## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

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L A U R A C A R S N E R , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E E I G H T H C O U R T O F A P P E A L S

E L P A S O C O U N T Y

K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n o f t h e u n a n i m o u s C o u r t . Appellant was convicted of capital murder and sentenc ed to life in pri s on without the possibili ty of pa rol e. The court of appeals held that she was entitled to a new trial on the basis of newly discovere d evidenc e. We conclude that the court of appea ls neg lected to analy ze two prong s of the applicable four- prong ed test and to addre ss the State’s arg ument s re gar d i n g those prong s. Consequently , we vacate the court of appea ls’s decision and rema nd the case to that court for further consideration.CARSNER — 2 I. BACKG ROUND A. Trial Evidence at trial showed that appellant’ s mother h ad filed a formal complaint with Child Protective Service s (CPS ) re g arding appellant’ s car e for her da ug hter. The complaint alleg ed that appellant had phy sically abused, n egl ec ted, or could not car e for her daug hter due to appellant’ s alcoholism and heavy drinking

. Appellant, in turn, informed CPS that her stepfathe r had molested her as a child and asked that her daug hter not be place d with her mother and stepfathe r. At a court hear ing reg arding the CPS complaint, appellant discovere d that some of the visits that her daug hter made to her mother and stepfathe r wer e unsupervised. Appellant asked the judge not to allow any further unsupervised visitation with them, but the CPS case worke r rec ommended allowing unsupervised visitation. 1 The nex t day , appellant armed he rself w ith a g un and drove to her mother and s tepfa ther’s home for the asser

ted purpose of removing her daug hter from the home. After she arr ived there , she shot her mother and stepfathe r numerous times, resulting in their deaths. The State’s theory at trial was that appellant intentionally killed her mother and st epfa ther. Ap pellant’s theory was that she did not intentionally kill them but fired her g un beca use she was afr aid they would take her g un awa y and bec ause she fea

red f or her own and he r daug hter’s sa fety

. During closing arg ument, the State arg ued th at appellant had not direc ted any claims of sexual molestation ag ainst her stepfathe r until afte r her mother had made the CPS repor t. The State contende d that appellant’ s claims of sexual molestation should be viewed with skepticism, but that,

Fr om our revie w of t he court of appea ls’s opinion, the parties’ briefs, and the rec ord 1 ref ere nces supplied in the briefs, we are unable to asce rtain the outcome of the hear ing that day

. We need not c onsider the matter further beca use it does not aff

ect our dispositi on of the c ase.CARSNER — 3

even if she had been abused, she was still not entitled to commit murder. The jury found appellant
g uilty of ca pital murder, a

nd she wa s sentence d to life without the possibil ity of par ole. B. Motion f

or Ne w T rial At a hear ing on the motion for new trial, appellant prese nted the testimony of Henr y O’Ha ra. O’Ha ra had dat ed ap p el lant thirty y ear s ear lier. After appellant was sentenc ed, O’Ha ra rea d a newspa per article reg arding her conviction that indicated that the prosec utor had persua ded the jury that appellant’ s asser

tion of childhood sexual abuse was rec ently fabr icated. O’Ha ra testified that, while he was dating appellant, appellant had told him that her stepfathe r or g randf ather had sexually molested her. He also testified to some of the details of the abuse convey ed by appellant and appellant’ s fee lings a s a re sult of this abuse. Ap p ellant testified that she did not reme mber informing O’Ha ra of the sexual abuse. She
soug ht a new tr ial on the basis that O’H ara ’s testimony was ne wly

discovere d evidenc e. I n order for a defe ndant to be entitled to a new trial on the basis of newly discovere d or newly available evidenc e, the f

ollowing f

our-pr ong ed test must be satisfied: (1) the ne wly

discovere d evidenc e wa s unknown or unava ilable to the def endant a t the time of trial; (2) the defe ndant’s failure to discover or obtain the new evidenc e was not due to the defe ndant’s lac k of due dilig ence ; (3) the new evidenc e is admissible and not mere ly cumulative, corr oborative, collater al, or impea ching ; and (4) the new evidenc e is probably true and will probably bring about a differ ent result in a new tr ial. 2

W allace v. State , 106 S.W .3d 103, 108 (Tex. Crim. App. 2003); Keeter v . State , 74 2 S.W .3d 31, 36-37 (Te x . Crim. App. 2002).CARSNER — 4

