No CR IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS

Transcription

1 No CR IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS CURTIS DEWAYNE CRISS, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from the 204 th Judicial District Court of Dallas County, Texas Trial Court No. F Q BRIEF I SUPPORT OF COU SEL'S MOTIO TO WITHDRAW J. STEPHEN COOPER 4711 Gaston Avenue Dallas, TX FAX SBN Counsel for Appellant

2 IDE TITY OF THE PARTIES A D COU SEL Appellant: Counsel for Appellant: Counsel for Appellee: Curtis DeWayne Criss J. Stephen Cooper 4711 Gaston Avenue Dallas, TX Craig Watkins, District Attorney Frank Crowley Courts Bldg. 133 N. Industrial Blvd. Dallas, TX i

3 TABLE OF CO TE TS IDENTITY OF THE PARTIES AND COUNSEL... i TABLE OF CONTENTS... ii LIST OF AUTHORITIES... iii STATEMENT OF THE CASE... 2 CERTIFICATE OF SERVICE...9 ii

4 LIST OF AUTHORITIES CASES: Chambers v. State, 866 S.W.2d 9.22 (Tex.Crim.App. 1993)...3 Epps v. State, 811 S.W. 2d 237 (Tex.App.-Dallas 1991, no pet.)....2 Jackson v. State, 745 S.W. 2d 4 (Tex.Crim.App. 1988), cert. denied, 487 U.S (1988)....2 Herron v. State, 86 S.W.3d 361 (Tex.Crim.App. 2002)...8 STATUTES: TEX.CODE CRIM.PROC.ANN.art TEX.CODE CRIM.PROC.ANN.art TEX.CODE CRIM.PROC.ANN. art TEX. PENAL CODE ANN (a)(2)...2 TEX.PENAL CODE ANN (a)(2)....8 RULES: TEX.R.APP.P. 21.8(c)...8 iii

5 No CR IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS CURTIS DEWAYNE CRISS, Appellant v. THE STATE OF TEXAS, Appellee On Appeal from the 204 th Judicial District Court of Dallas County, Texas Trial Court No. F Q BRIEF I SUPPORT OF COU SEL'S MOTIO TO WITHDRAW TO THE HONORABLE JUSTICES OF SAID COURT: COMES NOW J. STEPHEN COOPER, court appointed counsel on appeal in the above styled and numbered cause and files this his brief in support of his motion to withdraw filed herein. BRIEF I SUPPORT OF COU SEL'S MOTIO TO WITHDRAW -- Page 1

6 STATEME T OF THE CASE Appellant was indicted May 1, 2007, CR: 31, for the first degree felony offense of capital murder, CR: 2. TEX. PENAL CODE ANN (a)(2). The indictment tracks the language of the statute and thus gave Appellant constitutionally adequate notice absent a motion to quash. TEX. CODE CRIM. PROC. ANN. art ; see generally, Epps v. State, 811 S.W.2d 237 (Tex. App.-Dallas 1991, no pet.). The record fails to reflect any challenge to the grand jury which returned the indictment. The State did not seek the death penalty. RR. 3:24. Numerous pre-trial motions appear in the record and there were no objections to any rulings at the pre-trial hearing on March 13, RR. 2. At the beginning of jury selection, prospective Juror Number 1 failed to appear. RR. 3:17. Appellant objected to proceeding in the absence of this juror who was African American, as is Appellant. RR. 3: 17; 159. The Court stated that it had called the central jury room looking for the missing juror and the juror's name had been called in the hallway twice. The prosecutor said he had called the hallway four times and got no response. RR.3: 160. The defense did not object to these factual assertions. Nor did the defense (1) request a writ of attachment for the missing juror; (2) identify a juror he was forced to take; or (3) demonstrate any particular injury. Under TEX.CODE CRIM.PROC.ANN. art , no error occurred. See generally, Jackson v. State, 745 S.W. 2d 4 (Tex.Crim.App. 1988), cert. denied, 487 U.S (1988). Although the defense submitted multiple jurors for cause on their alleged inability to consider the full range of punishment, RR.3: 156, and a request for additional peremptory strikes was denied, RR.3: 159, the defense did not identify any jurors selected who were objectionable BRIEF I SUPPORT OF COU SEL'S MOTIO TO WITHDRAW -- Page 2

