Van-Cleave, Jimmy Earl

PD-1253-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 11/10/2015 4:24:47 PM

Accepted 11/12/2015 1:35:25 PM

ABEL ACOSTA

PD 1253-15 CLERK

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

_______________________________________________

JIMMY EARL VAN-CLEAVE,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

_______________________________________________

On Petition for Discretionary Review from the

Fourteenth Court of Appeals in No, 14–14–00473–CR

affirming the conviction in cause number 9403197,

From the 179th District Court of Harris County, Texas

_______________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

_______________________________________________

ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN

Chief Public Defender

Harris County, Texas

JANI MASELLI WOOD

Assistant Public Defender

Harris County, Texas

TBN. 00791195

1201 Franklin Street, 13th Floor

Houston, Texas 77002

Phone: (713) 368-0016

November 12, 2015 Fax: (713) 368-9278

Counsel for Appellant

November 10, 2015

IDENTITY OF PARTIES AND COUNSEL

Appellant: Jimmy Earl Van-Cleave

TDCJ# 682347

Robertson Unit

12071 FM 3522

Amarillo, TX 79601

Trial Prosecutor: Ms. Cara Burton

Appellate Prosecutor Ms. Carly Dessauer

Assistant District Attorney

Harris County, Texas

1201 Franklin, 6th Floor

Houston, Texas 77002

Defense Counsel at Trial: Ms. Jani Maselli Wood

Assistant Public Defender

1201 Franklin St., 13th Floor

Houston, TX 77002

Harris Wood, Jr.

701 North Post Oak Rd #245

Houston, Texas 77025

Presiding Judge: Hon. Kristen Guiney, Presiding Judge

184th District Court

Harris County, Texas

1201 Franklin, 18th floor

Houston, Texas 77002

Defense Counsel on Appeal: Jani Maselli Wood

Assistant Public Defender

Harris County, Texas

1201 Franklin, 13th Floor

Houston, Texas 77002

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Table of Contents

Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The offense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Mitigation Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The Van-Cleave Family. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Mr. Van-Cleave’s father. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

When weighing evidence for harm in constitutional error, this Court has

held that an appellate court should consider everything in the record.

Rich v. State, 160 S.W.3d 575 (Tex. Crim. App. 2005). The Court of

Appeals only considered evidence of the offense and failed to analyze

or consider the defense evidence in determining the constitutional errors

were harmless. Did the Court of Appeals err in failing to consider all

evidence from the trial in its harm analysis?. . . . . . . . . . . . . . . . . . . . . . . . . 13

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The Court of Appeals never evaluated the mitigation evidence offered

by Mr. Van-Cleave.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

The integrity of the process was thwarted by Confrontation Clause

violations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

The inadmissible evidence undermined the entire theory of the defense.

.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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INDEX OF AUTHORITIES

PAGE

Cases:

Ex parte Van-Cleave,

AP-77,012, 2013 WL 2112369 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . 6, 7

Harris v. State,

790 S.W.2d 568 (Tex. Crim. App.1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

McCarthy v. State,

65 S.W.3d 47 (Tex. Crim. App.2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Rich v. State,

160 S.W.3d 575 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15

Van-Cleave v. State,

14-14-00475-CR, 2015 WL 5025653

(Tex. App.—Houston [14th Dist.] Aug. 25, 2015, no. pet. h.). . . . . . . passim

Wesbrook v. State,

29 S.W.3d 103 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15

Rules:

TEX. R. APP. P. 44.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

STATEMENT OF THE CASE

Mr. Van-Cleave was convicted of aggravated kidnaping on July 20, 1994. (C.R.

at 100). The Court of Criminal Appeals granted habeas relief as to punishment only

on May 15, 2013. See Ex parte Van-Cleave, AP-77,012, 2013 WL 2112369 (Tex. Crim.

App. May 15, 2013)(not designated for publication). This appeal is from the new

punishment hearing heard by the 179th district court in June 2014. (C.R. at 103).

After two days of testimony, the trial court sentenced Mr. Van-Cleave to life

imprisonment. (C.R. at 103).

STATEMENT OF THE PROCEDURAL HISTORY

In an unpublished opinion, the Fourteenth Court of Appeals affirmed Mr. Van-

Cleave’s conviction. Van-Cleave v. State, 14-14-00475-CR, 2015 WL 5025653 (Tex.

App.—Houston [14th Dist.] Aug. 25, 2015, no. pet. h.). A motion for rehearing was

filed and denied. After an extension of time, this petition is timely if filed on or

before November 11, 2015.

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GROUND FOR REVIEW

When weighing evidence for harm in constitutional error, this Court has

held that an appellate court should consider everything in the record.

Rich v. State, 160 S.W.3d 575 (Tex. Crim. App. 2005). The Court of

Appeals only considered evidence of the offense and failed to analyze

or consider the defense evidence in determining the constitutional errors

were harmless. Did the Court of Appeals err in failing to consider all

evidence from the trial in its harm analysis?

REASON FOR REVIEW

The Fourteenth Court of Appeals has decided an important question of

state or federal law in a way that conflicts with the applicable decisions

of the Court of Criminal Appeals in Rich v. State, 160 S.W.3d 575, 577-78

(Tex. Crim. App. 2005) and Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim.

