Petition — Cervantes v. Texas

Ofce- Supreme Cour, ‘LS.

FILED

8 2 | JUL 20 wee

i 15 ALEXANDER L. STEVaS,

Loewen |

No.

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1981

RAMON CERVANTES,

Petitioner

VS.

THE STATE OF TEXAS,

Respondent

On Writ of Certiorari to the

Texas Court of Criminal Appeals

PETITION FOR WRIT OF CERTIORARI

FRANCIS JAMES MALONEY, JR.

505 West 12th Street

Austin, Texas 78701

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

I. WHAT LIMITATIONS ON THE RIGHT OF

CROSS EXAMINATION, IF ANY, ARE PERMIT—

TED UNDER THE COURT’S OPINION IN Davis

v. — 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347

(1974)

Il. DOES THE FAILURE OF THE COURT BELOW

TO CONSIDER PETITIONER’S ARGUMENT ON

APPEAL DEPRIVE HIM OF DUE PROCESS OF

LAW OR EFFECTIVE ASSISTANCE OF

COUNSEL?

Page

Questions Presented for Review .................... i

a sn. ss ckccececteesesseas ii

I tis ons was od Ge pesenhddeenee iii

ND on Seed oe ve cc baie ahbcsaccucens 1

SIRENS S25 REE SSS SSPE Be Re 1

Constitutional Provisions and Statutes

ee, cece cedens 2

Statement of the Case ............ 6.6.5. cc cee ceecees 2

Reasons for Granting the Writ

I. The Limitations Imposed by the Trial Court on

II.

HOOD >

TABLE OF CONTENTS

the Cross Examination of the State’s Principal

Witness Violated the Constitutional Strictures

Oe nn Oh a vee encoe

The Failure of the Corrt Below to Consider

Petitioner’s Argument on Appeal Deprived Him

of Due Process of Law and Effective Assistance

SG cu onc ca bab cs cue sep ahs hehe Cacwons

LIST OF AUTHORITIES CITED

CASES:

Ahearn v. State, 588 S.W.2d 327

Mi eine yo. Ue ke bat eSoudeetheeus ce 11

Anders v. California, 386 U.S. 738

SC utUirni sok Gio t ba eecueant is cls Teub es 12

Brookhart v. Janis, 384 U.S.129 ........... 7

Carillo v. State, 591 S.W.2d 876

Se CR ED Cc sccccdudanecesaces 5, 8, 10

Castle v. United States, 399 F.2d 642

I ae cee di ce deck) cued b0ce 12

Chavis v. North Carolina, 637 F.2d 213

ee ck tubcoebabenesse 6,9

Chipman v. Mercer, 628 F.2d 528

I I a, koe a cae bekewtcaee 8

Davis v. Alaska, 415 U.S. 308 .............. 4, 5, 7,

8, 9,1

Douglas v. California, 372 U.S. 353

ECG) 6 oA ae vCCERoabdb dbs wie son sddee 12

Eaton v. City of Tulsa, 415 U.S. 697

et Ee ash aman e 12

Griffin v. Illinois, 351 U.S. 12,

DEANE Get inededta S2échusese bbendyes 12

Hawkins v. State, 613 S.W.2d 720

uk OR et Ciel ades bebe 11

Hovey v. Elliot, 167 U.S. 409 (1897) ......... 13

Macon v. Lash, 458 F.2d 942 (7th Cir.

BRR aed eR RR oR 12

Plair v. State, 276 S.W. 267

Re a PORE ond. ccd nwbcececcece 11

Randle v. State, 565 S.W.2d 927

Gs SI AED, Widiweccicuvctscvcvcces 4

Ruetz v. Lash, 500 F.2d 1225

NE AEC ins can vadivackeeser 12

Simmons v. State, 548 S.W.2d 386

CO MO BOS Te N eel ds we cccccnece

Skinner v. Cardwell, 564 F.2d 1381

(9th Cir. 1977) (dictum), cert. denied,

435 U.S. 1009 (1978) .............- ccc eeees

Smith v. Illinois, 390 U.S. 129 (1968) .......

United States v. Alvarez-Lopez, 559 F.2d

RPE UTR Medeinevedvcckéececces

United States v. Brown, 546

F.2d 166, 172 (5th Cir. 1977) ..............

