# Opposition Brief — Carmell v. Texas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 513

## Text

ge ORIGINAL a
a. No. 98-7540 9 siti
of CLERK 3

IN THE -
UNITED STATES SUPREME COURT —
OCTOBER TERM, 1998

SCOTT LESLIE CARMELL,
Petitioner,
v.

THE STATE OF TEXAS,
Respondent.

On Petition For Writ of Certiorari
To the Court of Appeals for the Second District of Tex

RESPONDENT'S BRIEF IN OPPOSITION

TO THE HONORABLE JUSTICES OF THE SUPREME COURT:
NOW COMES the State of Texas, Respondent herein, by and through the Attorney
General of Texas, and files this Brief in Opposition to Petition for Writ of Certiorari.'
OPINION BELOW
The Court of Appeals for the Second District of Texas affirmed Carmell’s convictions
for eight counts of indecency with a child, two counts of aggravated sexual assault, and five
counts of sexual assault on February 12, 1998. Carmell v. State, 963 S.W.2d 833 (Tex.App.-
Fort Worth 1998, pet. ref'd), Appendix A to Petition. His motion for rehearing and

subsequent petition for discretionary review by the Texas Court of Criminal Appeals were

' For clarity, the respondent will be referred to as “the state” and the petitioner as
“Carmell.”

35,8

overruled and refused, respectively, without written order.
JURISDICTION

Carmell seeks to invoke the Court’s jurisdiction under the provisions of 28 U.S.C. §

1257(a).
CONSTITUTIONAL PROVISIONS INVOLVED

Carmell bases his claims upon Article I, Section 10 of the United States Constitution

and the fifth, sixth and fourteenth amendments to the United States Constitution.
STATEMENT OF CASE

A, Course of Proceedings and Disposition Below

Carmell was indicted for the offenses of indecency with a child (eight counts),
aggravated sexual assault (two counts) and sexual assault (five counts). Tr 2-7.? Carmell
pleaded not guilty to all counts, was tried before a jury in the 367th Judicial District Court
of Denton County, Texas, and on January 14, 1997, was found him guilty of all fifteen
counts. Tr 140-99. The jury assessed Carmell’s punishment at imprisonment for twenty
years for each of the indecency-with-a-child and the sexual-assault counts and imprisonment
for life for the aggravated-sexual-assault counts, sentences for all counts to be served
concurrently. Tr 140-99.

Carmell appealed his convictions to the Court of Appeals for the Second District of
Texas, which affirmed on February 12, 1998. Carmell v. State, 963 S.W.2d 833 (Tex. App.-
Fort Worth 1998, pet. ref'd). The court overruled Carmell’s motion for rehearing on March

26, 1998, and the Texas Court of Criminal Appeals refused Carmell’s petition for

> “Tr” refers to the transcript of trial papers filed with the court during Carmell’s trial,
preceded by volume number and followed by page number. “SR” refers to the state record
of transcribed trial proceedings, preceded by volume number and followed by page number.

2

discretionary review (PDR) on September 16, 1998. Carmell v. State, No. 837-98.
Carmell’s petition for writ of certiorari followed.
B. Statement of Facts

The state court of appeals’ opinion summarizes the facts of the case as follows:

Ron Borchert and Eleanor Alexander married in 1972. K.M. was born
on March 24, 1978. Eleanor began to see [Carmell], a counselor specializing
in counseling victims of incest, because she was an incest survivor. In early
1987, Eleanor divorced Ron and married [Carmell] the next year.

By the time K.M. was twelve, [Carmell] would give her a back rub
every night after she said her prayers. Soon the back rubs changed, and
[Carmell] would tell K.M. to take her shirt off and pull her shorts down a little.
In the spring of 1991, [Carmell] touched her “on the pubic hair” during one of
the back rubs. [Carmell] then decided that he and K.M. needed to “date” and
spend every Tuesday night together. This included sleeping in the same bed.
{Carmell] claimed that this was part of the family’s bonding process.

In the summer of 1991, [Carmell] took his clothes off, got in a sleeping
bag with K.M., and pulled her on top of him. He put his erect penis between
her legs, and his penis touched her “genital area.” Later that summer,
{Carmell] and K.M. were sleeping together nude when [Carmell] pulled K.M.
on top of him. He put his erect penis between her legs and pushed against her
“pubic” or “genital” area. In June 1992, [Carmell] took K.M. into his bedroom
for a “nap.” They undressed, and [Carmell] pulled her on top of his erect
penis, touching her “genital area.”

These incidents and more finally led to [Carmell] having sex with K.M.
in September 1993. Two days later, [Carmell] “married” K.M. in a mock
ceremony and continued having sex with her until early 1995. K.M. finally
told her mother about the long-term abuse, and her mother took her to the
police. Attrial, Eleanor testified that once while she visited [Carmell] in jail,
he wrote “adultery with [K.M.]” on a piece of paper when she told him that he
needed to confess if he was sorry for what he had done to K.M.

Carmell v. State, 963 S.W.2d at 835 (footnote omitted).

REASONS FOR DENYING THE WRIT

I. THE QUESTIONS PRESENTED FOR REVIEW ARE
UNWORTHY OF THIS COURT'S ATTENTION.

Rule 10 of the Rules of the Supreme Court provides that review on writ of certiorari
is not a matter of right, but of judicial discretion, and will be granted only when there are
compelling reasons therefor. Carmell fails to advance a compelling reason in this case, and
none exists. Further, the issues in this case involve only the application of established
constitutional principles to the facts. Thus, the petition presents no important question of law
to justify this Court’s exercise of its certiorari jurisdiction.

Il. THE APPLICATION OF THE AMENDED VERSION OF ARTICLE
38.07 OF THE TEXAS CODE OF CRIMINAL PROCEDURE TO AN
OFFENSE WHICH OCCURRED PRIOR TO THE AMENDMENT
DOES NOT VIOLATE THE EX POST FACTO CLAUSE.

Carmell contends that the Texas court’s application of the 1993 amended version of
Article 38.07 of the Texas Code of Criminal Procedure to an offense committed in 1992,’
prior to the amendment,‘ violated the Ex Post Facto Clause and the fifth and fourteenth
amendments to the United States Constitution. Petition for Writ of Certiorari, hereinafter
“Petition,” at 4. Carmell alleges that the application of the amended version of Article 38.07
deprived him of a defense and reduced the state’s burden of proof. Petition at 5-6. However,

the Texas court’s application of the amended version of article 38.07 did not violate ex post

* Carmell complains only about his conviction for sexual assault (count seven)
committed on or about June 1, 1992. Petition at 4. The amended version of article 38.07
was also retroactively applied to three of the indecency-with-a-child counts (counts eight,
nine, and ten) committed on or about March 1, 1993, June 1, 1993, and April 1, 1993,
respectively. See Carmell v. State, 963 S.W.2d at 836 n.5.

* The amended version of the statute was effective on September 1, 1993.

4

Be ee

facto principles, and the court below correctly concluded that Carmell is not entitled to a
reversal of his conviction on this basis.

The version of Article 38.07 in effect on June 1, 1992, the date of the sexual assault
offense in question, provided as follows:

A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal
Code, is supportable on the uncorroborated testimony of the victim of the
sexual offense if the victim informed any person, other than the defendant, of
the alleged offense within six months after the date on which the offense 1s
alleged to have occurred. The requirement that the victim inform another
person of an alleged offense does not apply if the victim was younger than 14
years of age at the time of the alleged offense. The court shall instruct the jury
that the time which lapsed between the alleged offense and the time it was
reported shall be considered by the jury only for the purpose of assessing the
weight to be given to the testimony of the victim.

Tex. CODE CRIM. PROC. ANN. art. 38.07 (West 1992). Effective September 1, 1993, Article
38.07 was amended to provide as follows:

A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal
Code, is supportable on the uncorroborated testimony of the victim of the
sexual offense if the victim informed any person, other than the defendant, of
the alleged offense within one year after the date on which the offense is
alleged to have occurred. The requirement that the victim inform another
person of an alleged offense does not apply if the victim was younger than 18
years of age at the time of the alleged offense.

TEX. CODE CRIM. PROC. ANN. art. 38.07 (West 1994). Thus, corroboration of a fourteen-
year-old victim's testimony was no longer required at the time of Carmell’s 1997 trial, even
when the victim had not made an outcry for several years.

The victim of the offense in question was fourteen years old on June |, 1992, the date
of the offense, and did not make an outcry until March of 1995. 9 SR 58, 162, 10 SR 278-
79. Carmell asserts that the application of the amended statute to an offense committed pnor
to the amendment constituted an ex posi facto violation. Specifically, Carmell argues that,

had the 1992 version of the statute been applied, he would have been entitled to an acquittal
at trial or on direct appeal.’ Petition at 5-6.

