CAUSE NO. AP - 77,040

 

IN THE 

COURT OF CRIMINAL APPEALS OF TEXAS

 

CEDRIC ALLEN RICKS

Appellant

VS.

THE STATE OF TEXAS

Appellee

APPELLANT’S BRIEF

 

Appeal of Cause No. 1361004R

Out of the 371st Judicial District Court 

of Tarrant County, Texas 

The Hon. Mollee Westfall, Presiding

 

ORAL ARGUMENT IS NOT REQUESTED

MARY B. THORNTON

Attorney for Appellant

3901 Race Street

Fort Worth, Texas 76111

Telephone No.: (817) 759-0400

Telecopier No.: (817) 831-3002

marybrabson01@gmail.com

State Bar No. 19713700

AP-77,040

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 8/3/2015 4:58:09 PM

Accepted 8/4/2015 7:49:24 AM

ABEL ACOSTA

CLERK
Adam L. Arrington

Attorney at Law

1020 Macon Street, Suite 7

Fort Worth, Texas 76102

Telephone No.: (817) 395-3674

Telecopier No.: (682) 841-1399

State Bar No. 24085685
IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties listed in the trial court’s final

Judgment and their trial and appellate counsel pursuant to Rule 38.1 (a) of the

Texas Rules of Appellate Procedure:

1. Cedric Allen Ricks

TDCJ #00999593

Allan B. Polunski Unit

3872 FM 350 South

Livingston, Texas 77351

2. The Hon. William H. “Bill” Ray

Attorney at Law/Appellant’s Trial Counsel

512 Main Street, Suite 308

Fort Worth, Texas 76102

3. The Hon. Steve Gordon

Attorney at Law/Appellant’s Trial Counsel

2101 Moneda Street

Fort Worth, Texas 76102

4. The Hon. Sharen Wilson

District Attorney of Tarrant County, Texas

Fourth Floor of the Tim Curry Criminal Justice Center

401 West Belknap

Fort Worth, Texas 76196

5. The Hon. Robert K. Gill

Asst. Criminal District Attorney/State’s Trial Counsel

Tarrant County District Attorney’s Office

Fourth Floor of the Tim Curry Criminal Justice Center

401 West Belknap

i
Fort Worth, Texas 76196

6. The Hon. Robert Huseman

Asst. Criminal District Attorney/State’s Trial Counsel

Tarrant County District Attorney’s Office

Fourth Floor of the Tim Curry Criminal Justice Center

401 West Belknap

Fort Worth, Texas 76196

7. The Hon. Debra Windsor

Chief of Post Conviction

Tarrant County District Attorney’s Office

Fourth Floor of the Tim Curry Criminal Justice Center

401 West Belknap

Fort Worth, Texas 76196

ii
TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxv

APPELLANT’S POINTS OF ERROR (ISSUES PRESENTED).. . . . . . . . . . . . . . . xxviii

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF APPELLANT’S ARGUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

POINT OF ERROR ONE (ARGUMENT).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS SUBSEQUENT TO HIS

WARRANTLESS ARREST WHICH WAS IN

VIOLATION OF THE FOURTH AND

FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION. (CR. I-284-

99; II-409; RR. VI-144-87, 231-41; XXXII71; XLII-SPTX 1, 2, 7, 8, 9, 10, 11; XLV-DX

1).

POINT OF ERROR TWO (ARGUMENT). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

iii
EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS SUBSEQUENT TO HIS

WARRANTLESS ARREST WHICH WAS IN

VIOLATION OF ARTICLE 1, SECTION 9 OF

THE TEXAS CONSTITUTION AND ARTICLES

1.06, 18.02, AND 38.23 OF THE TEXAS

CODE OF CRIMINAL PROCEDURE. (CR. I284-99; II-409; RR. VI-144-87, 231-41;

XXXII-71; XLII-SPTX 1, 2, 7, 8, 9, 10, 11;

XLV-DX 1).

POINT OF ERROR THREE (ARGUMENT).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS SUBSEQUENT TO THE

WARRANTLESS SEARCH OF HIS

APARTMENT WHICH WAS IN VIOLATION OF

THE FOURTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION. (CR. I-284-99; II-409; RR.

VI-74-117, 231-41; XXXII-71; XLII-SPTX 1).

POINT OF ERROR FOUR (ARGUMENT).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS SUBSEQUENT TO THE

WARRANTLESS SEARCH OF HIS

APARTMENT WHICH WAS IN VIOLATION OF

ARTICLE I, SECTION 9 OF THE TEXAS

CONSTITUTION AND ARTICLES 1.06,

18.02, AND 38.23 OF THE TEXAS CODE OF

iv
CRIMINAL PROCEDURE. (CR. I-284-99; II409; RR. VI-74-117, 231-41; XXXII-71;

XLII-SPTX 1).

POINT OF ERROR FIVE (ARGUMENT).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS BECAUSE APPELLANT WAS

DENIED HIS RIGHT TO COUNSEL IN

VIOLATION OF THE FIFTH, SIXTH, AND

FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION. (CR. I-284-

99; RR. VI-120-43, 188-228, XLII-SPTX3,

SPTX4, SPTX5, & SPTX6).

POINT OF ERROR SIX (ARGUMENT).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS BECAUSE APPELLANT WAS

DENIED HIS RIGHT TO COUNSEL IN

VIOLATION OF ARTICLE I, SECTION 10 OF

THE TEXAS CONSTITUTION AND ARTICLES

1.05, 15.17, AND 38.23 OF THE TEXAS

CODE OF CRIMINAL PROCEDURE. (CR. I284-99; RR. VI-120-43, 188-228, XLIISPTX3, SPTX4, SPTX5, & SPTX6).

POINT OF ERROR SEVEN.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

v
EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS BECAUSE APPELLANT WAS

DENIED HIS RIGHT TO COUNSEL IN

VIOLATION OF OKLAHOMA STATUTES 22-

251 AND 22-252. (CR. I-284-99; RR. VI120-43, 188-228, XLII-SPTX3, SPTX4,

SPTX5, & SPTX6).

POINT OF ERROR EIGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

THE TRIAL COURT COMMITTED

REVERSIBLE ERROR IN ALLOWING THE

STATE TO INTRODUCE SX225 AN AUTOPSY

PHOTOGRAPH OF JAMES GONZALEZ’S

BRAIN BECAUSE THE PREJUDICIAL EFFECT

GREATLY OUTWEIGHED ANY PROBATIVE

VALUE. (RR. XXXII-113-16; XLIV-SX#225).

POINT OF ERROR NINE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

THE TRIAL COURT COMMITTED

REVERSIBLE ERROR IN ALLOWING THE

STATE TO INTRODUCE SX226 AN AUTOPSY

PHOTOGRAPH OF JAMES GONZALEZ’S

BRAIN BECAUSE THE PREJUDICIAL EFFECT

GREATLY OUTWEIGHED ANY PROBATIVE

VALUE. (RR. XXXII-113-16; XLIV-SX#226).

POINT OF ERROR TEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

THE TRIAL COURT ERRED IN OVERRULING

APPELLANT’S MOTION TO DECLARE THE

“10-12” RULE UNCONSTITUTIONAL ON THE

GROUNDS THAT IT CREATES AN

vi
IMPERMISSIBLE RISK OF ARBITRARY

IMPOSITION OF THE DEATH PENALTY. (CR.

I-187-217; RR. V-79-80).

POINT OF ERROR ELEVEN.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

ARTICLE 37.071 OF THE TEXAS CODE OF

C R I M I N A L P R O C E D U R E I S

UNCONSTITUTIONAL BECAUSE IT FAILS TO

PLACE THE BURDEN OF PROOF OF THE

STATE REGARDING AGGRAVATING

EVIDENCE. (CR. I-142-46; RR. V-68).

POINT OF ERROR TWELVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

THE TRIAL COURT ERRED IN OVERRULING

APPELLANT’S MOTION TO PRECLUDE THE

IMPOSITION OF THE DEATH PENALTY ON

GROUNDS THAT THE INDICTMENT FAILED

TO CONTAIN ANY ALLEGATIONS

REGARDING THE PUNISHMENT SPECIAL

ISSUE. (CR. I-142-46; RR. V-68).

POINT OF ERROR THIRTEEN.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

THE TRIAL COURT ERRED IN OVERRULING

APPELLANT’S OBJECTION TO THE

APPLICATION OF TEXAS’ DEATH PENALTY

SCHEME BECAUSE IT HAS BEEN

ARBITRARILY IMPOSED IN VIOLATION OF

THE EIGHTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION. (Cr. I-147-50; RR. V-68-

69).

vii
POINT OF ERROR FOURTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

THE TEXAS DEATH PENALTY STATUTE

VIOLATES THE JURY TRIAL GUARANTEE OF

THE FOURTEENTH AMENDMENT, AS

INTERPRETED IN APPRENDI V NEW

JERSEY, RING V ARIZONA, BLAKELY V

WASHINGTON, UNITED STATES V BOOKER,

AND CUNNINGHAM V CALIFORNIA BY

FAILING TO PLACE UPON THE STATE THE

BURDEN OF PROVING BEYOND A

REASONABLEDOUBT A NEGATIVEANSWER

TO THE MITIGATION SPECIAL ISSUE. (CR. I142-46; RR. V-68).

POINT OF ERROR FIFTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

APPELLANT’S RIGHTS UNDER THE

CONFRONTATION CLAUSE OF THE SIXTH

AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION WERE

VIOLATED WHEN THE MOTHER OF

DECEDENT, ROSIE GONZALEZ, TESTIFIED

TO INFORMATION PERTAINING TO AN

EXTRANEOUS OFFENSE DURING THE

PUNISHMENT STAGE OF HIS TRIAL. (RR.

XXXIV-25-28; XL-36-37, 66).

POINT OF ERROR SIXTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

APPELLANT’S RIGHTS UNDER THE

CONFRONTATION CLAUSE OF ARTICLE 1,

§10 OF THE TEXAS CONSTITUTION WERE

VIOLATED WHEN THE MOTHER OF

DECEDENTROSIEGONZALEZ TESTIFIEDTO

viii
INFORMATION PERTAINING TO AN

EXTRANEOUS OFFENSE DURING THE

PUNISHMENT STAGE OF HIS TRIAL. (RR.

XXXIV-25-28; XL-36-37, 66).

POINT OF ERROR SEVENTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

REVERSIBLE ERROR OCCURRED WHEN

THE MOTHER OF DECEDENT ROSIE

GONZALEZ TESTIFIED TO INFORMATION

PERTAININGTOANEXTRANEOUSOFFENSE

DURING THE PUNISHMENT STAGE OF HIS

TRIAL IN VIOLATION OF THE HEARSAY

RULE. (RR. XXXIV-25-28).

POINT OF ERROR EIGHTEEN.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

THE TRIALCOURTABUSEDITSDISCRETION

AND VIOLATED APPELLANT’S RIGHTS

UNDER THE CONFRONTATION CLAUSE OF

THE UNITED STATES CONSTITUTION BY

PERMITTING THE SEXUAL ASSAULTNURSE

EXAMINER TO TESTIFY TO STATEMENTS

MADE BY ROSIE GONZALEZ REGARDING

AN EXTRANEOUS OFFENSE ALLEGEDLY

COMMITTED BY APPELLANT.(RR. XXXV-11-

20).

POINT OF ERROR NINETEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

THE TRIALCOURT ABUSEDITSDISCRETION

AND VIOLATED APPELLANT’S RIGHTS

UNDER ARTICLE 1, §10 OF THE TEXAS

CONSTITUTION BY PERMITTING THE

SEXUAL ASSAULT NURSE EXAMINER TO

ix
TESTIFY TO STATEMENTS MADE BY ROSIE

GONZALEZ REGARDING AN EXTRANEOUS

OFFENSE ALLEGEDLY COMMITTED BY

APPELLANT. (RR. XXXV-11-20).

POINT OF ERROR TWENTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

IF NONE OF APPELLANT’S POINTS OF

ERROR ARE REVERSIBLE PER SE, THEN

ALL OF THE ERRORS PRESENT

CUMULATIVE ERROR REQUIRING

REVERSALWHENCONSIDEREDTOGETHER.

(Record in its entirety).

CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

STATEMENT OF COMPLIANCE WITH RULE 9.4 (i)(2)(B). . . . . . . . . . . . . . . . . 122

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

x
INDEX OF AUTHORITIES

CASES PAGE(S)

Adams v Williams, 407 U.S. 143 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Amburgey v State, 696 N.E. 2d 44

(Ind. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Anderson v State, 932 S.W. 3d 502

(Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Apprendi v New Jersey, 530 U.S. 466 (2000). . . . . . . . . . . . . . . 82,88,89,90,93

Avery v State, 359 S.W. 3d 230

(Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Baze v Rees, 553 U.S. 35 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Blakely v Washington, 542 U.S. 296 (2004). . . . . . . . . . . . . 82,90,91,92,93,94

Bott v Bott, 962 S.W. 2d 626

(Tex. App. - - Houston [14th

Dist.] 1997, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Boyce v State, No. 04-04-00267-CR

(Tex. App. - - San Antonio,

July 13, 2005) 2005 Tex.

App. LEXIS 5395 (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

Brown v State, 974 S.W. 2d 289

(Tex. App. - - San Antonio

1998, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118-19

Brown v State, 266 P. 476, 39 Okla. Crim. 406

xi
(Okla. Crim. App. 1928). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Burdine v State, 719 S.W. 2d 309

(Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Byers v State, 709 N.E. 2d 1024

(Ind. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

California v Brown, 479 U.S. 538 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

California v Cunningham, 127 S. Ct. 856 (2007). . . . . . . . . . . . . . . . . . . . . 92,93

Chamberlain v State, 998 S.W. 2d 230

(Tex. Crim. App. 1999) cert. denied,

528 U.S. 1082 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117-18

Chambers v Mississippi, 410 U.S. 284 (1973). . . . . . . . . . . . . . . . . . . . . . . . 100

Cobarrubio v State, 675 S.W. 2d 749

(Tex. Crim. App. 1983) overruled

in part, Lawrence v State, 700 S.W.

2d 208 (Tex. Crim. App. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Coolidge v New Hampshire, 403 U.S. 443 (1971). . . . . . . . . . . . . . . . . . . . . . . 36

Corbett v State, 764 N.E. 2d 622

(Ind. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Crawford v Washington, 541 U.S. 36 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Davis v State, 268 S.W. 3d 683

(Tex. App. - - Fort Worth 2008,

pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Davis v United States, 512 U.S. 452 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

xii
De La Paz v State, 279 S.W. 3d 336

(Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Derden v McNeel, 978 F. 2d 1453

(5th Cir. 1992) (en banc)

cert. denied, 508 U.S. 960 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Duhart v State, 890 S.W. 2d 187

(Tex. App. - - Corpus Christi

1994, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Duncan v Louisiana, 391 U.S. 145 (1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Eddings v Oklahoma, 455 U.S. 104 (1982). . . . . . . . . . . . . . . . . . . . . . . 68,69,75

Edwards v Arizona, 451 U.S. 477 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . 51,52

Elliott v State, 858 S.W. 2d 478

(Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Ex parte Tucker, 973 S.W. 2d 950

(Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Ex parte Welborn, 785 S.W. 2d 391

(Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Fetterly v Paskett, 997 F. 2d 1295

(9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

Francis v Franklin, 471 U.S. 316 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . 70,71

Francis v State, 922 S.W. 2d 176

(Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Fuller v State, 829 S.W. 2d 191

xiii
(Tex. Crim. App. 1992) cert.

denied, 508 U.S. 941 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Furman v Georgia, 408 U.S. 238 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . 86-87

Gamboa v State, 296 S.W. 3d 574

(Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Garcia v State, 201 S.W. 2d 574

(Tex. Crim. App. 1948). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

Gigliobianco v State, 210 S.W. 3d 637

(Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Graham v Florida, 560 U.S. 48 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Green v State, 899 S.W. 2d 245

(Tex. App. - - San Antonio

1995, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Gregg v Georgia, 428 U.S. 153 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Gutierrez v State, 221 S.W. 3d 680

(Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-34

Heitman v State, 815 S.W. 2d 681

(Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Hernandez v State, 726 S.W. 2d 53

(Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Horton v California, 496 U.S. 128 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . 36,37

In re Winship, 397 U.S. 358 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88-89

xiv
Jackson v Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jimenez v State, 32 S.W. 2d 233

(Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Johnson v State, 364 S.W. 3d 292

(Tex. Crim. Appl. 2012) cert.

denied, 133 S. Ct. 536 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Johnson v State, 912 S.W. 2d 227

(Tex. Crim. App. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Jones v State, 119 S.W. 3d 766

(Tex. Crim. App. 2003) cert.

denied, 542 U.S. 905 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

Jones v State, 833 S.W. 2s 118

(Tex. Crim. App. 1992) cert.

denied, 507 U.S. 921 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Kansas v Marsh, 548 U.S. 163 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Katz v United States, 389 U.S. 347 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Kemper v State, 138 S.W. 1025

overruled in part by Robertson v

State, 142 S.W. 533 (Tex. Crim.

App. 1911). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

Kennedy v Louisiana, 554 U.S. 407 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

King v Federal Underwriters Exchange,

144 Tex. 531, 191 S.W. 2d 1112

(1946).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

xv
King v State, 953 S.W. 2d 266

(Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,65

Klein v Sporting Goods, Inc., 772 S.W. 2d 173

(Tex. App. - - Houston [14th Dist.]

1989, writ denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Kolb v State, 532 S.W. 2d 87

(Tex. Crim. App. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Kotteakos v United States, 328 U.S. 750 (1946). . . . . . . . . . . . . . . . . . . . . 65-66

Langham v State, 305 S.W. 3d 568

(Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Lawrence v State, 700 S.W. 2d 208

(Tex. Crim. App. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Lockett v Ohio, 438 U.S. 586 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . 69-70,75

Long v State, 823 S.W. 2d 259

(Tex. Crim. App. 1991)

cert. denied, 505 U.S. 1224

(1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

McFarlane v State, 254 S.W. 2d 136

(Tex. Crim. App. 1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

McNeil v Wisconsin, 501 U.S. 171 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Maldonado v State, 528 S.W. 2d 234

(Tex. Crim. App. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Maryland v Buie, 494 U.S. 325 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . 35,36,41

xvi
Massiah v United States, 377 U.S. 201 (1964).. . . . . . . . . . . . . . . . . . . . . . . . . 49

Mayberry v State, 830 S.W. 2d 176

(Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Miles v State, 357 S.W. 3d 629

(Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Miller v Alabama, 567 U.S. , 132 S. Ct. 2455

(2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Miranda v Arizona, 384 U.S. 436 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,57

Montejo v Louisiana, 556 U.S. 778 (2009). . . . . . . . . . . . . . . . . . . . . . . 49-50,51

Montgomery v State, 810 S.W. 2d 372

(Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62,63,65

Morris v State, 940 S.W. 2d 610

(Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Nash v State, 477 S.W. 2d 557

(Tex. Crim. App.) cert. denied,

409 U.S. 887 (1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,52

Narvaiz v State, 840 S.W. 2d 415

(Tex. Crim. App. 1992) cert.

denied, 507 U.S. 975 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

O’Neill v State, 681 S.W. 2d 663

(Tex. App. - - Houston [1st Dist.]

1984, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Payton v New York, 445 U.S. 573 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

xvii
Pecina v State, 361 S.W. 3d 68

(Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,55

Penry v Lynaugh, 492 U.S. 302 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

Perry v Jones, 506 F. 2d 778

(5th Cir. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Perry v State, 158 S.W. 3d 438

(Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

Pitman v Lightfoot, 937 S.W. 2d 496

(Tex. App. - - San Antonio

1996, writ denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Pointer v Texas, 380 U.S. 400 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Polk v State, 224 P. 194, 26 Okla. Crim. 283

(Okla. Crim. App. 1924). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Powell v Alabama, 287 U.S. 45 (1932). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Ramirez v State, 815 S.W. 2d 636

(Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Rance v State, 815 S.W. 2d 633

(Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Rayford v State, 125 S.W. 3d 521

(Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

Reasor v State, 12 S.W. 3d 813

(Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-36

Reese v State, 33 S.W. 3d 238

xviii
(Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Renn v State, 495 S.W. 2d 922

(Tex. Crim. App. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Ring v Arizona, 536 U.S. 584 (2002). . . . . . . . . . . . . . . . . . . . . . 81,89,90,93,94

Ritchie v State, 632 P. 2d 1244

(Okla. Crim. App. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Rhodes v State, 945 S.W. 2d 115

(Tex. Crim. App. cert. denied,

552 U.S. 894 (1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Robinson v State, 693 N.E. 2d 548

(Ind. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Runningwolf v State, 360 S.W. 3d 490

(Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Russell v State, 717 S.W. 2d 7

(Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Scales v State, 380 S.W. 3d 780

(Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Scales v State, No. 01-08-0932-CR

(Tex. App. - - Houston [1st Dist.]