United States v. Croucher, 532 F.2d 1042,

I SUE Ss ccs is SV ck C bbls bccveecses

(5th Cir. 1978) .............. AGES a

United States v. Duhart, 511 F.2d 7

(6th Cir. 1975) cert. dism’d, 421

CEN OU CRUTED Ma civcvdipeedenee ccccaccees

United States v. Gambler, 662 F.2d 834

SE GE UU Davdesedeyvounscebeocceses

United States v. Hall, 653 F.2d 1002

SUR EMA PEED. GS vhenbe sacs Sune vecgecccce

United States v. Hawkins, 661 F.2d 436,

I a er ened

United States v. Jorgenson, 451 F.2d 516

(10th Cir. 1971) cert denied, 443 U.S.

CP Gee ie CEE, Cod oe wee

United States v. Morris, 485 F.2d 1385

GR BPE. neon chepibanececcsicccccns

United States v. Price, 577 F.2d 1356

(9th Cir. 1978) cert. denied 444 U.S.

PEED 6 encadbeteeeyetsdercconcesececs

United States v. Uramoto, 638 F.2d 84

MI I aa cs canis iuntaoess oe

United States v. Williams, 668 F.2d 1064

CS re ee

Vernon’s Texas Code Annotated,

RS Oe Cian cad Os 08'S ehaeoe eb set’s

SMI | Cube Nis Gemesesasebes thane

Vernon’s Texas Constitution (1955),

CE . vec s cade cheated souavavkes

RAMON CERVANTES,

Petitioner

Vs.

THE STATE OF TEXAS

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

Ramon Cervantes prays that a writ of certiorari issue to

OPINION BELOW

The Texas Court of Criminal Appeals is the highest

court in Texas for criminal cases. It affirmed Petitioner's

Appeals agreed to stay the issuance of its mandate for 30

days to give Petitioner time to file the Petition for Writ of

certiorari. Further stays will be sought from the court

has 60 days (until July 26, 1982) in which to file this

Petition. Jurisdiction of this Court to review a decision of

the highest court of a state lies under Title 28 U.S.C. Sec.

1257(3).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

1. The Fifth Amendment, United States Constitution:

No person shall . i eens ce ae oa OO

property without due process of law . .

2. The Sixth Amendment, United States Constitution:

In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses

against him.

3. The Fourteenth Amendment, United States Constitu-

tion:

... No State shall ma ke or enforce any law which shall

STATEMENT OF THE CASE

subsequent conversations with Petitioner were tape-

recorded.

There followed approximately seven telephone

conversations between Petitioner and Moore over the

next 18 days, almost all of which were initiated by Moore.

Petitioner added that he first called Moore in

1976, and that he had received several calls from Moore

before October 5, 1976. In the taped conversations,

Petitioner gave a number of excuses or reasons which he

testified he thought would discourage Moore's

enthusiasm for the deal. These included that Petitioner

did not have enough money, that he was considering

another job for the “hitman,”, that he had friends and

relatives in law enforcement, that his phone was tapped,

etc. Some of Moore's calls to Petitioner were threatening,

including one at 2:30 a.m. on the day of the overt act

which the Petitioner paid Moore $200 for the “hit.” The

jury rejected Petitioner's defenses of duress and

entrapment.

After the jury was impanelled and sworn but prior to

the commencement of testimony, Petitioner made a bill of

exceptions on the criminal record of the State's i

witness Michael Moore. The evidence showed that Moore

had been placed on three years’ probation for burglary on

October 3, 1975 and received an early discharge from

probation on February 24, 1977. Moore's probation

records indicated at least four other arrests. They were

marked as Defendant's Exhiibit 1.

Petitioner also tendered certified copies of court records

of two other offenses charged to Moore. Defendant's

Exhibit 2 showed that Moore had been charged on

October 29, 1974 with the offense of unlawfully carrying a

weapon, but that this charge was dropped at the request

of Officer D. L. Burgess of the Dallas Police Department

during the January term of 1975. Defendant's Exhibit 3

revealed that Moore had been charged on September 13,

1976 in County Court with the offense of assault with

On appeal of the resulting conviction to the Texas

Court of Criminal Appeals, Petitioner challenged the trial

court's exclusion of (1) Moore’s arrest on the weapons

charge and the dismissal! thereof; (2) Moore’s arrest on the

assault charge and the dismissal thereof; and (3) the prior

arrests shown by Moore’s probation records. This

challenge was based, in on Davis v. Alaska, 415 US.

motive of the witness for testifying. Randle v. State,

S.W.2d 927 (Tex. Cr. App. 1978). The Court further

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inadmissible before the jury. Carillo v. State,591 S.W.2d

876 (Tex. Cr. App. 1979), distinguishing Simmons v.

State, supra where the defendant had not even been

given the opportunity to make a bill of exceptions.

