Petition for Writ of Certiorari — Justin D. Bennett, Petitioner v. Texas

Supreme Court, U.S.

FILED

IN THE

SUPREME COURT OF THE UNITED STATES

JUL -5 2022

OFFICE OF THE CLERK

JUSTIN D. BENNETT

— PETITIONER

(Your Name)

vs.

ELEVENTH COURT OF APPEALS

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

TEXAS COURT OF CRIMINAL APPEALS

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

JUSTIN D. BENNETT

(Your Name)

FRENCH ROBERTSON UNIT, 12071 FM 3522

(Address)

ABILENE, TEXAS 79601

(City, State, Zip Code)

325-548-9035

(Phone Number)

QUESTION(S) PRESENTED

1. Wheather the due process standard recognized in Jackson v.

Virginia, 443 U.S. 307 (1979) constitutionally protects an

accused against out-of-court statements in violation of the

Confrontation Clause during a sufficiency of evidence review?

I.

LIST OF PARTIES

[ ] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

• The State of Texas vs. Justin D. Bennett, Trial Court No.7234

42nd District Court, Callahan County, Texas. Judgment entered

July 13, 2018.

• Ex Parte Justin D. Bennett, WR-9-, 192-01, Texas Court of Criminal Appeals. Judgment entered September 11 2019.

• Justin D. Bennett vs. The State of Texas No.11-19-00310-CR,

Eleventh Court of Appeals of Texas. Judgment entered Septem­

ber 23, 2021.

• Justin D. Bennett vs. The State of Texas PD-0814-21, Texas

Court of Criminal Appeals. Judgment entered December 8, 2021.

• Justin D. Bennett vs. The State of Texas Motion for Rehearing

Tr.Ct No.7234, 11-19-00310-CR, PD-0814-21, Texas Court of

Criminal Appeals. Judgment entered January 26, 2022.

II.

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

1A

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

2

STATEMENT OF THE CASE

3

REASONS FOR GRANTING THE WRIT

17

CONCLUSION

18

INDEX TO APPENDICES

APPENDIX A Texas Court of Appeals Opinion

APPENDIX B Texas Court of Criminal Appeals (Denial of PDR)

APPENDIX C Texas Court of Criminal Appeals (Denial of Rehearing)

APPENDIX D

APPENDIX E

APPENDIX F

III.

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

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

8,9,16,17,19,20

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

............ 8,9,10,13

Williams v. Illinois, 567 U.S. 50..................

9

Taylor v. Cain, 545 F.3d 327(5th Cir. 2008).......... 9,10,11,12,13,14

United States v. Duron-Caldera, 737 F.3d 988(5th Cir. 2013)....10

Davis v. Washington, 547 U.S. 813(2006)..............

10,12,16

. . .11,14

Favre v. Henderson, 464 F.2d 359(5th Cir. 1972)

United States v. Johnston,-127 F.3d 380(5th Cir. 1997)...11,14,15

Gegftideg v.: Johnson, 118 F.3d 440(5th Cir. 1997)..............

11

United States v. Smith 822 F.3d 755(5th Cir. 2016............

13

Castro-Fonseca, 423 Fed. Appx 351, 2011 WL 1549213..........

14

United States v. Carillo, 20 F.3d 617(5th Cir. 1994)....

14

United States v. Evans, 950 F.2d 187(5th Cir. 1991).........

14

14

United States v. Hernandez,750 F.2d 1256(5th Cir. 1985)

United States v. Gomez, 529 F.2d 412(5th Cir. 1976).........

14

United States v. Silva, 380 F.3d 1018(7th Cir. 2004)....

14

Ocampo v. Vail, 649 F.3d 1098(9th Cir. 2011........................

16

United States v. Polidore, 690 F.3d 705(5th Cir. 2012)..

17

United States v. El-Mezain, 664 F.3d 467(5th Cir. 2011).

17

STATUTES AND RULES

Texas Penal Code § 19.02(b)(2) (West 2019)..........................

5

Texas Code of Criminal Procedure Annotated Article 38.14

8

Texas Rules of Evidence 804(a)..........

16

Sixth Amendment Confrontation Clause

8,11,13,16,19

OTHER

McCormick on Evidence § 249 (7th ed. 2013)

IV.

14

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

to

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

to

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[/f For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix _>B...- to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

Wf is unpublished.

The opinion of the Texas.Court of Appeals

appears at Appendix A ,, to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[yf*is unpublished.

