1
`
`8 4
`
`PDR NO.
`COURT APPEAL NO. 02-11-00335-CV
`
`riLJ;LI
`1 SUPREME COURl
`()f:TFXAC:::
`OCT 3() 2013
`t;ni'\'IV 1 nvnau .. ,v•~''·
`.:S
`1y _____ oeput
`
`IN THE TEXAS
`SUPREME COURT
`AT AUSTIN, TEXAS
`
`C.B.
`Petitioner
`
`vs.
`
`TBB STATB Or TBXAS
`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 TBB HONORABLE JUDGES 01' TBB COURT or CRIMI:NAL APPEALS :
`
`COMBS NOW, C.B., Petitioner and files
`
`this his
`
`Petition for Discretionary Review of the decision of the
`
`Second Court of Appeals.
`
`
`
`8 4
`
`PDR NO.
`COURT APPEAL NO. 02-11-00335-CV
`
`riLJ;LI
`1 SUPREME COURl
`()f:TFXAC:::
`OCT 3() 2013
`t;ni'\'IV 1 nvnau .. ,v•~''·
`.:S
`1y _____ oeput
`
`IN THE TEXAS
`SUPREME COURT
`AT AUSTIN, TEXAS
`
`C.B.
`Petitioner
`
`vs.
`
`TBB STATB Or TBXAS
`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 TBB HONORABLE JUDGES 01' TBB COURT or CRIMI:NAL APPEALS :
`
`COMBS NOW, C.B., Petitioner and files
`
`this his
`
`Petition for Discretionary Review of the decision of the
`
`Second Court of Appeals.
`
`
`
`LIST or r.NTBRBSTBD PARTIES
`
`JUDGES:
`The Honorable Judge Jean Boyd
`323rd Criminal District Court of Tarrant County, Texas
`
`TIUAL 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 ARGUMBNT
`
`Appellant does not request oral argument.
`
`i i
`
`
`
`TABLE OF CONTENTS
`
`LIST OF INTERESTED PARTIES ........................... i i
`
`STATEMENT REGARDING ORAL ARGUMENT .................... i i
`
`TABLE OF CONTENTS ................................... i i i
`
`TABLE OF CASES AND AUTHORITIES ....................... iv
`
`STATEMENT OF THE CASE ................................. 1
`
`PROCEDURAL HISTORY .................................... 2
`
`ISSUES PRESENTED ...................................... 3
`
`SUMMARY OF THE ARGUMENT ............................... 4
`
`REASON FOR REVIEW NUMBER ONE .......................... 6
`
`THE COURT OF APPEALS DECIDED AN IMPORTANT
`QUESTION OF STATE OR FEDERAL LAW THAT HAS
`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.
`
`REASON FOR REVIEW NUMBER TW0 .......................... 12
`
`THE COURT OF APPEALS DECISION DEPARTED
`SO FAR FROM ACCEPTED AND USUAL COURSE OF
`JUDICIAL PROCEEDINGS, OR SANCTIONED
`SUCH DEPARTURE BY THE LOWER COURT, AS TO
`CALL FOR THE EXERCISE OF THE COURT OF
`CRIMINAL APPEALS' POWER OF SUPERVISION
`WHEN IT HELD THAT APPELLANT DID NOT
`REQUEST A COPY OF AN INTERVIEW TAPE
`WITHHELD FROM APPELLANT IN VIOLATION OF
`
`i i i
`
`
`
`'
`
`BRADY.
`BRADY.
`
`REASON FOR REVIEW NUMBER THREE ........................ 20
`REASON FOR REVIEW NUMBER THREE .
`.
