
`34.6(f). The record will show that the Reporters Record
`
`in this case was timely requested, the questionnaires
`
`were ordered to be destroyed by the court through no
`
`fault of Appellant, and that that portion of the record
`
`is necessary for the appeal's resolution to rebut the
`
`State’s racially neutral reasons for exercising their
`
`strikes, and cannot be replaced by agreement of the
`
`parties.
`
`PRAYER
`
`The case should be remanded for new trial because
`
`the trial court was made aware that the Respondent was
`
`making a Batson challenge, and that the defense of the
`
`peremptory strikes given by the State involved the jury
`
`questionnaires. The trial court was clearly placed on
`
`notice and should never have ordered the records
`
`destroyed, especially as part of a general policy. The
`
`trial court has deprived Appellant of his due process
`
`rights to pursue a constitutionally based Batson
`
`11
`
`

`
`challenge under the Sixth Amendment of the United
`
`States Constitution and the due course of law
`
`provisions of the Texas Constitution, which provides
`
`greater protection that the due process provisions of
`
`the Sixth Amendment of the federal constitution.
`
`POINT OF ERROR NUMBER TWO
`THE COURT OF APPEALS ERRED WHEN IT
`HELD THAT APPELLANT DID NOT REQUEST
`A COPY OF AN INTERVIEW TAPE
`WITHHELD FROM APPELLANT IN VIOLATION
`OF BRADY.
`
`OPINION
`
`The Court of Appeals held that Appellant failed to
`
`preserve his error concerning withheld Brady material.
`
`LAW
`
`To preserve a complaint for appellate review, a
`
`party must have presented to the trial court a timely
`
`request, objection, or motion that states the specific
`
`grounds for the desired ruling, if they are not
`
`apparent from the context of the request, objection, or
`
`motion. Tex.R.App.Pro 33.1(a).
`
`12
`
`

`
`Brady does not require any exercise of bad faith by
`
`the prosecution for the suppression to be considered a
`
`violation of due process. Kyles v. Whitley, 514 U.S.
`
`419, 432 (1995). The prosecutor remains responsible for
`
`disclosing evidence favorable to the defendant
`
`regardless of any failure by the police to bring
`
`favorable evidence to the prosecutor's attention. Id.
`
`at 421.
`
`Impeachment evidence also falls within the Brady
`
`rule and is also considered to be evidence favorable to
`
`an accused. United States v. Bagley, 473 U.S. 667, 676
`
`(1985). The Court reasoned that this evidence, if
`
`disclosed and used effectively, could make the
`
`difference between conviction and acquittal. Id.
`
`The Federal Constitution guarantees criminal
`
`defendants a meaningful opportunity to present a
`
`complete defense, regardless of the application of any
`
`rules of evidentiary admissibility. Holmes v. South
`
`Carolina, 547 U.S. 319, 324 (2006).
`
`13
`
`

`
`FACTS
`
`Adult co-defendant (Javontae Brown) had allegedly
`
`confessed to committing the crime, and confided in a
`
`cell mate (Eric Jaubert) that Brown planned to pin all
`
`the blame on his juvenile co-defendant (Appellant).
`
`(R.R. Vol. 5 p. 230 – 231). Appellant filed his request
`
`for discovery and Brady material on April 7, 2011.
`
`(C.R. p. 26). On April 25, 2011, defense counsel was
`
`provided with this information and provided with the
`
`cell mate's name. (C.R. p. 61 – 62). During the
`
`defendant's questioning of Detective Waters, defense
`
`counsel was made aware that there was an audio and
`
`videotaped interview of Jaubert, in which he discussed
`
`Brown's confession. (R.R. Vol. 5 p. 230). According to
`
`Detective Waters, she turned over these tapes to the
`
`District Attorney's office on April 20, 2011, at 9:53
`
`A.M. Id. Defense counsel never received a copy of this
`
`tape, nor were they notified of its existence. (R.R.
`
`Vol. 5 p. 228). Futhermore, trial counsel was
`
`prohibited from asking Detective Waters about the
`
`14
`
`

