The opinion
ACCEPTED
01-15-00342-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/7/2015 1:54:35 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00342-CR
_____________________________________________________________
FILED IN
1st COURT OF APPEALS
IN THE HOUSTON, TEXAS
12/7/2015 1:54:35 PM
COURT OF APPEALS CHRISTOPHER A. PRINE
Clerk
FOR THE
FIRST SUPREME JUDICIAL DISTRICT OF TEXAS
HOUSTON, TEXAS
_____________________________________________________________
JAMES JESSE HUBBARD, Appellant
V.
THE STATE OF TEXAS, Appellee
_____________________________________________________________
On Appeal from the District Court
of Galveston County, Texas
405th Judicial District
Cause No. 14CR0848
_____________________________________________________________
FIRST AMENDED BRIEF FOR APPELLANT
_____________________________________________________________
Greg Russell
711 59th Street
Galveston, Texas 77551
(409) 497-4743
(409) 497-4721
SBN: 17411550
ATTORNEY FOR APPELLANT
NO. 01-15-00342-CR
_____________________________________________________________
IN THE
COURT OF APPEALS
FOR THE
FIRST SUPREME JUDICIAL DISTRICT OF TEXAS
HOUSTON, TEXAS
_____________________________________________________________
JAMES JESSE HUBBARD, Appellant
V.
THE STATE OF TEXAS, Appellee
_____________________________________________________________
On Appeal from the District Court
of Galveston County, Texas
405th Judicial District
Cause No. 14CR0848
_____________________________________________________________
FIRST AMENDED BRIEF FOR APPELLANT
_____________________________________________________________
Greg Russell
711 59th Street
Galveston, Texas 77551
(409) 497-4743
(409) 497-4721
SBN: 17411550
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
Parties and counsel in this case are as follows:
1. James Jesse Hubbard, Appellant, represented at trial by Adam Brown,
300 Main Street, Suite 200, Houston, Tx. 77573; represented on appeal by
Greg Russell, 711 59th Street, Galveston, Tx. 77551.
2. The State of Texas, Appellee, represented at trial by Chris Henderson
and Matt Shawhan, Assistant District Attorneys and on appeal by Jack
Roady, Criminal District Attorney for Galveston County, 600 59th Street,
Galveston, Tx. 77551.
CITATION TO THE RECORD
Clerk’s Record …………………………………… CR (page)
Clerk’s Supplemental Record …………………….. CR Supp. (page)
Reporter’s Record …………………………………. RR (volume & page)
TABLE OF CONTENTS
Page
Index of Authorities ................................................................. i - ii
Statement of the Case .................................................……… 1
Issue Presented ........................................................………… 1
Summary of Facts ......................................................……… .. 2-5
Summary of Argument ………………………... ………......…… 5-6
Argument in Support of Appellant’s Issue… ………................. 6 - 19
Conclusion and Prayer ................................................……….. 20
Certificate of Service ................................................................. 21
Certificate of Compliance………………………………………… 21
i
INDEX OF AUTHORITIES
CASES PAGE
Alejandro v. State, 493 S.W.2d 230 (Tex.Crim.App. 1973)………….. 17
Brown v. State, 475 S.W.2d 761 (Tex.Crim.App. 1972)……………… 17
Brown v. State, 866 S.W.2d 675, 678 (Tex. App.-Houston [1st Dist.]
1993, pet. ref’d) ………………………………………............................... 7
Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984)………………. 10
Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App. 1980)……... 12
Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed. 333 (1980)... 6
Ex Parte Cruz, 739 S.W.2d at 58 (Tex.Crim.App. 1987)……………… 7
Ex Parte Duffy, 607 S.W.2d 507 (Tex.Crim.App. 1980)…………………. 6
Ex Parte Walker, 777 S.W.2d 427 (Tex.Crim.App. 1989)………………. 7
Ex Parte Walker, 794 S.W.2d 36 (Tex.Crim.App. 1990)………………. 7
Ex Parte Welborn, 785 S.W.2d 391, 395 (Tex.Crim.App. 1990)……….. 11
Garrett v. State, 632 S.W.2d 350, 353-54 (Tex.Crim.App.