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`. ..20
`
`THE COURT OF APPEALS DECISION DEPARTED
`THE COURT OF APPEALS DECISION DEPARTED
`SO FAR FROM ACCEPTED AND USUAL COURSE OF
`SO FAR FROM ACCEPTED AND USUAL COURSE OF
`JUDICIAL PROCEEDINGS, OR SANCTIONED
`JUDICIAL PROCEEDINGS, OR SANCTIONED
`SUCH DEPARTURE BY THE LOWER COURT, AS TO
`SUCH DEPARTURE BY THE LOWER COURT, AS TO
`CALL FOR THE EXERCISE OF THE COURT OF
`CALL FOR THE EXERCISE OF THE COURT OF
`CRIMINAL APPEALS' POWER OF SUPERVISION
`CRIMINAL APPEALS’ POWER OF SUPERVISION
`WHEN IT HELD THAT APPELLANT DID
`WHEN IT HELD THAT APPELLANT DID
`NOT SUFFER HARM FROM THE TRIAL COURT'S
`NOT SUFFER HARM FROM THE TRIAL COURT'S
`FAILURE TO INCLUDE A SELF DEFENSE
`FAILURE TO INCLUDE A SELF DEFENSE
`INSTRUCTION IN THE APPLICATION PARAGRAPH
`INSTRUCTION IN THE APPLICATION PARAGRAPH
`OF THE JURY CHARGE.
`OF THE JURY CHARGE.
`
`CONCLUSION AND PRAYER ................................ 2 4
`CONCLUSION AND PRAYER .
`.
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`. ..24
`
`CERTIFICATE OF SERVICE ............................... 25
`CERTIFICATE OF SERVICE .
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`. ..25
`
`APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 6
`APPENDIX .
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`. ..26
`
`iv
`iv
`
`
`
`TMU·E 01' CASBS AND AOTBOIUT:IJ!S
`
`Cases:
`
`Page
`
`Copley Press, Inc. v. Superior Court, 278 Cal. Rptr. 443 (Cal. Ct. App. 1991) .. 9
`
`Forum Commc 'ns Co. v. Paulson, 752 N.W.2d 177 (N.D. 2008) ............ 9
`
`Holmes v. South Carolina, 541 U.S. 319 (2006) ...................... 14, 16
`
`Hutch v. State, 922 S.W.2d 166 (Tex.Crim.App. 1996) .................... 21
`
`In re L.D.C., 400 S.W.3d 572, 574--75(Tex. 2013) ........................ 8
`
`In re Newsday, Inc. v. Goodman, 552 N.Y.S.2d 965 (N.Y. App. Div. 1990) .... 9
`
`In re South Carolina Press Ass 'n, 946 F .2d 103 7 (4th Cir. 1991) ............. 8
`
`Kyles v. Whitley, 514 U.S. 419 (1995) ................................. 13
`
`Malik v. State, 953 S.W.2d 234 (1997) ................................ 21
`
`Plata v. State, 926 S.W.2d 300 (Tex.Crim.App. 1996) .................... 21
`
`Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) ............... 9
`
`State ex rei. Beacon Journal Publ'g Co. v. Bond, 781 N.E.2d 180 (Ohio 2002). 10
`
`Stephens Media, LLC v. Eighth Judicial Dist. Court, 221 P.3d 1240 (Nev. 2009) .9
`
`United States v. Bagley, 473 U.S. 667 (1985) ........................... 13
`
`United States v. McDade, 929 F.Supp. 815 (E.D.Pa. 1996) ................. 8
`
`Vega v. State, 394 S.W.3d 514 (Tex.Crim.App. 2013) .................... 20
`
`v
`
`
`
`'
`
`Statutes and Constitutional Provisions
`
`Tex.R.App.Pro Rule 33.l(a) ......................................... 13
`
`Tex.R.App.Pro Rule 34.6(f) ........................................ 7, 8
`
`Tex.R.Evid. Rule 401 .............................................. 19
`
`vi
`
`
`
`'
`
`STATBMEHT 01' TBB CASB
`
`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 the
`
`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
`
`
`
`STATI:MBHT 01' 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, carne 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 1n 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 01' TBB 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.
`
`TBB 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 Ap~ellant 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.
`
`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."}.