7 or use his strikes on each such juror. Cf. Chambers v. State, 866 S.W.2d 9.22 (Tex.Crim.App. 1993). Indeed, ultimately defense counsel said he had no objection to the jury. RR.3: 179; 181. State's witness Auzout testified that on February 22, 2008) the date of the offense as alleged in the indictment) he was in his apartment around 10:00 p.m. in Dallas when he heard first, one gunshot, and then two more shots a couple of seconds later. RR.4: His apartment was directly beneath the apartment where the deceased, Demarco Boyd, was found. RR.4: 22. After these shots, he heard running on the stairs. RR.4: 31. Ivin Mullen was given immunity by the State. State's Exhibit No. 10. Mullen was a friend of Boyd and it was his apartment where Boyd was found dead. RR.4: He knew Appellant as a business partner. RR.4: Mullen said Appellant got drugs from the deceased. RR.4: 42. Appellant's friend Brian McDowell also got drugs from Boyd. RR.4: 43. On the day of the offense, Mullen gave a key to his apartment to Boyd so Boyd could "meet Ace, Curtis Criss, and take a shower." RR.4: 57. Boyd was in his green Chevrolet Impala. RR.4: 58. Mullen testified that Appellant called him once that evening to ask whether Boyd had left and then later called again and told Mullen that Boyd wasn't at Mullen's apartment. RR.4: 59. Mullen believed Boyd was at Mullen's apartment because Boyd had called him asking about where the soap was to clean the bath tub. RR.4: 61. When Mullen went to his apartment later, he saw a lot of police at the complex. He went up to his apartment, the door is open, and he goes in and sees Boyd dead. RR.4: 65. He then went back downstairs and got one of the police officers who was already at the complex on another matter. RR.4: 66; 77. BRIEF I SUPPORT OF COU SEL'S MOTIO TO WITHDRAW -- Page 3

8 Mullen knew Boyd to carry a.45 caliber handgun. RR.4: 69. Mullen believed Boyd's money and gun were gone as was his car. RR.4: 75. He also saw the key he had given Boyd on the table in his apartment. RR.4: 75. When Mullen was at the police station, Appellant called him and said he didn't even go to Mullen's apartment. RR.4: Officer Cupid of the Dallas Police Department testified that she was at Boyd's apartment complex on a report of a disturbance. RR.4: 117. While there, the witness Mullen approached her and said "I think my friend is not breathing." RR.4: 119. She and her backup officer then went to Mullen's apartment and found Boyd. RR.4: 120. Co-defendant Joseph Williams had a plea deal with the State to get one-half of any sentence Appellant got, or 35 years if Appellant was given life without parole on a capital murder conviction. RR.4: 141. On February 22, 2007, at around 6:00 p.m., Williams met with Appellant and Brian McDowell at McDowell's house. RR.4: 156. Williams said Appellant and McDowell were mad and said Boyd owed them $40 or $50. RR.4: 160. Williams said Appellant said "y'all want to go kill [Boyd]?" and McDowell said yes. RR.4: 161. They "started planning" and it was agreed that McDowell would go upstairs to the apartment while Williams and Paris a/k/a Sho would stay downstairs as lookouts. The plan was to rob Boyd of his drugs, money and car. RR.4: 161. The plan was to both rob and kill Boyd. RR.4: 162. The plan was also to kill Mullen. RR.4: 163. Williams said Appellant had a.38 caliber handgun, RR.4: 164, that he carried in his blue hoodie, RR.4: 165. Brian McDowell suggested using gloves and he got some latex blue gloves out of his bathroom. RR.4: Williams said Appellant called Boyd to locate him and then the four of them (Appellant, McDowell, Williams and Paris) walked over to Mullen's apartment. RR.4: 167. Williams BRIEF I SUPPORT OF COU SEL'S MOTIO TO WITHDRAW -- Page 4