App. 2000). TEX. R. APP. P. 66.3(c).

STATEMENT OF FACTS RELATIVE TO GROUND RAISED

Mr. Van-Cleave received a new punishment hearing because at his first trial, no

mitigation evidence was offered. Ex parte Van-Cleave, AP-77,012, 2013 WL 2112369

(Tex. Crim. App. May 15, 2013). In the new punishment hearing, Mr. Van-Cleave

presented numerous witnesses as well as the State offering its own witnesses.

The offense

The complainant, Marcella Hoffman, testified that in 1994 while driving home

from her job at TWA Airlines at 1:00 a.m., while on the Peirce elevated, she noticed

a white truck and the occupants were looking at her. (2 R.R. at 10-13). Her trip home

to Spring was about 15-20 miles and as she was exiting Cypresswood, she was rear-

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ended. (2 R.R. at 13-16). She was about five minutes from home and called her

husband, a Houston police officer, on her cell phone after the accident. (2 R.R. at 16-

19, 43). She exited her vehicle to get the license plate of the truck that had hit her and

testified she was grabbed from behind. (2 R.R. at 20-22). She identified Mr. Van-

Cleave as the man who grabbed her. (2 R.R. at 24). He let go for a second and she

turned and attempted to stab him with a pen. (2 R.R. at 23). She was thrown to the

ground and knocked out. (2 R.R. at 23). When she regained consciousness, she was

in the truck and was being driven away. (2 R.R. at 24). The complainant tried to grab

the steering wheel along with trying to open the door to get away. (2 R.R. at 25-26).

She bit off Mr. Van-Cleave’s finger and opened the door and rolled out of the moving

vehicle. (2 R.R. at 26-28). She hit soft ground and sprained her leg as the truck ran

over her. (2 C.R. at 28-29, 32).

While the complainant was in the truck, her husband came upon the scene in

his patrol car. (2 R.R. at 29-30). The patrol car and the truck crashed. (2 R.R. at 30).

The driver’s license of Mr. Van-Cleave was in the vehicle and while at the scene, the

complainant identified him as the person who had kidnaped her. (2 R.R. at 31-32).

The complainant’s husband, Officer Hartman stated that upon receiving the

call from his wife, he grabbed his gun and ran out to the patrol car wearing only his

sweat pants and a t-shirt. (2 R.R. at 43). He came upon the scene and saw his wife’s

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car being driven by another man behind a white truck. (2 R.R. at 44-45). He put on

his lights and decided to stop the truck. (2 R.R. at 44-45).

The truck failed to yield and was being driven erratically. (2 R.R. at 47).

Officer Hartman saw a person “bail out of the truck” after the truck had hit the police

car. (2 R.R. at 47). The truck tried to ram the patrol car again but the patrol car

rammed the truck into some trees, instead. (2 R.R. at 47). Officer Hartman jumped

out of his patrol car and was unable to find his gun. (2 R.R. at 50-51). He banged on

the window of the truck and told the driver to show him his hands - but the driver ran

away out of the truck. (2 R.R. at 50-52).

Houston police officer Bill Taber was present when Mr. Van-Cleave was

brought to the police station. (2 R.R. at 57-59). Officer Taber was present when Mr.

Van-Cleave gave a written statement to the police admitting to the offense. (2 R.R.

at 69-73). The State also offered the testimony of Harris County Deputy Michael

Squyres who photographed numerous gang-related tattoos Mr. Van-Cleave had. (2

R.R. at 75-85).

Mitigation Evidence

Deputy Squyres stated Mr. Van-Cleave had belonged to the Aryan Circle but

had successfully completed the gang renunciation program offered at TDCJ. (2 R.R.

at 77-80). The program offered at TDCJ was considered a good program at TDCJ

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and something that “most definitely” should be encouraged to inmates, according to

Deputy Squyres. (2 R.R. at 86).

Captain Antonio Gallardo, a former Marine and current prison guard from

Abilene Texas came and testified for Mr. Van-Cleave. (3 R.R. at 4-5). Captain

Gallardo stated he had never testified for an inmate before. (3 R.R. at 5). While in

prison, Mr. Van-Cleave was a good worker and reliable and responsible. (3 R.R. at 5-

6). Captain Gallardo witnessed an event where another inmate tried to engage Mr.

Van-Cleave in a fight, and Mr. Van-Cleave turned and walked away. (3 R.R. at 6).

Frank AuBuchon, an expert on prison security classification systems testified

Mr. Van-Cleave had initially had some problems in prison but had been trouble free

for the last 7 years, with only one write up. (3 R.R. 9, 16). Mr. Van-Cleave had been

housed in general population with other inmates who follow the rules and “doing

their time.” (3 R.R. at 15).

The Van-Cleave Family

Mr. Van-Cleave had numerous family members testify to the horrifying

conditions he grew up with. Wanda Ray, his aunt explained how Jimmy’s parents

were abusive and had four children removed from the home. (2 R.R at 89-91, 103-

06). Mr. Van-Cleave’s mother would beat him with a coat hanger. (2 R.R. at 90).

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Mr. Van-Cleave’s sister, Vonie Sullivan, described the tragic childhood of Mr.

Van-Cleave. (2 R.R. at 95-100). He was picked on. (2 R.R. at 96). He was beaten.