`
`content of the interview. (R.R. Vol. 5, p. 226-227).
`
`ARGUMENT
`
`Clearly, evidence of a third party confession is
`
`material in any case. If the jury had been shown this
`
`taped interview, there is a probability sufficient to
`
`undermine confidence in the outcome. The jury may have
`
`believed that Brown did in fact commit the crime, but
`
`intended to blame the juvenile co-defendant because he
`
`was under the impression that the juvenile would be
`
`subject to far less severe punishment than an adult
`
`would be. At the very least, it would have provided
`
`valuable ammunition for the cross examination of
`
`detectives who were ignoring this evidence to pursue an
`
`unfounded case against Appellant. If this tape was
`
`disclosed to defense counsel and used effectively, it
`
`very well could have made the difference between
`
`conviction and acquittal, and therefore Appellant is
`
`entitled to relief due to this violation of Brady.
`
`The right to present a complete defense under
`
`15
`
`

`
`Holmes is violated when evidentiary rules “infring[e]
`
`upon a weighty interest of the accused,” or are
`
`“disproportionate to the purposes they are designed to
`
`serve.” Holmes 547 U.S. at 324.
`
`In the present case, during defense counsel's cross
`
`examination of Detective Waters, the homicide detective
`
`assigned to the case, counsel attempted to solicit
`
`testimony from the Detective about statements made by
`
`one of Appellant's co-defendants. (R.R. Vol. 5, p.
`
`226). The State's objection to relevance was apparently
`
`sustained after a conference at the bench and defense
`
`counsel proceeded by making an offer of proof. (R.R.
`
`Vol. 5, p. 227). Outside the presence of the jury,
`
`Waters testified that she spoke to Eric Jaubert, who
`
`was the cellmate of Javontae Brown, one of Appellant's
`
`adult co-defendants. (R.R. Vol. 5, p. 229 - 230).
`
`Waters testified that Jaubert told her that Brown had
`
`confessed to the murder, and that he was going to pin
`
`the responsibility for the killing on his juvenile co-
`
`defendant (Appellant). (R.R. Vol. 5, p. 230 – 231).
`
`16
`
`

`
`Waters further testified that she found Jaubert's claim
`
`to be “somewhat credible.” (R.R. Vol. 5, p. 230). After
`
`the offer of proof, the State renewed its objection,
`
`and the trial court sustained. (R.R. Vol. 5, p. 232).
`
`The exclusion of this evidence clearly warrants
`
`reversal under the Supreme Court's 3 prong test. First,
`
`this evidence was undoubtedly critical to the defense.
`
`The testimony excluded concerned a third party
`
`confession to the crime, and an explanation as to why
`
`other witnesses involved may have been testifying that
`
`Appellant was the shooter (i.e., the belief that the
`
`juvenile would only be facing juvenile as opposed to
`
`criminal punishment). By Detective Waters's own
`
`admission, this testimony bore sufficient indicia of
`
`reliability when she testified that Jaubert's
`
`information seemed “somewhat credible” to her. (R.R.
`
`Vol. 5, p. 230). The Detective had no specific reason
`
`to doubt the validity of Jaubert's claims. He was
`
`Brown's cell mate, the statement was a statement
`
`against Brown's own interest, and Jaubert even provided
`
`17
`
`

`
`Waters with a motive for Brown to lie about Appellant's
`
`degree of involvement. As for the last prong of the
`
`test, the interest supporting exclusion of the evidence
`
`was not substantially important, it was nonexistent.
`
`The State's objection to relevance was sustained.
`
`Relevant evidence is defined by the Texas Rules of
`
`Evidence as "evidence having any tendency to make the
`
`existence of any fact that is of consequence to the
`
`determination of the action more probable or less
`
`probable than it would be without the evidence.” Tex.
`
`Rules Evid. Rule 401. A third party confession
`
`certainly has a tendency to make a fact of consequence
`
`more or less probable. As a result, the Court of
`
`Appeals should reverse based on the fact that the trial
`
`court's exclusion of this testimony constituted a
`
`violation of Appellant's right to present a complete
`
`defense under the Due Process Clause and the Sixth
`
`Amendment of the United States Constitution.
`
`18
`
`

`
`PRAYER
`
`This case should be remanded to the trial court for
`
`a new trial because of the violations stemming from the
`
`failure to turn over the exculpatory interview tape.
`
`Respondent’s trial counsel timely requested it, but it
`
`was never turned over. Clearly, being prevented from
`
`presenting or even questioning police officers
`
`concerning a third party confession at the very least,
`
`could have been the difference between conviction and
`
`acquittal.
`
`POINT OF ERROR NUMBER THREE
`THE COURT OF APPEALS ERRED WHEN IT
`HELD THAT APPELLANT DID NOT SUFFER
`HARM FROM THE TRIAL COURT’S FAILURE
`TO INCLUDE A SELF DEFENSE
`INSTRUCTION IN THE APPLICATION
`PARAGRAPH OF THE JURY CHARGE.
`
`OPINION
`
`The trial court’s failure to include a jury
`
`instruction on self-defense constituted harmless error.
`
`19
`
`