[Panel Op.] 1982)………………………………………………………….. 12-13
Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999)……………. 12
Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986)…………….. 7
Hill v. State, 666 S.W.2d 663, 668 (Tex. App.-Houston [1st Dist.] 1984),
aff’d 686 S.W.2d 184 (Tex.Crim.App. 1985)……………………………… 7
Hodge v. State, 488 S.W.2d 779 (Tex.Crim.App. 1972)………………. 17
Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App. 2000)……….. 18
Mathews v. State, 635 S.W.2d 532, 539 (Tex.Crim.App [Panel Op.]
1982)………………………………………………………………………… 12
Mercado v. State, 615 S.W.2d 225 (Tex.Crim.App. 1981)…………….. 7
ii
Mosley v. State, 983 S.W. 2d 249, 259 (Tex.Crim.App. 1998)……….. 18
Myer v. State, 416 S.W.2d 415 (Tex.Crim.App. 1967)………………… 17-18
Porter v. State, 623 S.W.2d 374, 385 (Tex.Crim.App. 1981)…………… 11
Simms v. State, 848 S.W.2d 754, 757 (Tex. App.-Houston [1st Dist.]
1993, pet. ref’d)……………………………………………………………… 7
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674(1984)………………………………………………………..... 7
STATUTES PAGE
Tex. Code Crim.Proc. §36.19…………………………………………… 10
Tex. Rule App. Proc. 44.2…….…………………………………………. 10
Tex.R.App.P. 81(b)(2)…………………………………………………… 13
CONSTITUTIONS PAGE
United States Constitution, Sixth and Fourteenth Amendments… ….. 6
Texas Constitution, Article I, Section 10………………………………… 6
iii
NO. 01-15-00342-CR
_____________________________________________________________
IN THE
COURT OF APPEALS
FOR THE
FIRST SUPREME JUDICIAL DISTRICT OF TEXAS
HOUSTON, TEXAS
_____________________________________________________________
JAMES JESSE HUBBARD, Appellant
V.
THE STATE OF TEXAS, Appellee
_____________________________________________________________
On Appeal from the District Court
of Galveston County, Texas
405th Judicial District
Cause No. 14CR0848
FIRST AMENDED BRIEF FOR APPELLANT
_____________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
Now Comes JAMES JESSE HUBBARD and pursuant to TRAP 38.7,
files this First Amended Brief for Appellant. This Brief is Amended due to
some facts and authority being inadvertently omitted from the Original Brief.
STATEMENT OF THE CASE
Appellant was charged by indictment with Robbery. (CR, 6) The case
was tried in the 405th District Court of Galveston County, Texas, the
Honorable C.G. Dibrell, III, presiding. (RR, 1, 1)
The jury found appellant guilty. Appellant pled true to the two
enhancements and the trial court assessed punishment at forty (40) years in
the Institutional Division of the Texas Department of Criminal Justice. (RR 5,
24) Appellant timely filed Notice of Appeal. (CR Supp., 7)
ISSUE PRESENTED
Appellant received ineffective assistance of counsel at the guilt-innocence
phase of trial in two ways:
1) by trial attorney not objecting to prejudicial statement by the
detective that she “knew” appellant and was “familiar” with
appellant.
2) by trial attorney not objecting to prosecutor’s prejudicial
statements that appellant had a “drug habit” and was “on drugs”
despite nothing in the record to support such statements.
1
SUMMARY OF FACTS
On February 27, 2015, the complainant, Robert Robinson, attended
Mardi-Gras in Galveston, Texas. (RR 3, 21) Mr. Robinson went to the
Crow’s Bar on the Strand where he met appellant who was sitting at the bar
eating. (RR 3, 24) Mr. Robinson testified that he bought appellant a beer
and they talked for about an hour. (RR 3, 25 – 26) Mr. Robinson testified
that he had about two beers with appellant at the bar. (RR 3, 26) After
spending about one to two hours with appellant inside the bar, they both go
outside to the patio and smoke cigarettes. (RR 3, 28) Mr. Robinson further
testified that he and appellant both drank some more beer on the patio and at
this point had consumed approximately five beers. (RR 3, 28) Mr. Robinson
testified that he opened his wallet in front of appellant when he purchased the
beers. (RR 3, 30) They left the bar and began walking along the Strand and
appellant borrows Mr. Robinson’s cell phone to call his girlfriend. (RR 3, 30 –
31) Approximately forty-five minutes to an hour after they left Crow’s bar,
they then go into a convenience store called Bob’s Grocery where Mr.