A lot. (2 R.R. at 96). Growing up, they lived in over 50 different places within 15

years. (2 R.R. at 96). They lived in hotels, the Salvation Army, and with different

family members. (2 R.R. at 96). During the times that her parents were separated, her

mother would have different men living in the house. (2 R.R. at 98). Ms. Sullivan was

repeatedly raped by her mother’s male friends. (2 R.R. at 97-98). Mr. Van-Cleave

often was in the bed with his sister while she was assaulted. (2 R.R. at 98). When Ms.

Sullivan was 11, she became pregnant by her mother’s boyfriend and had an abortion.

(2 R.R. at 98). Although Mr. Van-Cleave was hospitalized for psychiatric issues as a

child, his mother never followed through to ensure he got the necessary treatment.

(2 R.R. at 100).

Mr. Van-Cleave’s father

Mr. Van-Cleave’s father was a serial predator and molested not only his son,

but numerous other relatives. (2 R.R. at 105-10). Barbara Van-Cleave, a cousin,

personally witnessed Mr. Van-Cleave being molested as a child by his own father. (2

R.R. at 106-08). Mr. Van-Cleave’s sister was also molested by her father - starting

when she was 6. (2 R.R. at 97). Ms. Ray was raped by her brother, Mr. Van-Cleave’s

father, when she was 8. (2 R.R. at 91). Kathy Baugh, Mr. Van-Cleave’s niece barely

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escaped being molested by her aging grandfather when she was 9. (2 R.R. at 92-93).

Although she was just 9, when her grandfather asked her to straddle his naked body,

she knew something wasn’t right. (2 R.R. at 93).

Ms. Sullivan stated that having lived in that family, it made her angry and always

ready to fight. (2 R.R. at 99). Barbara Van-Cleave was also repeatedly abused, and had

similar anger issues. (2 R.R. at 107-08). Barbara described the impotence she felt as

a child continually being molested:

I think because as a child when you're growing in, you don't have

control, you don't have the say-so of what happens to you, these people

that are abusing you and neglecting you are the ones that are in control

and it sets up this cycle within you. You're told you can't tell, you're told

you get in trouble if you tell, and it's in you. It's inside you and then,

sometimes it comes out violently.

(2 R.R. at 108-09).

Numerous prison records were offered - three of which the Court of Appeals

found violated the Confrontation Clause:

Specifically, the three disciplinary reports we conclude were testimonial

in nature are the following descriptions: (1) fighting with another inmate

enters into a narrative track when it states that “[appellant] was ordered

by Lt. T. Brown to stop fighting and face the wall” and included that

“said inmate failed to obey the order”; (2) appellant's exposure of

himself adds that the act was committed “with intent to arouse the

sexual desire of himself”; and (3) possession of weapons describes them

as “two 6 inch toothbrush handles with razor blades melted into the

end” which were “intended to be used to injure another.” We conclude

the reports contain testimonial statements regarding appellant's conduct.

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Van-Cleave v. State, 14-14-00473-CR, 2015 WL 5092620, at *5 (Tex. App.—Houston

[14th Dist.] Aug. 27, 2015, no. pet. h.)

ARGUMENT

When weighing evidence for harm in constitutional error, this Court has

held that an appellate court should consider everything in the record.

Rich v. State, 160 S.W.3d 575 (Tex. Crim. App. 2005). The Court of

Appeals only considered evidence of the offense and failed to analyze

or consider the defense evidence in determining the constitutional errors

were harmless. Did the Court of Appeals err in failing to consider all

evidence from the trial in its harm analysis?

While the Court of Appeals held that the trial court committed constitutional

error - the only analysis for harm was solely focused on the facts of the offense, while

briefly noting that the State did not reference the prison infractions during closing:

The record supports that the trial court would have assessed a life

sentence irrespective of the disciplinary infractions, based on the

extremely violent facts of the present offense, committed while

appellant was on parole for sexual assault. After seven months' parole

for sexual assault and within hours of getting his first five-hour pass

from the halfway house in which he was living, appellant drove to

Galveston in a truck he had just received from his father. Appellant met

various women and went to multiple bars while in Galveston. After

leaving Galveston around midnight, appellant noticed complainant, who

was driving alone in her car. Appellant decided to rob her, take her car,

and, perhaps, “get some pussy, too.” Appellant followed the

complainant on the highway and caused an automobile accident

between his truck and complainant's car. Complainant called her

husband, a police officer, who instructed her to take note of the truck's

license plate number. Appellant asked complainant if she was injured,

and he appeared to have a nice demeanor until he saw that she was on

the phone. Complainant exited her car to obtain appellant's license plate

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number. Appellant put both hands around the complainant's neck and

tried to strangle her. Complainant was unable to breathe for a short time

and lost consciousness after being thrown to the ground.

Complainant regained consciousness on the floorboard of

appellant's truck; appellant told her she was not “going anywhere,

bitch.” Complainant attempted to grab the steering wheel in an attempt

to have appellant stop the vehicle enough that she could exit it as she

opened the door. Appellant pushed her away, reaching over with his left

hand to close the door. Complainant grabbed hold of his hand and bit

off part of his “pinkie” finger, spitting it on the floorboard of the truck.

