IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS

INDEX OF AUTHORITIES Cases Page Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002).............................. 6 Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997)........................... 3 Kentucky v. Stincer, 482 U.S. 730 (1987)...................................... 4 Presley v. Georgia, U.S., 130 S.Ct. 721 (2010)........................... 4 State v. Roberts, 909 S.W.2d 110 (Tex. App. Houston [14 th Dist.] 1995, vacated on other grounds, 940 S.W.2d 655 (Tex. Crim. App. 1996)............... 2, 3 State ex rel. Simmons v. Moore, 774 SW.2d 711 (Tex. App. El Paso 1989, no pet.). 2, 3 Stine v. State, 908 S.W.2d 429 (Tex. Crim. App. 1995)........................... 3 Waller v. Georgia, 467 U.S. 39 (1984)........................................ 4 Codes and Rules TEX. CODE CRIM. PROC. ANN. art. 39.02....................................... 2, 3 -i-

IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS NORMAN LEHR, Appellant, NO. 05-09-00381-CR THE STATE OF TEXAS, Appellee ON APPEAL FROM THE 282ND JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS TRIAL COURT CAUSE NO. F07-00591-LRKS PRESIDING JUDGE ANDY CHATHAM ****** APPELLANT S REPLY BRIEF ******* TO THE HONORABLE COURT OF APPEALS: NOW COMES Appellant, NORMAN LEHR, and would show this Honorable Court the following: I. On June 18, 2010, the State filed its brief in this case. For the most part the State s Brief requires no reply. There are, however, a few points raised by the State that merit a brief discussion. II. The first issue presented for review in Norman Lehr s Brief is that the trial court erred Appellant s Reply Brief - Page 1

in conducting proceedings outside of Dallas County. The third issue in Lehr s Brief is that the trial court erred in conducting a deposition of the complaining witness, if it was a deposition, sua sponte. The State argues initially that the hearing that was conducted in Denton County to determine whether Deloise Barrett was competent to testify at Lehr s trial was a deposition and not a hearing and that a deposition can be conducted anywhere in the state. (State s Brief, pp. 12-14). The State acknowledges that neither party requested a deposition pursuant to Article 39.02 of the Texas Code of Criminal Procedure. (State s Brief, p. 12). Accordingly, the State characterizes the hearing as an informal deposition. (State s Brief, p. 13). Lehr s Brief cites State ex rel. Simmons v. Moore, 774 SW.2d 711 (Tex. App. El Paso 1989, no pet.) for the proposition that in the absence of a motion pursuant to Article 39.02 of the Code of Criminal Procedure supported by proper affidavit a trial court has no discretion to order a deposition. Id. at 715. The State distinguishes Simmons on the basis that there the State objected to the trial court ordering a deposition and here the State acquiesced in the trial court conducting a hearing (now called a deposition) outside of Dallas County. The State totally overlooks the fact that Simmons held that in order to conduct a deposition in a criminal case there must be strict compliance with Article 39.02. There was no compliance with the Code of Criminal Procedure in Simmons just as there was no compliance in this case. In attempting to distinguish Simmons from this case the State is relying on a distinction without a difference. Lehr s Brief also cites State v. Roberts, 909 S.W.2d 110 (Tex. App. Houston [14 th Dist.] 1995, vacated on other grounds, 940 S.W.2d 655 (Tex. Crim. App. 1996) for the same Appellant s Reply Brief - Page 2

proposition as Simmons, a deposition in a criminal case must comply with Article 39.02. The State does not even mention Roberts in its brief. It is clear that absent compliance with Article 39.02 of the Code of Criminal Procedure, there can be no deposition in a criminal case. A trial court has no discretion to order a deposition outside the parameters of Article 39.02. Accordingly, the hearing in this case was a hearing, not a deposition. Calling the hearing a deposition does not make it so. The State argues in the alternative that if the hearing that was conducted outside the county seat of Dallas County was not a deposition that any error in conducting the hearing in Denton County rather than in Dallas County as the Texas Constitution requires is harmless. (State s Brief, p. 14). The State asserts that Stine v. State, 908 S.W.2d 429 (Tex. Crim. App. 1995), the case cited in Lehr s Brief for the proposition that it is fundamental error to conduct court proceedings outside the county seat has, in effect, been overruled by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). The Court of Criminal Appeals, however, did not explicitly overrule Stine in Cain. The Court of Criminal Appeals has not reconsidered Stine since it was issued. It is important to note that Stine is based on the right of a criminal defendant to a public trial and the right of the public to attend court proceedings. See, Stine v. State, supra at 431. As the Court in Stine points out the public has the right to be present at any or all such public proceedings, as the law may provide. Id. The public s right to attend court proceedings is, of course frustrated if the public does not know where the proceedings will be conducted. See, Id. In arguing that the trial court s error in conducting proceedings outside of Dallas Appellant s Reply Brief - Page 3