Robinson buys two packs of cigarettes. (RR 3, 31 - 32) Mr. Robinson
testified that after leaving Bob’s Grocery they proceed to walk down the
2
street and about a block later appellant “coldcocks” him. (RR 3, 32) Mr.
Robinson further testified that he ran away, tripped over a curb and appellant
came up to him and starting beating on him. (RR 3, 34) Mr. Robinson
testified that appellant grabbed his wallet and made a “beeline for it” and ran
behind a church. (RR 3, 34) Mr. Robinson then crawled across the street
and hid behind a wall where he called his dad to pick him up and went to the
hospital the next morning. (RR 3, 35 - 36)
Mr. Robinson’s father, Fred Robinson testified that his son called to
pick him up and the next day they called the police. (RR 3, 100 – 101)
Appellant’s wife, Lisa Gutierrez, testified that appellant called her the
night of February 27, 2014 and said that he was helping someone find his
truck. (RR 3, 107 – 108) Ms. Gutierrez testified that appellant arrived home
at approximately 4:00 a.m. (RR 3, 110)
Officer Christopher McNeil of the Galveston Police Department testified
that he was dispatched to University of Texas Medical Branch Emergency
Room and met with Mr. Robinson who gave a description of his attacker.
(RR 4, 16) Officer McNeil then went to the Crow’s Bar to talk with the
employees who said the description that was given by Mr. Robinson matched
the description of appellant. (RR 4, 16)
Detective Michelle Sollenberger met with Mr. Robinson who gave her a
3
description of the person who robbed him. (RR 4, 36). Detective
Sollenberger testified that she “knew” and was “familiar” appellant. (RR 4,
37, 39) Mr. Robinson then showed the detective a phone number that was
dialed from his phone by appellant. (RR 4, 38 – 39; State’s Exhibit # 7)
Detective Sollenberger researched the phone number in State’s Exhibit # 7
and it came back belonging to Lisa Gutierrez who was appellant’s girlfriend.
(RR 4, 39) Detective Sollenberger created a photo array that contained
appellant’s photo. (RR 4, 45 – 46; State’s Exhibit # 9) Detective
Sollenberger testified that Mr. Robinson picked appellant out of the photo
array and that he was “absolutely confident” in his selection. (RR 4, 45;
State’s Exhibit # 9)
The Charge of the Court was read to the jury. (RR 4, 69) During the
state’s closing argument, the prosecutor referred to appellant as having a
“drug habit” and was on “drugs.” (RR 4, 78, 90 & 94)
On February 24, 2015, the jury found appellant guilty of Robbery. (RR
4, 95) Appellant elected for the trial court to assess and requested that a
Pre-Sentence Investigation be prepared. (RR 4, 96)
On March 27, 2015, the punishment trial was had before the court
where appellant pled true to the two enhancement paragraphs. (RR 5, 6) At
punishment, the State introduced into evidence four prior felony judgments
4
and two prior misdemeanor judgments. (State’s Exhibits 1 – 4; 6 – 7)
The trial court assessed punishment at forty (40) years, Institutional
Division of the Texas Department of Corrections. (RR 5, 24)
SUMMARY OF ARGUMENT
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT
THE GUILT-INNOCENCE PHASE OF TRIAL IN TWO WAYS:
1) BY TRIAL ATTORNEY NOT OBJECTING TO PREJUDICIAL
STATEMENTS BY THE DETECTIVE THAT SHE “KNEW”
APPELLANT AND WAS “FAMILIAR” WITH APPELLANT.
2) BY TRIAL ATTORNEY NOT OBJECTING TO PROSECUTOR’S
PREJUDICIAL STATEMENTS THAT APPELLANT HAD A “DRUG
HABIT” AND WAS “ON DRUGS” DESPITE NOTHING IN THE
RECORD TO SUPPORT SUCH STATEMENTS.