When complainant's husband arrived at the scene, he noticed his

wife's car being driven by one male, and he found that suspicious.

Complainant's husband was in a Houston Police Department patrol car.

He turned on his lights and siren attempting to stop appellant's truck.

Appellant rammed the police vehicle and would not stop. Complainant

then rolled out of the truck. Appellant circled back and deliberately ran

over her leg. Complainant's husband's patrol car collided with the truck,

causing it to stop after appellant tried to ram the patrol car a third time.

Complainant's husband exited his patrol car and ordered appellant to

show his hands, at which time appellant abandoned his truck and ran for

cover. He was apprehended the following day after attempting to avoid

a police search.

In light of the evidence of appellant's criminal background, to

which he pleaded “true,” the facts of the present offense, and the trial

court's comments, we conclude beyond a reasonable doubt that the trial

court's admission of the disciplinary records did not contribute to

appellant's punishment. See TEX.R.APP. P. 44.2(a); Smith, 297 S.W.3d at

277. We overrule appellant's first issue.

Van-Cleave, 2015 WL 5092620, at *5-6. The Court of Appeals ultimate conclusion was

based upon the following: “In light of the evidence of appellant's criminal

background, to which he pleaded “true,” the facts of the present offense, and the trial

court's comments” the evidence was harmless. Id. Those three factors do not include

the entirety of the evidence.

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The Court of Appeals never evaluated the mitigation evidence offered by Mr.

Van-Cleave.

This Court has considered the type of review necessary for constitutional error:

In the case of the erroneous admission of evidence, we have said that

the appellate court should consider everything in the record, including

any testimony or physical evidence admitted for the jury’s consideration,

the nature of the evidence supporting the verdict, the character of the

alleged error and how it might be considered in connection with other

evidence in the case, the jury instructions, the State’s theory and any

defensive theories, closing arguments, voir dire, and whether the State

emphasized the error.

Rich v. State, 160 S.W.3d 575, 577-78 (Tex. Crim. App. 2005). As detailed in the

statement of facts, supra, Mr. Van-Cleave presented compelling evidence of his

reformation. The prison disciplinary infractions which happened subsequent to the

offense were clearly in the court’s mind. As the Court of Appeals explained, “[t]he

records were admitted at the close of evidence, and the trial court then stated it would

review the records during a brief recess.” Van-Cleave, 2015 WL 5092620, at *5.

“An appellate court should not focus on the propriety of the outcome of the

trial. Instead, the appellate court should calculate as much as possible the probable

impact of the error on the jury in light of the existence of other evidence.” Wesbrook

v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000)(internal citations omitted).

Despite this Court’s instructions in Wesbrook, the Court of Appeals only looked at the

appropriateness of the verdict of guilt:

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The record supports that the trial court would have assessed a life

sentence irrespective of the disciplinary infractions, based on the

extremely violent facts of the present offense, committed while

appellant was on parole for sexual assault.

Van-Cleave, 2015 WL 5092620, at *5.

The integrity of the process was thwarted by Confrontation Clause violations.

When evaluating harm under TEX. R. APP. P. 44.2(a), the emphasis should not

be on “the propriety of the outcome of the trial.” Harris v. State, 790 S.W.2d 568, 587

(Tex. Crim. App.1989). This Court has directed reviewing courts to determine if the

error affected “the integrity of the process leading to the conviction.” Id. “The

reviewing court should calculate, as nearly as possible, the probable impact of the

error on the jury in light of the other evidence.” McCarthy v. State, 65 S.W.3d 47, 55

(Tex. Crim. App.2002) (citations omitted).

The inadmissible evidence undermined the entire theory of the defense.

The Court of Appeals focused solely on the offense without considering all the

evidence presented during trial. There is no indication the Court of Appeals weighed

how this affected the entirety of the defense - that Mr. Van-Cleave was not the same

person who committed the offense back in 1994.

This evidence did affect the court because it undermined the entirety of the

defense that Mr. Van-Cleave was a changed man. All the mitigation presented was

thwarted by evidence which was admitted entirely unchallenged by cross-examination.

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By allowing evidence in violation of the Confrontation Clause which undermined the

defense, the trial court erred and harmed Mr. Van-Cleave’s defense.

Review should be granted.

PRAYER FOR RELIEF

For the reasons states above, Mr. Van-Cleave prays that this Court grant his

petition for discretionary review.

Respectfully submitted,

ALEXANDER BUNIN

Chief Public Defender

Harris County Texas

Jani Maselli Wood

_______________________________

JANI J. MASELLI WOOD

Assistant Public Defender

Harris County, Texas

Jani.Maselli@pdo.hctx.net

TBN. 00791195

1201 Franklin Street, 13th Floor

Houston, Texas 77002

Phone: (713) 368-0016

Fax: (713) 368-9278

Attorney for Appellant

Jimmy Earl Van-Cleave

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CERTIFICATE OF SERVICE

Pursuant to Tex. R. App. Proc. 9.5, this certifies that on November 10, 2015,

a copy of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and

the Harris County District Attorney’s Office through texfile.com at the following

address:

Carly Dessauer

Assistant District Attorney

1201 Franklin Street, 6th Floor

Houston, TX 77002

Dessauer_Carly@dao.hctx.net

Lisa McMinn

Lisa.McMinn@SPA.texas.gov

Jani Maselli Wood

_________________________________

JANI J. MASELLI WOOD

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CERTIFICATE OF COMPLIANCE

Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).

1. Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this

petition contains 2963 words printed in a proportionally spaced typeface.

2. This petition is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced

by Corel WordPerfect software.

3. Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.

Jani Maselli Wood

____________________________

JANI J. MASELLI WOOD

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Appendix A

Opinion Van-Cleave v. State

Van-Cleave v. State, Not Reported in S.W.3d (2015)

2013 WL 2112369, at *1 (Tex.Crim.App. May 15, 2013) (not

2015 WL 5092620 designated for publication).

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND At the outset of his second punishment hearing, appellant

SIGNING OF OPINIONS. pleaded “true” to an enhancement paragraph alleging a prior

conviction for sexual assault. During the hearing, the State

DO NOT PUBLISH — TEX.R.APP. P. 47.2(B). presented evidence describing the present offense and proving

that appellant was on parole for the sexual-assault conviction

Court of Appeals of Texas, when he committed the present offense. Appellant presented

Houston (14th Dist.). mitigating testimony revealing a difficult upbringing and

testimony from two witnesses—prison guard, Antonio

Gallardo, and correctional consultant, Frank AuBuchon.

Jimmy Earl Van–Cleave, Appellant Gallardo testified regarding supervising appellant working in

v. prison. AuBuchon testified about appellant's behavior during

The State of Texas, Appellee his incarceration; according to AuBuchon, appellant

NO. 14–14–00473–CR | Memorandum Opinion filed misbehaved and had disciplinary issues initially but later

August 27, 2015 demonstrated good conduct in prison. At the close of

evidence, the State offered appellant's prison disciplinary

records containing descriptions of numerous infractions early

On Appeal from the 179th District Court, Harris County, in his incarceration. The trial court overruled appellant's

Texas, Trial Court Cause No. 9403197 objection and admitted the records.

Attorneys and Law Firms In closing argument, the State did not dispute that appellant

displayed an ability “to clean up his act” while incarcerated,

Jani J. Maselli Wood, for Appellant. but argued that he was not capable of behaving appropriately

in the “free world.” The State emphasized that appellant had

Carly Dessauer, Devon Anderson, for Appellee. been on parole for only seven months when he committed the

Panel consists of Justices Boyce, McCally, and Donovan. present offense.

MEMORANDUM OPINION The record reflects that, before deciding appellant's sentence,

the trial court took a brief recess stating it would review

appellant's prison disciplinary records which had just been

admitted. The trial court did not mention appellant's

disciplinary records when orally pronouncing the life

John Donovan, Justice sentence. The trial court stated that, but for appellant's

“absolutely horrific and tragic” childhood, he may have

*1 Appellant, Jimmy Earl Van–Cleave, appeals the trial developed very differently, but the court could not ignore “the

court's sentence of life in prison on appellant's conviction for extreme violence” and his “criminal background.”

aggravated kidnapping. In two issues, appellant argues that

the trial court erred in admitting appellant's prison II. Analysis

disciplinary records containing evidence of extraneous

offenses. We affirm. Appellant presents two numbered issues but argues that the

trial court erred by admitting appellant's prison disciplinary

records for three reasons: (1) the extraneous offenses

I. Background contained therein were not proven beyond a reasonable doubt;

(2) the descriptions of the offenses were testimonial in nature,

On July 20, 1994, appellant was convicted of aggravated such that their admission violated appellant's Sixth

kidnapping and sentenced to life in prison. Appellant was Amendment right to confrontation; and (3) the State failed to

granted habeas corpus relief as to punishment only on the provide proper notice of its intent to use the records.

ground that he received ineffective assistance of counsel

because there was no offer of mitigating evidence during the

punishment phase. See Ex Parte Van–Cleave, No. AP–77012, A. Reasonable–Doubt Argument

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Van-Cleave v. State, Not Reported in S.W.3d (2015)

*2 In one portion of his first issue, appellant argues that the records. See Delgado, 235 S.W.3d at 252. The fact

extraneous offenses contained in the disciplinary records that, for prison disciplinary purposes, the

never could be proven beyond a reasonable doubt because the preponderance-of-the-evidence standard applies

preponderance-of-the-evidence standard applied when would not necessarily preclude the fact-finder in this

determining whether there was a disciplinary infraction. case from deciding the reasonable-doubt standard

was also satisfied. “A judge in a bench trial is

We review a trial court's admission of evidence under the presumed to have applied the correct law to the

abuse-of-discretion standard. Moses v. State, 105 S.W.3d 622, facts.” Coonradt v. State, 846 S.W.2d 874, 876

627 (Tex.Crim.App.2003). A trial court abuses its discretion (Tex.App.— Houston [14th Dist.] 1992, pet. ref'd);

when its decision “lies outside the zone of reasonable see also Fields, 1 S.W.3d at 688 (citing McMillan v.

disagreement.” Murchison v. State, 93 S.W.2d 239, 249 Pennsylvania, 477 U.S. 79, 91 (1986) (“[s]entencing

(Tex.App.—Houston [14th Dist.] 2002, pet. ref'd) (citing courts have traditionally heard evidence and found

Montgomery v. State, 810 S.W.3d 372, 391 facts without any prescribed burden of proof at

(Tex.Crim.App.1990)). all.”)).

