IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS NO CR JOSHUA ANGEL TORRES VS. THE STATE OF TEXAS

Transcription

1 5th Court of Appeals FILED: 8/16/11 14:00 Lisa Matz, Clerk Oral Argument Waived IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS NO CR JOSHUA ANGEL TORRES VS. THE STATE OF TEXAS ON APPEAL FROM THE 219 TH JUDICIAL DISTRICT COURT OF COLLIN COUNTY, TEXAS ***************************** APPELLANT S BRIEF *****************************

2 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS NO CR JOSHUA ANGEL TORRES VS. THE STATE OF TEXAS Appellant s Brief Law Office of William L. Schultz 2101 Brugge Court Plano, Texas Tel: Fax:

3 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS JOSHUA ANGEL TORRES Appellant VS. NO CR THE STATE OF TEXAS, Appellee ON APPEAL FROM THE 219TH JUDICIAL DISTRICT COURT OF COLLIN COUNTY, TEXAS NO ***************************** APPELLANT S BRIEF ***************************** WILLIAM L. SCHULTZ 2101 BRUGGE COURT PLANO, TEXAS (972) State Bar No ATTORNEY FOR APPELLANT

4 -i- IDENTITY OF PARTIES AND COUNSEL In accordance with the requirements of Texas Rule of Appellate Procedure 38.1, the following listed persons and entities are parties to the order of the Trial Court from which the Appellant now appeals: The Honorable Curt Henderson, Presiding Judge of the 219 th District Court, 2100 Bloomdale Road, McKinney, Texas 75071; Mr. Joshua Angel Torres, Texas Department of Criminal Justice; Mr. David K. Haynes, Counsel for Appellant, 2600 West Eldorado Parkway, Suite 220, McKinney, Texas 75070; Mr. William L. Schultz, Counsel for Appellant, 2101 Brugge Court, Plano, Texas 75025; Collin County Criminal District Attorney, Cynthia Walker, Counsel for Appellee, 2100 Bloomdale Road, Suite 20004, McKinney, Texas 75071; District Clerk s Office, 2100 Bloomdale Road, McKinney, Texas 75071;

5 -ii- TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL..... i TABLE OF CONTENTS...ii INDEX OF AUTHORITIES...iii STATEMENT OF THE CASE...1 STATEMENT OF THE FACTS GROUND OF ERROR NUMBER ONE GROUND OF ERROR NUMBER TWO CONCLUSION AND PRAYER...11 CERTIFICATE OF SERVICE...11

6 -iii- INDEX OF AUTHORITIES Cases Page Jackson v. Virginia, 443 U.S. 307; 99 S.Ct.228: 61 L.Ed.2d 560 (1979).7 Almanza v. State, 686 S.W.2d 157 ( Tex. Crim. App. 1984) Hendrix v. State, 150 S.W.3d 839 (Tex. App,--Houston [14th Dist.] 2004)..9 Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2008) Soto v. State, 267 S.W.3d 327 (Tex.App--Corpus Christi 2008)..10 Clear v. State, 76 S.W.3d 622 (Tex.App--Corpus Christi 2002).. 10 Mahonican v. State, 194 S.W.3d 359 (Tex.App Texarkana 2006) Codes and Rules Texas Const Art. 1, Sec. 19, Art. V Sec. 13 and Texas Code Criminal Proc. Art

7 IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS JOSHUA ANGEL TORRES Appellant VS. NO CR THE STATE OF TEXAS, Appellee ON APPEAL FROM THE 219TH JUDICIAL DISTRICT COURT OF COLLIN COUNTY, TEXAS NO ***************************** APPELLANT S BRIEF *****************************