Appellant was found guilty of Robbery. On direct-examination,
Detective Michelle Sollenberger, testified that she “knew” appellant and was
“familiar” with appellant. (RR 4, 37, 39) This testimony was prejudicial and
irrelevant to any issue at trial. This testimony was prejudicial because it
implied that appellant was a criminal and that Detective Sollenberger was
familiar with appellant due to his criminal activity. Appellant’s trial counsel did
5
not object to this prejudicial testimony. (entire record) By trial counsel not
objecting to this testimony by Detective Sollenberger, appellant received
ineffective assistance.
Additionally, during closing arguments in the guilt-innocence phase of
trial, the prosecutor, stated, without objection, that appellant had a drug habit
and was on drugs despite there not being any evidence in the record to
support such statements.
ARGUMENT IN SUPPORT OF APPELLANT'S ISSUE
Under the Sixth Amendment to the United States Constitution as made
applicable to the states by the Fourteenth Amendment, Cuyler v. Sullivan,
446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed. 333 (1980), and by the “Right to be
heard” provision of Article I, Section 10 of the Bill of Rights of the Texas
Constitution, Ex Parte Duffy, 607 S.W.2d 507 (Tex.Crim.App. 1980),
defendants are entitled to effective assistance of counsel in criminal cases
whether counsel is retained or appointed.
With regard to whether the defendant received effective assistance of
counsel at the guilt-innocence phase of trial and at the punishment phase of
capital cases, Texas follows the two prong test set out by the United States
6
Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App.
1986).; Ex Parte Walker, 777 S.W.2d 427 (Tex.Crim.App. 1989). That test is
(1) whether counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms; and, (2) whether there
is a reasonable probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.
In reviewing an attorney’s assistance, a court must examine the
totality of the representation. Ex Parte Walker, 794 S.W.2d 36
(Tex.Crim.App. 1990); Ex Parte Cruz, 739 S.W.2d at 58 (Tex.Crim.App.
1987). Counsel need not be errorless and should not be judged by
hindsight but must be reasonably likely to render effective assistance.
Mercado v. State, 615 S.W.2d 225 (Tex.Crim.App. 1981).
“Matters of trial strategy will be reviewed only if an attorney’s actions
are without any plausible basis.” Brown v. State, 866 S.W.2d at 678, citing
Hill v. State, 666 S.W.2d 663, 668 (Tex. App.-Houston [1st Dist.] 1984), aff’d
686 S.W.2d 184 (Tex.Crim.App. 1985) and Simms v. State, 848 S.W.2d 754,
757 (Tex. App.-Houston [1st Dist.] 1993, pet. ref’d).
7
1. Detective Sollenberger’s statements that she knew and was familiar
with appellant:
On direct-examination, the prosecutor elicited the following testimony
from Detective Michelle Sollenberger:
Q. And who did you believe the suspect to be?
A. James Hubbard.
Q. Do you see that person in the courtroom today?
A. I do.
Q. Can you point to him and identify an article of clothing?
A. He's the gentleman sitting at the defense table with a beard and a white
shirt.
MR. HENDERSON: Your Honor, will the record reflect that the
witness has identified the defendant.
THE COURT: All right.
Q. (By Mr. Henderson) And so at that point why did you think the
defendant was the person who robbed Mr. Robinson?
A. I knew the defendant. (RR 4, 37)
Appellant’s attorney failed to make an objection to the prosecutor’s
prejudicial and improper questioning of Detective Michelle Sollenberger
regarding the detective knowing appellant. Consequently, trial counsel
8
failed to move for a mistrial. (entire record)
Additionally, on direct-examination the prosecutor elicited the
following the testimony from Detective Sollenberger:
Q. And was that phone number associated with anyone in particular?
A. It was.
Q. Who was it associated with?
A. Lisa Gutierrez.
Q. And did you know Lisa Gutierrez?
A. I did.
Q. And were you familiar with anyone who Lisa Gutierrez was dating or
with?
