No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS. LAKEITH FOWLER, 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: 4/15/11 14:00 Lisa Matz, Clerk LAKEITH FOWLER, Appellant v. THE STATE OF TEXAS, Appellee Appeal from County Criminal Court No. 9 of Dallas County, Texas Cause No. M K 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 APPELLANT S COUNSEL ON APPEAL STATE S COUNSEL AT TRIAL Lakeith Fowler John Weddle Attorney at Law PO Box Plano, TX Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office 133 N. Riverfront Blvd., LB 2 Dallas, Texas Rory Perez Brad Clements 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 APPELLANT S BRIEF... i LIST OF PARTIES... ii TABLE OF CONTENTS... iii INDEX OF AUTHORITES... iv STATEMENT OF THE CASE... 1 ISSUE PRESENTED... 1 The trial court denied Appellant the constitutional right to put on a defense STATEMENT OF FACTS... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 4 PRAYER... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE iii

4 INDEX OF AUTHORITES Cases Holmes v. South Carolina, 547 U.S. 319 (2006)... 4 Holmes v. State, 323 S.W.3d 163 (Tex. Crim. App. 2010)... 4 Kelly v. State, 321 S.W.3d 583 (Tex. App. Houston [14th Dist.] 2010, no pet.)... 4 Miller v. State, 36 S.W.3d 503 (Tex. Crim. App. 2001)... 4 Pointer v. Texas, 380 U.S. 400 (1965)... 5 iv

5 TO THE HONORABLE COURT: Appellant Lakeith Fowler submits this brief in support of his appeal of the judgment of County Criminal Court No. 9 of Dallas County, Texas in cause number M , the Honorable Peggy Hoffman, Judge presiding. STATEMENT OF THE CASE The State charged Appellant by an information with assault against a person with whom he shared a dating relationship. (CR: 51). Appellant pled not guilty and proceeded to trial by jury. (RR4: 6 7). The jury found Appellant guilty and made an affirmative finding that Appellant was in a dating relationship with Appellant. (CR: 25 26; RR7: 4). The trial court sentenced Appellant to 365 days incarceration in the county jail, probated for 12 months, and a fine of $1,000. (CR: 16; RR8: 6). Appellant gave timely notice of appeal. (CR: 14). ISSUE PRESENTED The trial court denied Appellant the constitutional right to put on a defense. STATEMENT OF FACTS Tristen Wilson testified that Appellant assaulted her on July 13, On that date, Wilson had been dating Appellant for about a year and a half, and she had a child with him. (RR4: 9 10). At that time, they were no longer in a committed relationship, 1

6 but [they] did have a cordial relationship as parents of [their] daughter. [They] still had dealings with each other. (RR4: 11). The day before the alleged assault, Wilson, Appellant, and their daughter had been to Taste of Dallas. (RR5: 32). There was some discussion about Appellant coming to Wilson s apartment that evening to help her because she was sick. (RR5: 31). Appellant never came, but Wilson s friend Clarence Williams did come to visit the following morning the day of the alleged assault and he brought her breakfast and some cold medicine. (RR4: 13). That morning, while Clarence was still there, Wilson was getting ready for church. (RR4: 12 14). Appellant arrived and parked in a space directly outside the bedroom of Wilson s apartment. (RR4: 14 15). Appellant began banging on her door, but Wilson would not answer the door. (RR4: 15). Appellant would periodically stop the banging, go back to his car, throw coins at her window, and then come back to bang on her door again. (RR4: 15). Wilson called her friend, Crystal Perry, to come to the apartment to escort her to her car. (RR4: 20; RR5: 60). Wilson testified that she thought that if someone else was there to escort her to her car, Appellant wouldn t act violently or try to confront her. (RR4: 20). Wilson explained in her testimony that, though Clarence was still there with her, she thought that the situation might escalate if another man walked her to her car. (RR4: 20 21). Wilson watched Crystal arrive, and she began to unlock the door and turn the knob to let Crystal in. (RR4: 22). Wilson was holding her infant daughter in her daughter s car seat. (RR4: 23). When Wilson opened the door, Appellant was there standing in front of Crystal. (RR4: 24 25). Appellant pushed his way into the apartment, 2