8 STATEMENT OF THE CASE Joshua Angel Torres complains of his conviction in the 219th Judicial District Court of Collin County, Texas. He was tried before a Jury in Cause No He was found guilty on June 8, 2010 and sentenced by the Jury to 33 years in the Texas Department of Corrections on June 9, A Motion for New Trial was filed on June 11, 2010 and Notice of Appeal was timely given on July 22, In a sad chain of events, the Court of Appeals abated the Appeal and ordered a hearing on the failure of the substitute court reporter to prepare her record in compliance with the Court of Appeals time allowances. (Court of Appeals Order dated November 29, 2010). Despite Trial Court hearings in response to that order, the court reporter again found herself out of compliance due to health reasons. The Trial Judge ordered the reporter to appear in the Collin County Court House on a daily basis from 8:30 am till 5:00 pm until the record was completed (Supplemental Clerk's Record p.6). The Trial Court's findings indicate the reporter became ill on February 17 th, 2011 and the Judge allowed her to go home early. The reporter passed away on February 18th 2011 (Second Supplemental Clerk's Record p.8). The reporter's notes were transcribed by another reporter and the reporter's record was filed with the Court of Appeals on April 14, STATEMENT OF THE FACTS It is undisputed that the decedent, Max Brustein died on October 12, 2008 at the hands of Appellant. The primary issues from the trial were justification for the homicide under the law of self-defense and Appellant's mental state with regard to the killing. Appellant s Brief - Page 1

9 Elizabeth Brustein testified that she was the mother of the decedent, a 17 year old who had been adopted by Ms. Brustein from Romania (RR2 p 129). Max was a senior at Plano Senior High School (RR2 p.141). Prior to his senior year he had a girlfriend, Allison Winget. They had dated for almost two years. That relationship ended at the end of the previous school year in Max took the breakup "hard". On the night of October 11, 2008, a Saturday, Ms. Brustein knew that Max was planning to spend the night at a friends house. Max worked at his grocery store job until about 11:00 pm, came home to change clothes and left to go to the friends house (RR2 p.145). He returned about 2:00 a.m. and said he had forgotten something. He stayed about 10 minutes then left. Then about 5:00 a.m. she heard her son was in the hospital. She went to the hospital where her son later died from injuries (RR2 p148). Chris Brigman testified as a State's witness (RR2, p.143). He had been a Plano Senior High School student in October, 2008 and was a recent friend of the decedent Max Brustein. He described Brustein as "Very outgoing. I mean, he would come in and say hi to as many people as he knew. Meet as many new people as he could (RR2 pp. 165 ll ). He recalled October 11/ , to be an evening of hanging out at Kyle's house with Max (decedent), Kyle, David and Chris. The group went out and egged a couple of houses (RR2, p.166). They were in Kyle's father's truck driven by Kyle when they went to the Wal-Mart store and bought some soda cans, toilet paper and Max stole a pumpkin (RR2, p.170). Brigman also remembered they had gone to decedent's house before Wal-Mart and got some canned food and eggs for their adventure (RR2, p.171). Appellant s Brief - Page 2

10 According to Brigman, the group decided to go to Allison's (decedent's former girl friend) house in the wee hours of Sunday October 12, 2008 with the stated plan that decedent was going to throw the stolen pumpkin at the front door of Allison's house (RR2, p. 174). They threw the pumpkin at the front door and they all got back in the truck. The pumpkin hitting sounded like a gun went off (RR2, p.174). Brigman said no one attempted to enter the house. When they got back in the truck, Kyle was driving, Max (decedent) was in the passenger seat (RR2. p. 175) and Brigman got in the back. David Leal testified he was a 19 year old Plano Senior High School graduate who had met decedent, Max Brustein four or five days before Brustein's death (RR2, p.253). On the evening of the incident, Leal met up with Brigman, Kyle Smith, Chris Kean and Brustein around 11:00 p.m. Kean left early, so they switched trucks and ended up in Kyle Smith's father's truck (RR2, p.257). They stopped by the decedent's house to get some cans of food and an empty pizza box and they drove around wondering what to do. Eventually, the conversation turned to Brustein's exgirlfriend (RR2, p.259). They bought some soda cans and toilet paper and Max stole the pumpkin. They drove to the ex-girlfriend's house and discovered that the Appellant's truck was there and the decedent got out of the truck and threw it at the glass door and shattered the glass (RR2, p.262). They tried to escape, but Appellant caught up with them with his truck. Appellant stopped the truck carrying the young men two or three times. It was a long chase "like thirty minutes" (RR2, p.262). At some point, someone indicated that Appellant had a knife. They stopped at a Tom Thumb store and Appellant attempted to pin them in (RR2, p.265). Appellant got out and went straight to the window of the truck where decedent was sitting. All four young men started to get out of the truck. Decedent got out first. Appellant and decedent were throwing punches at each Appellant s Brief - Page 3