April 14, 2011) (not designated

for publication). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72,73,74,75

Scales v State, No. 01-08-0932-CR

(Tex. App. - - Houston [1st Dist.]

December 20, 2010) (not

designated for publication). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

xix
Simmons v South Carolina, 512 U.S. 154 (1994).. . . . . . . . . . . . . . . . . 70,71,75

Smerke v Office Equipment Co., 138 Tex. 236

158 S.W. 2d 302 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Smith v State, 894 S.W. 2d 876

(Tex. App. - - Amarillo 1995, 

pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Spaziano v Florida, 468 U.S. 447 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Spencer v State, 703 N.E. 2d 1053

(Ind. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Stahl v State, 749 S.W. 2d 826

(Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118,119

State v Dobbs, 323 S.W. 3d 184

(Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

State v Guzman, 959 S.W. 2d 632

(Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

State v Jennings, 958 S.W. 2d 930

(Tex. App. - - Amarillo 1997,

no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25

Strickland v Washington, 466 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . . . . . . . 52

Sullivan v State, 564 S.W. 2d 698

(Tex. Crim. App. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Taylor v State, 268 S.W. 3d 571

(Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

xx
Terry v State, 491 S.W. 2d 161

(Tex. Crim. App. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Texas v Cobb, 532 U.S. 162 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Threadgill v State, 146 S.W. 3d 654

(Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Tipton v State, 235 P. 259, 30 Okla. Crim. 56

(Okla. Crim. App. 1925). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

United States v Booker, 543 U.S. 220,

125 S. Ct. 738 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88,89,92

United States v Henry, 447 U.S. 264 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

United States v Munoz, 150 F. 3d 401

(5th Cir. 1979) cert. denied, 25

U.S. 1112 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

United States v Wade, 388 U.S. 218 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Walter v United States, 447 U.S. 649 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . 37

West v State, 121 S.W. 3d 95

(Tex. App. - - Fort Worth 2003,

pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

White v State, 729 S.W. 2d 737

(Tex. Crim. App. 1987) disavowed

in part, State v Dobbs, 323 S.W. 3d

184 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37,38,39

Williams v State, 958 S.W. 2d 186

(Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

xxi
Willover v State, 70 S.W. 3d 841

(Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Wong Sun v United States, 371 U.S. 471 (1963). . . . . . . . . . . . . . . . . . . . . 40,55

Woods v State, 152 S.W. 3d 121

(Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

Woods v State, 956 S.W. 2d 33

(Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Wyatt v State, 23 S.W. 3d 18

(Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Wyatt v Wolf, 324 P. 2d 548

(Okla. Crim. App. 1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,57

Zuliani v State, 97 S.W. 3d 589

(Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

xxii
RULES, STATUTES, CONSTITUTIONS, LAW REVIEW ARTICLES, AND

ATTORNEY GENERAL OPINIONS

Ind. Rule Evi. 403.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Peggy M. Tobolowsky, “What Hath Penry Wrought?:

Mitigating Circumstances and the Texas Death

Penalty,” 19 AMER. J. CRIM. L. 345 (1992). . . . . . . . . . . . . . . . . . . . . . . 84

P.M. McClung, “Jury Charges for Texas Criminal

Practice (rev. ed. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83-84

Tex. Const. art. I, §9.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25,26,40

Tex. Const. art. I, §10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52,79,100,116

Tex. Crim. Proc. Code Ann. art. 1.03

(Vernon 1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Tex. Crim. Proc. Code Ann. art. 1.06

(Vernon 1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Tex. Crim. Proc. Code Ann. art. 15.17

(Vernon 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53,54,55,56

Tex. Crim. Proc. Code Ann. art. 18.02

(Vernon 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Tex. Crim. Proc. Code Ann. art. 36.29

(Vernon 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Tex. Crim. Proc. Code Ann. art. 37.071 

(Vernon 2009). . . . . . . . . . . . . . . . . . . . . . . xxvi,68,76,78,80,83,84,90,93

Tex. Crim. Proc. Code Ann. art. 38.23

xxiii
(Vernon Supp. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,39

Tex. Crim. Proc. Code Ann. art. 44.29 (a)

(Vernon Supp. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41,120

Tex. Op. Att’y Gen. GA-0993 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Tex. Penal Code Ann. sec. 19.03 (a) (7) (A)

(Vernon 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxv

Tex. R. App. Proc. 33.1 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Tex. R. App. Proc. 43.2 (d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

Tex. R. App. Proc. 44.2 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41,80,101

Tex. R. App. Proc. 44.2 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,65,105

Tex. R. Evi. 103 (a) (1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Tex. R. Evi. 403.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61,62

Tex. R. Evi. 801.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

Tex. R. Evi. 802.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

U.S. Const., amend. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25,26,33,34,40,41

U.S. Const., amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,51

U.S. Const., amend. VI. . . . . . . . . . . . . . 49,50,51,55,81,89,93,99,100,116,119

U.S. Const., amend. VIII.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83,87

U.S. Const., amend. XIV.. . . . . . . . . . . . . . . . . . . 24,26,40,80,83,89,93,100,119

xxiv
STATEMENT OF THE CASE

The following is a concise statement of the nature of the case pursuant to

Rule 38.1 (d) of the Texas Rules of Appellate Procedure:

Appellant, CEDRIC ALLEN RICKS, was charged by indictment, returned on

February 24, 2014,

1 with the offense of capital murder (two murders during the

same criminal transaction). Tex. Penal Code Ann. sec. 19.03 (a) (7) (A) (Vernon

2011). (CR. I-11). On May 5, 2014, Appellant pleaded not guilty to the State’s

indictment before a jury. (RR. XXXI-16-17). Two days later, on May 7, 2014,

after hearing evidence from both the State and the defense, the jury found

Appellant guilty of capital murder as charged in the State’s indictment. (CR. II526-29; RR. XXXIII-71-73). After hearing additional testimony from witnesses

called by both sides, the jury answered Special Issue Number One (that there is

a reasonable probability that Appellant would commit criminal acts of violence

that would constitute a continuing threat to society) “yes” and Special Issue

Number Two (whether there is a sufficient mitigating circumstance or

circumstances to warrant a sentence of life imprisonment) “no.” (CR. II-527; RR.

1

This was a reindictment of cause number 1325203D which was 

returned on July 23, 2013. (CR. I-20).

xxv
XL-134-40). Commensurate with the jury’s answers to the two special issues,

on May 16, 20914, the trial court sentenced Appellant to death by lethal

injection. Tex. Crim. Proc. Code Ann. art. 37.071 §2 (g) (Vernon 2009). (CR. II526-29; RR. XL-136-37). On that same day, Appellant filed a notice of appeal;

however, his conviction of capital murder and sentence of death were

automatically appealed to the Texas Court of Criminal Appeals in Austin, Texas.

(CR. II-531).

xxvi
CAUSE NO. AP - 77,040

CEDRIC ALLEN RICKS * IN THE COURT OF

 *

 *

VS. * CRIMINAL APPEALS

 *

THE STATE OF TEXAS * IN AUSTIN, TEXAS

 

APPELLANT’S BRIEF 

 

Appeal of Cause No. 1361004R

Out of the 371st Judicial District Court

of Tarrant County, Texas

The Hon. Mollee Westfall, Presiding

 

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW, CEDRIC ALLEN RICKS, hereinafter referred to as Appellant

by and through his attorney, MARY B. THORNTON, and respectfully submits his

appellate brief specifying twenty points of error pursuant to Rules 71 and 38 of

the Texas Rules of Appellate Procedure.

xxvii
APPELLANT’S POINTS OF ERROR

(ISSUES PRESENTED)

POINT OF ERROR ONE

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS SUBSEQUENT TO HIS

WARRANTLESS ARREST WHICH WAS IN

VIOLATION OF THE FOURTH AND

FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION. (CR. I-284-

99; II-409; RR. VI-144-87, 231-41; XXXII71; XLII-SPTX 1, 2, 7, 8, 9, 10, 11; XLV-DX

1).

POINT OF ERROR TWO

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS SUBSEQUENT TO HIS

WARRANTLESS ARREST WHICH WAS IN

VIOLATION OF ARTICLE 1, SECTION 9 OF

THE TEXAS CONSTITUTION AND ARTICLES

1.06, 18.02, AND 38.23 OF THE TEXAS

CODE OF CRIMINAL PROCEDURE. (CR. I284-99; II-409; RR. VI-144-87, 231-41;

XXXII-71; XLII-SPTX 1, 2, 7, 8, 9, 10, 11;

XLV-DX #1).

POINT OF ERROR THREE

xxviii
THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS SUBSEQUENT TO THE

WARRANTLESS SEARCH OF HIS

APARTMENT WHICH WAS IN VIOLATION OF

THE FOURTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION. (CR. I-284-99; II-409; RR.

VI-74-117, 231-41; XXXII-71; XLII-SPTX 1).

POINT OF ERROR FOUR

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS SUBSEQUENT TO THE

WARRANTLESS SEARCH OF HIS

APARTMENT WHICH WAS IN VIOLATION OF

ARTICLE I, SECTION 9 OF THE TEXAS

CONSTITUTION AND ARTICLES 1.06,

18.02, AND 38.23 OF THE TEXAS CODE OF

CRIMINAL PROCEDURE. (CR. I-284-99; II409; RR. VI-74-117, 231-41; XXXII-71;

XLII-SPTX 1).

POINT OF ERROR FIVE

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS BECAUSE APPELLANT WAS

DENIED HIS RIGHT TO COUNSEL IN

VIOLATION OF THE FIFTH, SIXTH, AND

FOURTEENTH AMENDMENTS TO THE

xxix
UNITED STATES CONSTITUTION. (CR. I-284-

99; RR. VI-120-43, 188-228, XLII-SPTX3,

SPTX4, SPTX5, & SPTX6).

POINT OF ERROR SIX

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS BECAUSE APPELLANT WAS

DENIED HIS RIGHT TO COUNSEL IN

VIOLATION OF ARTICLE I, SECTION 10 OF

THE TEXAS CONSTITUTION AND ARTICLES

1.05, 15.17, AND 38.23 OF THE TEXAS

CODE OF CRIMINAL PROCEDURE. (CR. I284-99; RR. VI-120-43, 188-228, XLIISPTX3, SPTX4, SPTX5, & SPTX6).

POINT OF ERROR SEVEN

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS BECAUSE APPELLANT WAS

DENIED HIS RIGHT TO COUNSEL IN

VIOLATION OF OKLAHOMA STATUTES 22-

251 AND 22-252. (CR. I-284-99; RR. VI120-43, 188-228, XLII-SPTX3, SPTX4,

SPTX5, & SPTX6).

POINT OF ERROR EIGHT

THE TRIAL COURT COMMITTED

REVERSIBLE ERROR IN ALLOWING THE

STATE TO INTRODUCE SX225 AN AUTOPSY

xxx
PHOTOGRAPH OF JAMES GONZALEZ’S

BRAIN BECAUSE THE PREJUDICIAL EFFECT

GREATLY OUTWEIGHED ANY PROBATIVE

VALUE. (RR. XXXII-113-16; XLIV-SX#225).

POINT OF ERROR NINE

THE TRIAL COURT COMMITTED

REVERSIBLE ERROR IN ALLOWING THE

STATE TO INTRODUCE SX226 AN AUTOPSY

PHOTOGRAPH OF JAMES GONZALEZ’S

BRAIN BECAUSE THE PREJUDICIAL EFFECT

GREATLY OUTWEIGHED ANY PROBATIVE

VALUE. (RR. XXXII-113-16; XLIV-SX#226).

POINT OF ERROR TEN

THE TRIAL COURT ERRED IN OVERRULING

APPELLANT’S MOTION TO DECLARE THE

“10-12” RULE UNCONSTITUTIONAL ON THE

GROUNDS THAT IT CREATES AN

IMPERMISSIBLE RISK OF ARBITRARY

IMPOSITION OF THE DEATH PENALTY. (CR.

I-187-217; RR. V-79-80).

POINT OF ERROR ELEVEN

ARTICLE 37.071 OF THE TEXAS CODE OF

C R I M I N A L P R O C E D U R E I S

UNCONSTITUTIONAL BECAUSE IT FAILS TO

PLACE THE BURDEN OF PROOF ON THE

STATE REGARDING AGGRAVATING

EVIDENCE. (CR. I-142-46; RR. V-68).

xxxi
POINT OF ERROR TWELVE

THE TRIAL COURT ERRED IN OVERRULING

APPELLANT’S MOTION TO PRECLUDE THE

IMPOSITION OF THE DEATH PENALTY ON

GROUNDS THAT THE INDICTMENT FAILED

TO CONTAIN ANY ALLEGATIONS

REGARDING THE PUNISHMENT SPECIAL

ISSUE. (CR. I-142-46; RR. V-68).

POINT OF ERROR THIRTEEN

THE TRIAL COURT ERRED IN OVERRULING

APPELLANT’S OBJECTION TO THE

APPLICATION OF TEXAS’ DEATH PENALTY

SCHEME BECAUSE IT HAS BEEN

ARBITRARILY IMPOSED IN VIOLATION OF

THE EIGHTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION. (CR. I-147-50; RR. V-68-

69).

POINT OF ERROR FOURTEEN

THE TEXAS DEATH PENALTY STATUTE

VIOLATES THE JURY TRIAL GUARANTEE OF

THE FOURTEENTH AMENDMENT, AS

INTERPRETED IN APPRENDI V NEW

JERSEY, RING V ARIZONA, BLAKELY V

WASHINGTON, UNITED STATES V BOOKER,

AND CUNNINGHAM V CALIFORNIA BY

FAILING TO PLACE UPON THE STATE THE

BURDEN OF PROVING BEYOND A

REASONABLEDOUBT A NEGATIVEANSWER

TO THE MITIGATION SPECIAL ISSUE. (CR. Ixxxii
142-46; RR. V-68).

POINT OF ERROR FIFTEEN

APPELLANT’S RIGHTS UNDER THE

CONFRONTATION CLAUSE OF THE SIXTH

AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION WERE

VIOLATED WHEN THE MOTHER OF

DECEDENT, ROSIE GONZALEZ, TESTIFIED

TO INFORMATION PERTAINING TO AN

EXTRANEOUS OFFENSE DURING THE

PUNISHMENT STAGE OF HIS TRIAL. (RR.

XXXIV-25-28; XL-36-37, 66).

POINT OF ERROR SIXTEEN

APPELLANT’S RIGHTS UNDER THE

CONFRONTATION CLAUSE OF ARTICLE 1,

§10 OF THE TEXAS CONSTITUTION WERE

VIOLATED WHEN THE MOTHER OF

DECEDENT ROSIEGONZALEZ TESTIFIEDTO

INFORMATION PERTAINING TO AN

EXTRANEOUS OFFENSE DURING THE

PUNISHMENT STAGE OF HIS TRIAL. (RR.

XXXIV-25-28; XL-36-37, 66).

POINT OF ERROR SEVENTEEN

REVERSIBLE ERROR OCCURRED WHEN

THE MOTHER OF DECEDENT ROSIE

GONZALEZ TESTIFIED TO INFORMATION

PERTAINING TO AN EXTRANEOUSOFFENSE

DURING THE PUNISHMENT STAGE OF HIS

TRIAL IN VIOLATION OF THE HEARSAY

xxxiii
RULE. (RR. XXXIV-25-28).

POINT OF ERROR EIGHTEEN

THE TRIALCOURT ABUSED ITSDISCRETION

AND VIOLATED APPELLANT’S RIGHTS

UNDER THE CONFRONTATION CLAUSE OF

THE UNITED STATES CONSTITUTION BY

PERMITTING THE SEXUAL ASSAULTNURSE

EXAMINER TO TESTIFY TO STATEMENTS

MADE BY ROSIE GONZALEZ REGARDING

AN EXTRANEOUS OFFENSE ALLEGEDLY

COMMITTEDBYAPPELLANT.(RR. XXXV-11-

20).

POINT OF ERROR NINETEEN

THE TRIALCOURTABUSEDITSDISCRETION

AND VIOLATED APPELLANT’S RIGHTS

UNDER ARTICLE 1, §10 OF THE TEXAS

CONSTITUTION BY PERMITTING THE

SEXUAL ASSAULT NURSE EXAMINER TO

TESTIFY TO STATEMENTS MADE BY ROSIE

GONZALEZ REGARDING AN EXTRANEOUS

OFFENSE ALLEGEDLY COMMITTED BY

APPELLANT. (RR. XXXV-11-20).

POINT OF ERROR TWENTY

IF NONE OF APPELLANT’S POINTS OF

ERROR ARE REVERSIBLE PER SE, THEN

ALL OF THE ERRORS PRESENT

CUMULATIVE ERROR REQUIRING

REVERSALWHENCONSIDEREDTOGETHER.

(Record in its entirety).

xxxiv
STATEMENT OF FACTS

The following is a recitation of the facts of the case presented by the State

of Texas during the guilt/innocence phase of Appellant’s trial before a jury

pursuant to Rule 38.1 (f) of the Texas Rules of Appellate Procedure:

Appellant, CEDRIC ALLEN RICKS, was convicted of the capital murder of

his live-in girlfriend and her eight-year-old son by a previous marriage. The

offense occurred on May 1, 2013, in Bedford, Tarrant County, Texas during the

same criminal transaction. The legal sufficiency of the evidence to support his

conviction is not challenged. The following factual summation2

 is an overview

of the evidence adduced at Appellant’s trial. Specific details concerning facts

and testimony relevant to a prospective point of error will be summarized and

discussed in the Argument and Authorities portion as they relate to the legal

contention asserted.

2

The evidence will be summarized in the proper standard of review for

legal sufficiency of the evidence questions which is “the light most favorable to

the verdict.” See, Jackson v Virginia, 443 U.S. 307, 319 (1979); Johnson v

State, 364 S.W. 3d 292, 293-94 (Tex. Crim. App. 2012) cert denied, 133 S. Ct.

536 (2012); Runningwolf v State, 360 S.W. 3d 490, 494 (Tex. Crim. App.

2012); Avery v State, 359 S.W. 3d 230, 236 (Tex. Crim. App. 2012); Miles v

State, 357 S.W. 3d 629, 631 (Tex. Crim. App. 2011).

1
In May of 2013, twelve-year-old Damien Gonzalez3

lived with his mother,

thirty-year-old Rosie Gonzalez,4 his brother, eight-year-old James Gonzalez,5 his

half-brother, nine-month-old baby Thomas,6 and his mother’s boyfriend and

father of Thomas, Appellant. (RR. XXXI-61; XXXII-16-20; XL-66-69). The five

members of the household resided in an apartment complex in Bedford, Tarrant

County, Texas. (RR. XXXI-28-36, 77; XXXII-18-19). May 1, 2013, dawned as a

typical day for the Gonzalez family and Appellant. (RR. XXXII-20-24). That

evening after work7 Rosie picked up her three boys and took them to Wal-Mart

to shop for groceries. (RR. XXXII-20-21). Damien and James helped their mother

unload the groceries and carry them upstairs to their apartment. (RR. XXXII-20-

22). Once inside, Damien and James played with baby Thomas while Rosie

retrieved the remainder of the bags from her vehicle and then began preparing

dinner. (RR. XXXII-22-24).

3Damien Gonzalez is a pseudonym.

4Rosie Gonzalez is a pseudonym.

5

James Gonzalez is a pseudonym.

6

Thomas is a pseudonym.

7Both Rosie and Appellant worked in the medical field for various

doctors. (RR. XXXIV-7).

2
Matt Webb also resided at the same apartment complex on May 1, 2013.

(RR. XXXI-42-43). He arrived home at around 6:00 that evening; he left about

an hour later to go out to dinner. (RR. XXXI-43-44). As he walked along the

corridor towards his vehicle he heard a man’s voice yelling and screaming

expletives. (RR. XXXI-44). As he approached the man he recognized his

neighbors Rosie Gonzalez and Appellant. (RR. XXXI-44-46). Rosie, who was

carrying a couple of bags of groceries, appeared distraught. (RR. XXXI-45). As

he passed them, Mr. Webb nodded and continued on his way. (RR. XXXI-45).