A. I was.
Q. And who was that person?
A. James Hubbard. (RR 4, 39)
This testimony from Detective Sollenberger was prejudicial and
irrelevant to any issue at trial. This testimony was prejudicial because it
implied that appellant was a criminal and that Detective Sollenberger was
familiar with appellant due to his criminal activity
To not object to these prejudicial statements was ineffective assistance
9
of counsel, which was harmful to appellant and it surely cannot be construed
as any trial strategy. What possible strategy could be involved in the jury
hearing, during guilt-innocence, that the detective investigating this robbery
knew appellant.
TRAP, Article 44.2, states in relevant part:
(a) Constitutional Error: If the appellate record in a criminal case
reveals constitutional error that is subject to harmless error review, the court
of appeals must reverse a judgment of conviction or punishment unless the
court determines beyond a reasonable doubt that the error did not contribute
to the conviction or punishment.
(b) Other Errors: Any other error, defect, irregularity, or variance that
does not affect substantial rights must be disregarded.
In order for an appellant to win a reversal without an objection being
made at the trial level, the appellant must show egregious harm. Almanza v.
State, 686 S.W.2d 157 (Tex.Crim.App.1984). Even if this Court determines
that this error should be analyzed and controlled by Tex. Code. Crim. Proc.,
Art. 36.19 and Almanza, supra 171, this error was so egregious to appellant
and created such harm as to deny the appellant a fair and impartial trial.
It is well settled in Texas that an accused shall not be tried for some
10
collateral crime or for being a criminal generally. Porter v. State, 623 S.W.2d
374, 385 (Tex.Crim.App. 1981), cert. denied, 456 U.S. 965, 102 S.Ct. 2046,
72 L.Ed.2d 491 (1982). Because our concern that an accused not be tried
for some collateral crime or for being a criminal generally, testimony
concerning an extraneous offense is admissible only in limited
circumstances. Ex Parte Welborn, 785 S.W.2d 391, 395 (Tex.Crim.App.
1990).
Appellant’s trial counsel did not object or even try to keep out these two
statements by Detective Sollenberger. Appellant’s attorney failing to object
to these statements during the guilt/innocence phase of the trial was
ineffective assistance that did contribute to his conviction.
2. Prosecutor’s Closing Argument that appellant had a drug habit and was
on drugs:
During closing arguments in guilt-innocence, the prosecutor argued
outside the record and evidence without any objection from trial counsel.
This argument established a motive for appellant to commit this crime of
robbery.
The purpose of closing argument is to facilitate the jury in properly
11
analyzing the evidence presented at trial so that it may arrive at a just and
reasonable conclusion based on the evidence alone and not on any fact
not admitted into evidence. Campbell v. State, 610 S.W.2d 754, 756
(Tex.Crim.App. 1980)
The four permissible areas of jury argument are (1) summation of the
evidence; (2) reasonable deductions from the evidence; (3) answer to the
argument of opposing counsel; and (4) plea for law enforcement. Guidry v.
State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999). Appellant contends the
prosecutor's argument fell outside the permissible areas of jury argument.
When an argument exceeds the permissible bounds of the above
areas, such will not constitute reversible error unless, in light of the record
as a whole, the argument is extreme or manifestly improper, is violative of a
mandatory statute, or injects new facts harmful to the accused into the trial
proceedings. Mathews v. State, 635 S.W.2d 532, 539 (Tex.Crim.App
[Panel Op.] 1982).
