Nos CR & CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS CURTIS HEATH, Appellant.

Transcription

1 Nos CR & CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS 5th Court of Appeals FILED: 6/15/11 14:00 Lisa Matz, Clerk CURTIS HEATH, Appellant v. THE STATE OF TEXAS, Appellee Appeals from Criminal District Court No. 4 of Dallas County, Texas Cause Nos. F K & F 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 Curtis Heath William D. Bill Cox, Jr. Attorney at Law 325 N. St. Paul Street Suite 2100 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 Myra McIntosh Tammy Kemp 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 ISSUES PRESENTED...1 STATEMENT OF FACTS...2 SUMMARY OF THE ARGUMENT...5 ARGUMENT... 6 The trial court reversibly erred by refusing to charge the jury...6 The trial court reversibly erred by refusing to grant a mistrial after the prosecutor s improper jury argument...7 The trial court erred in denying the motion of Appellant s counsel to withdraw PRAYER...12 CERTIFICATE OF SERVICE...13 CERTIFICATE OF COMPLIANCE...14 iii

4 INDEX OF AUTHORITIES Cases Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008)...8, 9 Burgess v. State, 816 S.W.2d 424 (Tex. Crim. App. 1991)...12 Gaines v. State, No CR, 2007 Tex. App. LEXIS 4985 (Tex. App. Dallas June 27, 1997, pet. ref d) (not designated for publication)...11 Hamel v. State, 916 S.W.2d 491 (Tex. Crim. App. 1996)...6, 7 Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998)...8 King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000)...12 Monreal v. State, 947 S.W.2d 559 (Tex. Crim. App. 1997)...12 Thomas v. State, 550 S.W.2d 64 (Tex. Crim. App. 1977)...12 iv

5 TO THE HONORABLE COURT: Curtis Heath submits this brief in support of his appeal of the judgments of Criminal District Court No. 4 of Dallas County, Texas in cause numbers F K & F K, the Honorable John Creuzot, Judge presiding. STATEMENT OF THE CASE A grand jury charged Appellant by three indictments with aggravated assault against three different complainants. (CR1: 2; CR2: 2; RR3: 18 22). 1 Appellant pled not guilty and proceeded to trial by jury. (RR3: 22). The jury found Appellant guilty in cause numbers F and F but acquitted Appellant in cause number F (CR1: 39; CR2: 29; RR4: ). The jury sentenced Appellant to life imprisonment for each offense, and the trial court ordered Appellant s sentence in cause number F to run consecutive to (i.e. stacked on ) a 30 year sentenced imposed for an offense in Kaufman County. (CR1: 57; CR2: 38, 42, RR5: ). Appellant gave timely notice of appeal. ISSUES PRESENTED 1. The trial court reversibly erred by refusing to charge the jury on the issue of self defense. 1 CR1 refers to the clerk s record in cause number F CR2 refers to the clerk s record in cause number F

6 2. The trial court reversibly erred by refusing to grant a mistrial after the prosecutor s improper jury argument. 3. The trial court reversibly erred in denying the motion of Appellant s counsel to withdraw. STATEMENT OF FACTS Shamora Rhymes lived with her three children: Shamoni (age 11), Christian (also Appellant s son, age 7), and Malachi (also Appellant s son, age 1). (RR3: ). Appellant was Shamora s ex-boyfriend; she had known him for 15 years. (RR3: ). On March 30, 2009, Appellant had taken Christian to get something to eat. (RR3: 183). When they returned, Shamora was breastfeeding Malachi, so after she let them in, she went back to the bedroom to continue. (RR3: 184). Appellant asked Shamora to give Malachi to the other children. (RR3: ). She did not, and Appellant closed the door and began stabbing her. (RR3: ). Shamora testified that during the attack, Malachi was also stabbed. (RR3: ). Shamora slumped down and played dead, whereupon Appellant left the room. (RR3: ). Shamora got up and went to Shamoni s room, where Appellant was, and told him not to hurt her kids. (RR3: 188). At some point, six year old Christian got a knife and tried to stab Appellant, but Appellant took it away. (RR3: 189). Christian ran to get another, but Appellant also took that one away. (RR3: 189). 2