1.

court

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was______________________

[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:____________

, and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including______

(date) on

(date)

in Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix R

12-8-2021

[ ] A timely petition for rehearing was thereafter denied on the following date:

1-26-2022

__ , and a copy of the order denying rehearing

appears at Appendix 0

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date) on

to and including____

(date) in

Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

1A

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution Fourteenth Amendment Due Process Clause:

The Due Process Clause of the Fourteenth Amendment protects a def­

endant in a criminal case against conviction "except upon proof

beyond a reasonable doubt of every fact necessary to constitute

the crime with which he is charged."

United States Constitution Sixth Amendment Confrontation Clause:

The Sixth Amendment’s Confrontation Clause provides that "[i]n

all criminal prosecutions

the accused shall enjoy the right ...

to be confronted with the witnesses against him?

2.

STATEMENT OF THE CASE

A Callahan County grand jury indicted petitioner for the

offense of murder. The indictment alleged that petitioner in­

tentionally and knowingly caused the death of Meagan Dearman

by strangling her with his hands

arms

a rope or string on or

about January 18, 2017. See TEX. PENAL CODE § 19.02(b)(2)(West

2019).

Trial testimony showed that petitioner and Dearman had a

troubled dating relationship prior to the day Dearman went

missing on January 17, 2017. (4 RR 185) After friends and rela­

tives had not heard from her several days after January 17, 2017,

they contacted Abilene police who issued a missing person's re­

port. (2 RR 104-108, 119-120) On January 27, 2017, Dearman's

body was found near T&P Lake in Callahan County outside Baird,

she had been strangled and a ligature was still bound tightly

around her neck. (2 RR 27) Authorities soon focused their atten­

tion on petitioner and he was subsequently arrested at a home in

Merkel. (2 RR 51, 84).

At trial

John Ford, an inmate awaiting transport to prison

on unrelated charges, testified that he lived in Abilene with

his brother Robert when Dearman went missing. Petitioner, he

said came to see him at a house on Graham Street in Abilene where

his brother lived and that Bennett was driving Herod's white

Buick Rendezvous and that petitioner told him that he needed

to burn something. (2 RR 14).

Abilene Police Detective John Merrick testified that he

3.

found burned clothes in the backyard of a house at 918 Graham

Street in Abilene and that the clothes were sent for testing

in Fort Worth. (2 RR 94-96) Diane Arndt, a foresic special

agent with the Abilene Police Department testified that she

found blood (later linked to the victim) in Jennifer Herod*s

white Buick Rendezvous on the back driver side seat as well as

in the back-hatch luggage area. (2 RR 118-128) Arndt, also

testified about the other evidentiary items gathered during

the investigation agreeing with defense counsel that petitioner's

shoes that was found and collected did not appear to have been

"tramping around in wet mud" near the T&P Lake where Dearman's

body was discovered and that she could not identify any tire

tread marks found near Dearman's body as matching those of Herod's

car tires. (3 RR 150, 156).

Wendell Cosenza, a special agent with the FBI, testified

that he took a look at all the cell phone records to determine

the general locations of petitioner's, Herod’s and Dearman's

cell phones and he stated that Dearman's cell phone never left

the Abilene area from January 17 to January 26, 2017. (4 RR 38,

51, 54-55) He also testified that Herod's and petitioner's cell

phones was used in a general area but that he could not put any

cell phone at a specific location at a specific time. ($ RR 6168).

Paul Martinez, an Abilene Police Detective testified that

during the search for Dearman, police focused on Jennifer Herod

as an accomplice and upon searching her vehicle discovered the

4.

presence of Dearman's DNA. (4 RR 87). The Police Department em­

ployed a digital expert to hack the cellphone of petitioner to

retrieve petitioner's text message history which revealed a

troubled relationship between petitioner and Dearman. Petitioner

was breaking up with Dearman and replacing her with Herod. (4 RR

185). Finally, without objection from defense counsel, Detective

Martinez provided the State's theory of how Dearman met her fate

by testifying that Herod had given a statement on how Dearman met

her death at the hands of petitioner. Detective Martinez narrated

Herod's entire statement and also opined that Herod was at least

an accomplice to Dearman's murder if not an active participant.

(4 RR 121). Detective Martinez admitted that neither petitioner

or Herod's DNA was found on Dearman's body.