11 other. And then they noticed the decedent was bleeding. Decedent then collapsed (RR2, p. 267). Appellant suggested taking decedent to the hospital in his vehicle, so they did (RR2, p.267). Leal claimed none of his friends nor did the decedent have any weapons in their hands (RR2, p.275). He also claimed that the reason all four men got out of the truck was to try to scare the Appellant with the four on one match up (RR2, p.276). Allison Winget, the former girlfriend of the decedent, and current girlfriend of Appellant at the time of the incident, gave testimony concerning what happened inside her house when the decedent assaulted her house with cans of soda and food and a stolen pumpkin. According to Winget, she and Appellant were lying in bed in her bedroom with her mother in another room when they heard a loud noise (RR3, p.70). Appellant got up out of bed and looked out the window. He asked Winget for his car keys and she gave them to him (RR3, p.72). He ran out of the house in his shorts, no shirt and no shoes (RR3, p.73). She saw his lights disappear down the street (RR3, p.73). Kyle Smith testified essentially as witnesses Brigman and Leal had testified. Smith confirmed that the decedent Brustein had been upset over his break-up with Allison Winget (RR3, p.133). On October 11/12, the young men went to Alison Winget's house and threw soda cans and toilet paper at her home. Then the decedent threw a pumpkin at the front door and it sounded like the glass broke (RR3, p.142). They then drove off quickly and as they were going across the George Bush turnpike, noticed a vehicle following them (RR3, p143). He passed them then stopped, got out of his car and approached their truck. Smith, the driver, pulled around him and then the decedent said that (the man) was Alyson's boyfriend. They drove off and the man (Appellant) began chasing them again and stopped them again (RR3, p.151). They eventually Appellant s Brief - Page 4

12 ended up at the parking of Tom Thumb on Parker and Independence (RR3, p157). They were expecting a fifth man, Daniel, to meet them there and provide some sort of assistance (RR3, 158). Decedent jumped out and began fighting with Appellant after they were blocked in the parking lot by Appellant's vehicle. At some point they noticed that Max was bleeding, then collapsed and was driven to the hospital. Smith never saw Appellant holding the knife, though it was eventually seen on the parking lot (RR3, p.168). Winget examined her front door, the hinges had been broken, but the glass was not. She was shown State's Exhibit #6 and identified it as a knife Appellant carried with him (RR3, p.75). Kyle Smith testified essentially as witnesses Brigman and Leal had testified. Smith confirmed that the decedent Brustein had been upset over his break-up with Allison Winget (RR3, p.133). On October 11/12, the young men went to Alison Winget's house and threw soda cans and toilet paper at her home. Then the decedent threw a pumpkin at the front door and it sounded like the glass broke (RR3, p.142). They then drove off quickly and as they going across the George Bush turnpike, they noticed a vehicle following them (RR3, p143). He passed them then stopped, got out of his car and approached their truck. Smith, the driver, pulled around him and then the decedent said that (the man) was Alyson's boyfriend. They drove off and the man (Appellant) began chasing them again and stopped them again (RR3, p.151). They eventually end up at the parking of Tom Thumb on Parker and Independence (RR3, p157). Daniel Fahnstein, an 18 year old who had graduated from Plano Senior High School and was a friend of the decedent testified about events after the breakup of the decedent and Alison Winget. Although Fahnstein was involved with martial arts, he claimed to have never been Appellant s Brief - Page 5