9 testified also that Appellant cleaned off the bullets of his gun so as to not leave fingerprints. RR.4: 168. After Appellant and McDowell went upstairs to Mullen's apartment, Williams heard a knock and then 15 to 20 minutes later he heard gunshots at which point Williams and Paris ran back to McDowell's apartment. RR.4: 172. Later Appellant pulled up in a Chevy Impala which Appellant gave the witness. RR.4: Williams took the car to a chop shop. RR.4: 180. He wore a pair of Boyd's shoes for a few hours and then put the blue latex gloves in them and threw them in the trash at his mother's. RR.4: Co-defendant Brian McDowell testified for the State without any plea agreement. RR.4: 202. McDowell said he wanted to meet up with Boyd to pay Boyd the $20 he owed him. RR.4: McDowell said Mullen had called him to say Boyd was at Mullen's apartment. RR.4: 205. So he walked over to Mullen's apartment while Williams fell back. RR.4: 208. He entered the apartment with Appellant and sat down at the table where Boyd was sitting as Appellant remained standing. RR.4: 211. All of a sudden Appellant shot Boyd according to McDowell, RR.4: 212, and McDowell ran out, RR.4: 214. McDowell went back to his apartment and 15 minutes later Williams and Appellant pull up in Boyd's car. RR.4: 216. The witness said Appellant was wearing a dark colored hoodie at the offense. RR.4: 219. McDowell said he heard Appellant and Williams saying they got a couple of hundred dollars off Boyd's body. RR.4: 237. McDowell's girlfriend, Amber Green, said that on the day of the offense, Appellant, Williams and Paris, came by her apartment. RR.5: 59. She heard Appellant say to McDowell that he was "going to do what I'm going to do." RR.5: 60. She said she kept blue latex gloves in BRIEF I SUPPORT OF COU SEL'S MOTIO TO WITHDRAW -- Page 5

10 her apartment. RR.5: 64. The four men left the apartment together. RR.5: 65. McDowell and Appellant later returned to her apartment and McDowell looked "disoriented, in a state of shock" and Appellant told her he was sorry he "brought this to your house." She said Appellant was wearing a black or blue hoodie before they left the house but was carrying the hoodie when they returned. RR.5: She also saw Williams outside in a car. RR.5: 68. Green said Appellant had a visible gun when he was initially at her apartment. RR.5: 71. A hearing to suppress Appellant's videotaped statement was conducted outside the jury's presence. Det. Kim Sanders testified that he conducted a custodial interrogation of Appellant on February 23, RR.5: Before reading Appellant his Miranda rights, Sanders asked Appellant about "some personal information about where he lived or something like that." RR.5: 19. The Court suppressed the two minutes of the interview that occurred prior to Appellant being given his Miranda warnings but found the balance of the interview admissible. RR.5: 28; 32. The Court filed findings of fact and conclusions of law that are supported by the record and therefore not an abuse of discretion. Supp. CR.1: 1-4. Appellant admitted shooting Boyd but claimed he was threatened. RR.5: State's Exhibit 36A. A ballistics expert testified that the two.38 caliber hand guns turned into the police by Mullen were not the source of the bullets from Boyd's body. RR The medical examiner testified Boyd died from multiple gunshots. RR.6: 58. A trace evidence examiner testified she found gunshot residue on a blue hoodie that had been seized by the police from Appellant. RR.5: 105; RR.6: 75; State's Exhibit No. 53. Gunshot residue was found on the back of Boyd's hands consistent with being shot at or toward. RR.6: 89. And no gunshot residue was found on Mullen or McDowell. RR.6: 95. BRIEF I SUPPORT OF COU SEL'S MOTIO TO WITHDRAW -- Page 6