Texas Code of Criminal Procedure article 37.07 provides: We hold that the trial court correctly applied the law

and could have concluded beyond a reasonable

[E]vidence may be offered by the state and the doubt that appellant committed the offenses

defendant as to any matter the court deems contained in the prison disciplinary reports because

relevant to sentencing, including but not it had before it the contents of the records and

limited to the prior criminal record of the AuBuchon's testimony corroborating some of the

defendant, his general reputation, his incidents in the reports confirming appellant was not

character, an opinion regarding his character, a model prisoner early in his term. See Coonradt,

the circumstances of the offense for which he 846 S.W.2d at 876. Additionally, error in the

is being tried, and, notwithstanding Rules 404 admission of the prison disciplinary reports would be

and 405, Texas Rules of Evidence, any other harmless for the reasons set forth in Section B. See

evidence of an extraneous crime or bad act Martinez v. State, 313 S.W.3d 358, 369

that is shown beyond a reasonable doubt by (Tex.App.—San Antonio 2009, pet. ref d)

evidence to have been committed by the (concluding that the omission of a reasonable-doubt

defendant or for which he could be held instruction in a jury charge regarding unadjudicated

criminally responsible. offenses was not harmful error when the entirety of

the evidence is reviewed).

Tex.Code Crim. Proc. Ann. art. 37.07, § 3(a) (West,

Westlaw through 2015 R.S.). B. Contention Regarding Confrontation Clause

*3 In another portion of his first issue, appellant

During the punishment phase, extraneous-offense contends that the disciplinary reports contain

evidence may be offered for any relevant purpose testimonial statements and thus their admission

where the “State can offer proof that would allow a violated his Sixth Amendment right to confront

reasonable fact-finder to conclude, beyond a witnesses. See U.S. Const. art. VI. The

reasonable doubt, that the defendant could be held Confrontation Clause of the Sixth Amendment bars

criminally responsible for that act.” Delgado v. the admission of a non-testifying witness's

State, 235 S.W.3d 244, 252 (Tex.Crim.App.2007); testimonial statements, unless the witness is

Fields v. State, 1 S.W.3d 687, 688 unavailable and the defendant had a prior

(Tex.Crim.App.1999) (requiring the fact-finder may opportunity to cross-examine the witness. See Smith

not consider extraneous-offense evidence unless it is v. State, 420 S.W.3d 207, 223 (Tex.App.—Houston

satisfied beyond a reasonable doubt that the prior [1st Dist.] 2013, pet. ref'd) (citing Crawford v.

acts are “attributable to the defendant.”) Washington, 541 U.S. 36, 59 (2004)). A statement is

generally considered “testimonial” if it is a solemn

declaration made for the purpose of establishing

The fact-finder in this case was the trial court. To some fact. Id. (citing Crawford, 541 U.S. at 51). We

admit the extraneous-offense evidence, the trial court review de novo a determination of whether a

must believe beyond a reasonable doubt that the statement is testimonial because such a legal ruling

appellant “could be held criminally responsible” for is determined by the standard of an objectively

the offenses contained in the prison disciplinary reasonable declarant standing in the shoes of the

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Van-Cleave v. State, Not Reported in S.W.3d (2015)

actual declarant. See Lilly v. Virginia, 527 U.S. 116, defendant's violation of jail rules, cell transfers, and

137 (1999); Wall v. State, 184 S.W.3d 730, 742–43 fighting, is not inadmissible hearsay; rather, the jail

(Tex.Crim.App.2006). records qualify as records made in the regular course

of business.” Jackson v. State, 822 S.W.2d 18,

30–31 (Tex.Crim.App.1990) (en banc); see Tex.R.

The disciplinary records contain the following Evid. 803(6). Evidence that falls within a firmly

descriptions of offenses: rooted exception to the hearsay rule does not violate

the Confrontation Clause, and the business-records

On the date and time listed above, and at 12 Bldg. B exception provides such a foundation. See Russeau

Pod 63 Cell, [appellant] did assault [another inmate] v. State, 171 S.W.3d 871, 880

without a weapon, by spitting on him. Moreover, the (Tex.Crim.App.2005). However, the disciplinary

assault did not result in any injuries. reports should not contain testimonial statements,

unless the strictures of the Confrontation Clause

On the date and time listed above, and at Z-wing have been satisfied.Id. at 881. Otherwise, such

l-row, [appellant] did expose his penis to [Officer] testimonial statements amount to the very type of

with intent to arouse the sexual desire of himself. evidence the Confrontation Clause intended to

prohibit: “unsworn, ex parte affidavits of

government employees.” Id. The Russeau court

On the date and time listed above, and at cell Z–122, ruled that the trial court erred in admitting the

[appellant] did intentionally damage the food slot defendant's disciplinary records containing

door on his cell front door, by banging the door inadmissible testimonial statements because the

numerous times until it broke off the hinges said Confrontation Clause's requirements had not been

property belonging to [The State]. met. Id. at 880. In Russeau, the defendant's

disciplinary offenses included “threatening physical

harm and even death to others, refusing to work or

On the date and time above, and at H–119, cooperate, breaking out of his cell at night, exposing

[appellant] did possess contraband, namely 2 pair of himself and masturbating in front of jailers and other

shorts, which is in excess of the amount authorized, inmates, verbally abusing jailers and other inmates,

such amount being 1 pair of shorts. fighting with other inmates, and possessing

contraband, including improvised weapons.” Id. In

concluding that the disciplinary report contained

On the date and time above, and at cell M–210, inadmissible testimonial hearsay, the Russeau court

[appellant] did possess a weapon intended to be used found particularly persuasive “the detailed and

to injure another person, namely two 6 inch graphic” nature of the report that recounted

toothbrush handles with razor blades melted into the appellant's numerous offenses. Id.

end.