Article I, Section 10 of the United States Constitution forbids the states to pass ex post

facto laws. This Court has squarely rejected the proposition that retroactive changes in law
violate the Ex Post Facto Clause merely because they adversely affect the position of
criminal defendants. Collins v. Youngblood, 497 U.S. 37, 45 (1990); Dobbert v. Florida, 432
U.S. 282, 293-94 (1977); Beazell v. Ohio, 269 U.S. 167, 170-71 (1925). Rather, “the Clause
is aimed at laws that ‘retroactively alter the definition of crimes or increase the punishment
for criminal acts.’” California Dept. of Corrections, v. Morales, 514 U.S. 499, 504 (1995),
(quoting Collins, 497 U.S. at 43). The constitutional prohibition against ex post facto laws
is triggered only by changes in law which: (1) punish as a crime an act previously committed
which was innocent when done; (2) make more burdensome the punishment for a crime, after
its commission; or (3) deprive one charged with a crime of a defense available according to
law at the time the act was committed. Collins, 497 U.S. at 52.

Plainly, the amended version of Article 38.07 neither criminalizes previously innocent
conduct, nor enhances the punishment for an existing crime, nor renders unavailable to
Carmell a defense that was available at the time he committed the offense. Carmell does not
contend that the application of the amended version of the statute effected a change in the
definition of the offense he committed or altered the punishment he could receive for that
offense. Instead, he argues that he was deprived of an affirmative defense. Petition at 5-6.

* On direct appeal, Carmell asserted that the trial court committed reversible error
when it denied his motion for an instructed verdict due to insufficient evidence because there
was no outcry until years after the offenses and there was no corroborating evidence.
Carmell v. State, 963 S.W.2d at 835-36.

Carmell’s attempt to characterize the statutory requirement of corroboration in cases
where there was no outcry within six months as a defense, whose retroactive abolition would
fall within the ambit of Collins, is unavailing. Carmell’s “use of the word ‘defense’ carries
a meaning quite different from that which appears in. . . Beazell, where the term was linked
to the prohibition on alterations in ‘the legal definition of the offense’ or ‘the nature or
amount of the punishment imposed for its commission.” Collins, 497 U.S. at 50 (quoting
Beazell, 269 U.S. at 169-70). The “defense” Carmell claims was available to him under prior
Texas law was not one related to the definition of the crime, rather, it was based on the law
regulating sufficiency of the evidence. See Petition at 6 (citing Sloggan v. Siate, 799 S.W.2d
679, 683 (Tex. Crim. App. 1990)). By applying the version of Article 38.07 in effect at the
time of Carmell’s trial, Texas did not change the elements of the offense, “or the matters
which might be pleaded as an excuse or justification for the conduct underlying such a
charge ....” Collins, 497 U.S. at 50.° Thus, application of the amended version of Article
38.07 did not violate the constitutional prohibition against ex pos facto laws, as the state
court of appeals correctly determined. Because this allegation requires only the application

* In Hopt v. Utah, 110 U.S. 574 (1984), this Court rejected an ex post facto challenge
to the retroactive application of a statute making felons competent to testify. However, the
Court went on to opine that “[a]ny statutory alteration of the legal rules of evidence which
would authorize conviction upon less proof, in amount or degree, than was required when
the offense was committed, might, in respect of that offense, be obnoxious to the
constitutional inhibition upon ex post facto laws.” /d. at 590 (emphasis added). This
language is mere dicta and, in any event, did not survive the Court’s opinion in Collins,
whose definition of ex post facto violations does not include changes in evidentiary rules.
Collins, 497 U.S. at 42-43; see, e.g., Kansas v. Hendricks, 521 U.S. 346, 371 (1997) (civil
commitment statute does not apply retroactively because it is based on offender's current
mental state, and “[t]o the extent that past behavior is taken into account, it is used . . . solely
for evidentiary purposes”).

of settled law to the facts of the case, it does not warrant exercise of this court’s certiorari
jurisdiction. United States v. Johnson, 268 U.S. 220, 227 (1925).

iil. CARMELL’S SIXTH AMENDMENT CLAIM IS NOT PROPERLY
BEFORE THE COURT.

Carmell alleges that his sixth amendment nght of confrontation was violated because
the state court of appeals erred in concluding that “evidentiary criminal rule 608(b) was
properly dispositive of the prosecutor's intentionally withholding evidence that was favorable
to the accused... .” Petition at 7. This claim is not properly before the Court because it
was not presented to the court below.

This Court has consistently held that it will not decide issues raised for the first time
on petition for certiorari and that the Court will not decide federal questions not raised
properly and decided in the court below. £.g., Heath v. Alabama, 474 U.S. 82, 87 (1985);
Illinois v. Gates, 462 U.S. 213, 218-222 (1983); Tacon v. Arizona, 410 U.S. 351, 352 (1973);
Hill v. California, 401 U.S. 797, 805-806 (1971); Cardinale v. Louisiana, 394 U.S. 437, 438
(1969). To properly invoke the jurisdiction of the Court, it is crucial that the federal question
not only be raised in the prior proceedings, but that it be raised at the proper point. Beck v.
Washington, 369 U.S. 541, 550 (1962), Godchaux Co., Inc. v. Estopinal, 251 U.S. 179, 181
(1919).

In his brief in the state court of appeals, Carmell alleged that the prosecution failed
to disclose material impeachment evidence in violation of the Due Process Clause of the
fourteenth amendment as construed in Brady v. Maryland, 373 U.S. 83 (1963). Appellant’s
Brief, attached hereto as Appendix A, at 3-5. The court of appeals rejected this claim
because the evidence was inadmissible as a matter of state law under Rule 608(b) of the
Texas Rules of Evidence. Carmell v. Siate, 963 S.W.2d at 838. “Because the evidence was
inadmissible, the State did not have to produce it... . ” /d.

8

Thereafter, in his PDR to the Court of Criminal Appeals, Carmell alleged that the
state’s failure to disclose this evidence violated his sixth amendment confrontation nights as
construed in Davis v. Alaska, 415 U.S. 308 (1974). Appellant’s Pro Se Petition for
Discretionary Review, attached hereto as Appendix B, at 609. His petition for writ of
certiorari likewise relies on Davis and asserts a Confrontation Clause violation. Petition at
7-10.

Because Carmell did not raise his sixth amendment claim in the state court of appeals,
it is not properly before this court. Moreover, that he raised it in his PDR in the Court of
Criminal Appeals is insufficient to allow this Court to consider it. Under Texas law, the
Court of Criminal Appeals may not grant discretionary review on an issue that was not
presented to the court of appeals. Lambrecht v. State, 681 S.W.2d 614, 616 (Tex. Crim. App.
1984); Ayala v. State, 633 S.W.2d 526, 528 (Tex. Crim. App. 1982); see Castille v. Peoples,
489 U.S. 346, 351 (1989) (raising a claim for the first time in a petition to Pennsylvania’s
highest court on discretionary review did not constitute a “fair presentation” of the claim to
satisfy the requirement that a federal habeas petitioner exhaust his state remedies). Because
Carmell’s brief in the court of appeals relied solely on the Due Process Clause of the
fourteenth amendment rather than the Confrontation Clause of the sixth amendment, the sixth
amendment issue raised in his PDR was not properly before the Court of Criminal Appeals.
Carmell’s failure to present his confrontation claim at the proper point in the state court
proceedings bars review of it in this Court. Beck v. Washington, supra; Godchaux Co., Inc.

v. Estopinal, supra.

IV. THE STATE COURT CORRECTLY DENIED CARMELL’S
ALLEGATION THAT THE STATE WITHHELD IMPEACHMENT
EVIDENCE AGAINST A STATE’S WITNESS IN VIOLATION OF
BRADY V. MARYLAND, 373 U.S. 83 (1963).

Carmell alleges that his fourteenth amendment rights were violated because the court
of appeals of Texas erred in concluding that “evidentiary criminal rule 608(b) was properly
dispositive of the prosecutor's intentionally withholding evidence that was favorable to the
accused....” Petition at 7. Because Carmell’s confrontation claim is not properly before
the Court, the only conceivable basis for certiorari jurisdiction on this allegation is the claim
that he pressed in the state court of appeals, /.e., a violation of Brady v. Maryland. Because
Carmell’s petition for writ of certiorari is silent as to Brady and the Due Process Clause,
however, it likewise is doubtful that that claim is properly before the Court. Assuming
arguendo that it is, it is far too insubstantial to warrant exercise of the Court’s jurisdiction.

Carmell argues that the state intentionally withheld evidence favorable to his defense,
specifically, the fact that Carmell’s wife, Eleanor, the mother of the victim, bore another
man’s child while Carmell was in jail awaiting trial. Petition at 8. The state court of appeals
found that under Rule 608(b) of the Texas Rules of Criminal Evidence, “[a]ny evidence
showing Eleanor’s sexual relationship with another man and proving that she had his baby
would be inadmissible as impeachment evidence,” thus, the state did not have to produce the
evidence. Carmell v. State, 963 §.W.2d at 838. To the extent Carmell complains about the
state court's interpretation of Rule 608(b) of the Texas Rules of Criminal Evidence, he has
failed to state a claim worthy of this court’s review. See Moran v. Burbine, 475 U.S. 412,
429 n.3 (1986) (the Court may not disregard a state court’s interpretation of state law);
California v. Freeman, 488 U.S. 1311, 1313-15 (1989) (“Interpretations of state law by a

State’s highest court are, of course, binding upon this Court.”). To the extent Carmell argues

10

at Prhok

that the state court incorrectly denied his allegation that the state withheld impeachment
evidence against a state’s witness in violation of Brady, his claim is not worthy of this
Court’s review.