While at dinner he received numerous texts, voice mails, and Facebook

messages about a domestic situation that had recently taken place near his

apartment. (RR. XXXI-46-47). He later provided the police with a statement

detailing what he had witnessed earlier that evening. (RR. XXXI-47).

Around this same time Damien and James were having a great time

playing in their shared bedroom with baby Thomas. (RR. XXXII-22-23). While the

two older boys threw a tennis ball around their room their mother was in the

kitchen preparing their supper. (RR. XXXII-23-24). At one point Damien became

aware that Appellant and his mother were engaged in a heated verbal argument.

(RR. XXXII-24-25). As the boys continued their play they heard their mother

3
abruptly scream. (RR. XXXII-25). Both boys bolted from their room towards the

sound. (RR. XXXII-25-26). Damien watched as his mother and Appellant were

striking each other with their fists. (RR. XXXII-26). Stunned, Damien observed 

Appellant throw his mother to the living room floor. (RR. XXXII-27). When

Damien and James tried to intervene, Appellant threwDamien to the floor.8(RR.

XXXII-27-28). While both boys begged Appellant to stop, Appellant proceeded

to strike Rosie multiple times with his fists. (RR. XXXII-27-28). He then walked

into the kitchen and procured a knife from a kitchen drawer. (RR. XXXII-28-29).

Her sons watched in horror as he walked back to Rosie and stabbed her multiple

times. (RR. XXXII-29-31). She futilely attempted to ward off the blows. (RR.

XXXII-30-31).

Soon after Appellant began his attack on his mother, Damien ran back to

his room and hid in his closet. (RR. XXXII-31-32). He attempted to dial 9-1-1 on

his cell phone while fighting Appellant’s efforts to open the closet door. (RR.

XXXII-32-33). When Appellant finally wrestled the door open Damien dropped

his phone and grabbed the knife thatwas in Appellant’s hand. (RR. XXXII-33-34).

8During this time Damien was unsure what was happening to James.

(RR. XXXII-27).

4
Bleeding profusely from his left hand Damien ran back into the living room. (RR.

XXXII-34-35). James, his face covered in blood, told Damien to get help. (RR.

XXXII-35).

Appellant abruptly pushed Damien down, held his head to the floor, and

began stabbing him in the back of his neck and head. (RR. XXXII-36-37).

Damien watched as Appellant did the same to James. (RR. XXXII-37-39).

Appellant ceased his attack and began walking around the living room area.(RR.

XXXII-39). After a few minutes Damien tried to stand. (RR. XXXII-39). Appellant

walked over and resumed the knife attack. (RR. XXXII-39-40). When Damien

feigned a gurgling noise, Appellant ended the assault.

9

(RR. XXXII-40-41).

Feigning death, Damien listened as Appellant moved about the apartment. (RR.

XXXII-41-42). Appellant took a shower, changed his clothes, made some

telephone calls, packed a bag, and left, driving away in Rosie’s gray Nissan

automobile. (RR. XXXII-42-47).

9Damien testified that he had emulated the same sound that James had

made when Appellant was stabbing him. When James had gurgled in his own

blood because his breathing was obstructed, Appellant had stopped stabbing

him. Damien was hoping that Appellant would also stop his attack on him. (RR.

XXXII-41, 161-62).

5
Chicago transplant and Appellant’s first cousin,10

Janiece Taylor,11taught

in the Arlington Independent School District at the time of her testimony. (RR.

XXXI-58). Her parents, James and Lucinda Jones,12

resided in Mansfield. (RR.

XXXI-58). Janiece and Appellant grew up together in south Chicago. (RR. XXXI59-60).

During the early evening hours of May 1, 2013, Janiece was at her parents’

house in Mansfield.13 Her telephone rang. (RR. XXXI-63). Recognizing the

number as Appellant’s she initially ignored his call.

14

(RR. XXXI-63-64). When

his calls persisted she relented and answered her phone. (RR. XXXI-64). On the

other end Appellant cried, “I - - - I did something bad.” (RR. XXXI-64). Janiece

began to sob, and Appellant asked to speak to his Uncle James. (RR. XXXI-64).

10Appellant’s mother and Janiece’s father are sister and brother. (RR.

XXXI-59-60).

11

Janiece Taylor is a pseudonym.

12

James and Lucinda Jones are both pseudonyms.

13

Janiece, her husband, her two sons, and her stepdaughter were living

with her parents temporarily because she was in the process of having a home

built. (RR. XXXI-62-63).

14

Janiece explained that when Appellant called she did not answer

because of time constraints. She intended to return his call at a later time when

she had sufficient time to talk with him. (RR. XXXI-63-64).

6
She handed the phone to her father and watched his face contort in shock and

dismay as he listened to Appellant. (RR. XXXI-64-66). Appellant confessed to his

uncle that he had killed Rosie and her two boys. (RR. XXXI-77-78). Appellant

requested that Janiece and her parents drive to his apartment to pick up baby

Thomas. (RR. XXXI-68, 78). When Janiece spoke with Appellant again she urged

him to turn himself in to the police. (RR. XXXI-68).

When she hung up from Appellant a second time, Janiece and her parents

got into their car and began driving towards Appellant’s apartment. (RR. XXXI69). While on the way Janiece called 9-1-1. (RR. XXXI-69). A few minutes later

a Bedford police officer contacted her and requested that the family divert to the

Bedford Police Department. (RR. XXXI-69-70). Once there the three family

members provided the authorities with information enabling them to locate 

Appellant. (RR. XXXI-70-71, 78-79, 152-54). While at the police station Janiece

was relieved to learn that Appellant had been taken into custody. (RR. XXXI-71).

Bedford police officer Clayton Baxley received a dispatch at 8:42 p.m. on

May 1, 2013, ordering him to proceed to Appellant’s apartment to perform a

welfare check. (RR. XXXI-85-88). He was the first responder on the scene. (RR.

XXXI-93). When he approached the front door of the apartment he heard a baby

7
screaming inside. (RR. XXXI-93). As the officer waited for permission to enter,

he learned that Damien had contacted the police. (RR. XXXI-93-94, 110-13).

Damien had told the 9-1-1 operator that his mother and brother were deceased,

his infant brother was screaming, and Appellant had perpetrated the offense.

(RR. XXXI-93-94).

Within minutes Officer Baxley received permission to enter the apartment.

(RR. XXXI-94). Due to the injuries to his hands Damien was unable to open the

front door and called out for the officer to enter. (RR. VI-6; XXXI-94). When

Officer Baxley stepped inside he observed Damien covered in blood from his

head to his toes. (RR. XXXI-95). Upon closer inspection he could see severe

lacerations to the back of the child’s head, neck, and shoulders, and blood was

flowing rapidly from his wounds. (RR. XXXI-95-96). The officer began talking to

Damien while waiting for back up and the paramedics. (RR. XXXI-96). After

Lieutenant Meaders arrived the two began a “protective sweep” ofthe apartment

for other victims as well as Appellant. (RR. XXXI-96-97).

During their search Officer Baxley observed Rosie’s and James’ lifeless

bodies lying on the living room floor. (RR. XXXI-97). They then found baby

Thomas in a back room of the apartment uninjured. (RR. XXXI-97). Back outside

8
Officer Baxley held the flashlight while the paramedics tended to Damien’s

wounds. (RR. XXXI-97-104). Eventually Damien was transported to Cook

Children’s Hospital for life saving medical treatment. (RR. XXXI-104-06).

Heath E. Green was a Trooper employed by the State of Oklahoma at the

time of his testimony. (RR. XXXI-125). On May 1, 2013, Trooper Green and his

associate, Tracy Laxton, were assigned to patrol the southern end of Oklahoma

in Garvin and Murray counties. (RR. XXXI-126-27). On that date they were

working the “hoot” or midnight shift. (RR. XXXI-127). Later that night the

troopers received a dispatch that Rosie Gonzalez’s gray Nissan was traveling

along the I-35 interstate and that the occupant of the vehicle was wanted for

questioning in a stabbing incident. (RR. XXXI-127-29, 133). The troopers were

provided with Appellant’s name, the color of the vehicle, the license plate

number, and the location of Appellant’s cell phone. (RR. XXXI-127-29). Troopers

Green and Laxton pulled out in their separate vehicles and promptly located the

Nissan at the sixty-eight mile marker on northbound I-35. (RR. XXXI-127-31).

Appellant was eventually placed under arrest. (RR. XXXI-133-38).

Back at Appellant’s apartment the police investigation continued. (RR.

XXXI-182-253, 284-305). Various search warrants were obtained for the

9
apartment15

, Rosie’s car, and eventually Appellant’s DNA. (RR. XLII-SPTX1,

SPTX2, SPTX7, SPTX9, & SPTX10). Crime scene officers carefully combed the

apartment for evidence. (RR. XXXI-182-255, 284-307). Several knives

containing biological material were seized. (RR. XXXI-255). Testing found the

DNA of Damien, Rosie, James, and Appellant on various items, including the

knives. (RR. XXXIII-11-24). 

Dr. Tasha Greenberg, Deputy Medical Examiner for the Tarrant County

District Attorney’s Officer performed the autopsies on Rosie and James

Gonzalez. (RR. XXXII-109-11). She concluded that Rosie died of stab wounds of

the neck, blunt force injuries of the head, and asphyxia as a combination and

that her manner of death was a homicide. (RR. XXXII-113-50). James died as

a result of stab wounds to the head and neck, and his manner of death was also

a homicide. (RR. XXXII-151-77). Appellant was eventually indicted for the

offense of capital murder. (CR. I-11).

15Appellant challenges the Federal and State constitutionality of this

search in points of error three and four because it was conducted hours before

the actual search warrant was obtained.

10
SUMMARY OF APPELLANT’S ARGUMENTS

The following is a summary of Appellant’s points of error on appeal

pursuant to Rule 38.1 (g) of the Texas Rules of Appellate Procedure:

POINTS OF ERROR ONE AND TWO:

At the time of Appellant’s actual stop by the Oklahoma state troopers,

Appellant had committed no crime, and the troopers did not have probable

cause to arrest him. Any evidence seized by law enforcement officials

subsequent to Appellant’s illegal arrest should have been suppressed. 

Therefore, Appellant’s Motion to Suppress should have been granted in its

entirety.

POINTS OF ERROR THREE AND FOUR:

Law enforcement officials began searching Appellant’s apartment after

the welfare check and exigent circumstances ceased to exist. They proceeded

to locate and seize items of evidence inside his apartment hours before the

search warrant was procured in violation of the United States and Texas

Constitutions and requisite Texas statutes.

POINTS OF ERROR FIVE, SIX, AND SEVEN:

Shortly after Appellant’s arrest he was taken before an Oklahoma

11
magistrate who arraigned him on his fugitive case (filed as a result of

Appellant’s refusal to waive extradition) and denied him counsel. Subsequent

to his arraignment the local sheriff threw Appellant into a cell with other

prisoners who beat him severely. Almost immediately afterwards Appellant

waived extradition and returned to Texas. Appellant’s denial of counsel violated

the United States and Texas Constitutions as well as the Oklahoma statutes. 

As a result, his Motion to Suppress all evidence seized after his unlawful denial

of counsel should have been granted.

POINTS OF ERROR EIGHT AND NINE:

The prejudicial effect of the two autopsy photographs of James Gonzalez’s

brain outweighed their probative value. As a result, reversible error resulted in

their admission into evidence before the jury.

POINT OF ERROR TEN:

Appellant will argue that Texas defendants charged with capital murder

are afforded lesser protections than are required by the Constitution of the

United States and applied to non-death penalty defendants.

POINT OF ERROR ELEVEN:

By requiring the jurors to determine whether there are “sufficient. .

12
.mitigating circumstances,” the second special issue implies that the burden to

prove the mitigating circumstances of the case outweigh the aggravating

circumstances is on the defense. This renders the statute unconstitutional under

the Eighth and Fourteenth Amendments to the United States Constitution.

POINT OF ERROR TWELVE:

Appellant will argue that absent an allegation in the indictment as to the

existence of the special issues and supporting facts the State intended to offer

in support of those answers it was precluded from seeking the death penalty.

POINT OF ERROR THIRTEEN:

The thrust of this point is that the death penalty procedure in Texas

violates the Eighth Amendment to the United States Constitution.

POINT OF ERROR FOURTEEN:

The Texas death penalty scheme violates the Due Process Clause of the

Fourteenth Amendment because it does not put the burden of disproving the

mitigation special issue beyond a reasonable doubt on the State in violation of

the principles espoused in Apprendi v New Jersey, Ring v Arizona, Blakely v

Washington, and Cunningham v California.

POINTS OF ERROR FIFTEEN, SIXTEEN, AND SEVENTEEN:

13
Rosie Gonzalez’s mother was permitted to testify to damming and

prejudicial statements allegedly made by Rosie that after the commission of an

extraneous family violence assault against her Appellant had pressured her into

a reconciliation in violation of the Confrontation Clause of the United States and

Federal Constitutions as well as the hearsay rule.

POINTS OF ERROR EIGHTEEN AND NINETEEN:

The trial court committed reversible error by permitting the Sexual Assault

Nurse Examiner to testify about alleged statements made by Rosie Gonzalez

pertaining to an extraneous assault allegedly committed by Appellant against

her. These statements violated Appellant’s rights under the Confrontation

Clause of the Federal and State Constitutions.

POINT OF ERROR TWENTY:

If this Court concludes than none of the above points of error constitute

harm, then Appellant’s conviction and death sentence should be reversed based

on the cumulative error in the record.

14
POINT OF ERROR ONE

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS SUBSEQUENT TO HIS

WARRANTLESS ARREST WHICH WAS IN

VIOLATION OF THE FOURTH AND

FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION. (CR. I-284-

99; II-409; RR. VI-144-87, 231-41; XXXII71; XLII-SPTX 1, 2, 7, 8, 9, 10, 11; XLV-DX

1).

POINT OF ERROR TWO

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS SUBSEQUENT TO HIS

WARRANTLESS ARREST WHICH WAS IN

VIOLATION OF ARTICLE 1, SECTION 9 OF

THE TEXAS CONSTITUTION AND ARTICLES

1.06, 18.02, AND 38.23 OF THE TEXAS

CODE OF CRIMINAL PROCEDURE. (CR. I284-99; II-409; RR. VI-144-87, 231-41;

XXXII-71; XLII-SPTX 1, 2, 7, 8, 9, 10, 11;

XLV-DX 1).

ARGUMENT AND AUTHORITIES

A. The Facts

During the hearing on Appellant’s Motion to Suppress all of the evidence 

15
seized subsequent to his warrantless arrest, Trooper Laxton, one of the arresting

officers out of Oklahoma, testified on direct examination as follows:

Q. Around10:30 that night,where

were you located?

A. Myself and Trooper Green was

at the gas station right off exit 55 on I35,

which is right on the Garvin/Murray County

border. We had just went inside to take a

short break.

Q. At 2258 hours, did you hear a

broadcast over your police radio?

A. I did hear the broadcast. Let

me check on the times. Yes.

* * *

Q. What information did you

receive over your police radio at that time?

A. This is kind of paraphrasing. I

can’t say it exactly, but basically that there

was a vehicle - - a silver or gray vehicle

northbound - -Nissan Altima northbound on

I35, possibly had a driver in it named

Cedric Ricks. The vehicle had a Texas tag

of CP4-M829, and the suspect - - or the

person that was supposedly driving the

vehicle was wanted in questioning for a

16
stabbing that happened in Bedford, Texas.

* * *

Q. And what did you and Trooper

Green do at that time?

A. We immediately went to our

cars. The original broadcast, I believe, was

just south of us. So we figured, with the

time delay, we jumped on the interstate

and started north, and we just started north

trying to - - he was in his car; I was in mine. 

He was just no more than a few hundred

yards in front of me. We were running kind

of tandem, running north on the interstate

trying to locate that vehicle.

* * *

Q. At some point, did either you or

Trooper Green locate the vehicle?

A. Yes.

Q. And who located it first?

A. Trooper Green saw the vehicle

first. He radioed back to me. I saw him

hitting his brakes as he was slowing down,

and he was telling me that he just passed -

- or he just pulled up next to the vehicle. I

was - - I seen it about the same time he

was talking on the radio, but he saw it just

right before I did.

17
* * *

Q. Did either you or TrooperGreen

immediately stop the vehicle at that time?

A. No.

Q. What did you do?

A. I radioed back to my dispatch,

which is Ardmore Troop F, to ask - - or

basically to tell them, “We’ve located the

vehicle. Does Bedford or does - - Bedford

PD, is they - - are they wanting the vehicle

stopped or - - we’ve located, what do they

want to do?

Q. So itwas your understanding at

that time that your dispatcher was in

contact with this law enforcement agency

that wants the vehicle stopped?

A. Yes. I’m - - the length of time

from asking questions to getting answers,

I’m pretty sure they were on the phone with

somebody from Bedford, but I’m not sure

who.

Q. Okay. And when you asked

them that question and they told you what

they told you, what did you do?

A. They said, “Yes, stop the

vehicle.” At that time, myself and Trooper

Green both turned on our lights, all of our

18
emergency lighting at about the same

time. He was actually - - actually, we

waited just a few more seconds. When

they said, “Yes, stop the vehicle,” we were

coming up on a bridge with guardrail. It’s

a crest of a hill. It’s kind of an unsafe spot

to pull anybody over. Right past this

bridge, there’s no guardrail. It opens up to

just grass on both sides. So we waited a

few seconds. As soon as we cleared the

bridge, we turned on the lights to - - to start

the traffic stop.

Q. How long would you say you

followed the vehicle at the time you first

observed it until the time you decided to

stop it?

A. Approximately a mile, give or

take a little bit. I don’t - - about a mile. No

more than a mile maybe, half a mile.

Q. And during that time, did you

observe the vehicle - - the occupant of the

vehicle make any traffic violations?

A. No.

Q. Was the vehicle speeding?

A. No, it was not.

Q. So when you stopped the

vehicle, you did so at the direction of your

dispatcher, correct?

19
A. Yes.

Q. Who was speaking to

authorities in Texas - - law enforcement

authorities in Texas, correct?

A. Yes.

Q. When you stopped the vehicle -

- or excuse me. Let me back up. When you

turned on your overhead lights, what did

the driver of the vehicle do?

A. Immediately pulled to the right

shoulder and stopped with the left tires

within just a couple of inches of the white

fog line.

 (RR. VI-146-51).

However, on cross-examination the Trooper conceded that at the time he

actually conducted the stop of Appellant not only had Appellant committed no

traffic violations of any kind, but also he had no information that Appellant had

committed any crime in any jurisdiction. The record reflects:

Q. [BY DEFENSE COUNSEL] And,

Trooper Laxton, she’ll show you that if you

need to see it, but in Texas, we use the

phrase “probable cause.” You’re familiar

with that?

20
A. Yes.

Q. On those statutes, on arresting

someone for a felony not in your view,

Oklahoma chose to use “reasonable

cause.” Y’all use that term a lot, right?

A. Correct.

* * *

Q. But here’s what I’m getting at. 

And my question is not whether this is an

arrest or detainment. I’m not trying to

argue about what is what. I’m not trying to

argue with you about what you did. Okay? 

But what I’m getting at is: At the time you

chose to turn on your red and blue lights to

initiate the traffic stop, all you knew was

what you had been told by your dispatcher

in two different conversations: One, Mr.

Ricks is wanted for questioning in a

stabbing in Bedford, and the second one

was a response, which was Bedford PD

would like him stopped, correct?

A. That’s correct.

* * *

Q. Well, did you - - did you feel like

you had reasonable cause that the - -

because the statute says you can make a

stop for a felony, okay, if - - or you can

arrest a person for a felony, is what it says,

21
if you have reasonable cause that a felony

had been committed even if it wasn’t in

your view. It’s not exactly in that order, but

that’s what it says. And my question is: At

that point in time, when you turned on the

red and blue lights, did you believe that you

had reasonable cause that Mr. Ricks had

committed a felony?

A. Counsel, I don’t know if I’m

overthinking this. I mean, because there

was more - - there was more questions

asked and answered to get to the arrest

point of it.

Q. I understand that when you

finally said, “You’re under arrest,” that was

based on other conversations. I’m not

trying to argue about that.

My question is: At the time you

stopped him, you obviously didn’t know all

the conversations with Detective Moody

and the other people. I’m just talking

about when they said, “Pull this car over.”

A. The information that I had - -

I’m going to try to answer this as best I can,

if I understand you right. The information

I had when I turned my lights on was not

enough - - that just at its own was not

enough for me to go through the whole

entire stop, place Mr. Ricks under arrest,

take him to jail, all the above.

22
Q. You had to gain information

after you stopped him?