13 involved in a fight in his whole life (RR3, p. 213). He received a call about 3:47 a.m. from Kyle Smith (one of the boys in the vehicle with the decedent) telling him that they were being chased. He said he would come meet them at the Tom Thumb parking lot (RR3, p.214). A second call ended with "Kyle or Max" saying ""oh shit, fuck" and hanging up the phone (RR3, p.215). When he arrived at the Tom Thumb, nobody was there (RR3, p.219). He didn't know Appellant and never discussed him with the decedent. He had given Appellant a couple of karate lessons. Decedent was described as not "the fighting type of person," and not known to carry knives or to threaten anybody with a gun or knife (RR3, p.219). Plano Officer Albert Lopez testified he had responded to the hospital where Appellant and others had driven decedent (RR3, p.235). Lopez said he talked with Appellant had told him that Appellant had chased the vehicle with decedent and the others to confront them about their vandalism at the Winget residence (RR3, p.238). Vague references were made concerning the fight with decedent and about the use of a knife. Also, Appellant made a vague reference to leaving the knife (RR3, p. 240). Plano Officer Charles Wright located a knife in the east side of the Tom Thumb parking lot that he described being the subject of a photograph, State's Exhibit #7 (RR3, p.246). He saw Appellant s Brief - Page 6

14 droplets of blood on the ground (RR3, p.248). He then became involved in security of the crime scene. Plano Officer Rob Shelton talked with Appellant at the hospital about the decedent s knife. Officer Shelton said Appellant told him that decedent punched Appellant and that was when Appellant struck or stabbed him (RR4, p.7). Detective Brian Pfaning sponsored crime scene photos and surveillance video from Tom Thumb parking lot. The latter showed the cars entering the parking lot but not the affray (RR4, p.23). The Medical Examiner for Collin County, William Bruce Rohr testified that decedent Brustein died of a stab wound to the chest (RR4, p.58). Dr, Al West, a trauma surgeon testified he tried to save Brustein s life but was unsuccessful because he died of shock due to a combination of hemorrhaging from a stab wound to the heart and the inability of his heart to fill (RR4, p. 66). GROUND OF ERROR NUMBER ONE THE EVIDENCE WAS LEGALLY INSUFFICIENT TO PROVE THAT THE APPELLANT CAUSED THE DEATH OF THE DECEASED In Jackson v. Virginia, 443 U.S. 307; 99 S.Ct.228: 61 L.Ed.2d 560 (1979) the United States Supreme Court laid out a methodology for implementing the rule that due process requires that before person's liberty may be forfeited by a criminal prosecution, his guilt of all the elements of the offense must be proven beyond a reasonable doubt. To determine whether the proof of a person's guilt was legally sufficient, the Appellate Court must weigh the evidence supporting the Appellant s Brief - Page 7

15 conviction in the light most favorable to the prosecution and then decide whether a rational jury could find all the elements of the crime beyond a reasonable doubt. It is Appellant's position that the State of Texas failed to prove it was he who caused the death of Brustein by stabbing him with a knife. Although Appellant's girlfriend Alyson Winget identified State's Exhibit #6 as the knife Appellant carried (RR3, p.75), she said he had it in the car somewhere. The knife was discovered at the Tom Thumb parking lot by Plano police officers but was never conclusively linked to Appellant by finger prints or DNA. One of the witnesses, David Leal, was unable to see whether decedent was stabbed by Appellant (RR2, p.194). None of the witnesses actually saw the stabbing itself or put the knife conclusively in the Appellant's hand. David Leal couldn't actually see the knife (RR2, p.268). Chris Brigman was asked about the stabbing and nothing indicated he had actually seen the stabbing (RR2, p.244). Officer Shelton spoke with Appellant at the scene who said nobody had any weapons. The officer, in response to the Prosecutors leading question said that Appellant had said when decedent punched him that, that was when he "struck or stabbed him" (RR4, p7). These facts, taken in their entirety do not establish sufficient evidence that a jury could rationally have found Appellant stabbed decedent causing his death. GROUND OF ERROR NUMBER TWO THE JURY CHARGE ON THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER WAS FUNDAMENTALLY DEFECTVE FOR IMPROPERLY JOINING TWO DIFFERENT TYPES OF WEAPONS DISJUNCTIVELY IN THE APPLICATION PARAGRAPH From the Grand Jury forward, there was some question whether the instrument of death was a Appellant s Brief - Page 8