7 Shamora testified that when she told Appellant not to hurt her children, he demanded that she give him his phone and his keys. (RR3: ). Shamora explained on direct examination that, days before, Appellant s car keys and phone had gone missing. (RR3: ). Appellant continued to demand his keys and phone, but Shamora told him that she didn t have them. (RR3: ). Shamora testified that she asked Appellant to take her to the hospital, and he stabbed her again. (RR3: 195). According to Shamora, Appellant said The white man finally got what he wanted; a nigga done finally snapped. (RR3: 195). Shamora testified that she didn t know what Appellant meant by this. (RR3: ). At some point, Appellant told the household to come get in the car, that they were going to the hospital. (RR3: ). The children told him no, and he said if they didn t come, he would get his gun and shoot them all. (RR3: 197). Appellant picked Malachi up and tried to hand him to Shamora, but she couldn t take him because of her wounds, so Appellant took him as the family went outside. (RR3: ). Once outside, Shamora and the children ran into a neighbor s house. (RR3: ). Appellant followed and kicked the neighbor s door. (RR3: 199). The neighbors called 911. (RR3: ). Shamora testified that it was possible that Appellant was on drugs. (RR3: 232). According to Shamora, Appellant had told her that she was driving him to drink and that he was going to get him a twenty bottle of wet[,] which she thought was embalming 3

8 fluid. (RR3: 232). That was before Appellant took Christian to get something to eat. (RR3: 232). Shamoni Rhymes, age 11 at trial, testified that on the evening in question, her cousin had visited the home. (RR3: 74 78). At some point, Appellant came home and went into a back room with her mother, Shamora. (RR3: 78 79). Shamora was breastfeeding her little brother (Appellant s son), Malachi. (RR3: 79). Shamoni testified that the door to that room was not closed all the way, and after hearing screaming, she looked in and saw Appellant stab Malachi. (RR3: 79). According to Shamoni, I guess he was trying to stab my mom, but my mom was breastfeeding Malachi so he stabbed Malachi. (RR3: 79 80). Shamoni testified that Appellant also stabbed her mother. (RR3: 80 83, 86 87). 2 Her brother (Appellant s other son), Christian, was telling Appellant to stop. (RR3: 87 88). At some point, after Shamora pleaded to be taken to the hospital, Appellant told everyone to get in the car. (RR3: 89). According to Shamoni, once outside, Appellant, who had picked up Malachi, dropped him. (RR3: 89 90). Shamoni picked Malachi up and handed him to her mother, who took off running to the neighbor s house; Shamora told Shamoni to come on. (RR3: 91). 3 Appellant followed the family, which had made it into the neighbor s house, and he banged on the door but gave up when the neighbor s husband arrived home. (RR3: 92 93). Appellant left in his car. (RR3: 95). 2 Shamoni went on to testify that Appellant tried to stab her. (RR3: 83 86). The jury, however, acquitted Appellant of that conduct. (RR4: ) 3 Shamoni went on to testify that Appellant pointed a gun at her. (RR3: 91 92). The jury acquitted Appellant of that conduct. (RR4: ). 4

9 Courtney Chambers was in her home where she lived with her mother and stepfather, Patrick Fisher. (RR3: 27 28). She testified that, around 10:30 p.m., Shamora came to the door screaming Help me, he s trying to kill me. (RR3: 28). Courtney s mother opened the door and found Shamora standing there with a baby, bleeding. (RR3: 29 30). Courtney called 911. (RR3: 30 31). Shera Chambers, Courtney s mother, testified that Shamora was wet because it was raining hard that night and that Shamora was bleeding and screaming. (RR3: 35 39). Shera also called 911. (RR3: 39 42). Patrick Fisher, Shera s husband and Courtney s stepfather, testified that he was arriving home that evening, and he saw someone run across his yard. (RR3: 52). At first, he thought it was kids playing, but then he saw them run to his front door. (RR3: 53). Patrick then saw Appellant at his front door, kicking it. (RR3: 56 58). At some point, Appellant stopped and walked off. (RR3: 58 59). Patrick saw that Appellant had a pistol in one hand. (RR3: 58 59). Appellant left in his car. (RR3: 64). SUMMARY OF THE ARGUMENT By refusing to charge the jury on the issue of self-defense, the trial court ignored the fact that there was evidence before the jury that was probative of that defense. In such a circumstance, it is error to refuse a requested instruction. Though the trial court correctly sustained Appellant s objection to the prosecutor s improper jury argument, it reversibly erred in denying a mistrial because the prosecutor s improper argument injected facts not in evidence from a witness who did not testify. 5