A. Yes. Is that what you’re answering

- -

Q. Exactly.

A. - - or asking, sir? Yes.

(RR. VI-183-86).

The trial court granted Appellant’s Motion to Suppress all of the evidence seized

subsequent to his warrantless arrest as to a few items uncovered by law

enforcement during their, Appellant later contends unlawful search, of

Appellant’s apartment prior to their procurement of a warrant. In all other

matters Appellant’s Motion to Suppress was denied. (CR. II-409). Defense

counsel objected to the admission of all of the other items of evidence seized

subsequent to Appellant’s arrest and requested a running objection to all such

evidence. (RR. XXXII-71).

B. The Law Under the Federal and Texas Constitutions

An investigative detention is a seizure. Francis v State, 922 S.W. 2d 176,

178 (Tex. Crim. App. 1996); Johnson v State, 912 S.W. 2d 227, 235 (Tex. Crim.

App. 1995). As a result, it must be reasonable to meet the standards required

23
by the United States and Texas Constitutions. See, U.S. Const. amend. IV and

XIV as well as Tex. Const. art. I §9. An occupant of an automobile is just as

subject to a brief detention as is a pedestrian. Adams v Williams, 407 U.S. 143,

146 (1972); Rhodes v State, 945 S.W. 2d 115, 117 (Tex. Crim. App.) cert

denied, 552 U.S. 894 (1997). The reasonableness of a temporary detention

must be examined in terms of the totality of the circumstances and will be

justified when the detaining officer has specific articulable facts, which taken

together with rational inferences from those facts, lead him to conclude that the

person detained actually is, has been, or soon will be engaged in criminal

activity. Woods v State, 956 S.W. 2d 33, 38-39 (Tex. Crim. App. 1997).

In State v Jennings, 958 S.W. 2d 930, 932 (Tex. App. - - Amarillo 1997,

no pet.) a peace officer was dispatched to a domestic disturbance in the City of

Plainview. 958 S.W. 2d at 932. En route to the domestic disturbance call, she

received a dispatch over her police radio describing a vehicle that was wanted

for questioning in regards to the domestic disturbance. Id. The officer located

and stopped the vehicle that matched the broadcast based solely on the fact

that the driver of the vehicle was wanted for questioning in regards to the

domestic disturbance. Id.On appeal,the Court of Appeals found that“the totality

24
of the circumstances evince only a request to stop coupled with a description of

the vehicle to be stopped,” and that “these circumstances alone are not enough

to illustrate that the initial detention was justified on the basis of reasonable

suspicion or probable cause.” Id at 933, (citing Rance v State, 815 S.W. 2d 633,

635 n. 2 (Tex. Crim. App. 1991)).

Art. I, §9 of the Tex. Const. provides: “The people shall be secure in their

persons, houses, papers and possessions, from all unreasonable seizures or

searches, and no warrant to search any place, or to seize any person or thing,

shall issue without describing them as near as may be, nor without probable

cause, supported by oath or affirmation.” Pursuant to Heitman v State, 815

S.W. 2d 681, 690 (Tex. Crim. App. 1991) this Court, when analyzing and

interpreting art. I, §9 of the Tex. Const., will not be bound by Supreme Court

decisions addressing the comparable Fourth Amendment issue. The Tex. Const.

affords greater individual protections to its citizens in search and seizure cases

than the Fourth Amendment to the U.S. Const. See also, arts. 1.06, 18.02, and

38.23 Tex. Crim. Proc. Code Ann. (Vernon 1965, 2003, and Vernon Supp.

2004).

In the case at bar, when the Trooper turned on his lights and sirens to

25
initiate his traffic stop of Appellant he admitted that he lacked reasonable

suspicion and probable cause to believe that Appellant had committed any type

of crime in any jurisdiction. (RR. VI-185-86). As a result Appellant’s rights under

the Fourth and Fourteenth Amendments to the United States Constitution, art.

I § 9 of the Tex. Const., and those under the enumerated state statutes were

violated, and the trial court erred by denying Appellant’s Motion to Suppress all

of the evidence seized subsequent to his unlawful arrest. 

This error is subject to harmless error review. Appellant contends that this

Court must reverse the trial court’s judgment of guilt unless this Court

determines beyond a reasonable doubt that the error did not contribute to

Appellant’s conviction. Appellant believes that the State’s admission of the

instruments of the crime as well as all of the other numerous items of evidence

that were seized as a result of the various search warrants contributed to the

jury’s verdict of guilt against him. Because of this Appellant respectfully prays

that this Honorable Court sustain points of error one and two, reverse the

Judgment of the trial court, and remand his case for a new trial.

26
POINT OF ERROR THREE

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS SUBSEQUENT TO THE

WARRANTLESS SEARCH OF HIS

APARTMENT WHICH WAS IN VIOLATION OF

THE FOURTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION. (CR. I-284-99; II-409; RR.

VI-74-117, 231-41; XXXII-71; XLII-SPTX 1).

POINT OF ERROR FOUR

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

OFFICIALS SUBSEQUENT TO THE

WARRANTLESS SEARCH OF HIS

APARTMENT WHICH WAS IN VIOLATION OF

ARTICLE I, SECTION 9 OF THE TEXAS

CONSTITUTION AND ARTICLES 1.06,

18.02, AND 38.23 OF THE TEXAS CODE OF

CRIMINAL PROCEDURE. (CR. I-284-99; II409; RR. VI-74-117, 231-41; XXXII-71;

XLII-SPTX 1).

ARGUMENT AND AUTHORITIES

A. The Facts

Bedford Detective, Joey Gauger, testified at the hearing on Appellant’s

Motion to Suppress that when the responding officers initially entered the

27
apartment during the evening hours of May 1, 2013, to provide medical

assistance to Damien, to rescue baby Thomas, and to check for survivors of the

attack they had observed various items of evidence that would eventually need

to be collected. (RR. VI-83-84). On direct examination Detective Gauger then

described entering Appellant’s apartment after both the exigent and welfare

check circumstances had officially terminated and before a warrant to search

the premises had been procured. The record states in pertinent part as follows:

Q. And had you learned, at least

upon arrival or en route, that certain items

of evidence had been discovered by the

initial responding officers?

A. Once I arrived on the scene and

- - and had that conversation with Crime

Scene Technician Grice, Ilearned thatthere

was evidence that had been observed by

the initial responding officers.

Q. And do you recall what time

you entered into the apartment, the crime

scene?

A. I don’t - - I don’t recall the exact

time, but I do believe it was around 11:18

p.m.

Q. Okay. And when you entered

the apartment, what did you do?

28
A. I began to assist Crime Scene

Grice with taking notes prospective to the

evidence that was collected.

Q. Was she also taking

photographs?

A. Yes, she was.

Q. While you were in the crime

scene, did personnel from the Tarrant

County Medical Examiner’s Office arrive

inside the apartment?

A. Yes, they did. Considerable

time after I had been in the apartment,

they did arrive.

Q. Do you recallwhattime itwas?

A. I believe at 3:38 a.m. on the

2nd of May.

Q. And why did they come to the

scene?

A. They - - they arrived on scene to

transport - - have the bodies transported

from the scene to the ME’s office.

Q. While you were out there, did

you hear an investigator for the Tarrant

County Medical Examiner’s Office make

any comments regarding potential murder

weapons?

29
A. Yes, he did.

Q. What happened?

A. He - - he - -he told me that he - -

or he summoned me and said, “Hey, I

found a knife in the second drawer of the

kitchen, and there’s some blood on the

knife.” I said, “Okay.” And I went over

there, and I looked. The drawer was

cracked open about two and a half inches,

and you could see a knife in the drawer

that had blood on it.

Q. Okay. And it’s your

understanding that the drawer was already

open when the medical examiner

investigator observed the bloody knife; is

that correct?

A. Yes, it was.

Q. And what did you do at that

time?

A. At that time, I notified Crime

Scene Technician Grice of the knife so she

could document and collect the knife and

take photographs of it.

Q. And did the medical examiner

investigator - - did he continue his duties

and eventually complete those duties?

A. Yes, he did.

30
Q. What did you do next?

A. After he finished his duties,

then I exited the crime scene. There was

one point in the crime scene I did take a

video of the crime scene.

Q. Do you knowwhattime you left

the crime scene?

* * *

A. I left at - - from the crime scene

log, I left the crime scene at 1:22 a.m. and

returned at 1:45 a.m. on May 2nd.

Q. Okay. But you left the crime

scene after the medical examiner’s office

left; is that correct?

A. Yes, I did. I left right at about

the same time, which was at 4:38 a.m. on

May 2nd.

Q. So you - - when you originally

left the scene, you left to retrieve some

items, correct?

A. Yes. I left the scene to retrieve

the - - the police department crime scene

video camera.

Q. Okay. Then you returned,

completed your video, and then you left

shortly after the medical examiner’s office

31
left; is that correct?

A. That’s correct.

Q. Did you ever go back to the

crime scene after that?

A. No, I did not.

Q. Okay. Detective, you

mentioned Officer Grice; is that correct?

A. Crime Scene Technician Grice.

Q. I’m sorry. Crime Scene

Technician Grice.

And the evidence and items

that she was photographing, documenting,

those are the items that had been seen by

the responding officers and had been in

plain view; is that correct?

A. That is correct.

 (RR. VI-83-87).

The State did not obtain the evidentiary search warrant for Appellant’s

apartment until 10:13 a.m. on May 2, 2013. (RR. XLII-SPTX 1).

Appellant has preserved this error for appellate review by filing a pretrial

Motion to Suppress and obtaining a ruling on that Motion from the trial court.

32
(CR. II-409). See, Tex. R. App. Proc. 33.1 (a); Tex. R. Evi. 103 (a) (1). Though not

necessary for preservation, Appellant objected, in front of the jury, to the

admission of all items of evidence seized prior to the Bedford Police

Department’s obtainment of a search warrant. (RR. XXXII-71).

B. The Law Under the Federal and Texas Constitutions

“The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated. . .”

U.S. Const. Amend. IV. Searches conducted without a warrant are per se

unreasonable under the Fourth Amendment, subject only to a few specifically

established and well delineated exceptions. Katz v United States, 389 U.S. 347,

357 (1967) (footnotes and citations omitted). “The five basic exceptions are: 

(1) consent, (2) incident to a lawful arrest, (3) with probable cause to search but

with exigent circumstances, (4) in hot pursuit, and (5) stop and frisk.” Kolb v

State, 532 S.W. 2d 87, 89 n. 1 (Tex. Crim. App. 1976). Once a defendant shows

that a search or seizure or seizure occurred without a warrant, the burden shifts

to the State to prove the reasonableness of the search or seizure. Russell v

State, 717 S.W. 2d 7, 9 (Tex. Crim. App. 1986). A warrantless search of a

residence is presumptively unreasonable. Gutierrez v State, 221 S.W. 3d 680,

33
685 (Tex. Crim. App. 2007) (citing Payton v New York, 445 U.S. 573, 586

(1980)). To hold a warrantless search valid, a reviewing court must make three

findings: (1) that the search was supported by probable cause, the threshold

requirement of any valid search; (2) that the failure to obtain a search warrant

was excusable because the search was incidentto a lawful arrest or was justified

by some other exigent circumstance furnishing an exception to the warrant

requirement; and (3) that the scope of the search was consistent with its

purpose. Maldonado v State, 528 S.W. 2d 234, 239 (Tex. Crim. App. 1975)

overruled in part on other grounds, State v Guzman, 959 S.W. 2d 632 (Tex.

Crim. App. 1998); Sullivan v State, 564 S.W. 2d 698 (Tex. Crim. App. 1977). As

explained herein, the record in this case does not support a finding of the second

or third criteria.

Here, the search of Appellant’s apartment was conducted without a

warrant. At the hearing on Appellant’s Motion to Suppress, the State argued

(inter alia) that (a) when the police first arrived at Appellant’s apartment, “they

had the right to go into that apartment to make a welfare check,” (b) their

“search” of the apartment was “a protective sweep of that apartment;” and (c)

the evidence they seized “was in plain view.” (RR. VI-242-43).

34
Appellant does not contest that the law enforcement officers’ initial entry

into his apartment was legal. However, the scope of their subsequent search 

of his apartment exceeded the legal justification for their entry into (and

presence in) the apartment. First, the exigent circumstances only allowed the

police to enter Appellant’s apartment. Such exigency did not make the ensuing

warrantless search of the apartment legal. Second, the warrantless search of

Appellant’s apartment was not “a protective sweep.” A “protective sweep” is a

quick and limited search of a premises, incident to an arrest and conducted to

protect the safety of police officers or others. Maryland v Buie, 494 U.S. 325,

327 (1990). The search of Appellant’s apartment was not conducted incident

to any arrest. Assuming arguendo that this Court decides to expand the

definition of a “protective sweep” to include the type of search at issue here, this

search went beyond whatthe Supreme Court said the Fourth Amendmentwould

permit. Under Buie, a protective sweep is permitted by the Fourth Amendment

if the searching officer possesses a reasonable belief based on specific and

articulable facts that, taken together with the rational inferences from those

facts, reasonably warrant the officer in believing that the area swept harbored

an individual posing a danger to the officer or others. Id. Thus, in Reasor v State,

35
12 S.W. 3d 813 (Tex. Crim. App. 2000) this Court concluded that the protective

sweep in the defendant’s home was illegal where the officer did not express his

belief that any third persons were inside the defendant’s home or articulate his

belief that a third person inside the home was attempting to jeopardize either

his or the public’s safety. Reasor at 817.

Further, a “protective sweep” is nevertheless not a full search of the

premises, Buie at 335. It “is narrowly confined to a cursory visual inspection of

those places in which a person might be hiding” and “lasts no longer than is

necessary to dispel the reasonable suspicion of danger.” Buie at 327, 335-36.

The search of Appellant’s apartment did not meet any of these criteria. Officer

Noel Scott, one of the first responders to the scene, testified that Damien had

advised that Appellant had already left the scene. (RR. VI-29-30). If this was

accurate information a “protective sweep” was rendered unnecessary and

consequently, illegal.

Under certain circumstances, the police may seize evidence in plain view

without a warrant. Coolidge v New Hampshire, 403 U.S. 443, 465 (1971)

overruled in part, Horton v California, 496 U.S. 128 (1990). The Supreme Court

explained in Horton v California just what those “circumstances” are:

36
It is, of course, an essential predicate to any valid

warrantless seizure of incriminating evidence that the

officer did not violate the Fourth Amendment in arriving

at the place from which the evidence could be plainly

viewed. There are, moreover, two additional conditions

that must be satisfied to justify the warrantless seizure. 

First, not only must the item be in plain view, its

incriminating character must also be “immediately

apparent.” Id. at 403 U.S. 466; see also Arizona v Hicks,

480 U.S. at 326-327. . ..Second, not only must the

officer be lawfully located in a place from which the

object can be plainly seen, but he or she must also have

a lawful right of access to the object itself. . . .

496 U.S. 128, 136-37 (1990). Evidence that an officer purposefully seeks out

is not in “plain view.” White v State, 729 S.W. 2d 737, 742 (Tex. Crim. App.

1987), disavowed in part, State v Dobbs, 323 S.W. 3d 184 (Tex. Crim. App.

2010)

16

 (citing Walter v United States, 447 U.S. 649 (1980)).

In White, police responded to a disturbance call at an El Paso apartment

complex and were advised by the manager of the complex that a fight was in

16

In Dobbs, this Court held that, “so long as probable cause to believe

that items found in plain view constitute contraband arises while police are still

lawfully on the premises, and any further investigation into the nature of those

items does not entail an additional and unjustified search of, or unduly

prolonged police presence on, the premises, the seizure of those items is

permissible under the Fourth Amendment.” 323 S.W. 3d at 185. Thus, to the

extent White remains good law, it is applicable to this case, and Dobbs is

inapposite, because this case does not involve “an additional and unjustified

search of,” and an “unduly prolonged police presence on, the premises.”

37
progress in one of the units. 729 S.W. 2d at 738. While the officers were

questioning the two men they observed exiting the apartment in question, the

manager walked into the open apartment, then called out and asked the officers

to examine “damage” apparently resulting from the fight between the two men.

Id. Two officers entered the apartment and observed property strewn about the

floor. Id. at 738-39. One officer observed a J.C. Penney credit card in the top of

the stove. Id. at 739. The name on the card did not match either of the names

given earlier by the two tenants. Id. After checking with the police department

and receiving a negative report that the card was stolen, the officer returned the

credit card to the stove where he had found it and then “looked around the

apartment,” noticing that there was a large amount of “female” jewelry strewn

about one area of the floor and several stereos and other items of personal

property also scattered about the apartment. Id. The officer took the serial

number off the back of one stereo without moving the piece of equipment and

also wrote down the name and address of an individual that was written on a

backpack found on the floor. Id. He then called the police station to check on

the items, but again received a negative response that the items were stolen. Id.

Finally, the officer left the apartment, walked upstairs to the manager’s

38
apartment, phoned the records and identification section of the police

department, gave them the name found on the backpack to check for filed

complaints, and was advised that the individual had indeed filed a burglary

complaint. Id.

The Court of Criminal Appeals ruled that the officers lacked probable

cause to search for or to seize the property from the defendant’s apartment. Id.

at 740. Even if the initial police entry was legal, the Court said, “the officer’s

subsequent conduct satisfies neither the inadvertent nor the probable cause

prong of the modified Coolidge test.” Id. at 741. The officers’ actions in

continuing to “look around” the apartment were “clearly exploratory in nature,”

and it was only “after further investigative steps were taken, albeit most

thoroughly,” that the officers had probable cause to seize the items as stolen

goods. Id. Similarly, in the instant case, the officers’ warrantless search of

Appellant’s apartment after the exigent circumstances that justified their initial

entry no longer existed “has all the elements of a systematic search for

incriminating evidence.” Id. at 742.

Tex. Crim. Proc. Code Ann. art. 38.23 (a) (Vernon Supp. 2004) bars the

admission of “evidence obtained by an officer or other person in violation of any

39
provisions of the Constitution or laws of the State of Texas, or of the Constitution

or laws of the United States of America,” against the accused on the trial of any

criminal case. Appellant has shown supra that all of the items seized from his

apartment subsequent to the procurement of the search warrant were obtained

in violation of the Fourth Amendment to the United States Constitution.

Therefore, the trial court erred in admitting all of the items in evidence at

Appellant’s trial17. Further, because additional items of evidence were “come at

by exploitation of that illegality,” all of it should have been excluded as well.

Wong Sun v United States, 371 U.S. 471, 488 (1963).

Just as the search of his apartment exceeded the scope of the Fourth and

Fourteenth Amendments to the United States Constitution, Appellant also

asserts that it exceed that permitted under art. I, §9 of the Texas Constitution.

As stated in his second point of error this Court in Mayberry, 830 S.W. 2d 176,

180 (Tex. Crim. App. 1992) concluded that the Texas Constitution affords

greater individual protections to its citizens in search and seizure cases than the

17Appellant notes that the trial court did grant his Motion to Suppress

regarding those few items that the police seized from “inside the nightstand, the

papers and the photograph, and as to the bandages collected from the

comforter.” (CR. II-409).

40
Fourth Amendment. However, this Court has utilized the test for a “protective

sweep” articulated in Maryland v Buie. Reasor 12 S.W. 3d at 816-17.

Appellant has shown that the trial court erred in admitting all of the

illegally seized evidence and that the error was an abuse of discretion. Because

the error is constitutional error that is subject to a harmless error analysis, this

Court must reverse the Judgment unless the Court determines beyond a

reasonable doubt that the error did not contribute to Appellant’s conviction or

punishment. Tex. R. App. Proc. 44.2 (a). Appellant contends that the admission

of the items of evidence, particularly the instruments used in the offense, did

contribute to his conviction and ultimate death sentence. Though Damien

testified during the guilt innocence phase of Appellant’s trial regarding what he

had witnessed, the jury was allowed to view and touch the instrumentalities of

themassacre. Surely one could reason that such knowledge of inadmissible and

prejudicial items of destruction contributed to the jury’s findings of guilt and

subsequent death sentence. Because of this Appellant respectfully prays that

this Court reverse the trial court’s Judgment and remand his back to the trial

courtwith instructions that he be afforded a newtrial. See, Tex. Crim. Proc. Code

Ann. art. 44.29 (a) (Vernon Supp. 2012).

41
POINT OF ERROR FIVE

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BECAUSE APPELLANT

WAS DENIED HIS RIGHT TO COUNSEL IN

VIOLATION OF THE FIFTH, SIXTH, AND

FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION. (CR. I-284-

99; RR. VI-120-43, 188-228, XLII-SPTX3,

SPTX4, SPTX5, & SPTX6).