11 After the prosecution rested, the defense presented Cedric Stanton who was an inmate in the county jail. RR.6: 105. He got to know Joseph Williams who advised Stanton that he (Williams) was "the shooter" in the capital murder case Williams was charged with. RR.6: 106. Kaylo Thomas was another jail inmate who said he knew Williams in the jail and Williams told Thomas that he (Williams) and McDowell "had to kill somebody." RR.6: 132. He also met Appellant in jail and related that Appellant denied killing anybody and that Appellant agreed to "take the case" because his family was threatened RR.6: 134. Appellant testified also. He admitted he was at McDowell's apartment on February 22, 2007, and said that McDowell asked him to go with him to see Boyd at Mullen's apartment later that day. RR.6: 146. Appellant left McDowell's but later McDowell and Joseph Williams came to Appellant's home at around 10:00 p.m. Appellant said McDowell again asked him to go with him to pay Boyd back the money McDowell owed him. RR.6: 147. Appellant said he didn't go because his girlfriend was there with him plus it was past his mother's 10:00 p.m. curfew for him. RR.6: 147. The next morning Appellant saw Williams pull up in Boyd's car and Appellant got in. Appellant asked Williams what happened the previous night and Williams said he and McDowell went to Mullen's apartment and he and Williams killed Boyd. RR.6: Williams then threatened to harm Appellant's mother and sister if Appellant didn't take the blame for the murder. RR.6: 149. Williams drove Appellant to the barber shop and when Appellant got out, he took the blue hoodie that was on the car seat. RR.6: 150. BRIEF I SUPPORT OF COU SEL'S MOTIO TO WITHDRAW -- Page 7

12 Appellant also spoke with McDowell that day and McDowell told him that Williams had shot Boyd. RR.6: 151. Appellant said he was afraid of Williams' threats because he had seen Williams shoot somebody before. RR.6: 151. He said he admitted to the police he shot Boyd because of Williams' threats. RR.6: 154. Appellant's mother testified that he was at her home all night on February 22, RR.6: In rebuttal the State called a police officer who said Appellant's mother denied he was at her home when the police came to arrest him. RR.6: 192. Then Appellant's mother was recalled to say she didn't lie to the police, she just thought Appellant had left the house earlier and she was not aware he was home. RR.6: Following the close of evidence and final arguments, a general verdict of guilty was returned. RR.7: 47; CR: 168. The evidence was sufficient both legally and factually to support a finding of guilt. Witness McDowell and Williams were accomplice witnesses in the jury charge whose testimony must be corroborated pursuant to TEX.CODE CRIM.PROC.ANN. art Appellant's statement was sufficient to tend to connect him to the offense even disregarding the accomplice testimony in that he admitted shooting Boyd. Cf. Herron v. State, 86 S.W.3d 361 (Tex.Crim.App. 2002). Upon conviction of capital murder as charged in the indictment, the punishment of life in prison was mandatory. TEX.PENAL CODE ANN (a)(2). The judgment accurately reflects the trial proceedings. CR Appellant timely filed a motion for new trial. CR: 177. This record does not reflect a hearing or ruling on this motion so it was overruled as a matter of law. TEX.R.APP.P. 21.8(c). BRIEF I SUPPORT OF COU SEL'S MOTIO TO WITHDRAW -- Page 8

13 Nothing in this record suggests Appellant was denied his right to a fair trial. Based on this record alone, nothing demonstrates Appellant was denied effective assistance of counsel. After a thorough review of the appellate record and the applicable constitutions, statutory and case authorities, it is the professional opinion of the undersigned that this appeal is frivolous. Respectfully submitted, 4711 Gaston Avenue Dallas, TX SBN Counsel for Appellant CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the fore going document was served upon Craig Watkins, District Attorney, George Allen Courts Bldg., 133 N. Industrial Blvd., Dallas, Texas 75207, on this the 14 th day of January, BRIEF I SUPPORT OF COU SEL'S MOTIO TO WITHDRAW -- Page 9