*4 In contrast, our court's review of a similar

On the date and time above, and at bldg hallway, situation involving testimonial hearsay and prison

[appellant] did engage in a fight without a weapon disciplinary records found that a sterile recitation of

with [another inmate]. [Appellant] was ordered by the defendant's offenses and the punishments

[Officer] to stop fighting and face the wall and received contained no testimonial content and thus

[appellant] failed to obey the order. did not violate the Confrontation Clause. See Ford v.

State, 179 S.W.3d 203, 209 (Tex.App.—Houston

[14th Dist.] 2005, pet. ref'd). The accounts

On the date and time above, and at a-turnout door, considered in Ford were the following:

[appellant] refused to turn out for his work

assignment without a legitimate reason. February 5th, 2004, the defendant was charged

fighting. Seven days loss of privileges, found

guilty, October 15, 2003, extortion. June the

11th, 2003, extortion, ten days loss of

The Court of Criminal Appeals has held that a privileges. April the 21st, 2003, assault on an

defendant's jail records, introduced at the inmate. April 21st, 2003, horseplaying,

punishment phase of trial, “chronicling the altercation, five days' loss of privileges.

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Van-Cleave v. State, Not Reported in S.W.3d (2015)

February the 24th, 1998, 25 days loss of Court of Appeals has held the following language

privileges for fighting. February the 18th, went beyond “boilerplate” language and contained

1998, fighting. February the 18th, 1998, subjective observations from non-testifying

fighting. And again February the 18th, 1998, witnesses:

fighting.

...was disrupting in Ms. Richmond's class. He

Id. at 208. was sent out to security. Youth refused to go.

Student was counseled by staff and refused to

comply. Mr. Henderson tried counseling with

In a subsequent case, our court contrasted Ford with ... [Youth]. He refused all counseling. Youth

Russeau to further delineate between testimonial and then moved away from staff trying to run. I

non-testimonial statements. See Grant v. State, 218 grabbed ... [Youth] to place him in a standing

S.W.3d 225, 231 (Tex.App.—Houston [14th Dist.] PRT .... balled his fists up and swung at staff.

2007, pet. ref'd). Relying on Ford, our court Mr. Henderson took ... [Youth] and placed

explained that the “presence or absence of a him into a part. At this time Mr. Spearman ...

subjective narration of events related to [the came to assist. I then went down and secured

defendant's] guilt or innocence” establishes the his legs.

difference between testimonial and non-testimonial

statements: *5 Smith, 420 S.W.3d at 225.

[I]n Ford, we conceptualized the difference ...

as dependent in part on the extent to which the While some of the incident reports in the present

statements are a sterile recitation of facts or a case align closely with Ford 's sterile model, we

subjective narration of events related to conclude that three reports include testimonial

appellant's guilt or innocence. In Ford, the descriptive phrases and brief narrative accounts

statements in the disciplinary reports were resembling those found in Smith. See id.

objective statements that particular Specifically, the three disciplinary reports we

punishments were assessed for the identified conclude were testimonial in nature are the following

disciplinary infractions by the appellant; they descriptions: (1) fighting with another inmate enters

were not narratives by witnesses against the into a narrative track when it states that “[appellant]

appellant relating to his guilt or innocence of was ordered by Lt. T. Brown to stop fighting and

the infractions described. Consequently, the face the wall” and included that “said inmate failed

statements were nontestimonial. In contrast, to obey the order”; (2) appellant's exposure of

the statements in Russeau contained subjective himself adds that the act was committed “with intent

narrations of the very actions by the appellant to arouse the sexual desire of himself”; and (3)

that constituted the offenses for which he is possession of weapons describes them as “two 6

punished. Thus, the presence of a subjective inch toothbrush handles with razor blades melted

narration of events related to the appellant's into the end” which were “intended to be used to

guilt or innocence is a significant difference injure another.” We conclude the reports contain

between the statements at issue in Russeau and testimonial statements regarding appellant's conduct.

Ford. See Smith, 297 S.W.3d at 276–77.

Id.

The extraneous phrases in the written observations

The Court of Criminal Appeals has adopted this that make it more probable that the appellant was

rationale for delineation of testimonial versus guilty of the offense charged are testimonial in

non-testimonial nature of records in similar nature. See id. We determine that the detail used to

circumstances. See Smith v. State, 297 S.W.3d 260, describe appellant's guilt of the extraneous offenses

277 (Tex.Crim.App.2009). The Smith court held that is testimonial hearsay and is inadmissible without

“boilerplate” language which does not contain any appellant's prior opportunity to cross-examine the

such testimonial statements, narratives of specific pertinent witness or a showing that the witness was

events, or written observations is admissible. Id. at unavailable. See id. Thus, we hold that the trial court

276; see also Segundo v. State, 270 S.W.3d. 79, erred in admitting three of appellant's disciplinary

108–07 (Tex.Crim.App.2009). Likewise, the First reports which included testimonial hearsay.