POINT OF ERROR SIX

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BECAUSE APPELLANT

WAS DENIED HIS RIGHT TO COUNSEL IN

VIOLATION OF ARTICLE I, SECTION 10 OF

THE TEXAS CONSTITUTION AND ARTICLES

1.05, 15.17, AND 38.23 OF THE TEXAS

CODE OF CRIMINAL PROCEDURE. (CR. I284-99; RR. VI-120-43, 188-228, XLIISPTX3, SPTX4, SPTX5, & SPTX6).

POINT OF ERROR SEVEN

THE TRIAL COURT ERRED IN DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE SEIZED BY LAW ENFORCEMENT

BECAUSE APPELLANT WAS DENIED HIS

RIGHT TO COUNSEL IN VIOLATION OF

OKLAHOMA STATUTES 22-251 AND 22-

252. (CR. I-284-99; RR. VI-120-43, 188-

228, XLII-SPTX3, SPTX4, SPTX5, &SPTX6).

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ARGUMENT AND AUTHORITIES

A. The Facts

After Appellant was placed under arrest by the Oklahoma Troopers the

following sequence of events occurred as summarized in Appellant’s Motion to

Suppress all evidence seized subsequent to his unlawful arrest, the unlawful

search of his apartment, and his denial of counsel. The record shows:

At the police station, photographs

were made of the Defendant’s injuries at

approximately 3:40 a.m. on May 2, 2013. 

A discussion between the police and the

Defendant, which concerned the procedure

for taking the photographs was done, but

very little conversation otherwise occurred. 

The Defendant did ask how his situation

was, and the Detectives stated that they

would talk at a later time.

At approximately 4:25 a.m. on May

2, 2013, the Defendant was taken to a

local hospital. After treatment, the

Defendant was returned to the Garvin

County, Oklahoma jail. While at the

hospital, the Defendant remained in police

custody.

The Defendant was interviewed at

the Garvin County jail for about 5 minutes

on 8:16 a.m. on May 2, 2013 by Detective

Shelley and Mack. During the first minute

43
of the interview, the Defendant

unequivocally invoked his right to counsel. 

Rather than stop the interview, the

detectives went on to read the Defendant

Miranda warnings. The Defendant then

asked about underwear, medicine, and the

nature of his charges. The detectives told

the Defendant that he was being charged

with two counts of murder, and one count

of criminal attempted murder. The

interview was then terminated.

At approximately 10:00 a.m. on May

2, 2013, the Defendant was taken before

Special Judge Trisha Misak of the 21st

District Court of Oklahoma. At this time,

the Defendant requested a hearing on his

extradition and did not waive extradition to

the State of Texas. At approximately 1:30

p.m. on May 2, 2013, the Defendant was

arraigned on a Fugitive from Justice charge

by Special District Judge Misak, which

resulted from his refusal to waive

extradition.

At approximately 12:07 p.m. on May

2, 2013, the search warrant (Vehicle

Warrant #1) was issued under Oklahoma

law and signed by Special Judge Misak for

the search of the vehicle the Defendant

was operating at the time of his arrest. 

This warrant was executed at

approximately 2:40 p.m.

At no time was the Defendant

44
arraigned on the Texas charges by any

judge in Oklahoma.

On May 2, 2013, before 5:00 p.m.,

the Defendant was assaulted by several

inmates of the Garvin County Jail which

necessitated the Defendant being

transported back to the county hospital. 

While at the hospital the Defendant was

continuously in police custody.

On May 3, 2013, at approximately

8:30 a.m. the detectives were back to the

Garvin County Sheriff’s Office to Obtain

videos from the inmate interviews

concerning the assault on the Defendant by

inmates of the Garvin County Jail. The

detectives were informed that the

Defendant wanted to waive his extradition

rights and also wanted to speak with the

detectives.

 (CR. I-292-94).

The brutal and vicious assault perpetrated against Appellant by his fellow

inmates was not coincidence. Detective Mack of the Bedford PoliceDepartment

testified on cross-examination during the hearing on Appellant’s Motion to

Suppress that Appellant’s presence in the cellwith those particular inmates was

contrived by the Sheriff of Garvin County. The record reflects:

45
Q. And I want to - - I want to direct

your attention to your report. I came

across something interesting. It says you

and Shelley and Ricks were there when he

got arraigned and that the sheriff was

there, and the sheriff - - I guess it’s Sheriff

Mullett - - informed you that he was going

to put Ricks in general population; - -

A. Yes, sir.

* * *

Q. And there was a little

additional information there, that he was

going to put Ricks in general population

obviously with the idea that if he were to

say something about the offenses or would

volunteer or get to talking about it, he was

going to inform you about it?

A. Yes, sir.

Q. And that was coming from him

independently; isn’t that right?

A. Yes.

Q. You didn’t ask him to do it?

A. Didn’t ask him to do anything.

Q. And, certainly, you know, it’s

not a bad deal from your perspective if it

did happen. If Ricks did go into the cell

46
and he said something you could use,

that’s not something you would necessarily

refuse, right?

A. Correct.

Q. And certainly you’re in no

position to tell the sheriff up there in

Oklahoma how to run his show; - -

A. Yes, sir.

Q. - - is that right?

A. That’s correct.

Q. All right. So not only does he

get arraigned on his fugitive charge, the

sheriff himself says, “Listen, I’m going to

send this guy into general population, and

we’ll see what happens,” essentially, right?

A. Yes, sir.

* * *

Q. How long was it from the time

y’all left the sheriff in the courtroom with

Mr. Ricks was it before you got the phone

call that there was a fight out there in the

jail?

A. I don’t - - I don’t know what

time we received a - - the telephone call - -

47
Q. Uh-huh.

A. - - informing us of the assault. 

I know that the arraignment was at 1:30

p.m. and that we had the search warrant

for the vehicle executed at 2:40 p.m., and

it was during that time that the search

warrant was being executed that we

received a telephone call. So - -

* * *

Q. How soon after the fight did

you see him?

A. Not knowing when the actual

fight occurred, I sawhim being led out from

the jail to a transport unit to be taken to

the hospital.

Q. How did he look to you

physically?

A. Beat up.

* * *

Q. So the injuries you were able to

see were what?

A. The eye, blood coming from his

mouth.

* * *

48
Q. All right. He’s on his way to the

hospital at that point, I’m assuming, and

when he gets back from the hospital, do

y’all get a call that he wants to talk to y’all?

A. I believe it was the next day.

* * *

Q. Okay.

A. We got the call that he wanted

to speak with us and that he was willing to

waive his rights.

 (RR. VI-216-20).

B. Federal Constitutional Law

Once the adversarial judicial process has been initiated, the Sixth

Amendment to the United States Constitution guarantees a defendant the right

to have counsel present at all “critical” stages of the criminal proceedings.

United States v Wade, 388 U.S. 218, 227-228 (1967); Powell v Alabama, 287

U.S. 45, 57 (1932). Interrogation by the State is one such stage. Massiah v

United States, 377 U.S. 201, 204-05(1964). See also, United States v Henry,

447 U.S. 264 274 (1980). This right to counsel may be waived by a defendant,

so long as relinquishment is voluntary, knowing, and intelligent. Montejo v

49
Louisiana, 556 U.S. 778 (2009) (citations omitted). Police may not threaten,

trick, or cajole an accused into waiving his constitutional rights. Nash v State,

477 S.W. 2d 557, 563 (Tex. Crim. App.) cert. denied, 409 U.S. 887 (1972).

Separate and distinct from the Sixth Amendment right to counsel is the

Fifth Amendment right to have counsel present at any custodial interrogation. 

An individual held for interrogation must be clearly informed that he has the

right to consult with a lawyer and to have the lawyer with him during

interrogation. Miranda v Arizona, 384 U.S. 436, 471 (1966). The Fifth

Amendment right to counsel during police interrogation is triggered by the

Miranda warnings that police are lawfully required to give an individual before

beginning any custodial questioning. Pecina v State, 361 S.W. 3d 68 (Tex. Crim.

App. 2012). To invoke this right, the defendant must unambiguously request

counsel. Davis v United States, 512 U.S. 452, 459 (1994). Invocation of the

Miranda right to counsel “requires, at a minimum, some statement that can

reasonably be construed to be an expression of a desire for the assistance of an

attorney.” Id. (quoting McNeil v Wisconsin, 501 U.S. 171, 178 (1991)).

Under Miranda, if the individual states that he wants an attorney, then the

interrogation must cease until an attorney is present. 384 U.S. at 474. At that

50
time, the individual must have an opportunity to confer with the attorney and to

have him present during any subsequent questioning. Id. at 474. If the

individual can not obtain an attorney, and he indicates that he wants one before

speaking to police, then they must respect his decision to remain silent. Id. at

474. If the questioning continues without the presence of an attorney and a

statement is taken, then the State will bear “a heavy burden...to demonstrate

that the defendant knowingly and intelligently waived his privilege against selfincrimination and his right to retained or appointed counsel.” Id. at 475. When

an accused has invoked his right to have counsel present during custodial

interrogation, a valid waiver of that right can not be established by showing only

that he responded to further police initiated custodial interrogation, even if he

has been advised of his rights. Edwards v Arizona, 451 U.S. 477, 484 (1981).

Awaiver of the right to counsel that follows an “unequivocal election of the right”

is also invalid. Montejo v Louisiana at 797 (quoting Texas v Cobb, 532 U.S. 162,

176 (2001) (Kennedy, J., concurring)). And, if both the Fifth and Sixth

Amendment right to counsel had accrued, then a valid waiver of counsel rights

“should not be inferred from the mere response by the accused to overt or more

subtle forms of interrogation - - or other efforts to elicit incriminating

51
information.” Edwards v Arizona at 484 n. 8. An accused who has expressed his

desire to deal with the police only through counsel is not subject to further

interrogation by the authorities until counsel has been made available to him,

unless the accused himself initiates further communication, exchanges or

conversations with the police. Id. at 484-85.

Once an accused, subjected to custodial interrogation, has requested

counsel or indicated a desire to consult counsel, the lawenforcement authorities

may not threaten, trick, or cajole an accused into a waiver of his constitutional

rights in order to be able to continue the interrogation. Nash v State at 563.

C. Texas Constitutional and Statutory Law

“In all criminal prosecutions the accused...shall not be compelled to give

evidence against himself and shall have the right of being heard by himself or

counsel, or both...” Tex. Const. art. I, §10. In Hernandez v State, 726 S.W. 2d 53,

56-57 (Tex. Crim. App. 1986) this Court held that our constitutional and

statutory provisions do not create a standard in ineffective assistance cases that

is more protective of a defendant’s rights than the standard put forward by the

Supreme Court in Strickland v Washington, 466 U.S. 668 (1984). A Court of

Appeals has interpreted this to mean “that the Texas Constitution’s guarantee

52
of a right to counsel does not exceed the parallel guarantee under the Sixth and

FourteenthAmendments to the United States Constitution.” Duhart v State, 890

S.W. 2d 187, 188 (Tex. App. - - Corpus Christi 1994, no pet.).

Art. 15.17 (a) Tex. Crim. Proc. Code Ann. (Vernon 2009) requires that the

person making the arrest or the person having custody of the person arrested to,

“without unnecessary delay, but not later than 48 hours after the person is

arrested, take the person arrested or have him taken before some magistrate

of the county where the accused was arrested or, to provide more expeditiously

to the person arrested the warnings described by this article, before a magistrate

in any other county of this state.” The magistrate’s duties (that are relevant to

the issues in the case at bar) are as follows:

The magistrate shall inform in clear language the

person arrested, either in person or through the

electronic broadcast system, of the accusation against

him and of any affidavit filed therewith, of his right to

retain counsel, of his right to remain silent, of his right

to have an attorney present during any interview with

peace officers or attorneys representing the state, of his

right to terminate the interview at any time, and of his

right to have an examining trial. The magistrate shall

also inform the person arrested of the person’s right to

request the appointment of counsel if the person

cannot afford counsel. The magistrate shall inform the

person arrested of the procedures for requesting

53
appointment of counsel. . . .The magistrate shall ensure

thatreasonable assistance in completing the necessary

forms for requesting appointment of counsel is

provided to the person at the same time. If the person

arrested is indigent and requests appointment of

counsel and if the magistrate is authorized under Article

26.04 to appoint counsel for indigent defendants in the

county, the magistrate shall appoint counsel in

accordance with Article 1.051. If the magistrate is not

authorized to appoint counsel, the magistrate shall

without unnecessary delay, but not later than 24 hours

after the person arrested requests appointment of

counsel, transmit, or cause to be transmitted to the

court or to the courts’ designee authorized under Article

26.04 to appoint counsel in the county, the forms

requesting the appointment of counsel. The magistrate

shall also inform the person arrested that he is not

required to make a statement and that any statement

made by him may be used against him. The magistrate

shall allow the person arrested reasonable time and

opportunity to consult counsel and shall, after

determining whether the person is currently on bail for

a separate criminal offense, admit the person arrested

to bail if allowed by law.

Tex. Crim. Proc. Code Ann. art. 15.17 (a). These duties are mandatory. Tex. Op.

Att’y Gen. GA-0993 (2013). Because the Texas Code of Criminal Procedure “is

intended to embrace rules applicable to the prevention and prosecution of

offenses against the laws of this State,” art. 1.03 Tex. Crim. Proc. Code Ann.

(Vernon 1965), Appellant contends thatthe provisions of art. 15.17 should have

54
been followed by the arresting officers and magistrate in Oklahoma, since

Appellantwas arrested, and ultimately prosecuted, for offenses againstthe laws

of this State.

In the alternative, if the arresting officers and Judge Misak had fulfilled

their duties under art. 15.17,then the trial court should have granted Appellant’s

Motion to Suppress because Appellant’s Sixth Amendment right to counsel

attached at the hearing. See, Pecina v State. (“The Sixth Amendment right to

counsel is triggered by judicial arraignment or Article 15.17 magistration.”)

“No evidence obtained by an officer or other person in violation of any

provisions of the Constitution or laws of the State of Texas, or of the Constitution

or laws of the United States of America, shall be admitted in evidence against

the accused on the trial of any criminal case.” Tex. Crim. Proc. Code Ann. art.

38.23 (a) (Vernon 1987). The trial court erred in denying Appellant’s Motion to

Suppress and admitting in evidence all of the items seized after his unlawful

arrest and his unlawful denial of counsel. Further, any other evidence derived or

obtained from the evidence collected in violation of Appellant’s constitutional

rights should have been excluded as “fruit of the poisonous tree.” Wong Sun v

United States at 488) (quoting Maguire, Evidence of Guilt 221 (1959)). It was

55
therefore error for the trial court to deny Appellant’s Motion to Suppress.

A violation of art. 15.17 “does not rise to the status of a denial of due

process.” Perry v Jones, 506 F. 2d 778, 781 (5th Cir. 1975) (citations omitted).

Therefore, for purposes of a harm analysis, Appellant will treat the harm caused

by the erroneous denial of his Motion to Suppress as non constitutional error

under Tex. R. App. Proc. 44.2 (b). Thus, the trial court’s erroneous denial of

Appellant’s Motion to Suppress all evidence seized as a result of his unlawful

denial of counsel must be disregarded unless a substantial right of Appellant

was affected. “A substantial right is affected when the error had a substantial

and injurious effect or influence in determining the jury’s verdict.” King v State,

953 S.W. 2d 266, 271 (Tex. Crim. App. 1997).

D. Oklahoma Statutes

The law requiring the appointment of counsel appears to be the same in

the State of Oklahoma. In Wyatt v Wolf, 324 P. 2d 548 (Okla. Crim. App. 1958)

the Oklahoma Court of Criminal Appeals stated:

“We hold that the express provisions of the Constitution

and the statutes and the clear implications thereof,

especially 22O.S. 1951 §251, is thatthe accused must

be advised of his right to aid of counsel when brought

before the magistrate. If he desires aid of counsel and

56
is unable because of poverty to obtain counsel, it

necessarily follows that the magistrate should appoint

counsel for him. Certainly such practice is within the

spirit of the law. Otherwise, the advice in such cases, as

to the right, is a vain and meaningless gesture without

affecting the provisions of the right. In other words,

how can we assert the right in one instance and deny it

in another? We are of the considered opinion that the

clear intent of the foregoing provisions and

interpretations thereof is that the accused is entitled to

representation of counsel if he so desires; either of his

own choice, if able to provide the same, and if not by

appointment of the magistrate. Equal protection of the

law, where indigent defendants are involved, requires

such procedure be invoked in order that the accused’s

substantial rights may be protected. As of this feature

of the within petition for writ of mandamus, the

examining magistrate is ordered to appoint counsel for

the accused.”

 Wyatt v Wolf at 551.

See also, Brown v State, 266 P. 476, 39 Okla. Crim. 406 (Okla. Crim. App.

1928); Tipton v State, 235 P. 259, 30 Okla. Crim. 56 (Okla. Crim. App. 1925);

Polk v State, 224 P. 194, 26 Okla. Crim. 283 (Okla. Crim. App. 1924).

E. The Application of the Facts to the Law

In the case at bar, Appellantwas arrested by the Oklahoma State Troopers. 

He was taken before the Oklahoma magistrate, Judge Trisha Misak, to be

arraigned. Judge Misak arranged him on his pending fugitive case. For whatever

57
reason she refused to appoint him a lawyer. In her court minutes she wrote that

she would have Appellant brought back to court on May 24, 2013, twenty-two

days later -- clearly longer than the Oklahoma statute permits -- to determine

whether or not she would appoint counsel. (RR. XLII-SPTX4). Not only was this

a violation of the Oklahoma statute; it was clearly a violation of both the Federal

and Texas constitutions as well as Texas state statutes. Subsequently Sheriff

Mullett, instead of isolating Appellant in a single cell, threw him into a cell with

“wolves” who eventually beat him so severely that he required medical

treatment at the local hospital. Only after his aggravated assault did Appellant

subsequently provide a videotaped statement composed of various incriminating

statements but he also waived the extradition proceeding and agreed to go back

to Texas. Appellant contends that his decision to waive extradition stemmed

from Judge Misak’s refusal to follow the Federal and State Constitutionals as

well as the Oklahoma statutes. All evidence seized by law enforcement after

Appellant’s denial of counsel should have been suppressed.

Appellant respectfully requests that this Court sustain his fifth, sixth, and

seventh points of error, reverse the trial court’s Judgment, and remand his case

back to the trial court with instructions that he be granted a new trial. 

58
POINT OF ERROR EIGHT

THE TRIAL COURT COMMITTED

REVERSIBLE ERROR IN ALLOWING THE

STATE TO INTRODUCE SX225 AN AUTOPSY

PHOTOGRAPH OF JAMES GONZALEZ’S

BRAIN BECAUSE THE PREJUDICIAL EFFECT

GREATLY OUTWEIGHED ANY PROBATIVE

VALUE. (RR. XXXII-113-16; XLIV-SX#225).

POINT OF ERROR NINE

THE TRIAL COURT COMMITTED

REVERSIBLE ERROR IN ALLOWING THE

STATE TO INTRODUCE SX226 AN AUTOPSY

PHOTOGRAPH OF JAMES GONZALEZ’S

BRAIN BECAUSE THE PREJUDICIAL EFFECT

GREATLY OUTWEIGHED ANY PROBATIVE

VALUE. (RR. XXXII-113-16; XLIV-SX#226).

ARGUMENT AND AUTHORITIES

Appellant made the following objection to State’s Exhibits #225 and #226

outside the presence of the jury. The record reflects:

[PROSECUTOR] Okay, Your Honor.

These photographs are the photographs of 

[James’] break in the skull, and there will

be testimony from Dr. Greenberg that one

of the stab wounds entered his skull and

entered the brain. Okay?

And these photographs are to clarify

observations and conclusions about the

59
injuries, because they will show how they

were received. They’re more probative

than they are prejudicial. Just because

they’re internal organs does not mean

they’re inadmissible.

[DEFENSE COUNSEL] J u d g e , I

understand the State’s argument, but the

difficulty we have is that the evidence

presented so far, and the crime scene

evidence presented so far, is very

descriptive and very graphic, which we

have not objected to.

The description - - the doctor is a

learned professional in forensic science. 

She can explain through detail, through

testimony, without the jury being subjected

to this highly prejudicial photograph of

someone’s brain being exposed, as well as

someone’s interior - - the interior part of

their skull being exposed. All of that can be

described without the exhibit.