The trial court held that the first two prong s had been met but that the third prong had not. The trial
court expli citly ref

raine d from addre ssing the fourth prong . Be cause it he ld tha t the third prong of the test had not bee n met, the trial cour t denied the motion for ne w trial. C. Appeal I n its brief on appea l, the S tate arg ued that none of the four prong s of the test had been satisfied. The State arg

ued that t h e ev i d en ce was not newly discovere d under prong one beca use appellant was the s o u rc e o f t he evidenc e. The State arg ued that due diligenc e had not been established under prong two beca use evidenc e that appellant had co n fi d ed about sexual abuse to friends, family members, and signific ant others place d the defe nse on notice that she might have confide d to O’Ha

ra, a former boy friend. The State arg ued that pro n g t h ree was not met beca use O’Ha ra’ s testimony was mere ly cumulative or corr obo rative of testimony that could have been provided by appellant herse lf. And the State arg ued that the fourth prong was not met beca use the

new evidenc e was not pr obably true and, even if true, would not have made a differ ence in light of

overw helming e vidence of appe llant’s g uilt. The court of appea ls’s only comment reg arding the first two prong s of the four- prong ed test was the obse rvation that the trial c ourt found those prong s in appellant’s fa vor: As to the first two Keeter prong s, the trial court found that O’Ha ra’ s testimony was newly discovere d evidenc e, unknown or unavailable to Appellant at the time of trial and that her failure to discover or obtain the evidenc e was not d u e to a lack of diligenc e. Keeter , 74 S.W .3d at 36-37. The trial court found that Appellant had not satisfied the third Keeter prong , ref raine d from addre ssing the fourth Keeter prong , and denied Appellant’s m o t i o n fo r new trial. T E X . C O D E C R I M . P R O C
. AN N . art. 40.001; Keeter , 74 S.W .3d at 36-37. 3 The c ourt of appe als then addr essed the third and fourth prong s, and afte r analy sis, c oncluded that

Carsner v. State , 415 S.W .3d 507, 512 (Tex. App.–El Paso 2013). 3CARSNER — 5

those prong s had been satisfied. The court conclude d, “B eca use the four Keeter prong s have been 4 met, the trial cour

t was re quired to g rant . . . a new tria l.” 5 D. Discr etionary Re view I n its first g round for revie w, the State complains that the court of appea ls err ed in failing to addre ss whether the evidenc e was newly discovere d. During its discussion of this gro u n d i n its 6 petition, the State observe d that the court of appea ls “held, without any leg al analy sis as to whether
t he trial court was corr ect in its leg al conclusions, that Carsner had satisfied the first two Keeter
prong s.” The State also arg u ed that the evidenc e was not, in fac t, newly discovere d. The State’s second and third g rounds for revie w dispute aspec ts of the court of appea ls’s analy sis of the fourth
prong of the test. 7 II. ANALYSIS Rule 47.1 require s the court of appea ls to hand down a written opinion “that addre sses ever y

Id. at 512-14. 4 Id. at 514. 5 Gro u nd one states: “The Eig hth Court err ed by failing to addre ss whether O’Ha ra’ s 6 testimony was not newly discovere d, an issue raised and nece ssary to the deter mination of whether the trial cour

t corre ctly

denied the motion for ne w trial.” Ground two states: “The Eig hth Court err ed by confla ting motive with intent and there by 7 implicitl y and err oneously rec og nizi ng a diminis hed-c apac ity or non-re cog nized, non-statutory justification defe nse when it held that evidenc e of Carsner ’s rea son for initially g oing to her pare nts’ house with a g un would have authorized the jury to find that she acte d rec klessly or without criminal intent when she pumped 12 bullets into her pare nts and there fore would probably bring about a differ ent result in a new trial.” Ground three states: “The Eig hth Court e rre d in failing to c onsider the S tate’s evidence when it deter mined that Carsner ’s new evidenc e wo u l d probably bring about a diffe rent re sult in a new trial.”CARSNER — 6

issue raised and nece ssary to the final dispositi on of the appea l.” We have also said, “As a g ener al 8 proposition, r eviewing courts oug ht to mention a party ’s number one arg ument and explain w hy it does not have the per suasive for ce tha t the party

thinks it does.” 9 The court of ap p ea l s failed to analy ze two of t he four prong s that must be satisfied for the

new- trial claim at issue. The State arg ued in its brief befor e the court of appeal s that those two prong s had not been met. The court of appea ls failed to addre ss ever y issue nece ssary to the dispositi on of the a

ppeal. We vacate the judgme nt of the court of appea ls and rema nd the case to that court for further
proce eding s. 1 0 Deliver ed: September

24, 2014 Publis h

T E X . R. A P P . P. 47.1; Turrubiat e v. State , 399 S.W .3d 147, 156 (Tex. Crim. App. 2013);

8 Gipson v. State , 383 S.W .3d 152, 159 (Tex. Crim. App. 2012). Sims v. State , 99 S.W .3d 600, 603 (Tex. Crim. App. 2003). 9 The State’s se cond and third g rounds for r eview a re dismissed without prejudice

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