No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS. RICHARD DAVID EASON, Appellant. THE STATE OF TEXAS, Appellee

Transcription

1 No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS 5th Court of Appeals FILED: 11/10/11 14:00 Lisa Matz, Clerk RICHARD DAVID EASON, Appellant v. THE STATE OF TEXAS, Appellee Appeal from Criminal District Court No. 7 of Dallas County, Texas Cause No. F APPELLANT S BRIEF Lynn 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 County Public Defender s Office Dallas, Texas (214) (telephone) (214) (fax) brian.portugal@dallascounty.org ATTORNEYS FOR APPELLANT

2 LIST OF PARTIES APPELLANT DEFENSE COUNSEL AT TRIAL Richard David Eason Cheryl Jaska Attorney at Law P.O. Box Dallas, TX APPELLANT S COUNSEL ON APPEAL STATE S COUNSEL AT TRIAL Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office 133 N. Riverfront Blvd., LB 2 Dallas, Texas Marc Moffitt Laquita Byrd Assistant District Attorneys Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas STATE S COUNSEL ON APPEAL The Hon. Craig Watkins (or his designated representative) Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas ii

3 TABLE OF CONTENTS LIST OF PARTIES...ii INDEX OF AUTHORITIES...iv STATEMENT OF THE CASE...1 ISSUE PRESENTED...1 STATEMENT OF FACTS...1 SUMMARY OF THE ARGUMENT...4 ARGUMENT... 5 PRAYER...8 CERTIFICATE OF SERVICE...9 iii

4 INDEX OF AUTHORITIES Cases Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008)...5, 6 Fant-Caughman v. State, 61 S.W.3d 25 (Tex. App. Amarillo 2001, pet. ref d)...7 Good v. State, 723 S.W.2d 734 (Tex. Crim. App. 1986)...7 Hill v. State, 659 S.W.2d 94 (Tex. App. Houston [14th Dist.] 1983, no pet.)...7 Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998)...5 iv

5 TO THE HONORABLE COURT: Appellant Richard David Eason submits this brief in support of his appeal of the judgment of Criminal District Court No. 7 of Dallas County, Texas in cause number F Y, the Honorable Michael R. Snipes, Judge presiding. STATEMENT OF THE CASE A grand jury charged Appellant by indictment with robbery. (CR: 2). 1 Appellant pled not guilty and proceeded to trial by jury. (RR3: 7 8). The jury found Appellant guilty and sentenced him to 25 years imprisonment. (CR: 44; RR3: 148; RR3: 169). Appellant gave timely notice of appeal. (CR: 48). ISSUE PRESENTED The trial court reversibly erred by overruling Appellant s objection to the prosecutor s improper jury argument. STATEMENT OF FACTS Antonella Console testified that, on November 15, 2009, she was living at 5710 Leona Avenue in Dallas County. (RR3: 9). That Sunday morning she was asleep upstairs when she heard a noise downstairs. (RR3: 9 12). Console got up from the bed, peered over the balcony, and saw a male figure inside her home. (RR3: 12). Console 1 Appellant was also charged in a separate indictment with unauthorized use of a motor vehicle. (RR3: 4 5). That case is not on appeal. 1

6 asked Who s there, hoping to scare the person away. (RR3: 12). Console heard the man inside speaking to another person specifically, she testified that she heard him say She s here. (RR3: 12 13). The man inside her home turned toward the stairs and someone said Take the tape. (RR3: 14). The man came up the stairs and told Console to lay on the bed. (RR3: 14). The man was holding a screwdriver in his hand as if he was ready to hit her. (RR3: 15). Console asked the man not to rape her and not to hurt her. (RR3: 15). The man pushed Console onto the bed, flipped her onto her stomach, and pushed her head into a pillow. (RR3: 16). Console heard someone else ascend the stairs and then felt two people binding her hands and feet with tape. (RR3: 18). Console heard rummaging in the house. (RR3: 19 20). One man asked Console if she had a car, and when she answered that she did, he asked where it was and where her keys were. (RR3: 22). She told him. (RR3: 22). Console heard a sound like someone breaking her garage door and the grinding of gears in a car. (RR3: 24). After the persons left her house, Console saw that a ring, a watch, a flat screen television, and her car were missing. (RR3: 23). Console testified that her car was a BMW Z3 and a roadster. 2 (RR3: 33). When the police arrived, Console called the bank, and the responding officer called the LoJack company. (RR3: 35 36). The car was returned to her later that morning. (RR3: 36). Despite having seen the man who tied her up, Console was never able to identify the perpetrators, but she testified on cross examination that the person depicted in Defense 2 Console s testimony was sometimes confusing, perhaps because she was originally from Italy. (RR3: 7). The car actually appears to be a BMW M Roadster. Compare S.E. 27 with Wikipedia, BMW M Roadster, (last visited May 18, 2011). 2