Under Brady, the state has an affirmative duty to disclose to the defense evidence that
is both favorable to the accused and material either to guilt or to punishment. United States
v. Bagley, 473 U.S. 667, 674 (1985). Such favorable evidence includes impeachment
evidence. /d. at 676. Further, the prosecutor’s good or bad faith is irrelevant to the question
of whether the state violated a defendant’s rights under Brady. See United States v. Agurs,
427 U.S. 97, 110 (1976) (“If the suppression of evidence results in constitutional error, it is
because of the character of the evidence, not the character of the prosecutor.”).

To succeed on a Brady claim, the petitioner must establish: (1) the prosecution
suppressed evidence; (2) the evidence was favorable; and (3) the evidence was material
either to guilt or punishment. Brady, 373 U.S. at 87. “[E]vidence is material only if there
is a reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” Bagley, 473 U.S. at 682. A “reasonable
probability” is a probability sufficient to undermine confidence in the trial’s outcome. /d.
Further, “[t]he mere possibility that an item of undisclosed information might have helped
the defense, or might have affected the outcome of the trial, does not establish ‘raateriality’
in the constitutional sense.” Agurs, 427 U.S. at 109-10. Rather, the petitioner must show
that the evidence in question could reasonably be taken to put the whole case in a different
light so as to undermine confidence in the verdict. Kyles v. Whitley, 514 U.S. 419, 434
(1995).

In this case, the prosecutor admitted that while the jury was out deliberating on
Carmell’s guilt or innocence, Carmell’s attorney had asked her if a baby that he had observed

belonged to either Carmell’s wife, Eleanor, or her daughter, the victim, Michelle, and the
prosecutor lied and told Carmell’s attorney that the baby belonged to a witness. Tr 260-61.
The prosecutor also admitted that she knew Eleanor had become pregnant and given birth
to another man’s child approximately eight months before the trial in question and that she
did not inform Carmell’s attorney. Tr 261. Carmell’s attorney discovered that the baby was
actually Eleanor’s child prior to the commencement of the punishment phase of the trial. 12
SR 5-6. During the punishment phase, the trial court would not allow Carmell’s attorney to
elicit any testimony regarding the baby. 12 SR 24-25; 13 SR 149-53. Carmell asserts that
evidence of the baby’s paternity should have beeu admitted as impeachment evidence to
show that Eleanor’s testimony was not credible and that she had a motive for testifying
against him. Petition at 8-10.

Because the state court of appeals found that the undisclosed evidence was
inadmissible, it could not have had a direct affect on the outcome of the trial. See Wood v.
Bartholomew, 516 S. Ct. 1, 6 (1995) (disclosure of inadmissible polygraph results “could
have had no direct effect on the outcome of the trial, because respondent could have made
no mention of them either during argument or while questioning witnesses”). Carmell has
not specified any admissible evidence to which the disclosure of the baby’s parentage would
have led.

It is unreasonable to believe that the jury would have reached a different outcome had
it been informed that Eleanor, the victim’s mother, had another man’s baby. Eleanor
testified that Carmell was already in jail on the charges in question when the child was
conceived. 13 SR 152. Carmell’s attorney even admitted that the evidence indicated that
Carmell was guilty of at least some of the counts. 11 SR 367. Because a Brady materiality

analysis must be performed in the context of an objectively reasonable jury, this Court in

12

Bagley adopted the Strickland’ prejudice test to evaluate the materiality of suppressed
evidence. Bagley, 473 U.S. at 682. The Strickland Court explained,

[t]he assessment of prejudice should proceed on the assumption that the
decisionmaker is reasonably, conscientiously, and impartially applying the
standards that govern the decision. It should not depend on the idiosyncracies
of the particular decisionmaker, such as unusual propensities toward harshness

or leniency.
Strickland, 466 U.S. at 695.

The victim testified at length about the ongoing sexual abuse by her stepfather,
Carmell, beginning when she wa. approximately twelve years old. 9 SR 72-76, 80-123, 131-
42, 145-47, 158-59. Eleanor, the victim’s mother, testified that Carmell admitted that he had
committed “adultery with Miche le.” 10 SR 283. Thus, in light of the abundant evidence
supporting the conviction, suppression of the inadmissible evidence that the mother of the
victim had given birth to another man’s baby while Carmell was in prison awaiting trial did
not deprive Carmell of a fair trial. Because this allegation requires only the application of
settled law to the facts of the case, it does not warrant exercise of this court’s certiorari
jurisdiction. United States v. Johnson, 268 U.S. at 227.

Vv. CARMELL’SINSUFFICIENCY CLAIM IS TOOINSUBSTANTIAL TO
WARRANT CERTIORARI REVIEW.

Finally, Carmell contends that the evidence is insufficient to support four of his
convictions. Specifically, he argues that the victim’s testimony that his penis touched her
“genital area” or “pubic hair” does not satisfy the Texas statutes proscribing sexual assault

and aggravated sexual assault of a child, and indecency with a child, which require contact

” Strickland v. Washington, 466 U.S. 668 (1984).
13

with the “sexual organ” and “any part of the genitals” of the child, respectively. Petition at
10-13.

It is true that a claim of insufficient evidence presents a federal constitutional claim.
Jackson v. Virginia, 443 U.S. 307, 322 (1979). Nonetheless, Carmell’s contention involves
nothing more than an unremarkable interpretation of the terms of a state penal statute. See
Carmell v. State, 963 S.W.2d at 837 (the state court of appeals found that the victim’s
testimony that Malone contacted her “genital area” and/or “pubic hair” is sufficient to prove
Malone contacted the victim’s “genitals”). Carmell does not allege a failure of the state to
prove that he engaged in the conduct in question; instead, his only submission is that the
court below misconstrued state law in measuring his conduct against the applicable statutes.
As such it is manifestly insufficient to warrant exercise of the Court’s certiorari jurisdiction.
See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions”); Brown v.
Collins, 937 F.2d 175, 181 (Sth Cir. 1991) (in reviewing claim of insufficient evidence,
“[w]e do no police every minutiae in state criminal procedural activity.”).

CONCLUSION
For the foregoing reasons, the state respectfully requests this Court to deny Carmell’s

petition for writ of certiorari.

Respectfully submitted,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

14

I PP SP ER es 5 te

*Counsel of Record

15

SHANE PHELPS

Deputy Attorney General
for Criminal Justice

WILLIAM C. ZAPALAC
Assistant Attorney General
Chief, Habeas Corpus Division

CHARLES A. PALMER*
Assistant Attorney General

ite D. ROCHE :

Assistant Attorney General

P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1429

(512) 320-8132 (Fax)

ATTORNEYS FOR RESPONDENT

Filed in Court of Appeais
For the Second Appeiat
Digirict of fexcx
SEP 3 1997
a YVONME PALMER, CLERK
&\ CAUSE NUMBER 02-97-00197-CR
IN THE
COURT OF APPEALS
FOR THE

SECOND COURT OF APPEALS DISTRICT OF TEXAS

FORT WORTH, TEXAS

SCOTT LESLIE CARMELL,
APPELLANT

Vv.

THE STATE OF TEXAS,
APPELLEE

ON APPEAL FROM THE 367™ DISTRICT COURT, DENTON COUNTY, TEXAS
CAUSE NUMBER F-96-1227-E
THE HONORABLE LEE GABRIEL, JUDGE PRESIDING

APPELLANT’S BRIEF

APPELLANT DOES NOT William F. Street
REQUEST ORAL ARGUMENT State Bar Number 00791742
P.O. Box 917
Denton, Texas 76202
(940) 891-1985

FAX: (940) 891-1974

ATTORNEY FOR
APPELLANT

APPENDIX A

— en Ree Rare Artie:

TABLE OF CONTENTS
Table OF COMMAS wc cc cc ct ccd en duces sbeene buns ee tue crpevensessbeuseer tases i
Index Of Authored 0... c ccc etc ec cet enc seencccevesceseeseeosassswoseses iil
Certificate of the Parties .. 0... cece eee teen tenner etre eeeeneees |
Brief Statement of the Case ... 2.0... e ee ee eee e eet enn ee nnnes 2
Delete oO Mette i. kk cca vies Vas oks dapinveas cash seek che Grbet attnaeeeeeanees 3
I. Point of Error Number One ...... 1.0... ccc ee cc ce eee eee eee eee eneteennee 3

A. The Trial Court erred in not granting Appellant’s motion for new trial based
upon the failure of the prosecution to reveal the impeaching evidence which would
have seriously undermined the prosecution’s case. (The complained of error can

be found at Tr. 225.) ... 0. ccc cece sence reweeseesncsenvessseessetersers 3
B. Argument and Authorities... . 0... 6.6 cette neers eenes 3
Il. Point of Error Number Two .... 0. cece ete eee seers ee seseewnseons 5

A. The trial court committed reversible error when it denied Appellant's motion
for an instructed verdict on Count One because there was insufficient evidence to
support a conviction. (The complained of error can be found at S.O.F. Vol. 10 at

7} neers Tern rere reer rey or er PON re 5
B. Argument and Authorities... 00... ee eee eee eee e een enees 6
I. Point of Error Number Three ..... 2... 5. ccc ete ee ees ewes eeereressenes 7