Jennifer Herod did not testify at petitioner's trial and

was not therefore subject to cross-examination concerning the

the statement's to Detective Martinez which inculpated petitioner

in the murder of Dearman.

Heather Kramer

a forensic biologist with the Tarrant County

Medical Examiner's Office testified that she conducted DNA tests

on various items submitted by the Abilene Police Department and

her findings yielded no links to petitioner or Herod. (5 RR 11-28).

The jury returned a guilty verdict against petitioner. The

jury assessed punishment, and the trial court sentenced petitioner

to seventy years' confinement in the Institutional Division of

the Texas Department of Criminal Justice with a $10,000 fine.

(6 RR 36).

5.

Petitioner contends that the Eleventh Court of Appeals mis­

applied the sufficiency of evidence standard of review set forth

in Jackson v. Virginia, 443 U.S. 307 (1979) by the inclusion of

a non testifying accomplice witness out-of-court statements used

at trial in it's analysis.

In doing so, the Court erroneously concluded that uncorro­

borated accomplice witness testimony can be sufficient to support

petitioner's conviction for murder, based on it's use of the cri­

teria to consider all evidence, even improperly admitted evidence

when conducting a sufficiency review. The Court's decision is in

conflict with established Federal and State law requirements set

forth by the United States Constitution Sixth Amendment Clause

and the Texas Code of Criminal Procedure Annotated Article 38.14.

The Eleventh Court of Appeals assumed that the fact finders

were able to find the essential elements of the offense beyond a

reasonable doubt based on Jennifer Herod's out-of-court state­

ments to Detective Martinez who introduced the statements in vio­

lation of the Sixth Amendment Confrontation Clause and hearsay

rules. (4 RR 121-125, 138-139)(See Exhibit A_ pp. 9

).

The Confrontation Clause of the Sixth Amendment provides that

"[i]n all criminal prosecutions the accused shall enjoy the right

...to be confronted with the witnesses against him." U.S. Const.

Amend VI. The Confrontation Clause bars admission of "testimonial

statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had a prior opportunity

for cross-examination." Crawford v. Washington, 541 UU.S. 36, 5354

124 S.Ct. 1354, 158 L.Ed 2d 177 (2004). The Supreme Court

6.

has defined "testimony" as "[a] solemn declaration or affirmation

made for the purposes of establishing or proving some fact." Id.

at 51 (alteration in original)(citation omitted). But "the Con­

frontation Clause ’does not bar the use of testimonial statements

for purposes other than establishing the truth of a matter assert­

ed." Williams v. Illinois

567 U.S. 50, 132 S.Ct. 2221, 2235, 183

L. Ed 2d 89 (quoting Crawford, 541 U.S. at 59-60 n.9). "Police

officers cannot, through their trial testimony, refer to the sub­

stance of statements given to them by nontestifying witnesses in

the course of their investigation, when those statements incul­

pate the defendant. When the statement from an out-of-court wit­

ness is offered for its truth, constitutional error can arise."

Taylor v. Cain, 545 F.3d 327, 335 (5th Cir. 2008).

The Court did not consider in it's analysis wheather the intro­

duction of Herod's out-of-court statements made to Detective Mar­

tinez violated petitioner's Sixth Amendment rights to the Confron­

tation Clause and wheather the standard of review set forth in

Jackson v. Virginia would apply to improperly admitted evidence

that violated a defendant's constitutional rights. (SeeD Exhibit A

pp.

9). The Court's acknowledgement of Herod's accomplice wit­

ness status and the standard of review accordingly to Jackson v.

Virginia.

Petitioner contends that the Eleventh Court of Appeals

failed to examine three issues concerning the admission of the

accomplice witness out-of-court statement, first, whether the

questioning, combined with Detective Martinez testimony, intro

duced a testimonial statement, second

7.

whether the statement was

offered for its truth, i.e., to show petitioner's guilt; and

third, whether Herod was unavailable to testify and petitioner

had a prior opportunity to cross-examine her.

Petitioner contends that the Eleventh Court of Appeals did

not include in it's analysis whether the court admitted the test­

imonial statement of a witness who did not appear at trial. Craw­

ford, 541 U.S. at 53-54. ”[A] statement is testimonial if its

primary purpose...is to establish or prove past events potenti­

ally relevant to later prosecution." Duron-Caldera, 737 F.3d at

992-93 (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct.

