No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS. INOCENCIO M. VILLASENOR, Appellant. THE STATE OF TEXAS, Appellee

Transcription

1 No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS INOCENCIO M. VILLASENOR, Appellant v. THE STATE OF TEXAS, Appellee Appeal from County Criminal Court No. 3 of Dallas County, Texas Cause No. M 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 Inocencio M. Villasenor Rick L. Cohen Attorney at Law Hillcrest Road, Suite 111 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 Dawn Whalen Theiss Stara Roemer-Hendricson Jason Fine 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 TABLE OF CONTENTS... iii INDEX OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 ISSUE PRESENTED... 1 STATEMENT OF FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 4 PRAYER... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE iii

4 INDEX OF AUTHORITIES 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)... 4 iv

5 TO THE HONORABLE COURT: Appellant Inocencio M. Villasenor submits this brief in support of his appeal of the judgment of County Criminal Court No. 3 of Dallas County, Texas in cause number M , the Honorable Doug Skemp, Judge presiding. STATEMENT OF THE CASE Appellant was charged by an information with driving while intoxicated. (CR: 33). Appellant pled not guilty and proceeded to trial by jury. (RR2: 64). The jury found Appellant guilty, and the trial court sentenced Appellant to 150 days confinement in the Dallas County Jail, probated for 18 months, and a fine of $700. (CR: 8, 16; RR3: ). Appellant gave timely notice of Appeal. (CR: 5). ISSUE PRESENTED The trial court denied Appellant the right to put on a defense. STATEMENT OF FACTS Richardson Police Officer Shawn Harris testified that, on June 30, 2007 at 4:15 a.m., he was parked on the Midpark overpass, observing traffic northbound on Central Expressway into the City of Richardson. (RR2: 67 71). Harris saw a gray Dodge pickup truck, driven by Appellant, straddling the lane dividers for the right lane and the right center lane. (RR2: 71). Harris left the overpass, entered the highway, and began 1

6 following Appellant. (RR2: 71). Harris followed Appellant from the 200 block of North Central Expressway to the 1600 block of North Central Expressway and observed Appellant cross over the right lane s left lane divider five times. (RR2: 72). Harris pulled Appellant over. (RR2: 73). Harris informed Appellant of the reason for the stop and observed that Appellant s eyes were watery and bloodshot, noticed that his speech was slurred, and smelled the odor of alcohol. (RR2: 73 74). According to Harris, he asked Appellant if he had been drinking, and Appellant told him that he had been drinking earlier at a party in Farmers Branch. (RR2: 74). Harris asked him how much he had consumed, and Appellant told him five beers; Appellant admitted that he was a little drunk and that five beers was over the limit. (RR2: 74). Harris observed an open beer bottle in the floorboard cup holder. (RR2: 74). Harris called for a backup officer and conducted field sobriety tests. (RR2: 74 76). Harris first performed a horizontal gaze nystagmus test, which examines whether there is involuntary jerking of the eye. (RR2: 78 79). Harris testified that Appellant manifested nystagmus, indicating that Appellant was intoxicated. (RR2: 83). Next, Harris had Appellant perform a test called walk and turn. (RR2: 84). This test involved instructions and walking. (RR2: 84). During the instruction phase, the officer observes whether the examinee is unable to maintain balance while receiving instructions. (RR2: 84). During the walking phase, the officer observes whether the examinee is able to keep his heels close to his toes while walking in a line, whether the examinee uses the correct number of steps, whether the examinee is able to keep a 2

7 straight line, whether the examinee is able to properly turn, and whether the examinee must raise his arms for balance or stop while walking to steady himself. (RR2: 85 86). Harris testified that during the instruction phase, Appellant was unable to maintain balance, and that during the walking phase, Appellant stopped while walking to steady himself, did not keep his toes within one half of an inch from his forward heel, stepped off of the line, and made an improper turn, all of which indicated that Appellant was intoxicated. (RR2: 86 87). Harris next administered the one leg test, during which he instructed Appellant to pick up one leg off the ground and hold it for 30 seconds. (RR2: 87). According to Harris, Appellant gave two out of four intoxication indicators in that he was unable to balance without swaying and had to put his foot down. (RR2: 87 88). Based on Appellant s performance on these tests, the circumstances leading up to the stop, and his contact with Appellant, Harris believed that Appellant had been driving while intoxicated. (RR2: 91). SUMMARY OF THE ARGUMENT The trial court repeatedly abused its discretion by prohibiting defense counsel from cross-examining the State s most important witness about relevant areas of inquiry. Collectively, these abuses of discretion violated Appellant s constitutional right to put on a defense. 3