`
`LAW
`
`The trial judge has the duty to instruct the jury
`
`on the law applicable to the case even if defense
`
`counsel fails to object to exclusions in the charge.
`
`Vega v. State, 394 S.W.3d 514, 518-19 (Tex.Crim.App.
`
`2013). But Article 36.14 does not impose a duty on a
`
`trial judge to instruct the jury sua sponte on
`
`unrequested defensive issues. Id.
`
`The abstract paragraphs of the jury charge serve as
`
`a glossary to help the jury understand the meaning of
`
`concepts and terms used in the application paragraphs
`
`of the charge. Plata v. State, 926 S.W.2d 300, 302
`
`(Tex.Crim.App. 1996), overruled on other grounds by
`
`Malik v. State, 953 S.W.2d 234 (1997). An abstract
`
`charg on a theory of law that is not applied to the
`
`facts does not authorize the jury to act upon that
`
`theory. Hutch v. State, 922 S.W.2d 166, 172
`
`(Tex.Crim.App. 1996).
`
`20
`
`

`
`FACTS
`
`The court's jury charge included a definition of
`
`self-defense along with other definitions given in the
`
`jury charge. (R.R. Vol. 6, p. 12). There is no mention
`
`of self-defense in the application paragraph. (R.R.
`
`Vol. 6, p. 14 – 15). At trial, Damionn Armstead,
`
`Mercedes Smith’s cousin, testified that the Smith
`
`pointed a gun at Appellant and words were exchanged.
`
`(R.R. Vol. 5, p. 86). Armstead further testified, that
`
`if Appellant had not shot Smith, Smith would have shot
`
`Appellant. (R.R. Vol. 5, p. 108).
`
`ARGUMENT
`
`The trial court in this case has a duty to instruct
`
`the jury on all relevant issues raised by the evidence,
`
`including self-defense. The trial court did instruct
`
`the jury on the issue but failed to include it in the
`
`application paragraph, thus preventing the jury from
`
`acting upon the theory. The fact that the State’s own
`
`witness, Damionn Armstead, testified that Appellant had
`
`21
`
`

`
`to fire in self-defense demonstrates that the error
`
`probably caused the rendition of an improper judgment.
`
`It is difficult to imagine that prosecutors would be
`
`able to refute the self-defense claim beyond a
`
`reasonable doubt when their chief eye witness
`
`explicitly claims the Defendant acted in self-defense.
`
`PRAYER
`
`This case should be remanded to the trial court for
`
`a new trial due to the clear violation of Appellant’s
`
`due process rights to have the jury properly instructed
`
`on the self-defense issue. Clearly, the trial court
`
`understood that the evidence presented at trial raised
`
`the issue of self-defense, or it would not have
`
`included the issue at all in the jury charge. Its
`
`failure to include the self-defense issue in the
`
`application paragraphs of the jury charge prevented the
`
`jury from considering it. Due to the testimony of
`
`Damionn Armstead, there is a high probability Appellant
`
`would have been acquitted of this offense had the jury
`
`22
`
`

`
`charge been properly prepared.
`
`CONCLUSION AND PRAYER
`
`WHEREFORE, PREMISES CONSIDERED, Petitioner prays
`
`this Honorable Court to grant this Petition for Review
`
`and after a full review hereon that the Court enter an
`
`order setting aside the conviction and to remand the case
`
`for a new trial so that the Appellant may receive a fair
`
`and just adjudication hearing, and further relief to
`
`which he may be justly entitled.
`
`Respectfully submitted,
`
`/s/Blake R. Burns
`
`_________________________
`BLAKE R. BURNS
`115 North Henderson St.
`Fort Worth, Texas 76102
`(817) 870-1544 FAX 870-1589
`State Bar No. 24066989
`
`23
`
`