County was harmless, the State totally ignores Lehr s right to a public trial and the public s right to attend court proceedings. The Supreme Court has extended a defendant s Sixth Amendment right to a public trial to pretrial proceedings such as the pretrial competency hearing held in this case. See, Waller v. Georgia, 467 U.S. 39 (1984). And, the Supreme Court recently summarily reaffirmed that the public has a right to be present [at court proceedings] whether or not any party has asserted the right. Presley v. Georgia, U.S., 130 S.Ct. 721, 724 (2010). Lehr and the public were denied their rights to a public hearing when the trial court traveled to Denton County to conduct court proceedings. It was determined at this hearing that Barrett was not competent to testify at Lehr s trial. This important determination was made at the request of the State and was made in secret. It cannot reasonably be argued that the error in holding this hearing in a location forbidden by the Texas Constitution was harmless. III. The second issue in Lehr s Brief is that the trial court erred in conducting a hearing to determine the competency of Deloise Barrett to testify at Lehr s trial in the absence of Lehr. The State responds that Lehr did not have a right to be present at this hearing. (State s Brief, p. 17). The State relies on the United States Supreme Court case of Kentucky v. Stincer, 482 U.S. 730 (1987) for this proposition. Stincer, however, is inapposite to Lehr s case. In Stincer, the Supreme Court was concerned with whether excluding the defendant from the [competency] hearing interfere[d] with his opportunity for effective crossexamination. Id. at 740. The two complainants in Stincer who were the subject of the Appellant s Reply Brief - Page 4

competency hearing in that case were determined to be competent to testify. Because the two complainants were subject to full and complete cross-examination during the trial, in Mr. Stincer s presence, the Supreme Court found that excluding Mr. Stincer from the competency hearing did not interfere with the opportunity for full and fair cross-examination of the complainants during the trial. Id. The Supreme Court emphasized that Mr. Stincer was available during the trial to assist his counsel as necessary. Id. Of course, in this case, Lehr never had the opportunity to assist his counsel in questioning Barrett, whether at the pretrial competency hearing or at Lehr s trial. The holding in Stincer was that because the respondent had the opportunity for full and effective cross-examination at trial of the two witnesses who were the subject of the competency hearing from which the respondent had been excluded, the respondent s rights under the Confrontation Clause were not violated by his exclusion from the competency hearing. Id. at 744. Stincer is not applicable to this case because Lehr did not have the opportunity to cross-examine or confront Barrett at trial. The trial judge found, at the hearing from which Lehr was excluded, that Barrett was not competent to testify at Lehr s trial. Lehr therefore never had the opportunity to cross-examine Barrett. More importantly he did not have the opportunity to confront Barrett at his trial. Nor did he have a chance to demonstrate to the jury that Barrett would react to him differently in person than she did when she was isolated from Lehr under the control of the State. Physical presence of the accused enhances the fact-finding process, whether it is determining competency or guilt-innocence. In this case the jury never had the chance to observe the in person reaction of Barrett to Lehr. Appellant s Reply Brief - Page 5

IV. In the fourth issue presented for review in Appellant s Brief, Lehr complains of the ineffectiveness of his trial attorney because of his trial attorney s failure to object to a competency hearing being conducted in Denton County rather than in Dallas County and his failure to object to Lehr s absence from that hearing. In response, the State argues that Lehr s trial attorney was not ineffective because the trial judge made it clear that any objection defense counsel made would have been overruled. (State s Brief, p. 22). This is certainly a strange view of the criminal justice system. Apparently the State believes that an attorney should not raise an objection when it is clear that the trial judge is going to overrule the objection. This would certainly make the life of appellate judges simpler since there would be far fewer rulings on objections that appellate courts would have to consider. The State s position is simply absurd. Similarly, the State cites Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) for the proposition that having a vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for finding counsel constitutionally incompetent. (State s Brief, p. 24). Unfortunately, for the State, there is nothing vague or inarticulate about Lehr s complaint. Lehr clearly complains about his trial attorney s failure to protect his constitutional right to be present at a pretrial hearing into the competency of Deloise Barrett and his attorney s failure to object to the trial court s violation of the Texas Constitution in holding the competency hearing outside of Dallas County. V. In the fifth and sixth issues presented for review in Appellant s Brief, Lehr argues that Appellant s Reply Brief - Page 6

the evidence is legally and factually insufficient to support his conviction. The State argues to the contrary but never points to any evidence that on the date that Deloise Barrett transferred her property to Lehr that Lehr knew Barrett suffered from diminished capacity in relation to that transaction. The best that can be said about the evidence identified by the State is that on some occasions Barrett was not lucid and on others she was very lucid and rational. For example, attorney Paul Lokey found Barrett competent to execute a will near in time to the date she transferred her property to Lehr. (RR6:198). The evidence is not sufficient, legally or factually, as explained in the Appellant s Brief, to support Lehr s conviction. FOR THE ABOVE REASONS, and for the reasons expressed in the Appellant s Brief, Appellant respectfully asks that this Honorable Court REVERSE Norman Lehr s conviction and order that Lehr be ACQUITTED or REVERSE AND REMAND this case to the district court for a new trial. Respectfully submitted, ROBERT N. UDASHEN, P.C. State Bar No. 20369600 SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road Suite 250 Dallas, Texas 75201 214-468-8100 214-468-8104 ATTORNEY FOR APPELLANT Appellant s Reply Brief - Page 7

CERTIFICATE OF SERVICE On this 14th day of July, 2010, a true and correct copy of Appellant s Reply Brief was mailed to Karen R. Wise, Assistant District Attorney, Frank Crowley Courts Bldg., 133 N. Riverfront Blvd., L.B. 19, Dallas, Texas 75207. ROBERT N. UDASHEN, P.C. Appellant s Reply Brief - Page 8