A. The trial court committed reversible error when it denied Appellant’s motion
for an instructed verdict on Count Three because there was insufficient evidence to
support a conviction. (The complained of error can be found at S.O.F. Vol. 10 at

STAD Sis ee Gee Niece 0.20 be pe eee eee EES OO 7
B. Argument and Authorities... ... 06... 6. ccc cece eee e eet teen ee eennes 7
02-97-00197-CR Appellant's Br. pg. i

a ae Ass oles obs. 60 bie edbidine os Wh bee cceeac 10
A. The trial court committed reversible error when it denied Appellant’s motion
for an instructed verdict on Count Four because there was insufficient evidence to
» = Bin tem (The complained of error can be found at S.O.F. Vol. 10 at
ay ee Oe Oe Chen s SOME Oua ls 6 > 4 a5006s otc s Pees ctvcdcocedtun 10
es ga ae yd aide dua ous occ ca Gae 10
Meh RES eS a a 11
A. The trial court committed reversible error when it denied Appellant's motion
for an instructed verdict on Count Seven because there was insufficient evidence to
— (The complained of error can be found at $.0.F. Vol. 10 at
7 eee eh eee Sete L Oa RVENe le On caeds coe eta Bodh hw bbs le eke leeks ll
ee ll
2 a IRR SSR Gs gS ee aI | 12
A. The trial court committed reversible error when it denied Appellant’s motion
for an instructed verdict on Count Seven because there was insufficient evidence
oO (The complained of error can be found at $.O.F. Vol. 10
ir Reins Vide 6 GORCU IR AG AURA» db ceeds bwee cab bueeb us dceecnes 12
Nie dedee ke ticaet 12
PRN bx ee ek Ee ek cole ae 14
LT ER eae AR an aan ELS. a a Oe 15

02-97-00197-CR Appellant's Br. pg. ii

INDEX OF AUTHORITIES

CASES:
Aylor v. State, 727 S.W.2d 727 (Tex. App. — Austin 1987, pet. ref'd) .... 5.2.6.0... 000, 9
Ball v. State, 289 S.W.2d 926 (Tex.Crim.App. 1956) 000 e eeu eees 6
ies Sele SIRE GRID os 5 oso cs ccasecdbdcvaaeds canal ecebebiunass 3,4
Clark v. State, $58 S.W.2d 887 (Tex.Crim.App. 1977) .. 0.20. e cece ee eee 6,9
Heckathorne v. State, 697 S.W.2d 8 (Tex.App. — Houston [14th Dist.]1985), pet. refd .... 13
Johnston v. State, 917 S.W.2d 135 (Tex.App. — Fort Worth 1996, pet. ref'd) ............. 4
McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App. 1996)... 0... o.oo cece cee eees 6
Means v. State, 429 S.W.2d 490 (Tex.Crim.App. 1968) 200.000 e cee eee 5
Pendle v. State, 253 S.W.2d 426 (Tex Crim.App. 1982) 00.00 ooo cece ccc eee cence 6
Reed v. State, 644 S.W.2d 494 (Tex. App.— Corpus Christi 1982, pet. ref'd) .............. 5
Scoggan v. State, 799 S.W.2d 679 (Tex.Crim.App. 1990) 00... ccc cece eee 13
Shelby v. State, 800 S.W.2d 584 (Tex. App. — Houston [14th Dist.]1990, rev'd

on other grounds, 819 S.W.2d 544 (Tex.Crim.App. 1991)) ......... 22.2.0 ..00. 13
Thomas v. State, 841 S.W.2d 399 (Tex.Crim.App. 1992) 2.0.0 ccc cee cece eens 4
tT a ery oi ot geet anes SS poe. ht oe 5
CODES:
DUP OU A | aie i re oho dec Fela si nite cdc 5,6
DEP CHR ATID 6. 0, hikdns coc obn< aide tvbeccsylldeessseennban 7
DU. CUNO 256d RN Gh kk. aa ae eee 5
TUT, CURIE vas isi os is Lh i esd i cdebh co ncantbnie 11, 12
TI ID soc 5 ios 5 vcs Cecds ota tcaen etl 7, 10, 11

Cl a ee -

02-97-00197-CR Appellant's Br. pg. iv

CAUSE NUMBER 02-97-00197-CR

IN THE

COURT OF APPEALS
FOR THE
SECOND COURT OF APPEALS DISTRICT OF TEXAS
FORT WORTH, TEXAS

SCOTT LESLIE CARMELL,
APPELLANT

Vv.

THE STATE OF TEXAS,
APPELLEE

CERTIFICATE OF THE PARTIES
In accordance with Tex.R App.P. 74(a), the following is a list of the parties in this cause:

(1) Scott Leslie Carmell
TDC # 777548, Allred Unit
2101 F.M. 369 N.
lowa Park, Texas 76367

(2) Denton County Criminal District Attorney's Office
401 West Hickory Street
J. Carroll Courts Building
Denton, Texas 76201

counsel for Appellee

(3) William F. Street
P.O. Box 917
Denton, Texas 76202

counsel for Appellant

02-97-00197-4CR Appellant's Br. pg. 1

CAUSE NUMBER 02-97-00197-CR
IN THE
COURT OF APPEALS
FOR THE
SECOND COURT OF APPEALS DISTRICT OF TEXAS
FORT WORTH, TEXAS

SCOTT LESLIE CARMELL,
APPELLANT

Vv.

THE STATE OF TEXAS,
APPELLEE

APPELLANT’S BRIEF

TO THE HONORABLE JUDGES OF THE FORT WORTH COURT OF APPEALS:

BRIEF STATEMENT OF THE CASE
Appellant entered pleas of not guilty to the offenses of aggravated sexual assault (two
counts), sexual assault (five counts), and indecency with a child (eight counts). All fifteen
offenses were charged on the same indictment and tried together. The jury found Appellant guilty
of all charges, and assessed punishment at two life sentences and thirteen twenty year sentences.
Appeliant was formally sentenced on January 14, 1997; and his Motion for New Trial was denied
on March 24, 1997. Appellant timely gave notice of appeal on April 2, 1997.

02-97-00197-CR Appellant's Br. pg. 2

POINTS OF ERROR
L POINT OF ERROR NUMBER ONE

A. The Trial Court erred in not granting Appellant’s motion for new trial based

upon the failure of the prosecution to reveal the impeaching evidence which would

have seriously undermined the prosecution’s case. (The complained of error can be

found at Tr. 225.)

B. Argument and Authorities

Approximately four weeks before trial, Appellant's trial counsel filed, and the Trial Court
granted, a proper Motion for Discovery. (Tr. at 227). In spite of the Court’s order, and in
violation of the long-standing legal precedent originating with Brady v. Maryland, 373 U.S. 83
(1963), the State failed to disclose that one of its key witnesses, the wife of Appellant and mother
of the complaining witness, had born a child while Appellant was incarcerated awaiting trial; and
that the child was not that of her husband, the Appellant.

This information was obviously valuable to the Appellant as impeachment evidence.
However, it was not revealed to the Defendant until the jury was deliberating at the
guilt/innocence phase of the trial, and then only by accident when the witness’s divorce attorney
approached Appellant’s trial attorney to discuss waiving paternity. In fact, the prosecution had
deliberately lied to Appellant’s trial counsel when specifically asked if the witness was the baby’s
mother. The State’s attorney admits to withholding the information and lying to Appellant’s trial
counsel. (Tr. at 260-262.)

Under Brady, a prosecutor has an affirmative duty to turn over to the defense any
evidence which is material and exculpatory. See also, Means v. State, 429 S.W.2d 490, 495

02-97-00197-CR Appellant's Br. pg. 3

(Tex.Crim.App. 1968). Under U.S. v. Bagley, 473 U.S. 667, 676 (1985), the term “exculpatory
evidence” includes any evidence which could be used to impeach the State’s witness. This Court
recently applied the Bagley rule in Johnston v. State 917 S.W.2d 135, 138 (Tex.App. — Fort
Worth 1996, pet. ref’d), holding that evidence that impeaches the State’s witness must be
disclosed, and a failure to do so violates Brady.

In order to prevail on his Brady claim the Appellant is not required to show bad faith, or
even specific knowledge, on the part of the prosecutor. “{I}nformation possessed by an agent of
the State is attributed to the prosecutor, even without any intention to engage in misconduct on
the part of the prosecutor.” Johnston v. State, 917 S.W.2d at 138 (citing Reed v. State, 644
S.W.2d 494, 498-99 (Tex.App. — Corpus Christi 1982, pet. ref’d); Means v. State, 429 S.W.2d
490, 494 (Tex.Crim.App. 1968)). Thus, the prosecutor’s proffered excuses for withholding the
information (Tr. at 261-262) are moot.