REASONS FOR GRANTING THE WRIT

lL. THE LIMITATIONS IMPOSED BY THE

TRIAL COURT ON THE CROSS-

EXAMINATION OF THE STATE’S

PRINCIPAL WITNESS VIOLATED THE

CONSTITUTIONAL STRICTURES OF

DAVIS V. ALASKA.

Review of the opinion of the Texas court in this case is

appropriate for reasons embodied in Rules 17.1(b) and (c),

Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105,

39 L.Ed.2d 347 (1974) and many other jurisdictions

Davis v. Alaska, 415 U.S. 308,

2d 347 (1974) establishes the

proposition that a prosecution witness’ status as a

probationer, indictee, or arrestee is admissibie to show his

possible motive for testifying and the refusal to allow a

defendant to probe this area results in an

unconstitutional deniai of the right to cross examination

and due process of law. Various factual similarities bring

the instant case squarely within the holding of Davis v.

2

7)

?)

S

S

™

& 2,

criminal charges which could still be refiled and

prosecuted. United States v. Croucher, 532 F.2d 1042;

1044-46 (5th Cir. 1976); but cf. United States v. Hawkins,

661 F.2d 436, 444 (5th Cir. 1981\charges brought and

v. Hall, 653 F.2d 1002, 1008 (5th Cir. 1981); United States

v. Williams, 668 F.2d 1064, 1070 (9th Cir. 1981).

Harmless Error

Part of the justification for the Texas court's rejection of

ee a oe eee

language from p. & of its opinion:

“The cross-examination of Moore before the

jury revealed that Moore had been in fights,

had put people in the hospital and had

carried a gun on occasion. Moore admitted

that he was on felony probation.....”

Without expressly saying so, the Texas court thus applied

a harmless error rationale, reasoning that the restriction

of Petitioner’s cross-examination of Moore had

no demonstrable prejudice since other sinsister facts

about Mooore were brought to the jury’s attention.

But the Supreme Court stated that a denial of the right

of effective cross-examination

“ ‘would be constitutional error of the first

magnitude and no amount of showing of

want of prejudice would cure it.’ Brookhart

v. Janis, 384 US. 1, 3, 86 S.Ct. 1245, 16

L.Ed.2d 314. Smith v. Illinois, 390 U.S. 129,

131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968).”

Davis v. Alaska, supra at 318. Thus did the Court dispose

of Alaska’s harmless error argument. The above-quoted

sentence from the Davis v. Alaska opinion has given rise

to considerable confusion among the circuits as to the

applicability of the harmless error doctrine.

In United Staes v. Uramoto, 638 F.2d 84 (9th Cir. 1980),

the conviction was reversed because the defendant had

not been permitted to cross-examine the government's

principal witness—a paid informant—concerning

threats the witness might have made to the defendant

and others. As in the case at bar, Uramoto’s defense was

that he acted under duress out of fear of the informant-

witness. The court first noted:

We have repeatedly insisted that wide

latitude be given to defendants in their

cross-examination of key prosecution

witnesses (citations omitted), especially

when the witness is a professional

informant (citations omitted).

Id. at 86. Relying on the sentence from Davis v. Alaska

quoted above, the Ninth Circuit then concluded that the

harmless error doctrine was inappiicable and that the

error could not be cured by the absence of any specific

showing of prejudice.

Other circuits, including other panels of the Ninth

Circuit, have followed the “no harmless error” rule

concerning restrictions on the right of cross-examination.

United States v. Alvarez-Lopez, 559 F.2d 1155, 1160 (9th

Cir. 1977); and see United States v. Morris, 485 F.2d 1385,

' 1387 (5th Cir. 1978); Skinner v. Cardwell, 564 F.2d 1381,

1388 (9th Cir. 1977\dictum) cert. denied, 435 U.S. 1009, 98

S.Ct. 1883, 56 L.Ed.2d 392 (1978); United States v.

7

Jorgenson, 4.51 F.2d 516 (10th Cir. 1971) cert. denied, 443

U.S. 319, 99 S.Ct. 2789, 61 L.Ed. 2d 574 (1972). Several

other circuits, as well as other panels of the Ninth Circuit,

United States v. Gambler, 662 F.2d 834, 840-41 (D.C. Cir.

1981); United States v. Brown, 546 F.2d 166, 172 (5th Cir.

1977); United States v. Duhart, 511 F.2d 7, 10 (6th Cir.

1975), cert. dism'd. 421 U.S. 1006, 95 S.Ct. 2409, 44 L.Ed.2d

675 (1975); United States v. Price, 577 F.2d 1356 (9th Cir.