And it is our position that 225 and

226 are highly prejudicial and would result

in the jury making a decision on our client’s

guilt or innocence based on a horrific

exhibit that has already been submitted to

the jury and not objected to by Defense.

[DEFENSE COUNSEL] A n d h e r

testimony - - the relation of these two

exhibits is not going to be disputed in any

form or fashion.

60
THE COURT: I ’ m g o i n g t o

overrule your objection, and I’m admitting

188 through 226.

 (RR. XXXII-114-16).

“Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” Tex. R. Evid. 403. When a photograph is

offered in evidence, “Rule 403 requires that the photograph have some

probative value and that its probative value not be substantially outweighed by

its inflammatory nature.” Long v State, 823 S.W. 2d 259, 272 (Tex. Crim. App.

1991), cert. denied, 505 U.S. 1224 (1992). Once a defendant objects to

photographic evidence on the basis of Rule 403, the trial court must weigh its

probative value against its potential for unfair prejudice. Narvaiz v State, 840

S.W. 2d 415, 429 (Tex. Crim. App. 1992) cert. denied, 507 U.S. 975 (1993).

When undertaking a Rule 403 analysis, a trial court must balance (1) the

inherent probative force of the proffered item of evidence along with (2) the

proponent’s need for that evidence against (3) any tendency of the evidence to

suggest decision on an improper basis, (4) any tendency of the evidence to

61
confuse or distract the jury from the main issues, (5) any tendency of the

evidence to be given undue weight by a jury that has not been equipped to

evaluate the probative force of the evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of time or

merely repeat evidence already admitted. Gigliobianco v State, 210 S.W. 3d

637, 641-42 (Tex. Crim. App. 2006). In reviewing a trial court’s decision to

admit or exclude evidence for abuse of discretion, an appellate court must (1)

decide whether the trial judge did in fact conductthe required balancing test and

“did not simply rule arbitrarily or capriciously,” and (2) “measure the trial court’s

ruling against the relevant criteria by which a Rule 403 decision is to be made.” 

Montgomery v State, 810 S.W. 2d 372, 392 (Tex. Crim. App. 1990). Under this

standard, “judicial rulings will be affirmed if the trial court follows the

appropriate analysis and balancing factors.” Montgomery at 380.

In the case at bar, the trial court did not conduct the requisite balancing

test on the record. However, “a judge is presumed to engage in the required

balancing test once Rule 403 is invoked,” and a trial court is not required to

state on the record that it had conducted the Rule 403 balancing test,” Williams

v State, 958. S.W. 2d 186, 195-96 (Tex. Crim. App. 1997). Therefore, Appellant

62
will analyze the trial court’s ruling against the relevant criteria by which a Rule

403 decision is to be made. An abuse of discretion arises only when the

probative value of the photograph is small and its inflammatory potential is

great. Ramirez v State, 815 S.W. 2d 636 (Tex. Crim. App. 1991) (citing Burdine

v State, 719 S.W. 2d 309, 316 (Tex. Crim. App. 1986)).

Evidence is unfairly prejudicial when it has “an undue tendency to suggest

that a decision be made on an improper basis.” Montgomery at 389. A

photograph should be excluded if it is so horrifying or appalling that a juror of

normal sensitivity would necessarily encounter difficulty rationally deciding the

critical issues of the case after viewing it. Fuller v State, 829 S.W. 2d 191, 206

(Tex. Crim. App. 1992) cert. denied, 508 U.S. 941 (1993). As a general rule,

“post-autopsy photographs are inadmissible because they depict primarily what

was done by the doctor who performed the surgery, rather than what was done

by the appellant.” O’Neill v State, 681 S.W. 2d 663, 671 (Tex. App. - - Houston

[1st Dist.] 1984, pet. ref’d). Thus, in Terry v State, 491 S.W. 2d 161, (Tex. Crim.

App. 1973) the trial court abused its discretion by not sustaining the appellant’s

objections to pictures that showed “massive mutilation of the subject matter

caused by the surgery in performing the autopsy.” Terry at 164.

63
This case is analogous to Corbett v State, 764 N.E. 2d 622 (Ind. 2002), a

murder and robbery case in Indiana in which the trial court admitted multiple

photographs taken immediately before, during, and afterthe autopsy performed

on the decedent. Three of the exhibits depicted the victim’s brain removed from

his skull. Id. at 628. On appeal, the Supreme Court of Indiana held that the

photographs were cumulative and that their prejudicial effect outweighed their

probative value; thus, it was error to allow them to be admitted. Id.

18 Similarly,

in Ritchie v State, 632 P. 2d 1244, 1246 (Okla. Crim. App. 1981), another

murder case, photos that showed the brain and skullcap of the deceased child

18

Ind. Rule Evid. 403 provides: “The court may exclude relevant evidence

if its probative value is substantially outweighed by a danger of one or more of

the following: unfair prejudice, confusing the issues, misleading the jury, undue

delay, orneedlessly presenting cumulative evidence.” While this language isnot

identical to Tex. R. Evid. 403, the Corbett court followed the same standard of

review for admission of photographic evidence that Texas courts do:

Because the admission and exclusion of evidence falls within the sound

discretion of the trial court, this Court reviews the admission of photographic

evidence only for abuse of discretion. Byers v State, 709 N.E. 2d 1024, 1028

(Ind. 1999); Amburgey v State, 696 N.E. 2d 44, 45 (Ind. 1998). Relevant

evidence, including photographs, may be excluded only if its probative value is

substantially outweighed by the danger of unfair prejudice. Ind. Evidence Rule

403; Byers, 709 N.E. 2d at 1028. “Even gory and revolting photographs may be

admissible as long as they are relevant to some material issue or show scenes

that a witness could describe orally.” Amburgey, 696 N.E. 2nd at 45; see also

Byers, 709 N.E. 2d at 1028. Photographs, even those gruesome in nature, are

admissible if they act as interpretative aids for the jury and have strong

probative value. Spencer v State,703 N.E. 2d 1053,1057 (Ind. 1999); Robinson

v State, 693 N.E. 2d 548, 553 (Ind. 1998).

64
were held inadmissible by the Court of Criminal Appeals in Oklahoma. See also,

Reese v State, 33 S.W. 3d 238 (Tex. Crim. App. 2000) (The appellant’s death

sentence was reversed based upon the prejudice of a single photograph). 

Considering all of the relevant criteria, the record in this case reveals a risk

that the probative value of the evidence is substantially outweighed by unfair

prejudice, confusion of the issues, and/or misleading the jury. Both of these

pictures of James’ brain were gruesome and unnecessary to the jury’s

understanding of his injuries. The medical examiner had testified about them;

the pictures were redundant and grossly prejudicial. This Court should therefore

conclude that the trial court acted irrationally in failing to exclude both exhibits,

and thus abused its discretion. Montgomery, 810 S.W. 2d at 392-93.

Appellant has shown supra that it was error for the trial court to overrule

Appellant’s objections and admitthe two photographs of James Gonzalez’s brain

into evidence. Because the error was non-constitutional, however, a reversal of

the Judgment against Appellant is justified if a substantial right of Appellant’s

was affected. See, Tex. R. App. Proc. 44.2 (b). “A substantial right is affected

when the error had a substantial and injurious effect or influence in determining

the jury’s verdict.” King v State at 271; (citing Kotteakos v United States, 328

65
U.S. 750, 776 (1946)) 

A court may consider many factors in determining whether the probative

value of the evidence is substantially outweighed by the danger of unfair

prejudice, including: the number of exhibits offered, their gruesomeness, their

detail, their size, whether they are in color or black and white, whether they are

close-up, and whether the body depicted is clothed or naked. Wyatt v State, 23

S.W. 3d 18, 29 (Tex. Crim. App. 2000) (citing Long v State at 272). “A court,

however, should not be limited by this list. The availability of other means of

proof and the circumstances unique to each individual case should also be

considered.” Id. As stated above, the pictures were in color. They were

gruesome. Their admission was unnecessary to show the child’s injuries which

had been detailed by the medical examiner. Appellant asserts that the State

offered them solely to inflame the jury against him and render it more likely that

he would ultimately be assessed a death sentence. Clearly the admission of two

such prejudicial photographs of the brain of an eight-year-old child substantially

influenced the jury’s verdict of guilt and sentence of death. As a result, Appellant

requests that this Court sustain points of error eight and nine, reverse the trial

court’s Judgment, and remand his case to the trial court with instructions that

66
he receive a new trial.

67
POINT OF ERROR TEN

THE TRIAL COURT ERRED IN OVERRULING

APPELLANT’S MOTION TO DECLARE THE

“10-12” RULE UNCONSTITUTIONAL ON THE

GROUNDS THAT IT CREATES AN

IMPERMISSIBLE RISK OF ARBITRARY

IMPOSITION OF THE DEATH PENALTY. (CR.

I-187-217; RR. V-79-80).

Appellant argued in his motion that the “10-12 Rule” unconstitutionally

prevents a single juror from giving effect to his belief that a mitigating factor

militates against the imposition of the death penalty. Article 37.071, § 2 (d) (2)

requires the trial court to charge the jury that it may not answer any issue

submitted under subsection (b) “yes” unless it agrees unanimously, and it may

not answer any issue “no” unless ten or more jurors agree. In the event the jury

is unable to answer either the future danger or parties question, art. 37.071, §

2 (g), the court shall sentence the defendant to confinement for life

imprisonment without the possibility of parole.

In capital cases, the Supreme Court is committed to ensuring that there

is sufficient process to “guarantee, as much as is humanly possible, that the

sentence was not imposed out of whim ... or mistake. Eddings v Oklahoma, 455

U.S. 104, 118 (1982) (O’Connor, J., concurring) (overruled on other grounds). 

68
The Texas death penalty statute affirmatively creates confusion in the minds of

the jurors. Jurors are first told that the jury as a whole “shall” answer “yes” or

“no” to each issue presented; they are subsequently told that ten or more jurors

must be in agreement to give one set of answers and that they must be

unanimous in order to give another. This necessarily raises the question of what

happens in the event that the jury, despite being instructed that it must answer

each question, is unable to get the minimum number of votes required to give

either answer. The statute clearly provides that in the event of a non-answer, the

defendant is to receive that which is substantively identical to that which he

would have received had there been a verdict in favor of life, and thus the law

itself exhibits no confusion with regard to the situation presented. However, not

only does the statute fail to do all that is humanly possible to endure that

decisions regarding life and death are not made as a result of that manufactured

confusion -- it actively prohibits any clarification of the confusion by preventing

jurors from being informed at any point of the effect of a non-answer.

Death penalty cases are required to be subjected to greater constitutional

protections than those applied to non-death penalty cases (“death is different”).

Eddings v Oklahoma, 455 U.S. 104 (1982); Lockett v Ohio, 438 U.S. 586

69
(1978); Simmons v South Carolina, 512 U.S. 154 (1994). See also, Miller v

Alabama, 567 U.S. , 132 S. Ct. 2455 (2012); Graham v Florida, 560 U.S.

48 (2010); Kennedy v Louisiana, 554 U.S. 407 (2008); Baze v Rees, 553 U.S.

35 (2008). See also Jimenez v State, 32 S.W. 2d 233 (Tex. Crim. App. 2000);

Ex parte Tucker, 973 S.W. 2d 950 (Tex. Crim. App. 1998); Morris v State, 940

S.W. 2d 610 (Tex. Crim. App. 1996); Anderson v State, 932 S.W. 3d 502 (Tex.

Crim. App. 1996).

The result of misinforming jurors and forcing them to deliberate without

knowledge of what happens in the event of a non-answer is that they are

presented with a false dilemma. Jurors are given general instructions that they

must answer either “yes” or “no” to the issues before them, and specific

instructions that define the minimum number of votes required to give each of

these a specific answer. Because they are told that a death sentence follows

from one set of answers, and a life sentence follows from another, a reasonable

juror might conclude that the only way to get either of these punishments is to

answer the questions posed to them. See, California v Brown, 479 U.S. 538,

541 (1987) (quoting Francis v Franklin, 471 U.S. 316 (1985) (holding that the

constitutional sufficiency of capital sentencing instructions is determined by

70
“what a reasonable juror could have understood the charge as meaning).” This

leaves jurors free to speculate as to what would occur should they be unable to

provide an answer to the issues. While it is possible that jurors might correctly

guess that the failure to agree will result in a life sentence, it is perhaps more

likely that they will conclude that a non-answer will lead to a lesser sentence, a

costly retrial or resentencing proceeding, or absolute freedom for the defendant. 

Given that each of the jurors has already found the defendant guilty of a capital

offense, none of those options would look desirable to a juror who honestly

believes that a life sentence is warranted. Jurors are left to deliberate with the

false belief that if they are unable to gain unanimity for a death sentence or ten

or more votes for a life sentence, an altogether third option will result. In

Simmons v South Carolina at 171, the Supreme Court prohibited just this sort

of unfairness, holding that “[t]he State may not create a false dilemma by

advancing generalized arguments regarding the defendant’s future

dangerousness while, at the same time, preventing the jury from learning that

the defendant never will be released on parole.”

In Scales v State, 380 S.W. 3d 780 (Tex. Crim. App. 2012), a non-death

penalty case, the Court dealt with a request from the jury foreman that a juror,

71
who allegedly would not participate in the deliberations, be removed. The trial

court, after hearing from the foreman, indicated intent to remove the juror and

seat an alternate. The defendantrequested thatthe trial court question the juror

but the court refused. Instead, the court questioned the foreman again and,

after finding him credible, removed the juror of which complaint was made and

replaced her with an alternate.

The Court of Appeals reversed and remanded. Scales v State, No. 01-08-

0932-CR (Tex. App. - - Houston [1st Dist.] December 20, 2010) (not designated

for publication), slip op. at 7. After the State filed a petition for discretionary

review, the Court of Appeals withdrew its original opinion and, pursuant to Rule

50, Tex. R. App. Proc., issued another opinion. The second opinion reached the

same result as the first. Scales v State, No. 01-08-0932-CR (Tex. App. - -

Houston [1st Dist.] April 14, 2011) (not designated for publication). The Court

granted the State’s petition for discretionary review from the second opinion.

The trial court in Scales had found the juror to be disabled, necessitating

a study of the requirements of art. 36.29 Tex. Crim. Proc. Code Ann. (Vernon

2009) relating to a disabled juror. According to the foreman’s testimony before

the trial court, the juror in question had taken into account the facts and law and

72
had made up her mind, refusing to talk about “her side” of the case or take into

account others’ views. The Court characterized the evidence relating to the jury’s

deliberations as:

The foreman twice testified as to what “we” did in a

context that indicates that “we” is the eleven jurors

other than Collins. The foreman’s statement that both

reasons named by the trial court applied, combined

with his statement that “[s]he will not talk about the

facts of the case as we perceived during testimony,” at

least tends to show that Collins’s perceptions about the

evidence were not shared by the other eleven jurors,

that she did not agree with the other eleven that the

contents of the read backs were “fact,” that she had

made a decision about what the evidence proved, and

that her refusal to deliberate was actually a refusal to

change her mind. That possibility was not explored

before the trial court removed Collins from the jury. We

find that the trial court had insufficient information

from which to determine that Collins was not able to

perform her duties as a juror. The trial court erred when

it replaced Collins with an alternate without

ascertaining Collins’s reasons for “not deliberating.”

Scales, slip op. at 9-10.

[footnote omitted].

The Court recognized that the trial court’s action in replacing the holdout

juror affected the defendant’s substantialrightto a unanimous jury and thus, the

error had a substantial and injurious effect or influence in determining the jury’s

73
verdict, and was, therefore, reversible error. Scales, slip op. at 10. This

recognition, that error committed during jury deliberations, including pressures

put on those members of the jury who are holding out against an even

overwhelming majority, implicates substantial and constitutionally based rights,

and can be error, can not be ignored in the instant case.

The Court wrote, “We find that the trial court had insufficient information

from which to determine that Collins was not able to perform her duties as a

juror.” In doing so, the Court set a standard for trial courts to follow when

dealing with potential interference with individual jurors by other members of

the jury. The standard, informed and required by the Constitution, applies in nondeath penalty cases, and is required to assure the defendant’s constitutional

rights were protected.

That the protections accorded in the defendant in Scales must be

accorded to those facing the death penalty, as a matter of constitutional

imperative, can not be seriously argued. The procedure found to be required by

the substantial rights implicated in Scales must be considered by this Court in

addressing this claim.

The Court’s opinion in Scales, supra, demonstrates that death penalty

74
cases in Texas are treated in the exact opposite manner, with the “10-12 Rule”

operating to deny death penalty defendants the review mandated by Scales in

non-death penalty cases. As such, the “10-12 Rule” violates the Constitution of

the United States, as well as the Supreme Court’s “death is different” directives. 

Consequently, the “10-12 Rule” can not stand.

Death penalty cases are required to be subjected to greater constitutional

protections than those applied to non-death penalty cases (“death is different).” 

Eddings, supra; Lockett, supra; Simmons, supra. It is clear now that, as it

pertains to jury deliberations and instructions, Texas defendants charged with

capital murder are afforded lesser protections than are required by the

Constitution of the United States and applied to non-death penalty defendants.

75
POINT OF ERROR ELEVEN

ARTICLE 37.071 OF THE TEXAS CODE OF

C R I M I N A L P R O C E D U R E I S

UNCONSTITUTIONAL BECAUSE IT FAILS TO

PLACE THE BURDEN OF PROOF ON THE

STATE REGARDING AGGRAVATING

EVIDENCE. (CR. I-142-46; RR. V-68).

ARGUMENT AND AUTHORITIES

The trial court overruled Appellant’s Motion to Preclude the Death Penalty

as a Sentencing Option and to declare art. 37.071 Tex. Crim. Proc. Code Ann.

(Vernon 2009) unconstitutional for shifting the burden of proof on mitigation to

Appellant. (RR. V-68). The trial court also overruled Appellant’s Motion to

Declare Article 37.071 Unconstitutional because it places the mitigation burden

of proof on the defendant. Tex. Crim. Proc. Code art. 37.071 §2 (e) and (f)

require a jury which has convicted a defendant of capital murder, in a case in

which the State is seeking the death penalty, to be charged as follows:

(e) (1) The court shall instruct the jury that if the

jury returns an affirmative finding to each issue

submitted under Subsection 9b) of this article, it shall

answer the following issue: Whether, taking into

consideration all of the evidence, including the

circumstances ofthe offense,the defendant’s character

and background, and the personal moral culpability of

the defendant, thee is a sufficient mitigating

76
circumstance or circumstances to warrant that a

sentence of life imprisonment rather than a death

sentence be imposed. . ..

(f) The court shall charge the jury that in

answering the issue submitted under Subsection (e) of

this article, the jury:

(1) shall answer the issue “yes” or “no;”

(2) may not answer the issue “no” unless it

agrees unanimously and may not answer the issue

“yes” unless 10 or more jurors agree;

(3) need not agree on what particular

evidence supports an affirmative finding on the issue;

and

(4) shall consider mitigating evidence to be

evidence that a juror might regard as reducing the

defendant’s moral blameworthiness.

This statute is unconstitutional because it impermissibly shifts the burden

of proof on mitigation to the defendant. The statute requires the jury to consider,

along with mitigating evidence, the “moral culpability of the defendant,” having

just found the defendant guilty of the offense, beyond a reasonable doubt. The

statute then demands that the defense produce “sufficient” mitigation (while

considering this same “moral culpability)” to warrant a sentence of life

imprisonment. The mitigating evidence must be “sufficient” to reduce the

defendant’s moral culpability or blameworthiness as already established in the 

jurors’ minds. In death penalty deliberations, “moral culpability” is not evidence;

77
it is a finding that the jury has already made. The statute places an unfair,

undue, and unconstitutional emphasis on that finding. The defendant, if he is to

save his own life, must offer evidence that is somehow greater than the finding

of moral culpability beyond a reasonable doubt.

Aside from shifting the burden of proof to the defendant, the statute

provides no other guidance to the jury that is called upon to make this life and

death decision. As a result, the death penalty is imposed in a wanton haphazard

manner in violation of the defendant’s rights to due process and protection from

cruel and unusual punishment.

This impermissible shift of the burden to the defense is made more

unconscionable by the language of Tex. Crim. Proc. Code art. 37.071 (2) (f)

which provides thatthe jury shall not answer the mitigation issue “yes” (resulting

in a life sentence) unless ten or more jurors agree. The defense, according to the

instructions to the jury, must then offer “sufficient” mitigating evidence to not

only overcome his “moral culpability” as already established in the eyes of the

jury, but ten of those jurors must be convinced of the sufficiency of that

evidence.