10 Appellant s trial counsel sought to withdraw as soon as he reasonably could upon learning that his mother was the foreperson of the grand jury that charged Appellant with the offenses at issue. Appellant was entitled to new counsel who would not be influenced by a relative already having concluded that Appellant committed three crimes. ARGUMENT Issue 1 The trial court reversibly erred by refusing to charge the jury on the issue of self-defense. Appellant asked the trial court to instruct the jury on the theory of defense of another, citing evidence in the record that Appellant acted to protect himself against Shamora, who attacked him. (RR4: 97). The trial court refused that request. (RR4: 98). A person is justified in using deadly force against another if, 1) under the circumstances as the person believes them to be, another is using or threatening the person with deadly force and 2) the person reasonably believes that use of deadly force is immediately necessary to protect against the other s use of threatened use of deadly force. TEX. PENAL CODE 9.32(a). A defendant is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the defense. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). 6

11 In this case, the evidence clearly raised the issue of defense of another. Appellant told his mother in a recorded phone conversation that Shamora attacked him and that he responded to defend himself; he also told medical personnel that his wife attacked him. (RR4: 41, 49 51; S.E. 91). It was not for the trial court to dismiss that evidence because, as Hamel 916 S.W.3d at 493 instructs, the defendant is entitled to the instruction regardless whether the evidence in support is weak and/or contradicted and regardless what the trial court might think about the credibility of the defense. It is also clear that Appellant was harmed by the refusal to instruct the jury on self defense because the jury was deprived of a theory other than guilt. The jury clearly had some problems with the State s case because it acquitted Appellant of assaulting Shamoni. (RR4: ). By convicting Appellant of assaulting Shamora and Malachi, the jury obviously found that Appellant assaulted them, but it was deprived of the opportunity to decide whether he did so while defending himself against an attack by Shamora. The trial court s error in refusing to charge the jury on that theory warrants a new trial. Issue 2 The trial court reversibly erred by refusing to grant a mistrial after the prosecutor s improper jury argument. argument: In the this case, the prosecutor made the following comments during his closing 7

12 Then you didn t get to see little Christian the one who tried to be the hero out of all of this. The one who ran to the kitchen to get two knives. And I submit to you that this knife as flimsy as it is you know did not inflict injury on anyone. And this knife it has [Appellant s] blood on it. But why does it have [Appellant s] blood on it? Because this is one of the knives that Christian went to grab from the kitchen that he took from him. And whether he swatted or grabbed it or whatever, that s how [Appellant] got that injury. It wasn t inflicted by Shamora or inflicted by anyone else. It was inflicted through his own terror. But Christian will have to ask himself why wasn t I able to save my mom everyday. (RR4: 107) (emphasis added). Defense counsel objected at this point, saying I object. That s pure speculation. (RR4: 107). The trial court sustained the objection and instructed the jury to disregard, but the trial court denied Appellant s motion for a mistrial. (RR4: ). 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). As the trial court recognized by sustaining Appellant s objection and instructing the jury to disregard, the prosecutor s remarks were improper. They did not summarize 8

13 the evidence, seek a reasonable deduction from the evidence, answer opposing counsel, or plead for law enforcement. Rather, the prosecutor sought to introduce facts that were not in evidence specifically, that Christian was afraid or that he would harbor self-doubt for the rest of his life. 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. 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 prejudicial effect was substantial. The argument constituted an attempt to impute to Christian, a child who was present for the alleged assaults, ongoing psychological effects. That argument was highly prejudicial for two reasons. First, the objectionable remark introduced facts not in evidence Christian did not testify at all. Second, even if the fact had been in evidence, it was not relevant to Appellant s guilt or innocence. 9