2266, 165 L. Ed 2d 224 (2006)).Herod's statements made to Detect­

ive Martinez while under interrogation by law enforcement are unquestionally testimonial hearsay. See Crawford, 541 U.S. at 53

(classifying "interrogations by law enforcement" as testimonial

hearsay). In Crawford, the Court explained that "[s]tatements

taken by police officers in the course of interrogations are also

testimonial under even a narrow standard." Crawford, 541 U.S. at

52; see also Taylor, 545 F.3d at 335-36. The ?Court reinforced

this view in Davis where it stated that "[t]he product of [police]

interrogation, whether reduced to a writing signed by the decla­

rant or embedded in the memory...of the interrogating office^, is

testimonial." 547 U.S. at 826.

This Court has recognized that police testimony about the

content of statements given to them by witnesses are testimonial

under Crawford; officers cannot refer to the substance of state-

8.

merits made by a nontestifying witness when they inculpate the

defendant. See Taylor, 545 F.3d at 335; Favre v. Henderson, 464

F.2d 359, 362 (5th Cir. 1972). Where an officer's testimony leads

"to the clear and logical inference that out-of-court declarants

believed and said that [the defendant] was guilty of the crime

charged," Confrontation Clause protections are triggered. Favre,

464 F.2d at 364. In Favre, this Court reasoned that ir[a]lthough

the officer never testified to the exact statements made to him

by the informers

the nature of the statements...was readily in­

ferred." Id. at 362. Officer testimony regarding statements made

by witnesses is thus inadmissible where it allows a jury to reason­

ably infer the defendant's guilt. Similarly, a prosecutor's ques­

tioning may introduce a testimonial statement by a nontestifying

witness, thus implicating the Confrontation Clause. See United

States v. Johnston, 127 F.3d 380, 393-95, (5th Cir. 1997); Favre,

464 F.2d at 364; c'.f. Gochicoa v. Johnson, 118 F.3d 440

445-46

(5th Cir. 1997), cert denied, 522 U.S. 1121, 118 S.Ct. 1063, 140

L. Ed. 2d 124 (1988). This is true where "the jury would reason­

ably infer that information obtained in an out-of-fcourt conver­

sation between a testifying police officer and an informant...

implicated a defendant in narcotics activity." Johnston, 127 F.3d

at 395.

Here, Detective Martinez testimony introduced Herod's outof-court testimonial statements by implication. At trial Detect­

ive Martinez was asked specific questions and the content of

9.

this testimony implicitly revealed Herod's statements. See Tay­

lor, 545 F.3d at 336. Officer testimony that allows a fact-find­

er to infer the statements made to him-even without revealing the

content of those statements-is hearsay if "offered to establish

identification, guilt, or both. " Favre, 464 F.2d at 362. The que­

stions explicitly identified petitioner by name, linking him to

the substance of Herod's interrogation. In fact, the questions

appeared designed to elicit hearsay testimony without directly

introducing Herod's statements. Herod's statements were testimonial

because they were made under interrogation, and the primary pur­

pose of that interrogation was to establish "past events potent­

ially relevant to later criminal prosecution." Davis, 547 U.S. at

822. Herod identified petitioner as the person who murdered Dearman. Although Detective Martinez did not introduce the exact state­

ments made by Herod, the nature was readily inferred.

In this case, Detective Martinez testimony conveyed critical

substance about Herod's statement, inculpating petitioner by name

and implicating that petitioner's guilt in the crime charged. The

content of Herod's statements could be readily inferred from the

questions and Detective Martinez's testimony. Detective Martinez's

testimony revealed the substance of Herod's statements inculpat­

ing petitioner, leading to the clear and logical inference that

Herod believed and said that petitioner had murdered Dearman. Det­

ective Martinez introduced testimonial statement for purposes of

the Confrontational Clause.

10.

The Eleventh Court of Appeals analysis failed to consider

whether Herod's statements introduced at trial through Detective

Martinez's testimony were offered for their truth: to prove pet­

itioner's guilt in the crime charged. The Confrontation Clause

does not apply to out-of-court statements offered into evidence

for a purpose other than establishing the truth of the matter

asserted. See Williams, 132 S.Ct. at 2235; Crawford, 541 U.S. at

59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct.

2078, 85 L.Ed 2d 425 (1985)); Taylor, 545 F.3d at 335.