Under the “due course of the law” provision of the Texas Constitution,

78
Article I §10, the citizens of this state are guaranteed that any punishment for

an offense will be in accordance with the law. McFarlane v State, 254 S.W. 2d

136 (Tex. Crim. App. 1953). When the burden of proof is shifted to the

defendant, the State’s burden has essentially been reduced.See e.g., Cobarrubio

v State, 675 S.W. 2d 749 (Tex. Crim. App. 1983) overruled in part, Lawrence

v State, 700 S.W. 2d 208 (Tex. Crim. App. 1985), and Elliott v State, 858 S.W.

2d 478, 487-88 (Tex. Crim. App. 1993). This punishment, based on a reduced

burden, violates Texas law and Federal constitutional due process guarantees.

Moreover, the effect of the statutory scheme is to require the defendant

not merely to assume a burden of proving mitigation, but to demonstrate

mitigation sufficient to outweigh the jury’s pre-existing affirmative finding,

beyond reasonable doubt, of the aggravating factor of future dangerousness. 

Appellant is aware of the existence of adverse authority in this matter. See, e.g.,

Threadgill v State, 146 S.W. 3d 654, 671 (Tex. Crim. App. 2004); Kansas v

Marsh, 548 U.S. 163 (2006). (ruling that there is no violation where the

defendant is required to prove mitigating circumstances sufficiently substantial

to call for leniency), but nonetheless contend that these issues merit the Court’s

consideration.

79
Pursuant to Tex. R. App. P. 44.2 (a), if there is constitutional error, the

appellate court must reverse unless it determines beyond a reasonable doubt

that the error did not contribute to the conviction and violates the Due Process

Clause of the United State Constitution. U.S. Const. amend. XIV.

80
POINT OF ERROR TWELVE

THE TRIAL COURT ERRED IN OVERRULING

APPELLANT’S MOTION TO PRECLUDE THE

IMPOSITION OF THE DEATH PENALTY ON

GROUNDS THAT THE INDICTMENT FAILED

TO CONTAIN ANY ALLEGATIONS

REGARDING THE PUNISHMENT SPECIAL

ISSUE. (CR. I-142-46; RR. V-68).

ARGUMENT AND AUTHORITIES

The trial court also overruled Appellant’s Motion to Declare Article 37.071

Unconstitutional contending in part that the indictment was constitutionally

defective because it did not allege aggravating factors or future dangerousness.

(CR. I-142-46; RR. V-68). Defense counsel requested that the State be

precluded from seeking the death penalty against Appellant because the

indictment did not allege the existence of the statutory special issues and the

supporting facts necessary to impose a death sentence in violation of

Appellant’s Sixth Amendment right to trial by jury. Ring v Arizona, 536 U.S. 584

(2002) teaches that capital defendants, no less than noncapital defendants, are

entitled under the Sixth Amendment to a jury determination of any fact on which

a legislature has conditioned an increase in the defendant’s maximum

punishment. Since the facts which were relied on in order to seek death against

81
Appellantwere not contained in the indictment, and the statutory special issues,

as stated elsewhere in this brief, were totally undefined for the jury, there can

not in any way have been a meaningful jury verdict in this case in the sense that

Ring requires.

Appellant is aware of the existence of adverse authority from this Court

addressing this issue. See, e.g., Perry v State, 158 S.W. 3d 438 (Tex. Crim. App.

2004); Woods v State, 152 S.W. 3d 121 (Tex. Crim. App. 2004); Rayford v

State, 125 S.W. 3d 521, 533 (Tex. Crim. App. 2003), but nonetheless contends

that these issues merit the Court’s reconsideration. Boyce v State, No. 04-04-

00267-CR (Tex. App. - - San Antonio,July 13, 2005) 2005 Tex. App. LEXIS 5395

(mem. op.) (Stone, J. concurring) (noting this Court had not yet addressed the

Apprendi/BLAKELY requirement that every fact legally essential to punishment

be charged in the indictment and proven to a jury). 

82
POINT OF ERROR THIRTEEN

THE TRIAL COURT ERRED IN OVERRULING

APPELLANT’S OBJECTION TO THE

APPLICATION OF TEXAS’ DEATH PENALTY

SCHEME BECAUSE IT HAS BEEN

ARBITRARILY IMPOSED IN VIOLATION OF

THE EIGHTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION. (CR. I-147-50; RR. V-68-

69).

ARGUMENT AND AUTHORITIES

The trial court overruled Appellant’s Motion to Preclude the Death Penalty

as a SentencingOption on Eighth Amendment grounds. (CR. I-147-50; RR. V-68-

69). In view of the many different capital sentencing schemes that have been

in operation in Texas in the post-Furman era, the Texas death penalty has been

arbitrarily imposed and thus, is unconstitutional under the Eighth and

Fourteenth Amendments.

Of the many hundreds of persons sentenced to death in Texas since the

“modern” capital sentencing statute was enacted, the vast majority were

sentenced under jury instructions that simply tracked the unadorned “special

issues” contained in the original version of art. 37.071 (b) Tex. Crim. Proc. Code

Ann. (Vernon 2009). See generally, P.M. McClung, “Jury Charges for Texas

83
Criminal Practice” 75-78 (rev. ed. 1981). After the landmark decision in Penry

v Lynaugh, 492 U.S. 302 (1989) (overruled in part on other grounds), however,

the consistency in Texas capital sentencing instructions quickly disappeared,

both as a result of legislative action and unsupervised judicial improvising by the

trial courts. See generally, Peggy M. Tobolowsky, “What Hath Penry Wrought?:

Mitigating Circumstances and the Texas Death Penalty,” 19 AMER. J. CRIM. L.

345 (1992). In 1991, the Texas Legislature enacted an amended, post-Penry

version of art. 37.071, which modified the “special issue” format.

Roughly speaking, the various types of Texas capital sentencing

instructions in the post-Furman era can be broken down into seven different

categories.

1. The unadorned “special issues” in the pre-1991 version of Article

37.071.

2. The 1991 amended version of the statute.

3. The pre-1991 statute with an extra-statutory “Quinones”-type

instructions.

4. The pre-1991 statute with an extra-stationary “Penry”-type “fourth

special issue.”

84
5. The pre-1991 statute with a “nullification’ instruction.

6. The pre-1991 statute in which “deliberately” is broadly defined.

7. The 1993 version of the state as applied in all crimes committed on

or before August 30, 1991.

In numerous cases, the United States Supreme Court has stated that it is

“unwilling to say that there is any one right way for a State to set up its capital

sentencing scheme.” Spaziano v Florida, 468 U.S. 447, 464 (1984) (citing

cases). The Court has stated, however, that within a single state, there must be

consistency in the treatment of capital defendants who are subject to the death

penalty. Id. at 460 (“If a state has determined that death should be an available

punishmentfor certain crimes, then it must administer that penalty in a way that

can rationally distinguish between those individuals for whom death is an

appropriate sanction and those for whom it is not).”

The above discussion of the various sentencing schemes concurrently in

operation in Texas, “a distinct system,” Gregg v Georgia, 428 U.S. 153, 195

(1976), amply demonstrate that the present Texas death penalty system is

being implemented in an “arbitrary” manner. At least even categories of

similarly situated capital defendants have been treated disparately.

85
Fetterly v Paskett, 997 F. 2d 1295 (9th Cir. 1993), presents an analogous

situation to the instant case. In that case, the Ninth Circuit condemned an

instance of “Furman arbitrariness” within a single state’s capital sentencing

system. The Court’s reasoning is cogent and should be applied to Texas’

experience.

The bottom line is that Texas courts and the state Legislature, without any

discernible rational basis, have haphazardly turned Texas’ capital sentencing

scheme into a patchwork quilt. Because similarly situated Texas capital

defendants, including Appellant, have been unjustifiably sentenced to death

under radically different sentencing schemes,thisCourtmust vacate Appellant’s

death sentence.

The decision to which defendant is to be subjected to the death penalty

prosecution varies from county to county in Texas. As a result, there are likely

two hundred and fifty-four (254) different methods used to determine which

cases shall be prosecuted as capital cases. Often the decision can turn on the

county’s willingness to fund the defense, the race of status of the defendant, or

the age, sex, race, or status of the victim in the community.

The right to life is fundamental. Furman v Georgia, 408 U.S. 238, 259

86
(1972). The failure of the State to set forth uniform and specific standards to

determine against whom a death sentence will be sought renders the penalty of

death one that is wantonly and freakishly implied and that is prohibited by the

Eighth Amendment to the United States Constitution.

The need for non-arbitrary standards in the application of the death

penalty outweighs any benefits of unbounded prosecutorial discretion.

87
POINT OF ERROR FOURTEEN

THE TEXAS DEATH PENALTY STATUTE

VIOLATES THE JURY TRIAL GUARANTEE OF

THE FOURTEENTH AMENDMENT, AS

INTERPRETED IN APPRENDI V NEW

JERSEY, RING V ARIZONA, BLAKELY V

WASHINGTON, UNITED STATES V BOOKER,

AND CUNNINGHAM V CALIFORNIA BY

FAILING TO PLACE UPON THE STATE THE

BURDEN OF PROVING BEYOND A

REASONABLEDOUBT A NEGATIVEANSWER

TO THE MITIGATION SPECIAL ISSUE. (CR. I142-46; RR. V-68).

ARGUMENT AND AUTHORITIES

The Sixth Amendment guarantees a criminal defendant the right to a jury

trial. U.S. Const. Amend. VI. Part and parcel to the right to jury trial guaranteed

under the Sixth Amendment is the “companion right to have the jury verdict

based on proof beyond a reasonable doubt.” Apprendi v New Jersey, 530 U.S.

466, 478 (2000). See also, United States v Booker, 543 U.S. 220, 125 S. Ct.

738, 748 (2005) (“It has been settled throughout our history that the

Constitution protects every criminal defendant ‘against conviction except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime

with which he is charged.’”) (emphasis added) (quoting In re Winship, 397 U.S.

88
358, 364 (1970)). Those rights are applicable in state court proceedings via the

Due Process Clause of the Fourteenth Amendment. E.g., Duncan v Louisiana,

391 U.S. 145, 155-56 (1968).

The trial court deniedAppellant’s pretrial motion thatthe jury be instructed

that the burden of proof was on the State of Texas to show the absence of

sufficient mitigating factors to warrant a death sentence. (RR. V-68). The United

States Supreme Court has squarely held that “[i]f a State makes an increase in

a defendant’s authorized punishment contingent on a finding of a fact, that fact

-- no matter how the State labels it -- must be found by a jury beyond a

reasonable doubt.” Ring v Arizona, supra (citing Apprendi, 530 U.S. at 482-83).

See also, United States v Booker, 125 S. Ct. at 756 (“Any fact other than a prior

conviction which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a . . . jury verdict must be . . .proved to a

jury beyond a reasonable doubt.” (emphasis added)). Texas’ death penalty

statute does preciselywhatis proscribed by the Sixth Amendment as interpreted

in Apprendi and Ring: it allows the State to obtain the death penalty based upon

a factual finding -- lack of sufficient mitigation -- without the jury having to find

89
that fact beyond a reasonable doubt.

19

Under the Texas death penalty statute, the jury’s verdict of guilty, standing

alone, without further factual findings from the jury, will result in a life sentence.

Tex. Crim. Proc. Code Ann. art. 37.071 §2 (g) (Vernon 2009). Further, even the

jury’s answers of “yes” to the first two special issues coupled with the guilty

verdict, standing alone without a further factual finding on the mitigation issue,

could not result in a death sentence. Id. In this manner, lack of adequate

mitigation becomes the “functional equivalent of an element of a greater

offense.” Ring, 122 S. Ct. at 2443; Apprendi, 530 U.S. at 494 n. 19. Therefore,

it must be proven by the State beyond a reasonable doubt. Ring, 122 S. Ct. at

2439-40, 2443.

In Blakely v Washington, 542 U.S. 296 (2004), the defendant pleaded

guilty and was convicted by a Washington trial court of the offense of seconddegree kidnaping. Blakely, 124 S. Ct. at 2534-35). Under the applicable

Washington statute, the statutory range of punishment was confinement not to

exceed a term of years (120 months). Id. at 2535. However, under Washington’s

19

This Court considered and rejected this exact argument in Jones v

State, 119 S.W. 3d 766, 791 (Tex. Crim. App. 2003) cert denied, 542 U.S. 905

(2004), holding there that Apprendi is applicable to art. 37.071.

90
Sentencing Reform Act, the defendant’s offense carried a “standard range” of

forty-nine to fifty-three months. Id. The judge could only impose a sentence

outside of that “standard range,” which was clearly within the “statutory range

of punishment,” upon making certain findings of fact. Id. After a hearing, the

trial judge entered various findings of fact, determined that the defendant acted

with “deliberate cruelty,” and imposed a sentence of 90 months -- within the

“statutory range” of one hundred twenty months, but significantly longer than

“the standard range” of forty-nine to fifty-three months. Id. at 2535-36.

The defendant appealed, claiming “that this sentencing procedure

deprived him of his federal constitutional right to have a jury determine beyond

a reasonable doubt all facts legally essential to his sentence.” Id. at 2536

(emphasis added). Writing for a majority of the Court, Justice Scalia held that:

Our precedentsmake clear, however, thatthe “statutory

maximum for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the

defendant. . . In other words, the relevant “statutory

maximum” is not the maximum sentence a judge may

impose after finding additional facts, but the maximum

he may impose without any additional findings. When

a judge inflicts punishment that the jury’s verdict alone

does not allow, the jury has not found all the facts

“which the law makes essential to the punishment,” . .

91
. and the judge exceeds his proper authority.

Id. (citations omitted (emphasis in original).

In California v Cunningham, 127 S. Ct. 856 (2007), the Supreme Court

struck down California sentencing law, holding it violated the Sixth Amendment

by allowing for an upper term sentence in a triad sentence system if the trial

judge found aggravated circumstances.

In Booker, the Supreme Court addressed the application of the reasoning

of Blakely to federal sentencing practice under the United States Sentencing

Guidelines. In finding that the Sentencing Guidelines scheme of sentence

enhancements being found by a judge by a preponderance of the evidence is

unconstitutional, this Court noted that,

Our precedents, [as] we explained [in Blakely], make clear

“that the ‘statutory maximum’ for Apprendi purposes is the

maximum sentence a judge may impose solely on the basis

of the facts reflected in the jury verdict or admitted by the

defendant.”

Booker, 25 S. Ct. at 749 ( quoting Blakely, 124 S. Ct. at 2537 (emphasis in

original)).

Under the Texas death penalty scheme, Appellant could only receive a

death sentence if all twelve jurors unanimously agreed that the answer to the

92
mitigation issue was “no.” See, Tex. Crim. Proc. Code Ann. art. 37.071 §2 (f) (2),

2 (g) (Vernon 2010) (jury must unanimously agree to answer mitigation question

“no” and death sentence can only be imposed if they do so.

Because the negative answer to the mitigation issue was a fact finding

that was required to impose a death sentence on Appellant, the lack of

mitigating circumstances was a fact “which the law makes essential to the

punishment. Id. Accordingly, the Sixth and Fourteenth Amendments as

interpreted in Apprendi, Ring, Blakely, and Cunningham require that the

negative answer to the mitigation question be proven by the State beyond a

reasonable doubt. E.g., Blakely, 124 S. Ct. at 2542 (every “element” the

prosecutor can allege to enhance punishment is “an element that a defendant

can threaten to contest at trial and make the prosecutor prove beyond a

reasonable doubt);” Blakely, 124 S. Ct. at 2543 (“As Apprendi held, every

defendant has the right to insist that the prosecutor prove to a jury all facts

legally essential to the punishment.);” Ring, 536 U.S. at 602 (“If a State makes

an increase in a defendant’s authorized punishment contingent on the finding

of a fact, that fact -- no matter how the State labels it -- must be found by a jury

beyond a reasonable doubt).”

93
Regardless of whether there is no burden on the mitigation issue or if the

burden is placed on the defendant, the statute is unconstitutional because itfails

to place the burden on the State of proving a negative answer to the issue

beyond a reasonable doubt. E.g., Blakely, 124 S. Ct. at 2542; Ring, 536 U.S. at

602-03).

94
POINT OF ERROR FIFTEEN

APPELLANT’S RIGHTS UNDER THE

CONFRONTATION CLAUSE OF THE SIXTH

AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION WERE

VIOLATED WHEN THE MOTHER OF

DECEDENT, ROSIE GONZALEZ, TESTIFIED

TO INFORMATION PERTAINING TO AN

EXTRANEOUS OFFENSE DURING THE

PUNISHMENT STAGE OF HIS TRIAL. (RR.

XXXIV-25-28; XL-36-37, 66).

POINT OF ERROR SIXTEEN

APPELLANT’S RIGHTS UNDER THE

CONFRONTATION CLAUSE OF ARTICLE 1,

§10 OF THE TEXAS CONSTITUTION WERE

VIOLATED WHEN THE MOTHER OF

DECEDENTROSIEGONZALEZ TESTIFIEDTO 

INFORMATION PERTAINING TO AN

EXTRANEOUS OFFENSE DURING THE

PUNISHMENT STAGE OF HIS TRIAL. (RR.

XXXIV-25-28; XL-36-37, 66).

POINT OF ERROR SEVENTEEN

REVERSIBLE ERROR OCCURRED WHEN

THE MOTHER OF DECEDENT ROSIE

GONZALEZ TESTIFIED TO INFORMATION

PERTAININGTOANEXTRANEOUSOFFENSE

DURING THE PUNISHMENT STAGE OF HIS

TRIAL IN VIOLATION OF THE HEARSAY

RULE. (RR. XXXIV-25-28).

95
ARGUMENT AND AUTHORITIES

A. The Facts

Virginia Sommers,20

the mother of decedent Rosie Gonzalez, testified

during the punishment phase of Appellant’s trial that Appellant had committed

a prior assault against her daughter that had occurred approximately six months

prior to the present offense. (RR. XXXIV-20-26). After describing her

observations of her daughter’s injuries as well as her actions while attempting

to assist her daughter, Ms. Sommers related the following in pertinent part:

Q. Did she get an emergency

protective order?

A. She did.

Q. And what did that emergency

protective order do?

A. It kept Cedric Ricks from

coming to her apartment or to school

where the kids went to school, where I

worked, or to our house. He couldn’t come

around us.

Q. So was there - - was there - -

was that an order issued by a court?

20

Virginia Sommers is a pseudonym.

96
A. Yes.

Q. And basically ordering Cedric

Ricks over here at the far end of the

counsel table to stay away from your

daughter?

A. Yes.

Q. Was she - - was he ordered to

stay away from anyone else?

A. Yes. He was ordered to stay

away from our house, our residence, the

school, the boys, - -

Q. So hewasordered to stay away

- -

A. - - and her work. Also, he

couldn’t come to her work.

Q. So he was ordered to stay away

from her, from [James], from [Damien],

and from [Thomas]?

A. Yes.

Q. And was he ordered to stay

away from [Rosie’s] apartment?

A. Yes.

Q. And her place of business?

97
A. Everywhere. Everywhere she

went, he could not go.

Q. The kids’ school?

A. Yes.

Q. And your house?

A. Yes.

Q. And that was in November of

2012?

A. Yes.

Q. And I guess, eventually, they

got - - they got back together; is that right?

A. Yes, because he kept bothering

her. He kept talking to her, calling her and

telling - -

[DEFENSE COUNSEL]: Excuse me. 

Excuse me.

I’m going to object to what

somebody else has told this lady. I

understand it’s hard, but she’s been

admonished by the Court. I’d ask that the -

- first of all, I’d object that it’s

nonresponsive and it’s hearsay and it’s

confrontation.

THE COURT: Sustained.

98
[DEFENSE COUNSEL]: I’d ask the

jury be instructed to disregard.

THE COURT: Jury will disregard

the last statement of the witness.

[DEFENSE COUNSEL]: A n d I ’ d

respectfully ask for a mistrial.

THE COURT: Denied.

 (RR. XXXIV-26-28).

B. The Law under the Federal and State Constitutions

“In all criminal prosecutions, the accused shall enjoy the right to . . . be

confronted with the witnesses against him.” U.S. Const. Amend. VI. This

procedural guarantee applies to all state prosecutions. Pointer v Texas, 380 U.S.

400, 406 (1965). For the testimonial statements of a witness who does not

appear at trial to be admissible in any criminal prosecution, the witness must be

unavailable to testify, and the defendant must have had a prior opportunity to

cross-examine the witness. Crawford v Washington, 541 U.S. 36, 68 (2004).