`
`CERTIFICATE OF COMPLIANCE
`
`I hereby certify that this document contains 3745
`
`words.
`
`/s/Blake R. Burns
`
`________________________
`BLAKE R. BURNS
`115 North Henderson St.
`Fort Worth, Texas 76102
`(817) 870-1544 FAX 870-1589
`State Bar No. 24066989
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the
`
`foregoing Petition For Review was mailed postage prepaid
`
`to the State Prosecuting Attorney, P.O. Box 12405,
`
`Austin, Texas 78711, and to Charles “Chuck” Mallin, with
`
`the Appellate Section of the Tarrant County District
`
`Attorney’s Office, 4th Floor, 401 W. Weatherford Street,
`
`Fort Worth, Texas 87196 on this the 28th day of October,
`
`2013.
`
`/s/ Blake R. Burns
`
`______________________
`BLAKE R. BURNS
`
`24
`
`

`
`APPENDIX
`APPENDIX
`
`25
`25
`
`

`
`CAUSE NO . 3.23- 9'f38t, -j
`
`IN THE MA ITER
`C. H.
`
`OF
`
`A CHILD
`
`
`
`323RD DISTRICT COURT.
`
`OF
`
`TARRANT COUNTY, TEXAS
`
`ORDER
`ON 1\IOTION TO \VITHDRA \V TRIAL COUNSEL
`AND
`1\10TION TO SUBSTITUTE APPELLATE COUNSEL
`IN A JUVENILE DELINQUENCY APPEAL
`
`Respondent~_'!.
`
`C. H.
`
`
`
` "Motion to Withdra\v Trial Counsel and Motion to
`
`Substitute Appellate Counsel in a Juvenile Delinquency Appeal" is GRANTED, and
`
`wtlCR.-4 ( i s ORDERED withdrawn as counsel of record for Respondent, and
`8Jake £Vnts is ORDERED substituted as appellate counsel of record for Respondent.
`
`3
`
`Court's Minutes
`Transe.ction #
`
`

`
`. I
`
`IN THE MATTER
`
`OF
`
`C. H.
`
`
`
`
`.
`
`NO. 94259-J
`
`§
`
`§
`
`§
`
`
`
`.
`
`JUDGMENT
`
`IN THE JUVENILE COURT
`
`323RD JUDICIAL DISTRICT
`
`TARRANT COUNTY, TEXAS
`
`IN THE MATTER
`
`C. H.
`
`
`
`
`
`
`
`
`
`
`
`, born on the
`
`DOB: xx-xx-xxxx
`
`
`
`.
`
`ON THIS THE 3RD DAY OF AUGUST, 2011, in this Court there was
`
`called a hearing for consideration of the matters in the above
`
`styled and nurrbered cause, wherein by proper petition,
`
`the
`
`respondent,
`
`C. H.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`, was alleged to have engaged in delinquent conduct,
`
`namely, MURDER.
`
`After due notice had been served on all parties :or the time
`
`required by law, came and appeared the petitioner by its Assistant
`
`District Attorneys/ RONALD HUSEMAN and VICKI FOSTER, and announced
`
`ready for such hearing. And thereupon, also came the child, who
`
`appeared in person with Attorneys, CANDACE TAYLOR AND FELIPE
`
`CALZADA/ and his parent(s)/guardian(s), DONNA HUBBARD, also being
`
`present and on the 3RD DAY OF AUGUST, 2011, announced ready for
`
`such hearing, and a jury was duly selected, impaneled and sworn,
`
`

`
`. '
`
`..
`•
`
`who having the evidence submitted and having been duly charged by
`
`the Court, retired to consider their verdict and afterward on the
`
`8TH DAY OF AUGUST, 2011, returned into Court in due form of l<n·J the
`
`following answer to the question recited in said charge which was
`
`received by the Court and now entered upon the minutes cf the
`
`Court:
`
`SPECIAL ISSUE NUMBER ONE:
`
`Do you find from the evidence beyond a reasonable doubt that
`
`the Respondent
`
`C. H.
`
`
`
`., on or about the 26TH
`
`DAY OF FEBRUARY, 2011, in the County of Tarrant and State of Texas,
`
`engaged in delinquent conduct by committing the offense of MURDER
`
`as hereinbefore defined?
`
`ANSWER: We do or We do not.
`
`ANSWER OF THE JURY: We do.
`
`It appearing to the Court that the question(s) listed above
`
`was properly signed by the Presiding Juror, VERLYN SALZAR, it is
`
`considered by the Court that
`
`C. H.
`
`
`
`
`
`
`
`., is
`
`adjudged to have engaged in delinquent conduct within the meaning
`
`of Title 3 of the Texas Family Code.
`
`VERDICT OF THE JURY
`
`We,
`
`the Jury, find that the Juvenile Respondent,
`
`C. H.
`
`
`
`
`
`., engaged in delinquent conduct in Paragraph(s)
`