16 multi-tool or a knife. See for example (Clerk's Record, p.5). Witness David Leal was shown a photograph of State's Exhibit #6 which had been dropped at the scene of the stabbing (RR2, p. 271) as the type of "knife" he saw. The photograph was referred to often by the Prosecutor (RR2, p.271). The Medical Examiner described the sharp instrument of decedent's death but not as a knife. The treating physician referenced a stab wound but did not call it a knife (RR4, p.67). The actual instrument was admitted without objection as State's Exhibit #19 through lead Detective Brian Pfaning who described it as a knife, a deadly weapon (RR4, p.21). Almanza v. State, 686 S.W.2d 157 ( Tex. Crim. App. 1984) is still the starting point for charge error. That case provides the standard of review for jury charge error. In a nutshell, the standard of review when an Appellant has objected to an error in the Court's instructions is whether it has harmed the Defendant. On the other hand, if, as in our case at hand there was no objection to the error in the charge, then Almanza authorizes a reversal only if the error is so egregious and created such harm that the Appellant has not had a fair and impartial trial. It is observed that this charge authorized the jury to convict on either of two instruments and without requiring a unanimous agreement on either of them. Specifically by disjunctively adding the alternate means of knife or multi tool, there was no requirement in the single application portion of the jury charge that there be unanimity on either. Texas. Const. Art. 1, Sec. 19, Art. V Sec. 13 and Texas Code Criminal Proc. Art , secure the right of the accused to a unanimous verdict. Hendrix v. State, 150 S.W.3d 839 (Tex. App,--Houston [14th Dist.] 2004). The Texas Court of Criminal Appeals has been generally friendly to Appellants complaining of unobjected to charge error in this situation. In Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2008), The Court of Criminal Appeals found egregious error in jury instructions Appellant s Brief - Page 9

17 blending "serious bodily injury" and "serious mental injury" in one application paragraph of injury to a child. Egregious harm was found because of the possibility that a verdict of guilty could be reached without a unanimous jury agreeing on one or the other. In affirming the Court of Appeals, the Court of Criminal Appeals said: "We agree with the Court of Appeals conclusion that the jury should have been required to agree unanimously that the Appellant caused either serious bodily injury or serious mental deficiency, impairment, or injury" Stuhler, p.717. The Corpus Christi Court of Appeals in Soto v. State, 267 S.W.3d 327 (Tex.App--Corpus Christi 2008) followed its earlier opinion in Clear v. State, 76 S.W.3d 622 (Tex.App--Corpus Christi 2002) which was cited as authority for the Sixth Court of Appeals decision in Mahonican v. State, 194 S.W.3d 359 (Tex.App-Texarkana 2006). The point to be made in these cases is that when a jury charge is crafted in disjunctive pleadings, there is a really good chance that a jury will believe it merely needs to come to a unanimous verdict on guilt, and not one or both of the disjunctively joined elements. Lest the undersigned attorney be perceived as foolish or duplicitous it is conceded that the jury convicted Appellant of murder rather than manslaughter causing the death of the decedent. Therefore the argument could be made that the error was harmless since it did not result in a conviction for manslaughter. But that harmlessness has to be proven and it is not certain that the error did not affect the jury s deliberations on the murder paragraphs. Appellant s Brief - Page 10

18 CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, for reasons stated in Ground of Error Number One Appellant prays the Honorable Court of Appeals reverse the conviction and enter an acquittal. For reasons stated in Ground of Error Number Two Appellant prays the Honorable Court of Appeals reverse the conviction and order a new trial. Respectfully submitted, WILLIAM L. SCHULTZ ATTORNEY AT LAW 2101 Brugge Court Plano, Texas (972) State Bar No ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE The undersigned certifies that a true copy of the foregoing Appellant s brief for Joshua Angel Torres is served to the Collin County District Attorney s Office by hand-delivery this day of August WILLIAM L. SCHULTZ ATTORNEY AT LAW 2101 Brugge Court Plano, Texas (972) State Bar No ATTORNEY FOR DEFENDANT Appellant s Brief - Page 11