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Van-Cleave v. State, Not Reported in S.W.3d (2015)

complainant if she was injured, and he appeared to

have a nice demeanor until he saw that she was on

Having found constitutional error as to the three the phone. Complainant exited her car to obtain

offenses described, we “must reverse [the] appellant's license plate number. Appellant put both

punishment unless [we] determine beyond a hands around the complainant's neck and tried to

reasonable doubt that the error did not contribute to strangle her. Complainant was unable to breathe for

the ... punishment.” Tex.R.App. P. 44.2(a); see also a short time and lost consciousness after being

Smith, 297 S.W.3d at 277 (citing Chapman v. thrown to the ground.

California, 386 U.S. 18, 24 (1967)). We hold that

beyond a reasonable doubt the admission of *6 Complainant regained consciousness on the

appellant's disciplinary records did not contribute to floorboard of appellant's truck; appellant told her she

his punishment. was not “going anywhere, bitch.” Complainant

attempted to grab the steering wheel in an attempt to

The State did not reference appellant's prison have appellant stop the vehicle enough that she

disciplinary infractions during its closing argument. could exit it as she opened the door. Appellant

Rather, the State emphasized the callous nature of pushed her away, reaching over with his left hand to

the present offense, noting that appellant reoffended close the door. Complainant grabbed hold of his

after only seven months' parole and within hours of hand and bit off part of his “pinkie” finger, spitting

receiving a five-hour pass from the halfway house in it on the floorboard of the truck.

which he was living.

When complainant's husband arrived at the scene, he

Furthermore, the trial court made no reference to noticed his wife's car being driven by one male, and

appellant's prison conduct in pronouncing his he found that suspicious. Complainant's husband was

sentence. The records were admitted at the close of in a Houston Police Department patrol car. He

evidence, and the trial court then stated it would turned on his lights and siren attempting to stop

review the records during a brief recess. When appellant's truck. Appellant rammed the police

announcing appellant's sentence, the trial court made vehicle and would not stop. Complainant then rolled

no mention of the prison disciplinary reports. The out of the truck. Appellant circled back and

trial court expressed only that “at the end of the day, deliberately ran over her leg. Complainant's

though, the Court cannot ignore the extreme violence husband's patrol car collided with the truck, causing

and your criminal background,” and it took into it to stop after appellant tried to ram the patrol car a

account appellant's plea of true on the enhancement third time. Complainant's husband exited his patrol

paragraph and found it to be true. car and ordered appellant to show his hands, at

which time appellant abandoned his truck and ran for

The record supports that the trial court would have cover. He was apprehended the following day after

assessed a life sentence irrespective of the attempting to avoid a police search.

disciplinary infractions, based on the extremely

violent facts of the present offense, committed while In light of the evidence of appellant's criminal

appellant was on parole for sexual assault. After background, to which he pleaded “true,” the facts of

seven months' parole for sexual assault and within the present offense, and the trial court's comments,

hours of getting his first five-hour pass from the we conclude beyond a reasonable doubt that the trial

halfway house in which he was living, appellant court's admission of the disciplinary records did not

drove to Galveston in a truck he had just received contribute to appellant's punishment. See

from his father. Appellant met various women and Tex.R.App. P. 44.2(a); Smith, 297 S.W.3d at 277.

went to multiple bars while in Galveston. After We overrule appellant's first issue.

leaving Galveston around midnight, appellant

noticed complainant, who was driving alone in her C. Contention Regarding Defective Notice

car. Appellant decided to rob her, take her car, and, In his second issue, appellant contends that the trial

perhaps, “get some pussy, too.” Appellant followed court erred in admitting the disciplinary records

the complainant on the highway and caused an because the State failed to provide proper notice of

automobile accident between his truck and its intent to use extraneous offense. Appellant asserts

complainant's car. Complainant called her husband, the State's notice reflected that every prison

a police officer, who instructed her to take note of disciplinary offense occurred in Walker County, a

the truck's license plate number. Appellant asked county in which appellant argues he was never

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Van-Cleave v. State, Not Reported in S.W.3d (2015)

incarcerated. Although appellant lists this assertion

as an issue at the outset of his brief, he cites no

authority or record references to support this

assertion. An appellant's brief must contain

“argument for the contentions made, with

appropriate citations to authorities and to the

record.” Tex.R.App. P. 38.1(i). Failure to properly

brief an issue presents nothing for us to review; we

are not required to make appellant's arguments for

him. See Lucio v. State, 351 S.W.3d 878, 896

(Tex.Crim.App.2011) (citing Busby v. State, 253

S.W.3d 661, 673 (Tex.Crim.App.2008) ).

Accordingly, we overrule appellant's second issue.

We affirm the trial court's judgment.

All Citations

Not Reported in S.W.3d, 2015 WL 5092620

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