7 Exhibit 2, later identified as Carl Barker, resembled the man who tied her up. (RR3: 37 43, 101, D.E. 2). Dallas Police Officer Ricky Turner testified that he responded to a robbery call at Console s house. (RR3: 46 47). Console appeared traumatized and told him that two black males had broken into her house, bound her feet and hands, and put duct tape over her mouth. (RR3: 47). Turner saw that there was some tape stuck on the back of her shirt. (RR3: 47). Turner was able to activate the LoJack system on Console s car, which triggered a tracking device that police could follow. (RR3: 48). Richardson Police Officer Andrew Kvis testified that on that same day he was on patrol when a call came in that another officer had detected a LoJack signal in south Richardson. (RR3: 50 51). Kvis drove to the area near the intersection of 75 and 635 to try to locate the signal. (RR3: 51). Kvis detected a signal and followed it to the parking garage next to the Homestead Suites near Coit Road. (RR3: 52). The LoJack system indicated that the vehicle was a BMW Z3 and gave a plate number. (RR3: 53). Kvis saw a matching vehicle and ran its plates, which indicated that it was stolen. (RR3: 53). The vehicle was unoccupied, so Kvis and other officers set up a perimeter covering the exits so that they could intercept it if someone tried to leave in it. (RR3: 54 55). Eventually, Appellant tried to leave in the car, and the officers stopped it in the parking lot. (RR3: 55 56). Dallas Police Officer Robert Fontenot testified that he went to assist a Richardson Police Officer with the vehicle retrieval that morning because it was located in the City of Dallas. (RR3: 59). Fontenot took custody of Appellant. (RR3: 59 60). 3

8 Dallas Police Officer Javier Gonzalez worked in the Crime Scene Unit; he responded to Console s house. (RR3: 63 65). Gonzalez collected a screwdriver, a roll of tape and pieces of tape that were used to tie Console. (RR3: 68). Gonzalez processed the roll of tape and the pieces of tape for fingerprints. (RR3: 69 70). Gonzalez found prints on the pieces of tape. (RR3: 70 71). Officer Dyna Osuna compared the print to prints taken from Appellant and found that they matched. (RR3: 74 79). Appellant testified that on the day in question he was staying with Carl Baker, in an apartment complex where Marcus Reed also lived. (RR3: 96, 101; D.E. 1, 2). At about 7:00 or 7:30, Carl and Marcus woke him. (RR3: 96 97). Carl and Marcus had a plasma TV and some other items with them. (RR3: 97). They also had a car outside, which they let him borrow in exchange for some crack cocaine. (RR3: 97 98). Appellant took the car to visit a girlfriend, who was staying in Apartment 222 of the Homestead Apartments. (RR3: 98). He planned to return later. (RR3: 98). On crossexamination, Appellant testified that he used Console s car but that he didn t commit the robbery. (RR3: 113). SUMMARY OF THE ARGUMENT During jury argument, the prosecutor impermissibly commented on Appellant s exercise of his right to trial. The trial court reversibly erred in overruling Appellant s objection. 4

