IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS. * * * * Cause No CR. * * * * CORNELL CORDELL DALLAS, Appellant. vs.

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1 ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 June 6 P12:34 Lisa Matz CLERK ORAL ARGUMENT REQUESTED 5th Court of Appeals FILED: 06/07/2012 9:56:43 Lisa Matz, Clerk IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS DALLAS, TEXAS * * * * Cause No CR * * * * CORNELL CORDELL DALLAS, Appellant vs. THE STATE OF TEXAS, Appellee On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F V Hon. Larry Mitchell, Judge Presiding APPELLANT S BRIEF Thomas G. Pappas Burleson, Pate & Gibson, L.L.P. 900 Jackson Street, Suite 330 Dallas, Texas Telephone: (214) Facsimile: (214) tpappas@bp-g.com

2 Identity of Parties: Pursuant to Rule 38.1, Texas Rules of Appellate Procedure, for purposes of recusal, the following parties are identified: Cornell Cordell Dallas, Appellant ATTORNEY FOR APPELLANT Thomas G. Pappas Burleson, Pate & Gibson, L.L.P. 900 Jackson Street, Suite 330 Dallas, Texas ATTORNEYS FOR STATE Craig Watkins Dallas County District Attorney's Office 133 N. Riverfront Blvd., LB 19 Dallas, Texas PRESIDING JUDGE Honorable Larry Mitchell 292nd Criminal District Court 133 N. Riverfront Blvd., 6th Floor Dallas, Texas ii

3 TABLE OF CONTENTS PAGE NO. Identity of Parties... i Table of Contents...ii Index of Authorities... iii Statement of the Case...2 Summary of the Appellant s Argument...3 Issues Presented: Issue Presented Number One...3 The jury instructions on the guilt-innocence phase of the trial failed to require a unanimous verdict in contravention of the Texas Constitution and the Texas Code of Criminal Procedure Statement of Facts...4 Arguments and Authorities...6 Conclusion...8 Prayer...9 Certificate of Service...9 iii

4 INDEX OF AUTHORITIES Cases: Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) Barron v. State, 353 S.W.3d 879, (Tex.Crim.App. 2011) Bluitt v. State, 137 S.W.3d 51, (Tex.Crim.App. 2004) Ngo v. State, 175 S.W.3d 738, (Tex.Crim.App. 2005) , 8 Statutes and Rules Texas Rules of Appellate Procedure Rule Texas Constitution Article 5, Section Texas Code of Criminal Procedure Article 36.29(a)...6 Article Article Article iv

5 ORAL ARGUMENT REQUESTED IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS DALLAS, TEXAS * * * * Cause No CR * * * * CORNELL CORDELL DALLAS, Appellant vs. THE STATE OF TEXAS, Appellee On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F V Hon. Larry Mitchell, Judge Presiding APPELLANT S BRIEF TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS SITTING IN DALLAS, TEXAS: COMES NOW the Appellant, Cornell Cordell Dallas, by and through his attorney of record, and files this his original Brief pursuant to Rule 38.1, Tex. R. App. Proc., appealing his conviction in the above-styled case, and for cause would show unto the Court as follows: 1

6 STATEMENT OF THE CASE On February 5, 2010, the Appellant was arraigned and pled Not Guilty to Cause No. F V, Murder. Appellant s jury trial began on February 9, The Appellant was found Guilty of Aggravated Assault with a Deadly Weapon on February 17, On February 17, 2010, the jury assessed punishment of 50 years in the Texas Department of Justice and Corrections. The Appellant was accused under four separate theories of causation: 1. Intentionally or knowingly caused the death of Charles Harrison; 2. Intended to cause serious bodily injury to Charles Harrison by using a deadly weapon... by committing an act clearly dangerous to human life... and did thereby cause the death of Charles Harrison; 3. Intentionally or knowingly cause the death of Charles Harrison by acting as a party with Roshaun Smith; and 4. Intended to cause serious bodily injury to Charles Harrison by using a deadly weapon and by acting as a party with Roshaun Smith. Under #4 above, the jury found Appellant guilty of the offense of Aggravated Assault with a Deadly Weapon: 1. On or about January 31, 2009; 2. In Dallas County, Texas; 3. Cordell Dallas or Roshaun Smith, also known as Cali; 4. Intended to cause serious bodily injury to Charles Harrison, an individual; 2

