Nos CR, CR, CR, CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS

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1 Nos CR, CR, CR, CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS 5th Court of Appeals FILED: 11/1/11 14:00 Lisa Matz, Clerk CODY ANTHONY JACKSON, Appellant v. THE STATE OF TEXAS, Appellee Appeals from the 265th Judicial District Court of Dallas County, Texas Cause Nos. F R, F R, F R, F R APPELLANT S BRIEF Lynn Pride Richardson Chief Public Defender Counsel of Record: Brian W. Portugal Assistant Public Defender Appellate Division Dallas County Public Defender s Office Katherine A. Drew State Bar Number: Chief, Appellate Division 133 N. Riverfront Blvd., LB 2 Dallas, Texas (214) (telephone) (214) (fax) brian.portugal@dallascounty.org ATTORNEYS FOR APPELLANT

2 LIST OF PARTIES APPELLANT Cody Anthony Jackson DEFENSE COUNSEL AT TRIAL APPELLANT S COUNSEL ON APPEAL STATE S COUNSEL AT TRIAL Fred Burns Attorney at Law 4144 N. Central Expressway, #250 Dallas, TX Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office 133 N. Riverfront Blvd., LB-2 Dallas, TX Renee Harris Marcia Taylor Assistant Criminal District Attorneys Dallas County District Attorney s Office 133 N. Riverfront Blvd., LB-19 Dallas, TX STATE S COUNSEL ON APPEAL The Honorable Craig Watkins Criminal District Attorney Dallas County, Texas ii

3 TABLE OF CONTENTS LIST OF PARTIES...ii TABLE OF CONTENTS...iii INDEX OF AUTHORITIES...iv STATEMENT OF THE CASE...1 ISSUE PRESENTED...1 STATEMENT OF FACTS...1 SUMMARY OF THE ARGUMENT...4 ARGUMENT... 4 PRAYER...7 CERTIFICATE OF SERVICE...8 iii

4 INDEX OF AUTHORITIES Cases State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005)...5 Rules FED. R. EVID TEX. R. EVID TEX. R. EVID iv

5 TO THE HONORABLE COURT: Appellant Cody Anthony Jackson submits this brief in support of his appeal of the judgments of the 265th Judicial District Court of Dallas County, Texas in cause numbers F R, F R, F R, and F R, the Honorable Mark Stoltz, Judge presiding. STATEMENT OF THE CASE Appellant was charged by four indictments with aggravated robbery by use of a deadly weapon. (CR1: 5; CR2: 5; CR3: 5; CR4: 5). 1 Appellant pled guilty before a jury, which sentenced him to 18 years imprisonment in one cause and 15 years imprisonment in the other three causes. (RR4: 8 11; RR6: 4 5; CR1: 19; CR2: 29; CR3: 19; CR4: 30). Appellant gave timely notice of appeal. (CR1: 24; CR2: 33; CR3: 23; CR4: 34.). ISSUE PRESENTED The trial court abused its discretion by admitting evidence of Appellant s tattoos. STATEMENT OF FACTS Appellant participated in the robberies of four businesses. Rejina Shrestha worked at a beauty supply store when, on March 13, 2009, it was robbed of money in the cash register by a man who displayed a gun. (RR4: 26 30). Eight days later, at a Quizno s, 1 CR1: F R. CR2: F R. CR3: F R. CR4: F R. 1

6 Fahema Khatun and June Black were robbed at gunpoint on March 21, (RR4: 33 48). Young Ban was closing up her donut shop on April 17, 2009, when a man entered with a gun and robbed her of the money in the cash register. (RR4: 17 22). The same day, around 4:30 p.m., Kevin Shaikh was robbed in the office of a Taco Bell by a man with a gun. (RR4: 49 56). In a statement given to an Irving Police Detective, Appellant admitted to robbing the beauty supply store, the Quizno s, and the Taco Bell and to being the driver for his brother, Phillip, who robbed the donut store. (RR4: 60 62). The detective testified that four others, including Phillip, had been charged in the robberies. (RR4: 79). Two detention service officers of the Dallas County Sherriff s Office testified to Appellant s conduct while in the jail. One wrote-up Appellant for using an emergency phone after he had been left in a punishment cell for over 23 hours. (RR4: 70 77). Another testified that Appellant walked slowly when ordered to return to his cell, balled his fist at him (though he did not assault him), and yelled at him, whereupon the officer and a colleague took Appellant to the ground. (RR4: 80 85). Martha Jackson, Appellant s mother, testified that her son got onto the wrong track when his older brother, Phillip, came back into their lives. (RR4: 91 98). Appellant s mother and father had put Phillip, their first child, up for adoption, but he had tracked them down. (RR4: 91 94). Martha explained to the jury that Phillip introduced Appellant to drugs, which compounded the difficulties Appellant faced when his parents divorced. (RR4: 94 96). After Martha and Appellant s father divorced, Appellant s 2

7 father moved away, and Martha, Appellant, and Appellant s younger siblings lived in a hotel after losing their home. (RR4: 93 98). Martha testified that after the divorce, Appellant took on a burden that someone his age probably shouldn t have to take on[,] but that Appellant did it with as smile on his face because he loved his younger siblings (RR4: 95). The defense s other witnesses, including his mother, his childhood baseball coach, his childhood best friend and that friend s mother, three uncles, his cousin, two pastors, one pastor s wife, two great uncles, and his great aunt, testified that Appellant had been a good child, that he was intelligent, and that, based on their experiences, they could never have imagined that Appellant would commit the instant offenses. (RR4: , , , , , , , , , ; RR5: 5 10, 15 19, 20 24). Appellant s 12 year old sister testified that defense counsel did not ask her to testify but that she wanted to testify. (RR4: 199). She told the jury that Appellant would do anything for her. (RR4: ). Appellant testified that there was no justification for what he had done and that he was wrong. (RR5: 53). Appellant was 17 when he participated in the robberies. (RR5: 54). Appellant had filed applications for probation from the jury, and he testified that he wanted a chance to complete the SAFPF drug treatment program. (CR1: 10; CR2: 20; CR3: 10; CR4: 21; RR5: 58). 3