8 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: 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). 4

9 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 and second instances occurred during the defense s cross examination of Officer Harris, when the trial court prohibited defense counsel from a demonstration of the walk and turn test that Harris administered to Appellant, as shown in the following exchange: Q. Officer Harris, with a little leeway, could we go through the instructions for the walk and turn. That s where we left off yesterday. A. Okay. You want me to actually give them to you? Q. Yes. A. Take a few steps back for me. I need you to imagine a straight line in front of you. Put your left foot on that line. Put your right foot heel to toe in front of it. I need you to stand in that position until I tell you to begin. Do you understand? Q. Yes. A. Okay. You re going to take nine heel to toe steps, one, two, three, until you get to nine. Once you get to nine THE COURT: Stop one second. [Defense counsel], he can give the instructions. I don t want you to respond yes, I understand, or, not, I don t understand. I don t want you speaking, okay? [DEFENSE COUNSEL]: Okay. * * * Q. Now, next question, when I do your test, if I do it and I m just going to go through the motions [PROSECUTOR]: Your Honor, I will object to any demonstration of the test by the Defense attorney. It s essentially his nonverbal testimony as to whether or not he can perform the test. 5

10 THE COURT: Sustained. (RR3: 4 6). The trial court s ruling was an abuse of discretion because defense counsel was prohibited from providing a more thorough understanding of the walk and turn test, which was one of only three field sobriety tests administered to Appellant and one of the tests on which the officer s opinion of intoxication was based. (RR2: 74 87). The third instance occurred when the trial court prohibited defense counsel from inquiring into Officer Harris understanding of unsafe driving: Q. So what would constitute unsafe? A. I would believe crossing the lane divider that he s not in. Q. So, in your opinion, if someone crossed the lane divider they weren t in and they didn t signal the lane change, that would be unsafe? A. Potentially could be it s unsafe if there s other vehicles on the road. You know, they could be behind them. It s you can never tell where all the vehicles are going to be. If you re riding over the line, you never know if there s a vehicle next to you; you could crash into them or Q. But if you saw someone cross the line without signaling and there was a car coming or actually next to them and you saw the car next to them move in an evasive manner, would that constitute an unsafe lane change? A. Not I m sorry, I don t understand the question. Q. If you saw a car which had crossed the line without signaling and there was another car that was near to that car that actually moved away in an evasive manner, would that be unsafe to you? [PROSECUTOR]: Your Honor, at this time, I need to object to hypotheticals that aren t relevant to this situation. [DEFENSE COUNSEL]: May I respond, Your Honor? THE COURT: Yes 6

11 [DEFENSE COUNSEL]: I think basically what I wanted to show is that there were no other cars at the time THE COURT: Well, you can ask him that and ask whether he felt it was unsafe in this matter and why it was unsafe, but don t ask him to answer a bunch of hypothetical questions that may or may not have anything to do with the facts of this case and you re not linking them to the facts of this case. I ll sustain the objection.... (RR3: 26 27). This was an abuse of discretion because Officer Harris testified that he based his conclusion that Appellant was driving while intoxicated, in part, on the driving that he observed. (RR2: 91). Prohibiting defense counsel from probing Officer Harris understanding of unsafe driving deprived the defense of the opportunity to demonstrate that Harris understanding might diverge significantly from the jury s understanding. Finally, the trial court sustained another objection by the prosecutor while defense counsel was cross-examining Officer Harris about his prior experience as a witness for the State: Q. I realize this is your first DWI case. Is this the first time you ve testified in court? A. No. Q. How many times have you testified in court before? A. On the actual criminal trial, I ve had two, and then I ve done a motion to suppress a few times. Q. On the actual criminal trial, have juries and judges always agreed with you in assessing of your case? all. [PROSECUTOR]: Objection, Your Honor. That s not relevant at THE COURT: Sustained. 7

12 (RR3: 38). The trial court abused its discretion with this ruling because Officer Harris had given significant expert testimony in the case for example, Harris had testified to the science and application of the horizontal gaze nystagmus test. (RR2: 78 83). The history of an expert witness s testimony is vital to the expert s credibility, and the defense was deprived of the opportunity to probe that history for the jury s benefit in assessing credibility. 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 right to present a defense because the rulings 1) denied Appellant the ability to examine the specifics of a critical field sobriety test, 2) denied Appellant the opportunity to probe the officer s understanding of dangerous driving, and 3) completely closed off a relevant line of inquiry into an expert witness s credibility. 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 February, 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: Inocencio M. Villasenor 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: Inocencio M. Villasenor 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