The test to determine whether improper jury argument is harmless
error is not whether a conviction could have been had without the improper
argument, but whether there is a reasonable possibility that the argument
complained of might have contributed to the conviction or the punishment
assessed. Garrett v. State, 632 S.W.2d 350, 353-54 (Tex.Crim.App. [Panel
12
Op.] 1982); Tex.R.App.P. 81(b)(2). In making this determination, the
appellate court must review the evidence at the guilt-innocence stage as
well as that adduced at the punishment phase of the trial. Garrett v. State,
632 S.W.2d at 353-54
The prosecutor, in his closing statement stated:
“Now, defense counsel wants to make this case about alcohol, but
ladies and gentlemen of the jury, this case not about alcohol. It's about
drugs. It's about the defendant's habit. It's about his wife's habit and it's
about the need to feed that habit and it's really about easy targets.” (RR 4,
77)
Additionally, the prosecutor, further stated in his closing argument:
“He forgot about the cell phone. He forgot about Laura and Frank,
and when you're on drugs, you tend to do these things. You tend to not
think about the consequence of your actions. You don't think about, oh, I'm
scared of getting caught from this criminal episode. You're thinking about
your next score.” (RR 4, 93)
Again, the prosecutor re-emphasized in his closing argument:
“Members of jury, he wasn't getting paid money for a drug habit. He
was getting paid in food; and the little money that he did pick up here and
13
there, he used for drugs for not only Lisa but himself.” (RR 4, 94)
The trial court, in the Courts Charge, instructed the jury regarding
extraneous offenses as follows:
“You are instructed that if there is any testimony before you in this
case regarding the defendant's having committed offenses other than the
offense alleged against him in the indictment in this case, you cannot
consider said testimony for any other purpose unless you find and believe
beyond a reasonable doubt that the defendant committed such other
offenses, if any were committed; and even then, you may only consider the
same in determining his intent or plan in connection with the offense, if any,
alleged against him in the indictment in this case and for no other purpose.”
(RR 4, 72)
Despite there being no evidence regarding appellant using drugs, the
prosecutor apparently wanted the jury to believe that appellant was a drug
addict, to attempt to show a motive, intent or plan.
Lisa Gutierrez testified on direct-examination for the state:
A. I was very strung out on drugs, sir.
Q. When James came home that day, did he ask you for anything?
A. No, he just asked me to use my phone.
Q. So he asked you for your cell phone. Why did he want your cell phone?
A. Well, I suppose to take care of my habit.
14
Q. To take care of your habit?
A. Yes, sir, he took care of me very well.
Q. So you said, "your habit." How was he going to take care of your habit?
A. He had a job.
Q. How was he going to take care of your habit that night?
A. I don't know, sir. I don't take care of him. I don't ask him any questions. I
just know he gets me what I need.
Q. What were you needing that night?
A. I was sick that night, sir, very sick. I told you I had been sick all day so
he brought me food.
Q. Well, let's talk about -- what did you mean when you said, "to take care
of your habit"?
A. Well, I mean, if I needed drugs, he would make sure that he worked to
get it for me.
Q. What kind of drugs are you referring to?
A. I was very strung out on crack cocaine.
Q. Did James use crack cocaine during that time?
A. No, sir, not that I know of. (RR 3, 109 – 110)
Lisa Gutierrez further testified on direct examination as follows:
Q. And you stated that James worked at Crow's bar?
A. Yes, sir.
Q. About how long did he work there, not exact dates but about how long?
A. Well, I would say about three weeks to a month prior, I guess.
Q. So a very short period of time?
15
A. Yes, sir.
Q. And when we say, "work there," James doesn't clock in and clock out
like a normal employee that has a W-2, correct?
A. I don't know, sir.
Q. And when James brings you food home from this bar, does he pay for
that food, to your knowledge?
A. I don't know, sir.
Q. You just know that he brings food home when he comes home from
work?
A. Whenever I say, "Daddy, I'm hungry," he gets me food.
Q. And you know that James 09:40:06 gets that food free from Crow's bar,
correct?
A. I don't know if it's free. I don't know how he pays for it. I figured that
since he worked there that, yeah, he probably got a percentage off or
something. I don't know, sir.
Q. In fact, you know that's how James gets paid. He gets paid with food
and drinks, correct?
A. No, sir. You're not allowed to drink at the club for one thing if you're
working. I would imagine that. And no, no, he wouldn't work for food and
drinks.
Q. Well, did you guys pay rent any place?
A. No, sir.
Q. So can you explain to the jury what your expenses were during that
time?
A. I was a dope addict, sir.
Q. Were you doing these drugs by yourself?
16
A. Yes, sir.
Q. You want this jury to believe that you were -- you had a habit and you
were the only person doing drugs around you?
A. Sir, I can just tell you what I know is true, that I do the dope. James –
MR. HENDERSON: I'll pass the witness, your Honor.