8 SUMMARY OF THE ARGUMENT The trial court abused its discretion by admitting photographs into evidence that depicted Appellant s tattoos. The tattoos, depicting various religious symbols and names, had no relationship to the charged offenses of aggravated robbery, and any probative value was outweighed by the danger of unfair prejudice. ARGUMENT During cross-examination of Appellant, the prosecutor sought to admit photographs into evidence that depicted Appellant s tattoos. (RR5: 71 72; S.E. 6 13). Defense counsel objected to the exhibits on the basis that they were irrelevant and that, if they were relevant, their relevance was outweighed by the danger of unfair prejudice. (RR5: 71 72, 77 78). The trial court conducted a hearing outside the presence of the jury, during which Appellant testified in response to the prosecutor s questions about the tattoos. (RR5: 72 77). The tattoo on the inside of Appellant s left forearm depicts a cross; Appellant testified that this had religious significance to him. (RR5: 72 73; S.E. 13). On Appellant s wrist, the initial C was tattooed, which Appellant said he had thought looked nice. (RR5: 73; S.E. 11). The tattoo on Appellant s upper left arm depicts a mural of an angel, two lions, and a man kneeling in prayer; Appellant explained that it had religious significance like Daniel in the lion s den. (RR5: 74; S.E. 74). Martha, the name of Appellant s mother was tattooed on the middle inside of Appellant s left 4

9 arm. (RR5: 74, S.E. 10). Another tattoo depicts a cross with the reaper, which Appellant testified wasn t a sound decision and wished he could remove it. (RR5: 75; S.E. 8). Appellant explained that the reaper was a caretaker of death. (RR5: 75). At the bottom of the reaper, who is holding a cup, was the word codeine, which Appellant explained was a nickname that played on his first name, Cody, and the phrase take a sip. (RR5: 76; S.E. 8). A tattoo on Appellant s chest depicts a sphinx, which Appellant explained resembles knowledge. (RR5: 77; S.E. 9). The trial court concluded that it goes to character, and overruled Appellant s objections. (RR5: 77 78). The prosecutor then questioned Appellant in front of the jury regarding the tattoos depicted in the exhibits; Appellant testified substantially the same as he had in the hearing outside the jury s presence. (RR5: 79 87). Rule 401 provides that relevant evidence is evidence having any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. TEX. R. EVID Rule 403 provides that evidence which is otherwise admissible must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to a party. TEX. R. EVID When reviewing a trial court s ruling on the admissibility of evidence under Rule 403, an appellate court looks for abuse of discretion. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Analysis of admissibility under Rule 403 looks to 1) the probative value of the evidence, 2) its potential to impress the jury in an irrational but indelible way, 3) the time needed to develop the evidence, and 4) the proponent s need for the evidence. Id. at

10 Appellant s tattoos were irrelevant. They had no probative value as to any material matter in the punishment trial because they do not bear any relationship to the offense of aggravated robbery. Alternatively, any probative value that they had was outweighed by the danger of unfair prejudice because tattoos generally and the negative imagery embodied in the reaper, the word codeine, and the phrase take a sip, specifically, had the unbridled potential to impress the jury in an irrational way. They could raise, in the minds of the jurors, negative stereotypes about the kind of person who covers his body in tattoos. Further, the prosecutor s cross-examination on Appellant s tattoos takes up nearly 10 pages of testimony in the record, magnifying the potential for unfair prejudice. (RR5: 79 87). Finally, in reviewing the trial court s Rule 403 analysis, the Court should consider the incremental value of the evidence that is, whether the evidence loses some of its probative value to the danger of unfair prejudice because the challenged evidence is cumulative. C.f. FED. R. EVID. 404(b) advisory committee note ( The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other facts appropriate for making decisions of this kind under Rule 403. ). 2 Here, if the tattoos had any probative value at all, it was obviously cumulative of other evidence Appellant had pled guilty before the jury, and the complainants had all testified to the robberies and their effects. (RR4: 8 11, 17 26, 26 30, 33 48, 49 56). 2 The advisory committee s note is informative because the Texas Rules of Evidence were modeled on the federal rules, and Texas Rule 403 is identical to its federal counterpart. 6

11 In the face of the irrelevant, unfairly prejudicial, and cumulative nature of the evidence, the trial court abused its discretion by admitting the photographs of tattoos into evidence. No jury could have disregarded that evidence, which was calculated to play on negative stereotypes. This Court should therefore reverse the trial court s judgment and remand for a new punishment trial. PRAYER Appellant prays that the Court reverse the trial court s judgment and remand these causes for a new punishment trial. 7

12 Respectfully submitted, Lynn Richardson Chief Public Defender Dallas County Katherine A. Drew Chief, Appellate Division Dallas County Public Defender s Office Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office State Bar Number: N. Riverfront Blvd., LB 2 Dallas, Texas (214) telephone (214) fax Attorneys for Appellant CERTIFICATE OF SERVICE A copy of this brief has been hand-delivered to the Dallas County Criminal District Attorney s Office, Appellate Division, 133 N. Riverfront Blvd., Dallas, Texas on November 1, Brian W. Portugal 8