1978), cert. denied, 444 U.S. 1081, 100 S.Ct. 1035, 62

L.Ed.2d 765 (1980); Chipman v. Mercer, 628 F.2d 528, 533

(9th Cir. 1980). The “disharmony” in the Ninth Circuit

was most recently acknowledged in United States v.

Williams, 668 F.2d 1064, 1070, n. 14 (9th Cir. 1981) and the

overall confusion was best discussed in United Staes v.

Gambler, supra.

Judge or Jury Question

Besides invoking the harmless error doctrine, the

Texas Court of Criminal Appeals permitted the restricted

cross-examination in the case at bar because Petitioner's

attempts by bill of exceptions to show motive and bias on

the part of Moore—or a quid pro quo for his testiomny—

had not been fruitful. In both the instant case and in

Carillo v. State, supra, the Texas court disapproved of

allowing the jury to speculate on motive, animus, or bias

where it had not clearly been shown by bill of exceptions.

Thus, in cases such as this, the court held that the jury’s.

usual function as the sole judge of the credibility of the

witness can be pretermitted by the trial judge in his

discretion.

This reasoning, however, also conflicts with the

principle enunciated in Davis v. Alaska, 415 U.S. 308, 317,

Xm 1105, 39 L.Ed.2d 347, 354 (1974) where it was

We cannot speculate as to whether the jury,

as sole judge of the credibility of a witness,

would have accepted this line of reasoning

had counsel been permitted to fully present

it.

The question of a motive for Moore's testimony was a fact

question for the jury, not a legal question to be reeolved in

the judge’s discretion.

The motives which operate on the mind of a

witness while he testifies should never be

regarded as immaterial or irrelevant. . .

Great latitude should be allowed the

accused in showing any fact which would

vend to establish ill feeling, bias, motive or

animus upon the part of any witness

testifying against him. The jury should be

given the opportunity to judge for

themselves the witness's credibility in light

of the witness's feelings toward the accused

and his motive for testifying [citations

omitted }.

Davis v. Alaska, supra at 317-318. The only limitation on

cross-examination in this area of which the Supreme

angen we See

. broad discretion of a trial judge to

sicihataa eee and unduly harassing

interrogation, .

id. at 316, 1110. Itis submitted that the weakness of the

impeaching material or the witness’ evasive answers are

not the type of “repetitive” and “harrassing” areas the

_ Supreme Court contemplated.

The convictions were set aside in Chavis v. North

Carolina, 637 F.2d 213 (4th Cir. 1980), in part because the

defendants had not been permitted to show where star

“speculation” condemned by the Texas court in the case

at bar, the Fourth Circuit wrote that the defendants there

should have been allowed to bring the facts to the jury's

attention, even though the facts might not necessarily

have discredited the witness in the jury's eyes. Id. at 226.

Similarly, after allovring the defendant to explore the

possibility of a witness's bias for fear that he might be

charged with possession of a stolen car, the trial judge in

United States v. Crumley, 565 F.2d 945 (5th Cir. 1978),

instructed the jury to disregard it as being too speculative.

Relying on Davis v. Alaska, the appellate court ruled that

even though Crumley had not explicitly shown a quid pro

quv for the witness's testimony, he should have been

“permitted to search for such an agreement.” Id. at 949.

From thece cases, and many more like them, the jury's

role as judge of the credibility of the witnesses is

emphasized over trial judge’s efforts to limit “irrelevant”

or “immaterial” cross-exarmination. Clearly the Texas

court was out of bounds in both Carillo v. State, supra,

and the instant case in taking from the jury the

responsibility of appraising the witnesses’ biases and

motives.

Conclusion

The Supreme Court has never moved to limit its broad

holding in Davis v. Alaska. There is an obvious

inconsistency between the Texas court's handling of the

cross-examination issue in the case at bar and the

constitutional language in Davis v. Alaska.

Furthermore, there is explicit confusion among the

Courts of Appeals on the applicability of harmless error

analysis in this area. The Texas Court of Criminal

Appeals found harmless error in seeming contradiction of

the language of Davis v. Alaska. For these reasons, this

Court should grant the writ of certiorari to resolve the

areas of confusion which have developed under Davis v.

Alaska in the past eight years.

Il. THE FAILURE OF THE COURT BELOW

TO CONSIDER PETITIONER’S ARGU-

MENT ON APPEAL DEPRIVED HIM OF

DUE PROCESS OF LAW AND EFFEC. .

TIVE ASSISTANCE OF COUNSEL.

10

Petitioner's conviction, the State of Texas accorded all

persons criminally convicted of a felony the right to

appeal their conviction to the Texas Court of Criminal

Appeals. Art. V, Sec. 5, Tex. Const. (Vernon's, 1955); Art.