The law is clear that impeachment evidence is material for purposes of the Brady analysis.
For example, in Thomas v. State, 841 S.W.2d 399, 405 (Tex.Crim.App. 1992), the Court of
Criminal Appeals noted that because the withheld evidence tended to cast doubt upon the
reliability of the State’s only witnesses, it would have undermined the State’s case and was thus
material. “Evidence such as that relating to the credibility of a witness whose testimony may be
determinative of guilt or innocence is considered to be material.” 2 Texas Criminal Practice
Guide § 62.03[1}[b] (1997). In the case at bar, this was one of the State’s principal witnesses.
Her testimony on direct and re-direct runs to some 85 pages, second in length only to the
testimony of the complaining witness. Perhaps most damaging is her testimony that the Appellant
allegedly confessed to her that he had sex with the complaining witness. (S.O.F. Vol. at 283.)

02-97-00197-CR Appellant's Br. pg. 4

“Evidence withheld by a prosecutor is ‘material’ if there is a reasonable probability that,
had the evidence been disclosed to the defense, the outcome of the proceeding would have been
different... . A ‘reasonable probability’ is a probability sufficient to undermine confidence in the
outcome of the trial.” McFarland v. State, 928 S.W.2d 482, 511 (Tex.Crim.App. 1996), cert.
denied, 117 S.Ct. 966 (1997).

A due process violation requiring reversal occurs when a prosecutor: (1) fails to disclose
evidence, (2) favorable to the accused, (3) which creates a probability of a different outcome. Id.
Each of these three prongs of the Brady test is met in the case at bar, and it was thus reversible
error for the trial court to deny Appellant’s motion for new trial.

Il. POINT OF ERROR NUMBER TWO

A. The trial court committed reversible error when it denied Appellant’s motion for

an instructed verdict on Count One because there was insufficient evidence to

support a conviction. (The complained of error can be found at S.O.F. Vol. 10 at 373.)

B. Argument and Authorities

Count One charged the Appellant with Indecency with a Child under TEX.PENAL CODE §
21.11(a)(1), by sexual contact as that term is defined in TEX.PENAL CODE §21.01(2). Specifically,
Count One of the indictment alleges that the Appellant “touch[ed] the genitals” of the
complaining witness. (Tr. at 2.) TEX.PENAL CODE §21.01(2) defines “sexual contact” as “any
touching of the anus, breast, or any part of the genitals of another person with intent to arouse or
gratify the sexual desire of any person.”

At trial, the following testimony was elicited on direct examination from the State’s chief

witness:

02-97-00197-CR Appellant's Br. pg. $

Referring to count one, during one of the back rubs did Scott Carmell ever
actually touch your genitals?

Yes, he did.

How was it that he touched the genitals?

Well, just on the pubic hair.

Okay. And the — the time that we’re talking about, this happened in the
spring of 1991 before your 13" birthday?

Yes.

And was it while you were in the sixth grade?

Yes.

Going to count two. .. .

DPOF OPOPF PO

(S.O.F. Vol. 9 at 80; emphasis added.) This brief exchange was the only evidence offered to
prove Count One. The question, then, is whether this evidence is sufficient to prove that
Appellant touched “any part” of the complaining witness’s “genitals.”

The Texas Court of Criminal Appeals, examining the very statute at issue here, held that
the word genitals “includes more than just the vagina in its definition; the definition of ‘genitals’
includes the vulva which immediately surrounds the vagina.” Clark y. State, 558 S.W.2d 887
(Tex.Crim.App. 1977)(citing Ball v. State, 289 S.W.2d 926 (Tex.Crim.App. 1956); Pendell v.
State, 253 S.W.2d 426 (Tex.Crim.App.1952)). However, the State’s witness did not testify that
the Appellant touched her vagina, or her vulva, or even her “genitals.” She testified only that the
Appellant touched her “pubic hair.”

Appellant can find no Texas authority for the proposition that the term “genitals” includes
“pubic hair.” As a practical matter, such an expanded definition of the statutory term “genitals”
would lead to uneven results. For example, §21.01 also defines “deviate sexual intercourse” as
“the penetration of the genitals . . . of another person with an object.” TEX.PENAL CODE
§21.01(1)(B). It seems unlikely that the Legislature was contemplating “pubic hair” when this
statute was drafted, especially considering that some individuals are more hirsute than others. For

02-97-00197-CR Appellant's Br. pg. 6

example, if a man’s lower abdomen, from the umbilicus downward, is covered with hair, would it
be an act of “deviate sexual intercourse” punishable as “public lewdness” under TEX.PENAL CODE
§21.07 for his wife to intertwine her fingers in the hair near his umbilicus while they lay
sunbathing at the beach? If not, how does the law propose to delineate which hairs are “pubic
hairs” and which hairs are not?

The only practical means would be to define “pubic hairs” as those within a prescribed
distance from some specific point on the human anatomy. In fact, defining the term “genitals” in
some such more precise manner would seem to be the best solutuion to such problems; regardless
of whether the area contains hair or not. But that is not what the Legislature has done. It has
chosen to use the term “genitals,” and the courts must provide the definition of this term. This
Court should not conclude that the term includes “pubic hair.”

Without further evidence of “sexual contact” by the touching of “any part of the genitals”
of the complaining witness, the conviction on Count One cannot stand.

If. POINT OF ERROR NUMBER THREE

A. The trial court committed reversible error when it denied Appellant’s motion for

an instructed verdict on Count Three because there was insufficient evidence to

support a conviction. (The complained of error can be found at S.O.F. Vol. 10 at 373.)

B. Argument and Authorities

Count Three charged the Appellant with aggravated sexual assault under TEX.PENAL
CODE § 22.021, which states in relevant part, “[a] person commits an offense if the person
intentionally or knowingly causes the sexual organ of a child to contact... the . . . sexual organ

of another person, including the actor; and if the victim is younger than 14 years of age.”

02-97-00197-CR Appellant's Br. pg. 7

Specifically, Count Three of the indictment alleges that the Appellant “cause[d] the sexual organ
of [the complaining witness]... to contact the sexual organ of the defendant.” (Tr. at 3.)

At trial, the following testimony regarding Count Three was elicited on direct examination

from the State’s chief witness:
Q. Okay. What happened after you laid down in the sleeping bags together to
go to sleep?
A. He pulled me on ton of him.
Q. Okay. Was this before or after he had taken his shorts off?
A. This was after.
Q. When he pulled you on top of him, what did he do?
A. He — he put his penis between my legs.
Q. Okay. What part of your body did his penis touch?
A. Genital area.

(S.O.F. Vol. 9 at 90-91; emphasis added.) This testimony was the only evidence offered to prove
the essential element of Count Three; i.e., that the Appellant had caused the witness’s “sexual
organ” to contact his own “sexual organ.” The question, then, is whether testimony that a
person’s penis touched the “genital area” of another person is sufficient to prove that the first
person’s “sexual organ” contacted the “sexual organ” of the second person.

There can be no doubt that the penis is part of the male “sexual organ,” so testimony
regarding what the penis touched will be sufficient to prove a portion of the element of the
offense. In other words, the witness is surely testifying that the Appellant’s sexual organ touched
her somewhere. But is she testifying that it touched her “sexual organ”?

Had she testified that it touched her “genitals,” the question would not be presented. As
noted above, “The Court of Criminal Appeals has held that ‘genitals’ includes more than the
‘vagina’; it includes the vulva or tissue immediately surrounding the vagina. We detect no

difference in the term ‘genitals’ or ‘genitalia,’ and ‘female sex organ.”” Aylor v, State, 727

02-97-00197-CR Appellant's Br. pg. 8

S_W.2d 727, 729-30 (Tex.App. — Austin 1987, pet. ref'd)(citing Clark v. State, 558 S.W.2d at
889)(emphasis added)). In short, had the witness testified that the Appellant’s penis touched her
“genitals” or “genitalia,” Clark and Aylor would control and there would be no question of
sufficiency of the evidence on this element. But the witness did not so testify. Instead, it was her
testimony that the Appellant’s penis touched her “genital area.” The State’s attorneys are well
aware of the language of the statute, and are certainly capable of eliciting the required testimony
from their witnesses. In fact, the witness testified that she had met with the State’s attorneys
prior to the trial in order to rehearse her testimony. (S.O.F. Vol. 9 at 77.)

There are, of course, numerous sex offense cases holding that medical precision is not
required in the testimony of victim witnesses. These cases usually involve young children, the
mentally handicapped, or others who, for one reason or another, simply cannot be expected to
testify with the detailed vocabulary and detached emotions of a statute. However, in the case at
bar, the complaining witness was a grown young woman, nearly nineteen years old, who was
attending college. In other portions of the trial, she had no difficulty correctly and unabashedly
using such terms as “pubic hair” (S.O.F. Vol. 9 at 80), “penis” (S.O.F. Vol. 9 at 91, 93, 104, 105,
112, 121, 146), “breasts” (S.O.F. Vol. 9 at 99, 102, 116), “condom” (S.O.F. Vol. 9 at 119, 136),
and “having sex” (S.O.F. Vol. 9 at 132, 146). Furthermore, she testified that she did not need
definitions of “erection” and “ejaculation” when the State’s attorney used the words in direct
examination, (S.O.F. Vol. 9 at 91, 95). Finally, the very fact that she used the phrase “genital
area” suggests that she knew the word “genitals” well enough.