`
`FACTS
`
`9
`
`
`
`'
`
`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.
`
`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
`
`destruction of a portion of the record which entitles
`
`10
`
`
`
`'
`
`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
`
`challenge under the Sixth Amendment of the United
`
`11
`
`
`
`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 01' ERROR NtJMBBR 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).
`
`Brady does not require any exercise of bad faith by
`
`12
`
`
`
`\
`
`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).
`
`FACTS
`13
`
`
`
`•
`
`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
`
`content of the interview. (R.R. Vol. 5, p. 226-227).
`14
`
`
`
`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
`
`Holmes is violated when evidentiary rules "infring[e]
`
`upon a weighty interest of the accused," or are
`15
`
`
`
`"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).
`
`Waters further testified that she found Jaubert's claim
`
`to be "somewhat credible." (R.R. Vol. 5, p. 230). After
`16
`
`
`
`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
`
`Waters with a motive for Brown to lie about Appellant's
`
`degree of involvement. As for the last prong of the
`
`17
`
`
`
`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.
`
`PRAYER
`
`This case should be remanded to the trial court for
`
`a new trial because of the violations stemming from the
`18
`
`
`
`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 01' ERROR NtJMBBR THREB
`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.
`
`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.
`
`19
`
`
`
`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).
`
`F.ACTS
`
`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.
`20
`
`
`
`•
`
`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).
`
`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
`
`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
`21
`
`
`
`•
`
`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
`
`charge been properly prepared.
`
`22
`
`
`
`•
`
`CONCLUSION AND PRAYBR
`
`WBBRBFORB, PRBM7SBS 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,
`
`115 North Henderson St.
`Fort Worth, Texas 76102
`(817) 870-1544 FAX 870-1589
`State Bar No. 24066989
`
`23
`
`
`
`•
`
`•
`
`CERTIFICATB OF CCB&LIANCE
`
`I hereby certify that this document contains 3745
`
`words.
`
`North Henderson St.
`Fort Worth, Texas 76102
`(817) 870-1544 FAX 870-1589
`State Bar No. 24066989
`
`CERTII'ICAH 01' 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.
`
`24
`
`
`
`-
`
`0
`
`-· t
`
`J
`
`NO. 94259-J
`
`IN THE MATI'ER
`
`OF
`
`§
`
`§
`
`IN THE JUVENILE COURT
`
`323RD JUDICIAL DISTRICT
`
`CHRIS PAOL HUBBARD, III.
`§
`AltAI CHRISTOPHBR PAUL IIUBBARD, JR.
`
`TARRANT COUNTY I TEXAS
`
`IN THE MATTER OF CHRIS PAUL B'O'BBARD, III., AKA• CHRISTOPHER
`
`PAUL HUBBARD, JR., born on the 26TH DAY or AtJGUST, 1994.
`
`ON THIS THE 3RD DAY OV AtJGUST, 2011, in this Court there was
`
`~
`
`called a hearing for consideration of the matters in the above
`
`styled and numbered cause, wherein by proper petition,
`
`the
`
`respondent, CHRIS PAUL HUBBARD,
`
`III., A1CA1 CBRISTOPRBR PAUL
`
`HUBBARD, JR., was alleged to have engaged in delinquent conduct,
`
`namely, MtJRDBR.