The substance of Detective Martinez's testimony was that

Herod was a suspect in the murder of Dearman. He opined that Herod

was at least an accomplice to Dearman's murder, if not an aetive

participant. (4 RR 121). In fact, according to what Herod alleged­

ly told Martinez was that she was present when petitioner killed

Dearman in the back seat of her car while they were driving to

Callahan County.

Petitioner contends that Herod's statements were offered

to show petitioner's guilt. Petitioner also contends that a

reasonable jury could only have understood Detective Martinez's

testimony to communicate that Herod identified petitioner as

Dearman's killer.

Testifying officers may provide context for their investi­

gation or explain "background" facts. See United States v. Smith,

822 F.3d 755, 761 (5th Cir. 2016). Such out-of-court statements

are not offered for the truth of the matter asserted therein,

11.

but instead for another purpose: to explain the officer’s act­

ions. See Castro-Fonseca, 423 Fed. Appx. 351, 2011 WL 1549213,

at *2; United States v. Carillo, 20 F.3d 617, 619 (5th Cir. 1994).

These statements often provide necessary context vzhere a defend­

ant challenges the adequacy of an investigation. But absent such

claims, there is a questionable need for presenting out-of-court

statements because the additional context is often unnecessary,

and such statements can be highly prejudicial. See 2 McCormick

on Evidence § 249 (7th ed. 2013)(citation omitted) ("The need

for this evidence is slight, and the likelihood of misuse is

great.") Statements exceeding the limited need to explain an

officer’s action can violate the Sixth Amendment-where a non

testifying witness specifically links a defendant to the crime,

testimony becomes inadmissible hearsay. See Taylor, 545 F.3d at

335; Johnston, 127 F.3d at 394 ("The more directly an out-ofcourt statement implicates the defendant, the greater the danger

of prejudice."); United States v. Evans, 950 F.2d 187, 191 (5th

Cir. 1991); United States v. Hernandez, 750 F.2d 1256, 1257 (5th

Cir. 1985); United States v. Gomez, 529 F.2d 412

416-17 (5th Cir.

1976); see also United States v. Silva, 380 F.3d 1018, 1020 (7th

Cir. 2004). Questions by prosecutors can also trigger Confron­

tation Clause violations. See Johnston, 127 F.3d at 402-03; Favre,

464 F.2d at 362-64; Meises 645 F.3d at 21-23. A prosecutor may

violate the Confrontation Clause by introducing an out-of-court

statement

even indirectly, if offered for its truth by suggest-

12.

ing a defendant’s guilt. See Johnston, 127 F.3d at 394-95. In

Hernandez, 750 F.2d at 1257-58.

In this case, the questions posed to Detective Martinez and

Detective Martinez subsequent testimony exceeded the scope re­

quired to explain Detective Martinez actions. Detective Martinez

testimony left the jury with the impression that Herod's statements were instrumental in obtaining a murder warrant for petit­

ioner. While Detective Martinez no doubt observed this interro­

gation, his observations cannot serve as a justification to cir­

cumvent constitutional protections; testimony introducing outof-court statements by a nontestifying witness can result in a

violation of the Confrontation Clause. Admitting testimony re­

garding Herod's interrogation was not necessary to explain Detec­

tive Martinez's actions; there was minimal need for Detective Mar­

tinez to explain the details forming the basis of the warrant.

Detective Martinez could have merely explained that he obtained a

warrant to apprehend petitioner following Herod's car search.

Detective Martinez's testimony was not limited to merely explain­

ing his actions; it showed that Herod was in the vehicle with

petitioner and Dearman and that petitioner had killed Dearman.

Testimony regarding questions posed to Herod was not necessary.

Other circumstantial evidence and Detective Martinez's observations

would have been sufficient to explain his investigatory actions

and provide background information. Thus, Herod's out-of-court

statements inculpating petitioner were introduced for their truth-

13.

to show petitioner’s guilt in the crime charged.

Even if a testimonial statement is admitted against a def­

endant at a criminal trial, the Sixth Amendment is not violated

if both the declarant is unavailable and the defendant had a

prior opportunity to cross-examine him or her. Crawford, 541 U.S.

at 53-54. Petitioner did not have the opportunity to cross-exam­

ine Herod. Herod's statements were admitted at trial and petit­

ioner questions Herod’s credibility as a witness. Petitioner, fur­

ther contends that it should be incumbent on the defense to pro­

duce witnesses for the State; to suggest otherwise misunderstands

the burden of proof in a criminal case.