Does the phrase “genital area,” as used by the witness, mean the area around and

including the genitals? Or was she using the phrase to indicate that the contact was in the general

02-97-00197-CR Appellant's Br. pg. 9

vicinity of, but not on, her genitals? Given that this i; the central, essential element of the most
serious offense charged, due process and fundamental fairness demands that a witness with this
level of sophistication use language that conclusively proves the point in order to support the
conviction. Anything less cannot be sufficient evidence. There was no reason this witness could
not use the appropriate terms in her testimony. She obviously knew them and was capable of
using them correctly, unlike a child or mentally handicapped person. The State had ample
opportunity to elicit precise testimony to prove this element, and failed to do so. Uncorroborated
testimony that the defendant’s “penis” touched the witness’s “genital area” should not, as a matter
of law, be sufficient to support the conviction.

IV. POINT OF ERROR NUMBER FOUR

A. The trial court committed reversible error when it denied Appellant’s motion for

an instructed verdict on Count Four because there was insufficient evidence to

support a conviction. (The complained of error can be found at S.0.F. Vol. 10 at 373.)

B. Argument and Authorities

Appellant incorporates by reference the argument and authorities section under Point of
Error Number Three inasmuch as it relates to this Point of Error.

Count Four, like Count Three, charged the Appellant with aggravated sexual assault under
TEX.PENAL CODE § 22.021. Also like Count Three, Count Four of the indictment alleges that the
Appellant “cause{d] the sexual organ of [the complaining witness]... to contact the sexual
organ of the defendant.” (Tr. at 3.)

At trial, the following testimony regarding Count Four was elicited on direct examination
from the State’s chief witness:

02-97-00197-CR Appellant's Br. pg. 10

What did he do after pulling you on top of him?

Same thing. Put his penis between my legs.

Did he do anything with his penis after he pulled you on top of him this

time?

He pushed up against my pubic area.
* + s * > > + 2

What part — part of your body did his penis make contact with?

Genital area.

PFO F&F OPO

(S.O.F. Vol. 9 at 92-93, 95; emphasis added.) This testimony was the only evidence offered to
prove the essential element of Count Four, i.e., that the Appellant had caused the witness's
“sexual organ” to contact his own “sexual organ.” As detailed above in Point of Error Number
Three, phrases such as “pubic area” and “genital area” cannot be sufficient evidence to support
conviction under TEX.PENAL CODE § 22.021.
Vv. POINT OF ERROR NUMBER FIVE

A. The trial court committed reversible error when it denied Appellant’s motion for

an instructed verdict on Count Seven because there was insufficient evidence to

support « conviction. (The complained of error can be found at S.0.F. Vol. 10 at 373.)

B. Argument and Authorities

Appellant incorporates by reference the argument and authorities section under Point of
Error Number Three inasmuch as it relates to this Point of Error.

Count Seven charged the Appellant with sexual assault under TEX.PENAL CODE § 22.011.
Like Counts Three and Four, Count Seven of the indictment alleges that the Appellant “cause[d)
the sexual organ of [the complaining witness] . . . to contact the sexual organ of the defendant.”
(Tr. at 4.) The only difference between Count Seven and the previous two counts is that by the
date the offense is alleged to have occurred, the complaining witness was over the age of 14 and

02-97-00197-CR Appellant's Br. pg. 11

so the offense was sexual assault instead of aggravated sexual assault.

At trial, the following testimony regarding Count Seven was elicited on direct examination
from the State’s chief witness:

Q. _ After he pulled you on top of him, what part of his body touched your

A His penis.

Q. Okay. And where did it touch you?
A. Genital area.

(S.O.F. Vol. 9 at 112, emphasis added.) This testimony was the only evidence offered to prove
the essential element of Count Seven; i.e., that the Appellant had caused the witness’s “sexual
organ” to contact his own “sexual organ.” As argued above in Point of Error Number Two,
phrases such as “pubic area” and “genital area” cannot be sufficient evidence to support a
conviction under TEX.PENAL CODE § 22.011.
VL POINT OF ERROR NUMBER SIX
A. The trial court committed reversible error when it denied Appellant’s motion for
an instructed verdict on Count Seven because there was insufficient evidence to
support a conviction. (The complained of error can be found at S.O-F. Vol. 10 at 373.)
B. Argument and Authorities
According to Count Seven of the indictment, the offense of sexual assault of a child under
TEX.PENAL CODE §22.011 occurred on or about June 1, 1992. According to the only evidence
offered to prove the offense, the testimony of the complaining witness, the offense occurred
during the summer of 1992 after school was out. (S.O.F. Vol. 110-112.) The complaining
witness was born on March 24, 1978, (S.O.F. Vol. 9 at 36), and so had attained her birth date for

the year 1992 prior to school letting out for the summer. Therefore, the offense occurred when

02-97-00197-CR Appellant's Br. pg. 12

the complaining witness was 14 years old.

Under the law that existed and was in effect at that time:

A conviction under Chapter 21, Section 22.001, or Section 22.02, Penal

Code, is supportaLie on the uncorroborated testimony of the victim of the sexual

offense if the victim informed any person, other than the defendant, of the alleged

offense within six months after the date on which the offense is alleged to have

occurred. The requirement that the victim inform another person of an alleged

offense does not apply if the victim was younger than 14 years of age at the time of

the alleged offense.
TEX.C.CRIM.PROC. Art. 38.07. The term “uncorroborated” was held to mean the absence of any
eyewitness other than the victim. Heckathorne v. State, 697 S.W.2d 8, 12 (Tex.App. — Houston
[14™ Dist.] 1985, pet. ref'd); Shelby v. State, 800 S.W.2d 584, 586 (Tex.App. — Houston [14*
Dist.] 1990), rev’d on other grounds, 819 S.W.2d 544 (Tex.C.‘m.App. 1991).

According to the Texas Court of Criminal Appeals, the purpose of the 1983 version of
Art. 38.07 quoted above was to shield sexual assault victims under the age of 14, but to require
stricter proof of offenses allegedly committed against victims age 14 and over. Scoggan v. State,
799 S.W.2d 679, 683 (Tex.Crim.App. 1990)(holding, in the case of a 15 year old victim, that
“[s]ince corroboration or outcry requirements were not met in this case, the evidence is
insufficient to support appellant’s conviction.”)

In the case at bar there was no outcry by the complaining witness until years after the
offense charged in Count Seven. Nor is there any corroborating evidence. Therefore, under the
law in effect at the time of the offense, the conviction must be reversed and the Appellant

acquitted of that charge. (Id.)

02-97-00197-CR Appellant's Br. pg. 13

re EE Oe ee ee oe oe

~

_—— ee pee

In light of the foregoing facts and arguments, Appellant respectfully prays that this Court
set aside the judgement of the District Court and reverse these convictions and remand for a new
trial; or, in the alternative, reverse the convictions on Counts One, Three, Four, and/or Seven and

remand for a new trial.

a7 y »

-— - ee

< | —/ 4
HAL. i Ad
William F. Street
State Bar Number 00791742
P.O. Box 917
Denton, Texas 76202
(940) 891-1985
FAX: (940) 891-1974

ATTORNEY FOR APPELLANT

02-97-00197-CR Appellant's Br. pg. 14

CERTIFICATE OF SERVICE

1, William F. Street, hereby certify that a true and correct copy of the above and foregoing
Appellant's Brief was mailed, via U.S. Mail, postage pre-paid, or hand delivered, to the following
persons, in accordance with Tex. R. App. P. 202(e) on this 28th day of August, 1997.

(1) Scott Leslie Carmel!
TDC # 777548, Allred Unit
2101 F.M. 369 N.
lowa Park, Texas 76367

(2) Denton County Criminal District Attorney’s Office
401 West Hickory Street
J. Carroll Courts
Denton, Texas 76201

counsel for Appellee

02-97-00197-CR Appellant's Br. pg. 15

Ce ee

APPENDIX B

PUBLISHER’S NOTE:

ORIGINAL PAGINATION IS NOT CONTINUOUS.

STATEMENT REGARDING ORAL ARGUMENT

Petitioner requests that this matter be set for oral
argument and that counsel be appointed for purposes of that
hearing. Oral argument is necessary to resolve, explain or
expand on any issue of which this Court may be unresolved and to

affirm the petitioner's position on both the law and the facts.

(i)

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT . ~~ «© © © © © © © #© © @
CERTIFICATE OF INTERESTED PERSONS . «© + «© + © © © © © #
TABLE OF CONTENTS ..+«++-e¢e eee ee © © © © © © © © 28
INDEX OF AUTHORITIES .. +++ ee © © © © © © © © © # *@
I STATEMENT OF THE ISSUES PRESENTED . «© «© «© © © © #© «© «
II STATEMENT OF PROCEDURAL HISTORY . ~- «© + © © © © © @ «&
III QUESTIONS PRESENTED FOR REVIEW . «© «© © © © © © © # *
(1) Did the appeals court err in concluding that
application of the 1993 version of article 38.07
V.A.C.C.P., was not an ex post facto violation

when: (i) the offense occurred in 1992; (ii)
there was no outcry for approximately three

years; and, (iii) petitioner would have otherwise

been entitled to an acquittal? . . «+ «+ «+ « «© « «

(2) Did the court of appeals err in concluding that

Rule 608(b), Tex.R.Crim.Evid., was dispositive of

the prosecutor's intentionally withholding
evidence favorable to the accused? ‘ae 6 +e

(3) Did the court of appeals err in concluding that
testimony of "the genital area” and “pubic hair"

were legally sufficient to support the conviction

when the terms are not interchangeable and do

not include the female sexual organ as defined
Dy etetutey.« ee ecescaevevevse eoeevens
IV REASONS FOR REVIEW . «+2 ce ese © © © © @ © © © @ #@
Ground For Review No. 1 - Restated ...+ ++ «6 «-s
Ground For Review No. 2 - Restated ...+ ++ 26+ « «
Ground For REview No. 3 - Restated ...++ ++ es
V. CONCLUSION, PRAYER AND RELIEF REQUESTED .. «++ « «
CERTIFICATE OF SERVICE . «+++ «ce © se © © © © © © #

APPENDIX - A

iii.