7 5. By hitting and striking Charles Harrison with their hands, a deadly weapon; their feet, a deadly weapon; a club, a deadly weapon; a branch, a deadly weapon; or an object unknown, a deadly weapon; 6. And you further find from the evidence beyond a reasonable doubt that the defendant, Cordell Dallas, acting as a party, as that term is hereinbefore defined; 7. Did, with the intent to promote or assist the commission of the offense; 8. Solicit, encourage, direct, aid, or attempt to aid Roshaun Smith, also known as Cali, in intentionally causing serious bodily injury to Charles Harrison; The jury assessed punishment at 50 years and $0 fine. Appellant gave Notice of Appeal on February 17, SUMMARY OF APPELLANT S ARGUMENT ISSUE I: The Trial Court instructed the jury that they could find the Appellant or another party could have acted with the intent to cause serious bodily injury and then in the same instruction the jury could find the Appellant acted as a party. Therefore, the jury was allowed to find the Appellant guilty without reaching a unanimous verdict. ISSUE PRESENTED THE JURY INSTRUCTIONS ON THE GUILT-INNOCENCE PHASE OF THE TRIAL FAILED TO REQUIRE A UNANIMOUS VERDICT IN CONTRAVENTION OF THE TEXAS CONSTITUTION AND THE TEXAS CODE OF CRIMINAL PROCEDURE 3

8 STATEMENT OF FACTS On January 31, 2009, Cordell Dallas (the Appellant) and Roshaun Smith (the Co- Defendant) were involved in an altercation with Charles Harrison. Charles Harrison died at the scene of the altercation as a result of blows to the head. On January 31, 2009, Charles Harrison met with the Appellant. The Appellant stopped his car in front of the home of the Co-Defendant. Smith came running out of the house and started hitting Harrison. The witness accounts vary, but either Smith pulled Harrison out of the car or Harrison jumped out on his own. The Appellant s car got slightly damaged. The Appellant became angry and chased down Harrison and began to hit him. Some witnesses say that the Appellant hit him with a tree branch. He stopped and then Co-Defendant Smith began kicking Harrison in the head and torso. The Appellant then had a brief altercation with witness Brian Rhodes. At that point, the Appellant drove off. Patricia Bledsoe, the Appellant s cousin, testified that she saw Harrison run from the car, the Appellant ran and caught Harrison and that they were fighting. She also testified she saw the Appellant hit Harrison three (3) times with a stick on the body [only] (RR v 4, p 61, l 19-25) and that Smith kicked Harrison in the head after the Appellant left (RR v 4, p 62, l 1-25). Brian Rhodes testified that the Appellant and Smith were hitting Harrison with their hands and the Appellant hit Harrison on the head with a tree branch. Witness Rolando Bailey described the Appellant standing outside the car while Smith and Harrison were struggling inside the car. Bailey describes the Appellant getting angry over the car being damaged in the struggle. He testified that he saw Smith holding Harrison, the Appellant with a stick, but he did not see the Appellant hit Harrison with the 4

9 stick. He also testified that he saw Smith stomping Harrison after the Appellant had left the altercation. Expert Forensic Biologist Courtney Ferriera testified that the only DNA found on the tree branch was that of Harrison. The Medical Examiner Dr. Reade Quinton testified that the cause of death was blunt force trauma to the head. THE COURT S CHARGE TO THE JURY The jury indicated on the verdict form that their verdict was unanimous to the following portion of the Court s Charge: If you believe from the evidence beyond a reasonable doubt that: 1. On or about January 31, 2009; 2. In Dallas County, Texas 3. Cordell Dallas or Roshaun Smith, also known as Cali; 4. Intended to cause serious bodily injury to Charles Harrison, an individual; 5. By hitting and striking Charles Harrison with their hands, a deadly weapon; their feet, a deadly weapon; a club, a deadly weapon, a branch, a deadly weapon; or an object unknown, a deadly weapon; 6. And you further find from the evidence beyond a reasonable doubt that the defendant, Cordell Dallas, acting as a party, as that term is hereinbefore defined. 1 1 "Definitions of Culpable Mental States" "A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both. 5