4.03, V.A.C.C.P. (1979). The requirement of Art. 44.24(c)

V.A.C.C.P. (1979) that the Court of Criminal Appeals

deliver a written opinion in intelligible language setting

forth the reasons for its decision has always meant that

the Court should consider each issue raised in an appeal.

Each issue need not be written upon, Hawkins v. State,

613 S.W.2d 720, 723, n. 8 (1981); Ahearn v. State, 588

S.W.2d 327, 340, n. 3 (1979), but each issue must be

considered.

In Ground of Error No. 6 of the direct appeal from his

conviction, Petitioner raised a state constitutional issue

pertaining to the right of counsel to conduct voir dire

examination of the prospective jurors (see excerpt from

Appellant’s Original Brief, attached as Appendix C).

Specifically, Petitioner complained that he had not been

permitted to question individual venireman on the panel

but rather had been required to propound his

interrogatories to the group as a whole. The State in its

reply squarely joined issue with the argument that the

defendant's access to individual venireman was not

unduly restricted (see excerpt of State's Original Brief,

attached as Appendix D). Supplemental briefs of both

parties devoted an additional fourteen pages of argument

to the question raised and these may be brought forward

with the record if certiorari is granted.

The Texas Court of Criminal Appeals apparently

misunderstood the ground raised on appeal, for their

opinion spoke mainly to the propriety of certain questions

for voir dire examination ‘*.ppendix A, pp. 11-13). One

paragraph noted that Petitioner did not have the right to

individual voir dire of the venireman separate and apart

from the rest of the panel except in capital murder cases,

which, of course, was not Petitioner's original complaint

(id). The Court below never addressed Petitioner’ s precise

point or his “white horse case”, Plair v. State, 276 S.W.

267 (Tex. Cr. App. 1926).

11

Such misunderstandings by appellate courts are not at

all unusual and are almost always corrected on motions

for rehearing. Petitioner's Motion for Rehearing brought

to the appellate court's attention the failure of its original

opinion (see excerpt attached as Appendix E). Yet the

motion was denied May 26, 1982, without opinion

(Appendix B). There were no procedural defects which

would have denied Petitioner a fair hearing on the merits

of the ground he originally raised. A complete omission

by the appellate court to say anything about a particular

issue on appeal would present this Court with a clearer

question on certiorari; however, the misunderstanding

and tangential writing of the lower court in this case

constituted no more of an appellate hearing than the

complete omission would pave.

When a state establishes an appellate process, itisa

76 S.Ct. 585, 100 L.Ed. 891 (1956); Douglas v. California,

372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Anders v.

California, 383 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

fail to follow the appellate procedure which it has

established where such a failure effectively denies the

defendant his hearing in the only appeal to which he is

entitled. Several Courts of Appeals have lodged

objections to procedural rules which deprive a convicted

ream cba sg PS ok yond 4 eee

Ruetz v. Lash, 500 F.2d 1225 (7th Cir. 1974); Macon

v. Lash, 458 F.2d 942 (7th Cir. 1972); Castle v. United

States, 399 F.2d 5642, 650 (5th Cir. 68).

Court held that the Oklahoma court denied due process

when it upheld a contempt conviction on charges not laid

in the contempt citation. And,

“There is no distinction in princple between

cGetermining a cause upon issues not raised

by the pleadings in the actual absence of

the party and rendering a decree by

refusing to permit a defendant to be heard

in his defense or to consider the merits of a

sufficient defense....”

Hovey v. Elliot, 167 U..S 409, 446, 42 L.Ed 215, 231 (1897).

In Petitioner's direct appeal to the Texas court below, that

court did nothing less than to refuse him the right to be

heard or to consider the merits of his Ground of Errov No.

6.

Because of the denial of due process by the appellate

court below, this Court should grant the writ of certiorari

and remand the case to the Texas Court of Criminal

— ae

Error No. 6

Texas Bar Card No. 12886000

FRANK MALONEY ASSOCIATES, P.C.

505 West 12th Street

Austin, Texas 78701

(512) 476-8700

ATTORNEY FOR PETITIONER

RAMON CERVANTES

CERTIFICATE OF SERVICE

I, a member of the bar of this Court, in accordance with

Rules 28.3 and 28.5(b), Supreme Court Rules, certify that

three true and correct copies of the foregoing Petition for

Writ of Certiorari were served on the parties involved in

13

thie cave on the —_\V4__ day of — July __

., 1982, by placing same in the U States

Mails, first-class postage prepaid, addressed to the

14