~
ae wo. = ~~. @

se

IN THE
COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS

No.

SCOTT LESLIE CARMELL,

Petitioner-Appellant,
Vv.

THE STATE OF TEXAS,

Respondent-Appellee.

APPELLANT'S PRO SE PETITION FOR DISCRETIONARY REVIEW

On Petition For Discretionary Review From The
Second Court of Appeals in Cause No. 02-97-197-cR

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW Scott Leslie Carmell, pro se appellant and,
pursuant to Rule 68, Texas Rules of Appellate Procedure,
petitions this Court to exercise its discretion and review the
opinion of the Second Court of Appeals dated February 12, 1998.
In support, petitioner would show the following:

App's Pro Se Pet.Disc.Review/Page 1.

Ifl.
UESTIONS P NT OR v
(1)

Did the court of appeals err in concluding that application
of the 1993 version of article 38.07, V.A.C.C.P., was not an ex
post facto violation when: (i) the offense occurred in 1992; (ii)
there was no outcry for approximately three years; and, (iii)
petitioner would have otherwise been entitled to an acquittal?

(2)

Did the court of appeals err in concluding that Rule 608(b)
of the Rules of Criminal Evidence was dispositive of the
prosecutor's intentionally withholding evidence favorable to the

accused?

(3)

Did the court of appeals err in concluding that testimony of
“genital area" and “pubic hair" were legally sufficient to
support the convictions, when the terms are not interchangeable
and do not include the female sexual organ as defined by statute?

Iv.

REASONS FOR REVIEW
Ground For Review No. 1 - Restated

The court of appeals erred in concluding that application of
the 1993 version of article 38.07, V.A.C.C.P., was not an ex post
facto violation when: (i) thy offense occurred in 1992; (ii)
there was no outcry for approximately three years; and, (iii)
petitioner would have otherwise been entitled to an acquittal.

Arguments and Authorities

The court of appeals decided an important question of state

and federal law that has not been but should be decided by this
Court, and which is in conflict with decisions of other courts of
appeals on the same issue. That is, the court of appeals has
misconstrued a statute to the accused's disadvantage, i.e.,

whether the 1993 version of article 38.07 C.C.P. is an ex post

facto violation as applied to the facts of this case.

App's Pro Se Pet.Disc.Review/Page 3.

committed against victims age 14 years and over. Id., at 683
(corroboration of outcry requirements were not met and the
evidence was insufficient to support the conviction). Other
courts of appeals have entered acquittals in similar situations
as what petitioner now faces. See Friedel v. State, 832 S.W.2d
420 (Tex.App.-Austin 1992); Jones v. State, 789 S.W.2d 330
(Tex.App.-Houston [14th Dist.] 1990); Hill v. State, 658 S.W.24
705 (Tex.App.-Dallas 1983) (reversed on other grounds). See also
Bowers v. State, 914 S.W.2d 213, 217 (Tex.App.-El Paso 1996).

In this case, application of the newer version of article
38.07 is unconstitutional and constitutes an ex post facto
application for the reason that it changes the legal rules of
evidence and requires less proof to convict from the law in
effect at the time of the offense, Lindsey v. State, 672 S.W.24
892, 894 (Tex.App.-Dallas 1984), it deprives petitioner of an
affirmative defense available at the time when the act was
committed, see Bowers v. State, 914 S.W.2d 213, 217 (Tex.App.-E1
Paso 1996); Collins v. Youngblood, 110 S.Ct. 2715 (1999; Ex
Parte Hallmark, 883 S.W.2d 672 (Tex.Cr.App. 1994) and Grimes
vy. State, 807 S.W.2d 582 (Tex.Cr.App. 1991), and, finally, it
Geprives petitioner of an acquittal that he would otherwise have
been entitled to. Bowers, Friedle, Hill and Jones, all supra.

Hence, review be granted in this case and petitioner is
entitled to an acquittal under the law in effect at the time of

the commission of the offense.

App's Pro Se Pet.Disc.Review/Page 5.

This case is distinguished from Ramos because the evidence
excluded in Ramos was of sexual exploits of the complaining
witness and her mother after the defendant step-father had left
the family, and was offered solely for attacking the character of
the complainant and her mother. Id., 819 S.W.24 at 942. In the
instant case, however, the evidence of an extramarital affair
before separation, which clearly indicates bias on the part of
the mother, and is offered only to show bias against the accused
is admissible into evidence for the jury's informed deliberation.

Evidence of a witnesses' bias is critical to the fairness
and proper functioning of the adversarial process. Juries cannot
weigh evidence and testimony without full knowledge of the
witnesses' motivations. Motives which operate in a witnesses’
ming should never be regarded as immaterial or irrelevant. Steve
v. State, 614 S.W.2d 137, 140 (Tex.Cr.App. 1961), favorably
citing McDonald v. State, 77 Tex.Cr.Rep. 612, 179 S.W. 80
(1915). Great and fair latitude should be allowed the accused to
show animosity, bias, or motive on part of the witness testifying
against the accused. The jury should not be deprived of the fair
chance to weigh that witnesses' credibility by failure to explore
that bias, motive or animosity. Steve, 614 S.W.2d at 140. In
this case, no greater tool exists for the mother than use of the
courts to get what she wants. In one sweep she takes home,
finances, car, property and children, and rids herself of the
husband while enjoying her affair and having another man's baby,
while at the same time she and the daughter bring serious felony

charges against the husband.

App's Pro Se Pet.Disc.Review/Page 7.

and motive and should therefore have been admitted for the jury's
@eliberation. The conviction shoulé therefore be reversed and
this cause remanded to the trial court for further proceedings.
(3)
Ground For Relief No. 3 - Restated
The court of appeals erred in concluding that testimony of
"genital area" and “pubic hair" were legally sufficient to

support the convictions, when the terms are not interchangeable
and do not include the female sexual organ as defined by statute.

Arguments and Authorities

The court of appeals has decided an important question of
law in a way that conflicts with this Court's previous decisions
on the same issue, and that of other courts of appeals, in
declaring that "pubic hair” and "genital area" constitute parts
of the "female sexual organ" for purposes of Sections 22.011 and
22.021.

The question presented here is whether the court of appeals
erred in equating "genital area” and "pubic hair" with "genitals"
and the "female sexual organ." Female seyual organs have been
defined in opinion as the vulva, the vagina and vaginal canal,
the uterus, mons pubis and the labia, but has never been defined
by statute or opinion as “the pubic hair" or the "genital area."

The terms “genital area," “pubic hair,” and “female sexual
organ” simply are not synonymous in opinion or statute. The term
genital area includes much more than just the genitals or the
female sexual organ. The term genital area is not sufficient to
prove genitals per se. As a matter of logic as well as
linguistics, "genital area" must mean the area around and

including the genitals. This area, then, includes the female

App's Pro Se Pet.Disc.Review/Page 9.

the offense. The terms “genital area,” “pubic area,” and “pubic
hair” simply are not legally sufficient to sustain the conviction
and are too vague and poorly defined to sustain a conviction in a
case where the statute requires proof of contact with the "female
sexual organ." Had the indictment alleged merely “puvic area,"
"pubic hair,” or genital area,” it would have been subject to a
motion to quash for failure to track the necessary statutory
language and failure to put the accused on notice to any criminal
offense.

The statutes require proof of contact with “the female
sexual organ,” and not "in the area of the female sexual organ."
The court of appeals held that the upper thigh and lower abdomen
are parts of the sexual organ because they are in the area of the
sexual organ, resulting in unwarranted legislation from the bench
making it a criminal offense to touch one in the area of the
thigh or abdomen, despite the legislature never doing so.

The complainant testified that the petitioner touched her
“pubic hair” during a back rub. Appellant's Brief, at page 6,
citing the record at SOF IX, p. 80. Petitioner can find no Texas
legal authority that the term "genitals" includes “pubic hair."

This Court, examining the very statute at issue here, held
that the word "genitals" includes the vulva and surrounding area
of the vagina itself. Clark v. State, 558 S.W.2d 887
(Tex.Cr.App. 3©77). Rowever, as indicated ,the State's witness
6id not testify that the vetitioner touched her vagina or her
genitals. She testified only that petitioner touched her "pubic

hair." It is unlikely that the legislature cont@ plated “pubic

App's Pro Se Pet.Disc.Review/Page 11.