7 causing Wilson to stumble and let go of the car seat; Appellant then pushed her, one hand toward her face and one toward her chest, causing Wilson to fall to the floor. (RR4: 25 26). Crystal also testified to this exchange. (RR5: 63). Appellant left Wilson s apartment after Wilson told him he needed to leave. (RR4: 28). Wilson left her apartment with Clarence, Crystal having already carried Wilson s daughter out to Crystal s car. (RR4: 28). When Wilson and Clarence got to the parking lot, Crystal was talking to Appellant, who wanted to take his daughter with him. (RR4: 29). Appellant then engaged Wilson in conversation, asking her if they were going to be back in a relationship[.] (RR4: 29 30). Wilson was trying to get to her car, but Appellant confronted her such that, as she testified, we re going around cars, in and out, in and out, because we re basically dancing around cars. He goes one way, I go the other way. Because every time I would try to go one way, he would block me from going that direction.... (RR4: 30). Wilson told Appellant that she wanted to leave, and when she wouldn t answer the questions that Appellant asked, he began to punch her in her face, as both Wilson and Cyrstal testified. (RR4: 31 32; RR5: 67). Appellant struck her temple and her forehead, causing her to feel pain. (RR4: 32, 37). Wilson told Crystal to leave with the baby, and Clarence began saying things to Appellant, distracting him long enough for Wilson to get into her own car and leave. (RR4: 33). Wilson later called the police. (RR4: 39). 3

8 SUMMARY OF THE ARGUMENT The trial court s collective abuses of discretion in prohibiting cross-examination of relevant lines of inquiry deprived Appellant of the constitutional right to present a defense. Appellant is therefore entitled to a new trial. ARGUMENT The U.S. Constitution, through the Fourteenth Amendment and the Sixth Amendment, guarantees criminal defendants a meaningful opportunity to present a complete defense. Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quotation omitted). That right is a fundamental element of due process of law. Miller v. State, 36 S.W.3d 503, 506 (Tex. Crim. App. 2001). A trial court s ruling excluding evidence may rise to the level of a constitutional violation if a trial court s clearly erroneous ruling excludes otherwise relevant, reliable evidence which forms such a vital portion of the case that exclusion effective precludes the defendant from presenting a defense. Kelly v. State, 321 S.W.3d 583, 592 (Tex. App. Houston [14th Dist.] 2010, no pet.). A trial court s prohibition of relevant cross examination deprives a defendant of the right to put on a defense. Holmes v. State, 323 S.W.3d 163, 173 (Tex. Crim. App. 2010) ( the trial court s ruling disallowing cross-examination of the State's expert witness violated the defendant s fundamental rights to a fair trial ) ( the denial of the right to present a defense is a violation of due process and results in constitutional error ). As the Supreme Court has recognized: 4

9 There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal. Indeed, we have expressly declared that to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment's guarantee of due process of law. Pointer v. Texas, 380 U.S. 400, 405 (1965). In this case, the trial court four times interjected or sustained objections by the prosecutor during cross-examination. The cumulative effect of these restrictions was to deny Appellant the right to put on a defense. The first instance occurred during the defense s cross examination of Wilson, when the trial court prohibited defense counsel from inquiring into Wilson s involvement with Appellant s finances. (RR5: 46 49). Appellant s finances had been discussed in regard to a federal criminal investigation into Appellant, in which Wilson had testified to the assault, and following which a federal court revoked Appellant s bond in that case. (RR5: 42 43). Appellant s finances were also discussed in regard to Wilson s filing of a claim for child support against Appellant, contending that his support up to that point was inconsistent. (RR5: 44 45). Defense counsel asked Wilson about $15,000 that Appellant put into her bank account while she was pregnant. (RR5: 45). Wilson answered: A.... [Appellant] had just got his federal case, and all of his accounts had been seized. So he was actually in the process of buying a Lamborghini, and the $15,000 was a down payment that was a Lamborghini. He had the deposit returned to him, because he wasn t going to purchase the vehicle anymore. So he had it returned and put into my account, and then we used it, like, when we went to dinner or went to the mall to use it... It was actually for a 5

10 Lamborghini, but his accounts were frozen, so he had it transferred to my account. Q.... Did he did you give him 5,000 of that back? A. Yes. He came and I gave it to him, I think, in a cashier s check. Yes, a cashier s check. Q. How did you get that? A. I worked at the bank. I was actually I worked at the bank at the time, and he called and asked me for the money, that he needed the money, so I just withdrew it from my account and got a cashier s check and gave it to him. Q. And just to make sure they understood, today you re saying that back then you knew all of his assets had been frozen? (RR5: 45 46). At that point, the trial court interrupted and asked the attorneys to approach the bench and then excused the jury. (RR5: 46). The trial court appointed counsel for Wilson, and after conferring with her, Wilson s counsel explained to the trial court that he had no objection to allowing Wilson to continue her testimony, because he believed it would simply be repeating what she had already told the federal authorities. (RR5: 48 49). Nevertheless, the trial court refused to allow further questioning on the subject. (RR5: 49). The trial court s ruling was an abuse of discretion because defense counsel was prohibited from further developing Wilson s motive to lie or embellish the alleged offense specifically, that she might share some criminal culpability with respect to the federal investigation and therefore have a motive to portray herself as much as possible as a battered girlfriend being manipulated by Appellant. The second instance occurred when the trial court prohibited defense counsel from inquiring into Wilson s knowledge about a pending family court case she brought against 6