`
`After due notice had been served on all parties for the time
`
`required by law, came and appeared the petitioner by its Assistant
`
`District Attorneys, RO~ BDSBMAN and VICKI POSTER, and announced
`
`ready for such hearing. And thereupon, also came the child, who
`
`appeared in person with Attorneys, CANDACE TAYLOR AND PBLIPB
`
`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,
`
`
`
`the evidence submitted and having been duly charged by
`
`the Court, re t~red to consider their verdict and afterward on the
`
`~
`
`BT.H DAY OP AUGOST, 2011, returned into Court in due form of law the
`
`following answer to the question recited in said charge which was
`
`received by the Court and now entered upon the minutes of the
`
`Court:
`
`SPBCXAL ISSUE NUMBBR ONBz
`
`Do you find from the evidence beyond a reasonable doubt that
`
`the Respondent CBRISTOPBBR PAUL HUBBARD, JR., on or about the 26'l'B
`•
`DAY OF PBBRUARY, 2011, in the County of Tarrant and State of Texas,
`
`•
`
`engaged in delinquent conduct by committing the offense of MORDBR
`
`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, VBRLYN SALZAR, it is
`
`considered by the Court that CHRISTOPBBR PAUL HUBBARD, JR., is
`
`adjudged to have engaged in delinquent conduct within the meaning
`
`of Title 3 of the Texas Family Code.
`
`VERDICT OF TBB JURY
`
`We, the Jury, find that the Juvenile Respondent, CHRISTOPHER
`
`PAUL HUBBARD, JR., engaged in delinquent conduct in Paragraph(s)
`
`ONE AND TWO of
`
`the petition for
`
`the offense(s) of MURDER,
`
`11
`
`
`
`. "
`
`Section(s) 19.02 of the Texas Penal Code, which is a •zLOHY, and
`
`the date of offense(s) was the 26TH DAY OP PBBRUARY, 2011.
`
`SIGNED on this the / / day of
`
`IJ.v£v.YJ-
`
`,. 2o.d.
`
`TARRAm' COUNTY, TEXAS
`
`111
`
`
`
`•
`
`•
`
`tl
`COJOD:TMBNT
`TEXAS YOUTH CO~SSION
`
`NO. 94259-J
`
`IN THE MATTER
`
`OF
`
`CHRIS PAUL HUBBARD, III.
`AltA a CIDliS'rOPBU. PAUL JI1JBBA1U), JR.
`
`}{
`
`}{
`
`}{
`
`IN THE 323RD DISTRICT
`
`COURT OF
`
`TARRANT COUNTY I TEXAS
`
`BE IT REMEMBERED that on the 3Q DAY OP AUGUST, 2011, came on
`
`to be heard the above styled and numbered cause. And after due
`
`notice had been served on all parties for the time required by law,
`"
`came and appeared the petitioner by its District Attorney, RONALD
`
`IIU'SBMAN AND VICXI POSTBR. And thereupon also came the child who
`
`appeared
`
`in person with CANDACB TAYLOR AHD VBLIPB CALZADA,
`
`Attorneys for the child and DONNA HUBBARD, parent(s)/guardian(s) of
`
`the child, and all parties announced ready for such hearings; and
`
`thereupon the Jury, after hearing the pleadings of all the parties
`
`and hearing the evidence and argument of counsel, finds that the
`
`child engaged in delinquent conduct as alleged in the Petition, in
`
`violation of Section 19.02 of the Texas Penal Code. The Jury also
`
`finds that the child is in need of rehabilitation and that the
`
`protection of
`
`the public and
`
`the child requires
`
`that
`
`the
`
`disposition be made. The Jury also finds that said child at the
`
`time of this hearing was 16 years of age having been born on the 8-
`
`26-94.
`
`court~s Minute~.
`
`Transc.ction # Y Lf
`
`1
`119
`
`
`
`'
`
`"
`
`The Court finds that it is in the child's best interest to be
`
`placed outside the child's home.
`
`The Court also finds that
`
`reasonable efforts were made to prevent or eliminate the need for
`
`the child's removal from the home and to make it possible for the
`
`child to return to the child's home and the child, in the child's
`
`home, cannot be provided the quality of care and the level of
`
`support and supervision that the child needs to meet the conditions
`
`of probation.
`
`It further appears to the Court that the best interest of the
`"
`child and the best interest of society will be served by committing
`
`CHRIS PAUL BOBBARD, ZZI., AltAt CIIRISTOPIIBR PAUL JI'OBBARD, JR., TO
`
`THE CARE, CUSTODY AND CONTROL OF THE TEXAS YOUTH
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