CERTIFICATE OF SERVICE

This is to certify that the undersigned has this date served
a true and correct copy of the forgoing APPELLANT'S PRO SE
PETITION FOR DISCRETIONARY REVIEW on opposing counsel by mailing
same, via U.S. Mail, first-class postage prepaid, properly
enveloped and deposited in the prison institution's internal
mailbox for outside mailing on this ie Gay of May, 1998,
addressed to: State Prosecuting Attorney, P.O. Box '2405,
Austin, TX 7671' (Rule 68.11, TRAP) and to the Denton County
Criminal District Attorney's Office, 401W. Hickory Street,
J. Carroll Courts Bldg., Denton, Texas 76201.

heat Kagbhe Crme 112542
cott Leslie Carmell #777548

Petitiorer-Appellant, Pro Se

App's Pro Se Pet.Disc.Review/Page 13.

COURT OF APPEALS

SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-97-197-CR

SCOTT LESLIE CARMELL APPELLANT

VS.

THE STATE OF TEXAS STATE

eee ee eee -

FROM THE 367™ DISTRICT COURT OF DENTON COUNTY

1. INTRODUCTION
Appellant Scott Leslie Carmell was convicted of eight counts of indecency
with a child, two counts of aggravated sexual assault, and five counts of sexual
assault against his stepdaughter K.M. The jury assessed punishment at life on
the aggravated sexual assault counts and 20 years on the remaining counts.
In six points, appellant argues that (1) the trial court erred in denying his motion

for new trial because the State did not disclose impeachment evidence and (2)

would tell K.M. to take her shirt off and pull her shorts down a little. In the
spring of 1991, appellant touched her “on the pubic hair” during one of the back
rubs. Appellant then decided that he and K.M. needed to “date” and spend
every Tuesday night together. This included sleeping in the same bed.
Appellant claimed that this was part of the family's bonding process.

in the summer of 1991, appellant took his clothes off, got in a sleeping
bag with K.M., and pulled her on top of him. He put his erect penis between
her legs, and his penis touched her “genital area.” Later that summer, appellant
and K.M. were sleeping together nude when appellant pulled K.M. on top of
him. He put his erect penis between her legs and pushed against her “pubic”
or “genital” area. In June 1992, appellant took K.M. into his bedroom for a
“nap.” They undressed, and appellant pulled her on top of his erect penis,
touching her “genital area.”

These incidents and more finally led to appellant having sex with K.M. in
September 1993. Two days later, appellant “married” K.M. in a mock ceremony
and continued having sex with her until early 1995.’ K.M. finally told her
mother about the long-term abuse, and her mother took her to the police. At

trial, Eleanor testified that once while she visited appellant in jail, he wrote

2Appellant was a devoted correspondent and would send letters and carr’
to K.M., signing them “Dad, friend, and artner for life.” [IX RR 165]

‘ Y 6

may not be overturned unless it is irrational or unsupported by proof beyond a
reasonable doubt. See Matson, 819 S.W.2d at 846.
C. June 1992 Sexual Assault
1. Timing of the outcry
In his sixth point, appellant argues that he should be acquitted of one of
the sexual assault convictions because K.M. did not tell her mother about the

abuse until “years after the offense” and there was nothing to corroborate

K.M.'s version of events.

Appellant bases his argument on the version of article 38.07 that was in
effect in June 1992, the date of the charged offense of sexual assault:

A. conviction under Chapter 21, Section 22.011, or Section
22.021, Penal Code, is supportable on the wuncorroborated
testimony of the victim of the sexual offense if the victim informed
any person, other than the defendant, of the alleged offense within
six months after the date on which the offense is alleged to have
occurred. The requirement that the victim inform another person
of an alleged offense does not apply if the victim was younger than
14 years of age at the time of the alleged offense. The court shall
instruct the jury that the time which lapsed between the alleged
offense and the time it was reported shall be considered by the jury
only for the purpose of assessing the weight to be given to the
testimony of the victim.*

*Act of May 26, 1983, 68” Leg., R.S., ch. 382, § 1, 1983 Tex. Gen.
Laws 2090, 2090-91 & Act of May 29, 1983, 68” Leg., R.S., ch. 977, § 7,
1983 Tex. Gen. Laws 5317, 5319.

« % 6

Accordingly, because K.M. was younger than 18 at the time of the
offense, the one-year time limit on her outcry does not apply. We overrule
appellant's sixth point.®

2. Sexual organ contact

in his fifth point, appellant claims that the evidence was legally
insufficient to support the sexual assault conviction because K.M.'s testimony
that appellant touched her “genital area” with his penis is not specific enough
to prove that his penis contacted K.M.'s sexual organ in June 1992. Appellant
concedes that if K.M. had testified that appellant's penis touched her “genitals”
or “genitalia,” the evidence would be sufficient. See Ay/or v. State, 727
S.W.2d 727, 729-30 (Tex. App.—Austin 1987, pet. ref'd) (citing Clark v. State,
558 S.W.2d 887, 889 (Tex. Crim. App. 1977)).

Sexual assault is proven when the State shows that the defendant
“intentionally or knowingly cause[d] the sexual organ of a child to contact or
penetrate the mouth, anus, or sexual organ of another person, including the
actor.” TEX. PENAL Cope ANN. § 22.011(a)(2)(C) (Vernon Supp. 1998).

“[G)enitals' includes the vulva which immediately surrounds the vagina.” Clark,

in three supplemental points, appellant asserts that this argument also
applies to three of the indecency with a child counts, which occurred in March,
June, and July of 1993. Because we have held that the 1993 version of the
statute applied to appellant, we overrule supplemental points seven, eight, and

7

4 1 «

Indecency with a child requires “sexual contact” between the victim and
the defendant. Tex. PENAL CODE ANN. § 21.11 (Vernon 1994). Sexual contact
is defined as “any touching of the anus, breast, or any part of the genitals of
another person with intent to arouse or gratify the sexual desire of any person.”
/d. § 21.01(2). The external genital organs include the mons pubis, which is
“the rounded eminence in front of the pubic symphysis [that] is formed by a
collection of fatty tissue beneath the integument. It becomes covered with hair
at the time of puberty.” CHARLES M. Goss, Gray's ANATOMY 1405 (26™ ed.
1954). Thus, by touching K.M.'s pubic hair, appellant touched a part of her
genitals. The evidence was legally sufficient and we overrule appellant's
second point.

lll. FAILURE TO REVEAL IMPEACHMENT EVIDENCE

in his first point, appellant argues that the trial court should have granted
him a new trial because the State failed to disclose that Eleanor had another
man's child while appellant was in prison. The State does not dispute that it
did not disclose this evidence to appellant.

We review the denial of a motion for new trial based on newly-discovered
evidence under an abuse of discretion standard. See Driggers v. State, 940
S.W.2d 699, 709 (Tex. App.—Texarkana 1996, pet. ref'd) (op. on reh’g). The

State must produce exculpatory as well as impeachment evidence to a

—

=

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ae

IV. CONCLUSION
Because we find that the evidence was legally sufficient and the trial
court did not abuse its discretion in denying appellant's motion for new trial, we

affirm the trial court's judgments.®

PER CURIAM
PANEL F: HOLMAN, J.; CAYCE, C.J.; and DAY, J.
PUBLISH
Fe 1 2 1998

®Appellant has filed a letter asking us to reprimand or replace his court-
appointed attorney. His only complaint with counsel is that counsel is not
communicating with him. Unless an appellant waives counsel and chooses to
represent himself or shows en adequate reason for new counsel, appellant must
accept the counsel appointed by the court. See Halliburton v. State, 928
S.W.2d 650, 651-52 (Tex. App.—San Antonio 1996, pet. ref'd); see also
Hubbard v. State, 739 S.W.2d 341, 344 (Tex. Crim. App. 1987). Appellant
has done neither, ard we deny his requests.

11

%~ OFFICE OF THE ATTORNEY GENERA. JTATE OF TEXAS
‘

JOHN CORNYN

April 23, 1999

Honorable William K. Suter, Clerk
United States Supreme Court
Office of the Clerk

1 First St., N.E.

Washington, D.C. 20543

Re: Scott Leslie Carmell v. The State of Texas
No. 98-7540

Dear Mr. Suter:

Enclosed for filing with the papers in the above styled cause are the original and nine
(9) copies of Respondent's Brief in Opposition. Also enclosed is the Proof of Service form.
Please indicate the date of filing on the enclosed copy of this letter and return it to me in the
enclosed postpaid addressed envelope.

By copy of this letter, | am forwarding a copy of this brief to Petitioner.

Thank you for your kind assistance in this matter.

Yours truly,

Yah»

CHARLES A. PALMER

Assistant Attorney General
(512) 936-1400
CAP:cc
Enclosure
e Scott Leslie Carmell
TDCJ No. 777548 pe
Beto I Unit i RECEIVED
P.O. Box 128 APR 2 6 1999
Tennessee Colony, Texas 75880 OFFICE OF THE CLERK
SUPREME COUIRT. U.3.

Post Orrict Box 12548, Austin, Texas 78711-2548 Tet: ($12)463-2100 WEB: wwW.OAG.STATE.Tx.US
An Equal Empleymen: Opportunity Employer Promted on Recycled Paper

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0295%3A03. Public record. Not legal advice.