14 Applying the second factor, though the trial court sustained Appellant s objection and instructed the jury to disregard, the prejudice stemming from the improper conduct far outweighed the curative value of the instruction to disregard for the same reason the prosecutor s injection of facts not in evidence were not even relevant to the jury s guilt innocence determination. Applying the third factor, Appellant s conviction was far from certain absent the misconduct. The jury acquitted Appellant of assaulting Shamoni, but their consideration of Christian s point of view could have led them to convict Appellant for assaulting Shamora and Malachi. There is no fair assurance that the prosecutor s improper arguments did not influence the jury or had but slight effect. This Court should therefore reverse Appellant s convictions and remand these causes for a new trial. Issue 3 The trial court erred in denying the motion of Appellant s counsel to withdraw. On the morning that the trial court was to receive evidence, Appellant s counsel moved to withdraw. (CR: 31; RR3: 8). Appellant demonstrated a conflict of interest between his interests and his trial counsel s interests. Appellant s counsel represented to the trial court, both in a written motion and in open court, that his mother was the foreperson of the grand jury that indicted Appellant. (CR2: 31; RR3: 8 9). A grand jury investigates a case to determine whether probable cause exists to charge a person with an offense. Davis v. State, 961 S.W.2d 156, 160 (Tex. Crim. App. 1998). That is the same 10

15 standard that governs a peace officer s ability to arrest for an offense. See State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011). In light of his mother having determined that probable cause existed to prosecute Appellant, Appellant s counsel explained his predicament to the trial court, as illustrated in the following exchange: DEFENSE COUNSEL: Judge, I ll just tell you that yesterday when I discovered [that his mother was the foreperson of the grand jury] it did cause me a great deal of concern. I did disclose it to my client yesterday afternoon so the record would be clear and these are serious cases. And I told him that my mom I wouldn t go against my mom and her decision she made to indict him. So I said that may have put me in a conflict with him in representing him. THE COURT: What do you mean by that? DEFENSE COUNSEL: mom s opinion.... I just mean that I would never dispute my (RR3: 10 11). Further, Appellant s counsel represented to the trial court Appellant s desire for new counsel on this basis: [M]y client because of all of this doesn t feel comfortable with me presenting his case to this jury. (RR3: 13). Appellant s motion made substantially the same complaint. (CR: 31). Though a defendant does not have a right to his or her appointed counsel of choice and may not request new counsel solely to obstruct the administration of justice, if there is a conflict between the defendant s interests and the interests of appointed counsel, a defendant is entitled to new counsel. Gaines v. State, No CR, 2007 Tex. App. LEXIS 4985, at *2 *3 (Tex. App. Dallas June 27, 1997, pet. ref d) (not designated for publication) (citing Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. 11

16 App. 1997); Burgess v. State, 816 S.W.2d 424, 429 (Tex. Crim. App. 1991); Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977)). Personality conflicts and disagreements over trial strategy are typically not grounds for new counsel, but if appointed counsel is required to make a choice between advancing the client s interest in a fair trial or advancing other interests, there is a conflict warranting new counsel. See id. (citing King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000); Monreal, 947 S.W.2d at 564). Appellant clearly had a problem with his trial counsel and wanted new counsel based on his belief and his counsel s asserted belief that he was conflicted between his mother s having charged Appellant with an offense and his duty to defend his client. And there was no dispute that the grounds that gave rise for Appellant to question the loyalty of his trial counsel came to light only after voir dire. The trial court therefore should have granted Appellant s motion. (RR3: 8 9). The trial court abused its discretion in refusing to appoint new counsel for Appellant. This Court should therefore reverse Appellant s conviction and remand for a new trial. PRAYER Appellant prays that the Court reverse the trial court s judgments and remand these causes for new trial. 12

17 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 June, Brian W. Portugal 13

18 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: Curtis Heath v. State B. The Appellate Case Number: CR & CR C. The Type of Brief: Appellant s Brief D: Party for whom the brief is being submitted: Appellant Curtis Heath 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) 14