9 ARGUMENT There are four generally permissible areas of jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Remarks that fall outside the permissible bounds of jury argument are non-constitutional errors that must be disregarded unless the remarks affect substantial rights. Id. at See TEX. R. APP. P. 44.2(b). Such an error affects a substantial right and warrants reversal unless the appellate court has fair assurance that the error did not influence the jury or had but a slight effect. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In determining whether a defendant s substantial rights were affected, the appellate court considers three factors: (1) the severity or prejudicial effect of the misconduct; (2) measures adopted to cure the misconduct; and (3) the certainty of conviction absent the misconduct. Brown, 270 S.W.3d at 573. In evaluating the first factor, the appellate court should consider whether the entire record of final arguments shows a willful and calculated effort on the part of the State to deprive the appellant of a fair and impartial trial. Id. In the present case, the prosecutor made the following comments during his closing argument: She [Console] calls it in at 7:33. At 10:10, they get a hit on the LoJack. How long had he been in that apartment with that girl? I don t know. She s not here. You want to call you want to have a defense, bring her. Where is she? 5

10 Two-and-a-half hours later, he s driving around in her car. And I m kind of confused. Is he saying he s guilty of that or not guilty? I m kind of confused because he pled not guilty and then he got on the stand and said what? Yeah, it was probably stolen. Are you kidding me? (RR3: 126). Defense counsel objected at this point, saying We ll object to that, Your Honor. Everyone has a right to trial. And he s commenting on the defendant s right to trial. (RR3: 126). The trial court overruled the objection. (RR3: 126). The prosecutor s remarks were objectionable because they did not summarize the evidence, seek a reasonable deduction from the evidence, answer opposing counsel, or plead for law enforcement. Rather, the prosecutor sought to penalize Appellant for exercising his right to trial. See Villarreal v. State, 860 S.W.2d 647, 649 (Tex. App. Waco 1993, no pet.) (reversing and remanding for new punishment trial where prosecutor impermissibly commented on defendant s right to trial). Applying the first harm analysis factor, Appellant does not claim that the prosecutor s comments show a willful and calculated effort to deprive him of a fair trial. But analysis under this factor must also consider the prejudicial effect of the remarks, regardless of the intent of the person making them. See id. And the prejudical effect was high. The argument constituted an attempt to prejudice the jury against Appellant for exercising his right to trial. The argument was highly prejudicial for two reasons. First, the objectionable remark was directed at Appellant s exercise of a constitutional right guaranteed by the Sixth and Fourteenth Amendments. See Villarreal, 860 S.W.2d at 649 ( A penalty cannot be imposed for the exercise of a constitutional right. ). In light of the 6

11 fact that the only evidence linking Appellant to the robbery was a fingerprint on a piece of tape and Appellant s admission that he used Console s car, any prejudice for exercising his right to have a jury decide his guilt or innocence could tip the jury from reasonable doubt into a conviction. Second, due to the position of a prosecutor as a trusted public official, the jurors may have given undue weight to his allusion to extrinsic evidence. See Fant-Caughman v. State, 61 S.W.3d 25, 31 (Tex. App. Amarillo 2001, pet. ref d). Applying the second factor, the trial court overruled Appellant s objection and hence made no attempt to cure the misconduct. This action amounted to putting the stamp of judicial approval on the improper argument, thus magnifying the possibility for harm. See Good v. State, 723 S.W.2d 734, 738 (Tex. Crim. App. 1986). Applying the third factor, Appellant s conviction was far from certain absent the misconduct. As previously mentioned, it was essential for the jury to believe the circumstantial evidence against Appellant the fingerprint on a piece of tape and his presence in Console s car in order to return a conviction for the robbery. See, e.g., Hill v. State, 659 S.W.2d 94, 96 (Tex. App. Houston [14th Dist.] 1983, no pet.). Appellant denied participation in the robbery, and the State offered no direct evidence to contradict this argument. There is no fair assurance that the prosecutor s improper arguments did not influence the jury or had but slight effect, because the circumstantial evidence against Appellant was weak, especially in light of his taking the stand and admitting to being in 7

12 Appellant s car but denying the robbery. This Court should therefore reverse Appellant s conviction and remand the case for a new trial. PRAYER Appellant prays that the Court reverse the trial court s judgment and remand this cause for a new trial. 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 8

13 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 4, Brian W. Portugal 9