The fact that a defendant could call a witness cannot fairly

constitute a prior opportunity to cross-examine that witness. Other­

wise, a prosecutor could introduce hearsay statements by any avail­

able witness merely proposing that the defense could call them in­

stead. Even if petitioner had a prior opportunity to examine Herod,

Herod was not unavailable as defined by the Texas Rules of Evi­

dence. See Texas Rules of Evidence 804(a) (listing criteria for

being unavailable as a witness),

The State did not offer any rea-

son why it did not elect to call Herod as a witness. Finally, a

police officer's testimony is no substitutee for a nontestifying

declarant and does not cure a Sixth Amendment violation. See Davis,

547 U.S. at 826; Ocampo, 649 F,3d at 1113. Petitioner contends that

the State violated his Sixth Amendment right to confront adverse

witnesses at trial was'violated by Detective Martinez's testimony

14

that implicitly introduced HerodTs out-of-court statements.

Petitioner contends that the error in admitting Herodfs

statements in violation of the Confrontation Clause and hearsay

rules was not harmless. Petitioner argues that Herod was an

accomplice witness who did not testify at trial, thus petitioner

was not permitted to cross-examine Herod about her out-of-court

statements, which were critical to the State's case. Petitioner

similarly questions the reliability of Herod's status as a wit­

ness. Petitioner also argues that no other witness in this case

could provide' testimony from personal knowledge placing petit­

ioner at the scene of the crime or as the person who killed Dearman.

Confrontation Clause violations and errors in the admiss­

ion of hearsay evidence are subject to review for harmless error.

Polidore, 690 F.3d at 710; United States v. El-Mezain, 664 F.3d

467, 494 (5th Cir. 2011).

Petitioner asks this Court, whether the due process stan­

dard recognized in Jackson v. Virginia, 443 U.S. 307 (1979) constitutionally protects an accused against out-of-court statements

in violation of the Confrontation Clause and hearsay rules dur­

ing a sufficiency of the evidence review.

Jackson v. Virginia

addresses a challenge to the suffi-

ciency of evidence by a reviewing court to review the evidence

in the light most favorable to the verdict and determine whether

any rational trier of fact could have found the essential elements

15.

of the offense beyond a reasonable doubt.

Petitioner asks this Court to find that Herod's out-of-court

statements introduced by Detective Martinez were in violation of

the Sixth Amendment Confrontation Clause and hearsay rules. Petit­

ioner also asks this Court to determine the correct standard of

review for the Court to apply, to this case.

16.

REASONS FOR GRANTING THE PETITION

Petitioner urges this Court to grant review on his con­

stitutional claims based squarely upon the sufficiency of the

evidence under the standard of review set forth in Jackson v.

Virginia, 443 U.S. 307 (1979) and the Confrontation Clause

analysis set forth in Crawford v. Washington, 541 U.S. 36 (2004),

in that the Eleventh Court of Appeals and the Texas Court of Crimi­

nal Appeals were in error in not recognizing that the questions

to be decided in this case is whether the introduction of Herod's

out-of-court statements through the questioning of Detective Mar­

tinez admitted testimonial hearsay in violation of the Confront­

ation Clause and whther any, rational fact finder could have coneluded beyond a reasonable doubt that the killing for which pet­

itioner was convicted of was based upon sufficient evidence ab­

sent the uncorroborated testimony of the accomplice witness Herod

who did not testify in petitioner's trial who's testimony was in­

troduced in violation of the Sixth Amendment Confrontation Clause

and hearsay rules and whether the constitutional violation could

be considered to assist the fact finder during a sufficiency of

the evidence challenge or what standard to apply to the review.

Petitioner urges this Court to grant review based on this con­

flict between the misapplication of the Eleventh Court of Appeals

sufficiency of the evidence standard in Jackson v. Virginia and

it's decision which strays from the original meaning of the

whether there was sufficient evidence to justify a rational

17.

trier of the facts to find guilt beyond a reasonable doubt and

Petitioner's Sixth Amendment Confrontation Clause right to be

confronted with the witnesses against him, under Crawford v.

Washington.

CONCLUSION

Fore the foregoing reasons, Petitioner requests the Court to find

the Court admitted testimonial hearsay in violation of the Con­

frontation Clause and that the Eleventh Court of Appeals misapplied

the Jackson v. Virginia, standard of review to petitioner’s case.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date:

£ - ft -IX

18.