MR. BROWN: Was she finished answering the question?
RECROSS-EXAMINATION BY MR. BROWN:
Q. You want to finish answering that question?
A. I just want to say, sir, that I never seen James smoke crack or meth or
anything like that. I am the dope addict in our family.
MR. BROWN: I don't have any further questions, Judge.
(RR 3, 122 – 123)
It is the duty of counsel to confine their arguments to the record;
reference to facts that are neither in evidence nor inferable from the
evidence is therefore improper. Alejandro v. State, 493 S.W.2d 230
(Tex.Crim.App. 1973)
One of the most important factors in determining whether the
argument creates reversible error is in the effect it has on the jury. Hodge
v. State, 488 S.W.2d 779 (Tex.Crim.App. 1972); Brown v. State, 475
S.W.2d 761 (Tex.Crim.App. 1972); Myer v. State, 416 S.W.2d 415
17
(Tex.Crim.App. 1967).
The prosecutor’s argument constituted error and such error was not
harmless. The error here rises to the level of constitutional error.
Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App. 2000). In such
cases, determining harm requires a balancing of the following factors: (1)
severity of the misconduct (the magnitude of the prejudicial effect caused
by the State's improper jury argument), (2) curative measures (the
effectiveness of any cautionary instruction given by the trial court), and (3)
certainty of conviction absent the misconduct (the strength of the evidence
supporting the conviction). Mosley v. State, 983 S.W. 2d 249, 259
(Tex.Crim.App. 1998).
Trial counsel was ineffective for not objecting to the prosecutor’s
closing argument and this, surely, could not be construed as trial strategy. It
is difficult to imagine what possible “plausible basis” trial counsel would have
for failing to object to the prosecutor’s closing argument that appellant had a
“drug habit” and was “on drugs.”
The prosecutor's argument was extreme and injected new facts into
the case that were harmful to appellant. There was no evidence that
appellant used drugs. In fact, the only evidence that was produced regarding
18
drug use was the exact opposite: that he didn’t use drugs.
The prosecutor committed reversible error in arguing to the jury that
appellant had a drug habit and was on drugs and said argument injected
harmful facts and was not based upon the evidence in the case.
Allowing the prosecutor to state that appellant had a “drug habit” and
was “on drugs” provided the prosecutor with a clear motive to commit this
robbery and was extremely prejudicial to appellant.
Additionally, appellant’s attorney failed to make an objection to the
prosecutor’s prejudicial and improper questioning of Detective Sollenberger
regarding regarding knowing and being familiar with appellant.
Consequently, trial counsel failed to move for a mistrial. (entire record)
Appellant received ineffective assistance of counsel by trial counsel not
objecting to the prosecutor’s closing argument that appellant had a drug habit
and by not objecting to the statements made by Detective Sollenberger that
she was “familiar” with appellant.
19
CONCLUSION AND PRAYER
WHEREFORE PREMISES CONSIDERED, appellant prays that the
judgment of the trial court be reversed and judgment of acquittal be entered
or in the alternative that appellant will be granted a new trial or that
appellant’s sentence will be set aside and for such other and further relief to
which appellant may be justly entitled.
RESPECTFULLY SUBMITTED,
/s/ Greg Russell
Greg Russell
Attorney for Appellant
711 59th Street
Galveston, Texas 77551
(409) 497-4743
(409) 497-4721 Fax
SBN: 17411550
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CERTIFICATE OF SERVICE
As Attorney of Record for Appellant, I do hereby Certify that a true and
correct copy of the above and foregoing document was this date provided to
the Attorney for Appellee, by email/e-file service to Mr. Jack Roady, District
Attorney of Galveston County at the offices of the District Attorney of
Galveston County, Texas, 600 59th Street, Galveston, Tx. 77551, on the 4th
day of December 2015.
/s/ Greg Russell
Attorney for Appellant
CERTIFICATE OF COMPLIANCE
I do hereby certify that this brief is in compliance with rule 9.4(i) of the
Texas Rules of Appellate Procedure because it is computer generated, and
its relevant portions contain 4573 words.
/s/ Greg Russell
Attorney for Appellant
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