10 [There was no Number 7] 8. Did, with the intent to promote or assist the commission of the offense; 9. Solicit, encourage, direct, aid, or attempt to aid Roshaun Smith, also known as Cali, in intentionally causing serious bodily injury to Charles Harrison; Then you will find the defendant guilty or murder as described above. If you do not so to find beyond a reasonable doubt or have a reasonable doubt thereof that the defendant is guilty of murder, you will acquit the defendant and say by your verdict not guilty. ARGUMENT AND AUTHORITIES ISSUE I The jury instructions on the guilt-innocence phase of the trial failed to require a unanimous verdict in contravention of the Texas Constitution and the Texas Code of Criminal Procedure. Argument and Authorities Texas Constitution Art. 5, Section 13 and Texas Code of Criminal Procedure Articles 36.29(a), 37.02, 37.03, , all require a unanimous verdict in criminal cases. The jury instruction in this case erroneously failed to enforce this unanimity requirement resulting in egregious harm to the Appellant. The Court of Criminal Appeals is clear that when there is jury-charge error, whether objected to or not objected to, the standard for assessing harm A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence at the place where an offense occurs will not constitute on a party to the offense." 6

11 is controlled by Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985). An appellant raising unobjected-to charge error on appeal, may only obtain a reversal for such error if it resulted in egregious harm. Bluitt v. State, 137 S.W.3d 51, (Tex.Crim.App. 2004). The jury instructions allowed the jury to find the Appellant guilty without a requirement of unanimity as to the specific conduct of which he was guilty. Under Ngo v. State, 175 S.W.3d 738, (Tex.Crim.App. 2005), there is no doubt that this failure to require unanimity by the jury was error. In Ngo, the Court of Criminal Appeals affirmed the Court of Appeals Opinion reversing his conviction. In doing so, the Court held that violation of right to unanimous jury verdict as result of erroneous instruction caused egregious harm to right to a fair and impartial trial. And the error required reversal despite lack of defense objection to instruction. In both Ngo and this case, there was no objection to the jury instructions. Without an objection to the jury instruction, review is for egregious harm. In explaining this egregious harm review, the Ngo court states: Under the Almanza standard, the record must show that a defendant has suffered actual, rather than merely theoretical, harm from jury instruction error. Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right or vitally affect a defensive theory. Appellant argues that he suffered harm from faulty jury instruction and that he was, in fact, deprived of his valuable right to a unanimous jury verdict. In Ngo, the prosecutors even instructed the jury it need not be unanimous in its verdict. A proper harm analysis should also determine the degree of harm "in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative 7

12 evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Barron v. State, 353 S.W.3d 879, (Tex.Crim.App. 2011). In the present case, the Court s instruction, to which the jury said it unanimously agreed, allowed two separate theories of conduct. Like in Ngo, the issue of unanimity went to the heart of the case. Here the conduct of the Appellant and/or the others which caused the serious bodily injury are genuine issues. The Court allowed the jury to consider the conduct of Smith and the Appellant s conduct as a principal or as a party in the same instruction regardless of a law of parties theory. Specifically, here the jury was allowed to convict the Appellant if some of them found that the Appellant acted with the intent to cause serious bodily injury by hitting and striking Harrison with his hands or if Roshaun Smith acted with intent to cause serious bodily injury and the Appellant intended to assist him. Under the party charge, as given, some jurors could have thought the Appellant guilty of causing Harrison serious bodily injury while other jurors could have thought the Appellant guilty of aiding... [acting as a party] Smith to cause Harrison serious bodily injury. CONCLUSION That part of the jury charge that resulted in the Appellant s conviction included two different theories of conviction in one definition: 1. That the Appellant s acts caused the serious bodily injury; and 2. That the Appellant acted as a party in aiding Roshaun Smith s acts to cause serious bodily injury. 8

13 That allows for a less than unanimous verdict in contravention of the Texas Constitution and the Texas Code of Criminal Procedure. Such error clearly requires a reversal and remand. PRAYER WHEREFORE, PREMISES CONSIDERED, the Appellant respectfully prays the Court of Appeals find the District Court erred and reverse his case. Respectfully submitted, BURLESON, PATE & GIBSON, L.L.P. /s/ Thomas G. Pappas THOMAS G. PAPPAS TEXAS BAR CARD NO Jackson Street, Suite 330 Dallas, Texas Telephone: (214) Facsimile: (214) COUNSEL FOR APPELLANT CORNELL CORDELL DALLAS CERTIFICATE OF SERVICE This will certify that a copy of the foregoing was delivered by placing same in the United States Mail to Craig Watkins, Dallas County District Attorney's Office, 133 N. Riverfront Blvd., LB 19, Dallas, Texas DATED the 6th day of June, /s/ Thomas G. Pappas THOMAS G. PAPPAS 9

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