11 Appellant. The prosecutor had questioned Wilson about the state of custody of her daughter vis-à-vis Appellant. (RR5: 54). Wilson explained that there was a case pending in district court and that Appellant had no visitation rights. (RR5: 54 55). On crossexamination, defense counsel tried to inquire into her knowledge about a new trial having been granted in that case: Q. When we were in court the last time, did you see a document entitled Order Granting New Trial? [PROSECUTOR]: I m going to object again. backdoor hearsay. This is it s [THE COURT]: Sustained. (RR5: 56 57). This was an abuse of discretion because the prosecutor had, by his questions and Wilson s answers, left the jury with the impression that a family court found Appellant s history and character to be such that he was not allowed to visit his child. The defense was entitled to correct that impression by asking Wilson not to state what someone had said but to answer whether she ever saw a document that granted a new trial in the family court case. The answer to that question would not have been hearsay, because it was not asking her to testify to the truth of an out-of-court statement it only asked her to testify whether she had knowledge of a document. Third, the trial court sustained an objection to a question from defense counsel about Crystal Perry s knowledge of Wilson s relationships. Defense counsel s asked Had you been involved in any other disturbances or conflicts between these two [Appellant and Wilson] before that incident? (RR5: 75). The trial court sustained a relevance objection. (RR5: 75). This was an abuse of discretion because the history of 7

12 the relationship was directly relevant to the credibility of Wilson and Perry s testimony that Appellant assaulted Wilson. Finally, the trial court sustained a relevance objection to defense counsel s asking Crystal, Were you aware that Ms. [Wilson] and [Clarence Williams] had been in some kind of a relationship at the time you were taking care of her? (RR5: 75 76). The trial court abused its discretion with this ruling because there had been evidence earlier in the trial that Wilson had previously made a statement that Clarence Williams, in the course of an earlier romantic relationship with him, hurt her. (RR4: 37 38). The answer to defense counsel s question was thus relevant to a defensive theory that Wilson may have been assaulted, but it was not Appellant who assaulted her. The trial court s abuses of discretion, while in isolation might not rise to the level of reversible error, when taken in their entirety deprived Appellant of the constitutional right to present a defense. The trial court s rulings 1) denied Appellant the ability to probe Wilson s motives, 2) denied Appellant the opportunity to correct an impression that Appellant was of poor character, and 3) completely closed two relevant lines of inquiry about Appellant s history with Wilson and Clarence Williams history with Wilson. Appellant is therefore entitled to a new trial. PRAYER Appellant prays that the Court reverse the trial court s judgment and remand this cause for a new trial. 8

13 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 Appellate Division Dallas County Public Defender s Office State Bar Number: N. Riverfront Blvd., LB 2 Dallas, Texas (214) telephone (214) fax brian.portugal@dallascounty.org 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 April 15, Brian W. Portugal 9

14 CERTIFICATE OF COMPLIANCE I certify that this submitted CD or attachment of the brief complies with the following requirements of the Court: 1. The brief is submitted on a CD or by attachment; 2. The CD or attachment is labeled with the following information: A. Case Name: Lakeith Fowler v. State B. The Appellate Case Number: CR C. The Type of Brief: Appellant s Brief D: Party for whom the brief is being submitted: Lakeith Fowler E. The Word Processing Software and Version Used to Prepare the Brief: MS Word The CD or attachment contains only an electronic copy of the brief and the appendix. The documents in the appendix conform to the requirements of Texas Rules of Appellate Procedure 9.8 and 38.1(k). 4. The CD or attachment is free of viruses or any other files that would be disruptive to the Court=s computer system. The following software, if any, was used to ensure the brief is virus-free:. 5. I understand that a copy of this brief may be posted on the Court s website and that the electronically filed copy of the brief becomes part of the Court s record. 6. Copies have been sent to all parties associated with this case. (Signature of filing party and date) Brian W. Portugal (Printed name) Dallas County Public Defender s Office, Appellate Division (Firm) 10