Whether a particular out-of-court statement is testimonial or not is “a question

of law.” Langham v State, 305 S.W. 3d 568, 576 (Tex. Crim. App. 2010); De La

Paz v State, 279 S.W. 3d 336, 343 (Tex. Crim. App. 2009).

99
Article I, §10 of the Tex. Const. provides Texans with a similar protection

to that afforded criminal defendants under the Sixth Amendment: “In all

criminal prosecutions the accused shall. . .be confronted by the witnesses

against him. . . .” The Court of Criminal Appeals has interpreted this

constitutional provision to mean “thatthe witnesses on the part of the state shall

be personally present when the accused is on trial, or that they shall be

examined in his presence and be subject to cross-examination by him.” Garcia

v State, 210 S.W. 2d 574, 578 (Tex. Crim. App. 1948); Kemper v State, 138

S.W. 1025, 1038, overruled in part by Robertson v State, 142 S.W. 533 (Tex.

Crim. App. 1911). As a result, the testimony of Ms. Sommers was error and it

violated Appellant’s rights under art. I,§10 of the Tex. Const.

Finally, because “[the] rights to confront and cross-examine witnesses . .

.have long been recognized as essential to due process,” Chambers v

Mississippi,410 U.S. 284, 294 (1973), Appellant restates and adopts all

arguments made under his Sixth Amendment right supra, except that Appellant

now also makes these arguments under the Due Process Clause of the

Fourteenth Amendment to the U.S. Const., which provides that no state shall

“deprive any person of life, liberty, or property, without due process of law.”

100
C. Harm Analysis

Because the violation of Appellant’s right to confront and cross-examine

Rosie Gonzalez was a constitutional error, this Court must reverse the Judgment

of Death unless the Court determines beyond a reasonable doubt that the error

did not contribute to Appellant’s punishment. Tex. R. App. Proc. 44.2 (a). “When

determining whether erroneously admitted evidence is harmless beyond a

reasonable doubt, the question is not whether sufficient evidence to convict

existed without this evidence, but whether there is a reasonable possibility that

the erroneously admitted evidence contributed to the verdict obtained.” Jones

v State, 833 S.W. 2d 118, 127 (Tex. Crim. App. 1992) cert. denied, 507 U.S.

921 (1993). Not only did Ms. Sommers’ testimony violate Appellant’s

constitutionally guaranteed rights to confront and cross-examine the witnesses

against him, it also contributed to his punishment, particularly in light of

Appellant’s testimony on direct examination. Appellant related that Rosie had

posted his bond and had insisted that he come back to their apartment and help

raise their son. The record reflects:

Q. Okay. And so - - and [Rosie]

helped you get out of jail, right?

101
A. Well, I had - - I had $5,000 at

home, so I told her where the money was,

and she said, “Well, I got to get somebody

to sign,” because, in Illinois, it’s a little

different. I mean, all you’ve got to do is go

to the counter and give them the money,

and you sign out. But, here, you have to get

a bail bondsman. You have to - - you have

to go through a lot more detail to get out of

jail, so ...

Q. So did Roxie help you get out of

jail?

A. Yes, sir.

Q. Did y’all try to work things out?

A. Yes, sir. We - - we actually - -

the appointment I made with [a therapist],

I had to make another appointment, so I

end up calling her back, and we made

another appointment. And then I had to

get in touch with CPS, because they were

calling. So I went up there and saw them. 

And that’s when she said I saw them

December 11th. So December 12th, I

actually jumped in the program, and I had

to pay for that. It was, like, $300.

* * *

Q. Okay. All right. And so at

some point - - she had a protective order. 

She got a protective order, right? 

102
A. Yes, sir.

Q. Okay. And at some point, did

she allow you to come back and live with

her?

A. I mean, as soon as I - - as soon

as she picked me up from down here, I

mean, I went straight back to the

apartment.

 (RR. XL-36-37).

On cross-examination Appellant elaborated what transpired between Rosie and

him:

Q. Well, let me - - let me answer it

for you. It’s [Rosie’s] fault you violated

that, right?

A. No. I mean, she wanted me

there, and we - - she - - she - - she picked

me up, and she said, “I don’t want you to

go anywhere else. I want you here.”

 (RR. XL-66).

Ms. Sommers’ testimony of what her daughter allegedly told about

Appellant’s actions directly contradict Appellant’s testimony and frankly

everything else in the record that shows that Rosie wanted to reconcile with

Appellant. Everything else in the record supports this contention. Appellant

103
asserts that it reasonable to assume that such testimony contributed to his

death sentence. As a result the trial court should have granted defense

counsel’s motion for mistrial.

D. The testimony was hearsay

Appellant restates and adopts in this section all of the arguments and

applications he made in the two previous points of error. However, now

Appellant makes these arguments under Tex. R. Evid. 802, which provides, in

relevant part, “Hearsay is not admissible except as provided by statute or these

rules or by other rules prescribed pursuant to statutory authority.” Whether an

out-of-court statement is admissible under an exception to the general hearsay

exclusion rule is a matter within the trial court’s discretion. Zuliani v State, 97

S.W. 3d 589, 595 (Tex. Crim. App. 2003).

Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Tex. R. Evid. 801 (d). “In determining whether a trial court

erred in admitting or excluding hearsay evidence . . . a reviewing court looks to

see whether the trial court clearly abused its discretion; before the reviewing

court may reverse the trial court’s decision, it must find the trial court’s ruling

104
was so clearly wrong as to lie outside the zone within which reasonable people

might disagree.” Taylor v State, 268 S.W. 3d 571, 579 (Tex. Crim. App. 2008).

As the proponent of the evidence, the State had the burden to show that it was

either not hearsay or was admissible under an exception to the rule against

hearsay. Willover v State, 70 S.W. 3d 841, 845-46 (Tex. Crim. App. 2002)

(footnotes omitted). This it failed to do. Ms. Sommers’ statements were

inadmissible hearsay as indicative of the trial court’s sustaining Appellant’s

objection because they were offered to prove the truth of the matter asserted.

The admission of otherwise inadmissible hearsay is not constitutional

error. West v State, 121 S.W. 3d 95, 104 (Tex. App. - - Fort Worth 2003, pet.

ref’d). The requisite harm analysis is different. Tex. Rule App. Proc. 44.2 (b).

When evaluating the harm caused by erroneously admitted hearsay, a reviewing

court “must deem the error harmless if, after reviewing the entire record, the

court is reasonably assured the error did not influence the jury’s verdict or had

but a slight effect.” Davis v State,268 S.W. 3d 683, 709 (Tex. App. - - Fort Worth

2008, pet. ref’d).

As stated above, the testimony was prejudicial and contradicted

Appellant’s assertions that the two were trying to reconcile their relationship. 

105
The jury could have easily concluded because of such testimony that Appellant

was lying on cross-examination. Therefore, it is reasonable to assume that the

testimony contributed to the jury’s verdict of death. As a result the trial court

should have granted the defense motion for mistrial.

Appellant respectfully requests that this Court sustain points of error

fifteen, sixteen, and seventeen, reverse the Judgment, and remand his case to

the trial court with instructions that he be afforded a new punishment hearing.

106
POINT OF ERROR EIGHTEEN

THE TRIALCOURT ABUSED ITSDISCRETION

AND VIOLATED APPELLANT’S RIGHTS

UNDER THE CONFRONTATION CLAUSE OF

THE UNITED STATES CONSTITUTION BY

PERMITTING THE SEXUAL ASSAULTNURSE

EXAMINER TO TESTIFY TO STATEMENTS

MADE BY ROSIE GONZALEZ REGARDING

AN EXTRANEOUS OFFENSE ALLEGEDLY

COMMITTEDBY APPELLANT.(RR. XXXV-11-

20).

POINT OF ERROR NINETEEN

THE TRIALCOURT ABUSEDITSDISCRETION

AND VIOLATED APPELLANT’S RIGHTS

UNDER ARTICLE 1, §10 OF THE TEXAS

CONSTITUTION BY PERMITTING THE

SEXUAL ASSAULT NURSE EXAMINER TO

TESTIFY TO STATEMENTS MADE BY ROSIE

GONZALEZ REGARDING AN EXTRANEOUS

OFFENSE ALLEGEDLY COMMITTED BY

APPELLANT. (RR. XXXV-11-20).

ARGUMENT AND AUTHORITIES

A. The Facts

During the punishment phase of Appellant’s trial the State called Sexual

Assault Nurse Examiner Cynthia Crowe to testify to what Rosie Gonzalez had

allegedly told her regarding an extraneous assault offense that Appellant had

107
allegedly committed on November 12, 2012, approximately six months before

the present offense. The record reflects:

Q. And did you ask Ms. Sanchez

what brought her to the emergency room?

A. Yes.

Q. And what was her answer?

[DEFENSE COUNSEL]: Y o u r

Honor, I’m going - - that - - I’m going to have

to object at this time.

May I take the witness on voir

dire, Your Honor?

THE COURT: You may.

VOIR DIRE EXAMINATION

BY [DEFENSE COUNSEL]:

Q. Ms. Crowe?

A. Uh-huh.

Q. You said you work in the

emergency room?

A. Yes.

Q. All right. And this is at HEB

hospital?

108
A. Yes.

Q. How many people do you see

on a typical week at the emergency room?

* * *

A. Probably hundreds.

Q. A week? Thousands a month?

A. I mean, I haven’t done the

math. If you’ve done the math, then that’s

correct.

Q. You see a lot of people, is what

I’m saying.

A. Yes, I do.

Q. Do you have an independent

recollection of a person by the name of

[Rosie Gonzalez]?

A. No.

Q. Okay. So you have no

independent recollection of this individual

that we speak of?

A. No.

Q. Okay.

[DEFENSE COUNSEL]: Your Honor,

109
I’m going to object. She has no

independent recollection and can’t

remember. And it’s also a confrontation

issue, Sixth Amendment.

THE COURT: Response.

[PROSECUTOR] First of all, it’s an

exception to the hearsay rules, and it’s not

found - - it’s not been found by the courts to

be testimonial hearsay. It’s nontestimonial

hearsay, so it doesn’t affect the

confrontation clause. Second of all, she

has a business record in front of her that

she created, and we have previously given

a copy to the Defense.

[DEFENSE COUNSEL]: Judge, it is

testimonial, because it’s not some sort of

response to police activity that’s impending

doom or an injury in nature. This lady

works in a hospital. Somebody comes in

and talks to her, and those items are

protected under the confrontation clause. 

So we object on that basis.

THE COURT: That objection is

overruled.

[DEFENSE COUNSEL]: Canwe have

a running objection?

THE COURT: That’s granted.

 (RR. XXXV-15-17).

110
Ms. Crowe then related to the jury from her records what Ms. Gonzalez had

told her happened during an extraneous assault which was a pending felony that

Appellant had allegedly committed against her on November 12, 2012. The

record reflects:

Q. Okay. Ms. Crowe, I had asked

you: You had asked [Ms. Gonzalez] what

brought her to the emergency room that

day. What was her response?

A. Strangled last night and head

was pounded on the floor.

* * *

Q. Did she indicate to you who

had done that?

A. I think, on the last page, it says,

“Patient states boyfriend was arrested this

morning, and it happened in Bedford.”

Q. Did you ask, during the course

of your triage of [Ms. Gonzalez], whether or

not there was domestic violence involved?

A. Yes, I did.

Q. And what was her response?

A. She said yes.

111
Q. Was she accompanied by

anyone that morning?

A. I documented that she was

accompanied by a parent.

Q. And based upon her - - her

statements to you about what brought her

to the emergency room, what type of - -

what type of action did you take with

regard to her case?

A. Well, I triaged her, and I

categorized her as a trauma, because she

was an injury instead of a sickness. And

she reported she lost consciousness, so

that was a priority two.

Q. When a patient reports they

lost consciousness, does that make it more

serious to you as a triage nurse?

A. It means they need to see the

doctor more quickly. So, yes, I guess it

does.

Q. Was she sent to a bed?

A. She was put in a bed in the

emergency room that had the capability for

monitoring her.

Q. You also judge the cases by the

level of acuity?

112
A. Uh - huh.

Q. And what is that for the jury,

please?

A. Oh, that was category two, the

level of acuity.

Q. I’m having a little trouble

hearing you.

A. Oh, that was a category two,

the level of acuity, because she lost

consciousness. So she needs to see the

doctor sooner than later.

Q. Where did she tell you she was

hurting?

A. Head and neck.

Q. And do you, as a triage nurse,

ask the patient to categorize their pain in

any fashion?

A. Yes. One being minimal pain,

ten being most possible pain, how much

pain are in now?

Q. And howdid she categorize her

pain?

A. I put ten, so she told me ten.

Q. You told us earlier how you

113
asked about the mechanism of injury. Did

she tell you what the mechanism of injury

was?

A. I put down, “I was choked until

l passed out.”

Q. So she told you she was

choked?

* * *

A. Yes.

Q. So was she referred to a

doctor; is that correct?

A. I don’t understand what you’re

asking me.

Q. Was she referred to a doctor?

A. Do you mean was she seen by

a doctor in the back?

Q. Yes.

A. Yes.

Q. Do you know what further

diagnosis they did of her?

A. I can - -

Q. Did they sendherfor additional

114
testing?

A. I think she got a head CT.

A. And what is that?

A. It’s a X-ray that uses a

computer. So it can see your bones, but it

can also see your brain. So, like, if you had

a brain bleed, that would show up on a

head CT.

 (RR. XXXV-17-20).

B. Federal and State Constitutional Law

Appellant adopts the arguments made in points of error fifteen and

sixteen, above. There should be no question that Rosie’s alleged statements

made to the Sexual Assault Nurse Examiner are testimonial. Since Ms. Crowe

had no recollection of her patient, all anyone has is the notes that she took while

performing her duties as a SANE. The interview was a custodial examination in

preparation for possible testimony against Appellant in court. At the time of the

present offense, a felony family violence assault case pertaining to this incident

was pending against Appellant. (RR. XL-34-36, 50-51). Rosie Gonzalez was not

personally present as a witness at Appellant’s trial, nor was she examined in

Appellant’s presence and subjectto cross-examination by him. Thus, itwas error

115
to allow Ms. Crowe to testify to what Rosie had told her. Appellant’s rights under

the Sixth Amendment to the U.S. Const. and art. 1,§ 10 of the Tex. Const. were

clearly violated. Appellant also asserts that the admission of this prejudicial

testimony contributed to the jury’s death verdict.

Appellant requests this Court to sustain points of error eighteen and

nineteen, reverse the Judgment of Death, and remand his case to the trial court

with instructions that he be afforded a new punishment hearing.

116
POINT OF ERROR TWENTY

IF NONE OF APPELLANT’S POINTS OF

ERROR ARE REVERSIBLE PER SE, THEN

ALL OF THE ERRORS PRESENT

CUMULATIVE ERROR REQUIRING

REVERSALWHENCONSIDERED TOGETHER.

(Record in its entirety).

Appellant contends that if this Court finds that the trial court erred as

argued in points of error one through nineteen and that each error was harmless,

then the errors warrant reversal of the trial court’s judgment when considered

cumulatively. This Court, the Texas Supreme Court, and the United States Circuit

Court of Appeals for the Fifth Circuit have all recognized that an aggregation of

nonreversible errors, which are plain errors failing to necessitate reversal and

harmless errors, can yield a result that amounts to the denial of the

constitutional right to a fair trial, which calls for reversal. See, e.g., United States

v Munoz, 150 F. 3d 401, 418 (5th Cir. 1979) cert. denied, 25 U.S. 1112 (1999);

King v Federal Underwriters Exchange, 144 Tex. 531, 191 S.W. 2d 855 (1946)

(citing Smerke v Office Equipment Co., 138 Tex. 236, 158 S.W. 2d 302 (1941);

Renn v State, 495 S.W. 2d 922 (Tex. Crim. App. 1973).

In Chamberlain v State, 998 S.W. 2d 230, 238 (Tex. Crim. App. 1999)

117
cert. denied, 528 U.S. 1082 (2000) (citing Stahl v State, 749 S.W. 2d 826, 832

(Tex. Crim. App. 1988)) this Court acknowledged that it “is conceivable that a

number of errors may be found harmful in their cumulative effect. . .” Nine years

later, in Gamboa v State, 296 S.W. 3d 574, 585 (Tex. Crim. App. 2009) (citing

Stahl at 832) this Court recognized that “it is possible for a number of errors to

cumulatively rise to the point where they become harmful.”

Even before Chamberlain was decided, at least one Court of Appeals had

held that, although “some errors are not considered reversible, all errors

considered together can present cumulative error requiring reversal.”Bott v Bott,

962 S.W. 2d 626, 631 (Tex. App. - - Houston [14th Dist.] 1997, no pet.) (citing

Pitman v Lightfoot, 937 S.W. 2d 496, 537 (Tex. App. - - San Antonio 1996, writ

denied); Klein v Sporting Goods, Inc., 772 S.W. 2d 173, 179 (Tex. App. - -

Houston [14th Dist.] 1989, writ denied). Other Texas courts, including this one,

have reversed trial court judgments for cumulative error, without labeling it as

such, in cases of ineffective assistance of counsel. Ex parte Welborn, 785 S.W.

2d 391, 396 (Tex. Crim. App. 1990) (“Although, no one instance in the present

case standing alone is sufficient proof of ineffective assistance of counsel,

counsel’s performance taken as a whole does compel such a holding.”); Brown

118
v State, 974 S.W. 2d 289, 294 (Tex. App. - - San Antonio 1998, pet. ref’d) (“Not

every allegation of ineffectiveness of counsel in this case would justify reversal. 

However, the totality of defense counsel’s representation undermines this court’s

confidence in the conviction.”); Green v State, 899 S.W. 2d 245, 249 (Tex. App. -

- San Antonio 1995, no pet.) (holding that, while “not every shortcoming of

defense counsel in this case would justify reversal. . .cumulatively, the errors

totally undermine confidence in this conviction.”); Smith v State, 894 S.W. 2d

876, 880 (Tex. App. - - Amarillo 1995, pet. ref’d) (“the combination of these

circumstances verify that trial counsel’s representation fell below an objective

standard of reasonableness”).

In this case, through cumulative error, the trial court violated Appellant’s

Fourteenth Amendment right to due process and a fair trial. The individual

errors above involved matters of constitutional lawand state lawthat so infected

the entire trial that Appellant’s conviction violates due process and a fair jury

trial in violation of the Sixth and Fourteenth Amendments to the U.S. Const. See,

Derden v McNeel, 978 F. 2d 1453, 1457 (5th Cir. 1992) (en banc) cert. denied,

508 U.S. 960 (1993); Stahl v State at 831 (holding harm lies in the cumulative

effect of a witness’ outburst and prosecutor’s improper arguments). As a result,

119
this Court should reverse the Judgment and remand Appellant’s case back to the

trial court with instructions that he afforded a newtrial. See, Tex. Rule App. Proc.

43.2 (d); Tex. Crim. Proc. Code Ann. art. 44.29 (a) (Vernon Supp. 2012).

120
CONCLUSION AND PRAYER

Appellant respectfully prays that this Honorable Court sustain his first

through fourteenth and his twentieth points of error, reverse the trial court’s

Judgment and sentence of Death, and remand his case back to the trial court

with instructions that he receive a new trial. In the alternative, Appellant

respectfully prays thatthis Honorable Court sustain fifteenth through nineteenth

points of error, reverse the Judgment and Sentence of Death against him, and

remand his case to the trial court with instructions that he be afforded a new

sentencing hearing. 

Respectfully submitted,

 /s/ Mary B. Thornton 

MARY B. THORNTON

Attorney for Appellant

3901 Race Street

Fort Worth, Texas 76111

Telephone No.: (817) 759-0400

Telecopier No.: (817) 831-3002

marybrabson01@gmail.com

State Bar No. 19713700

121
STATEMENT OF COMPLIANCE WITH RULE 9.4 (i)(2)(B)

I certify that this brief contains 27,112 words, complying with Rule 9.4

(i)(2)(B) of the Texas Rules of Appellate Procedure.

/s/Mary B. Thornton 

Mary B. Thornton

CERTIFICATE OF SERVICE

A copy of Appellant’s brief has been electronically served on the Hon.

Debra Windsor, Chief of Post Conviction in the Tarrant County District Attorney’s

Office, Fourth Floor of the Tim Curry Criminal Justice Center, 401 West Belknap,

Fort Worth, Texas 76196, at COAAppellateAlerts@tarrantcounty.com on the 3rd

day of August, 2015.

/s/Mary B. Thornton 

MARY B. THORNTON

122