Opposition Brief — Texas v. Skelton

ty we 5 Be

No. 90-139

In The

Supreme Court of the United States

October Term, 1990

La

vr

THE STATE OF TEXAS,

Petitioner,

vs.

JOHN SKELTON,

Respondent.

a

7

On Petition For A Writ Of Certiorari

To The Court Of Criminal Appeals Of Texas

a

a

RESPONDENT JOHN SKELTON’S BRIEF

IN OPPOSITION TO THE PETITION

FOR WRIT OF CERTIORARI

a

4

Davip L. BorsFoRD

Counsel of Record

Avis, Carssow, CUMMINS,

HoerFNeR & Bortsrorp, P.C.

800 Southwest Tower

7th at Brazos

Austin, Texas 78701

512/476-9121

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

3]

TABLE OF CONTENTS

Page

NATURE OF THE CASE AND PROCEDURAL HIS-

TORY OF THE CASE

eee eeree eee eee eee eee ee eee ee

REASONS FOR DENYING THE WRIT OF CER-

TIORARI

1.

ae AG eas Rie Ce aan Bek de kk bees Res

PETITIONER PROCEDURALLY BYPASSED

THE COURT OF CRIMINAL APPEALS BY

FAILING TO PRESENT IN ANY MANNER, IN

ITS RESPONSE BRIEF, THE QUESTION PRE-

SENTED IN THE PETITION FOR WRIT OF

OT TPT. TEEPE TET T CTL EETIee

PETITIONER PROCEDURALLY BYPASSED

THE COURT OF CRIMINAL APPEALS BY

FAILING TO PRESENT, ON MOTION FOR

REHEARING, THE QUESTION PRESENTED

IN THE PETITION FOR WRIT OF CER-

SES CRs RUS Riba ened iNedncakteds cen sass

PETITIONER SHOULD BE ESTOPPED FROM

PRESENTING THE “QUESTION PRESENTED”

TO THIS COURT SINCE PETITIONER REPRE-

SENTED TO THE COURT OF CRIMINAL

APPEALS THAT THE UTILIZATION OF THE

“EXCLUSION OF OUTSTANDING REASON-

ABLE HYPOTHESIS TEST” WAS PROPER

AND WELL ESTABLISHED UNDER STATE

LAW AND IMPLICIT IN ANY REVIEW BASED

ON JACKSON V. VIRGINIA .................

PETITIONER’S COMPLAINT TO THE COURT

OF CRIMINAL APPEALS REGARDING THE

EXCLUSION OF REASONABLE HYPOTHESIS

TO A “MORAL CERTAINTY” DID NOT PRE-

SERVE PETITIONER’S RIGHT TO SEEK THIS

COURT’S REVIEW OF THE “QUESTION PRE-

SENTED”

11

ii

TABLE OF CONTENTS Page

6. THE STANDARD OF REVIEW UTILIZED BY

THE COURT OF CRIMINAL APPEALS HAS

BEEN UTILIZED IN TEXAS FOR OVER 100

YEARS AND THIS COURT SHOULD NOT

REVIEW A DECISION BASED ON AN ADE-

QUATE AND INDEPENDENT STATE LAW

DARED 0.000 5ckcaneeehebaes sane ReenaeNussecese 16

7. GRANTING THE PETITION FOR WRIT OF

CERTIORARI WOULD VIOLATE RESPON-

DENT’S RIGHTS AGAINST DOUBLE JEOP-

ARDY, AS GUARANTEED BY THE FIFTH

AMENDMENT TO THE CONSTITUTION OF

THE UNITED STATES ..................0005: 20

8. THE JUDGMENT OF ACQUITTAL WAS PROP-

ERLY ENTERED BY THE COURT OF CRIMI-

NAL APPEALS OF TEXAS................... 22

9. APPLICATION OF THE EXCLUSION OF OUT-

STANDING REASONABLE HYPOTHESIS

TEST IS NOT A CONSTITUTIONAL VIOLA-

iii

TABLE OF AUTHORITIES

Page

CASEs:

Bloeth v. New York, 369 U.S. 133, 82 S.Ct. 661, 7

ee. o .. cccdeuccnewsseas 8, 11, 16

Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57

ee duc uswencebea seen 16, 20

Collier v. Poe, 732 S.W.2d 332, 344 (Tex. Cr. App.

1987), appeal dismissed, __ U.S. __, 108 S.Ct.

REE PS oS en rd 5

Flores v. State, 551 S.W.2d 364 (Tex. Cr. App. 1977) .17, 19

Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671,

Ee oe aca ceawaseseeess 20

Holland v. United States, 348 U.S. 121, 75 S.Ct. 127,

cn. cc eccentacceaeteceeeese 25

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

is onc Gcstdocvasuacvecssvevese passim

Kunde v. State. 3 S.W. 325 (Tex.Ct.App. 1886)........ 18

Montgomery v. State, _ S.W.2d ___ (No. 1090-88;

I Eo datans ovtuecnaceesecedes 17

Perkins v. State, 32 Tex. 110 (1869)................... 18

Rodriquez v. State, 496 S.W.2d 46 (Tex. Cr. App.

TURE MERE AS O65 60a we oan aeescnsnbsacccecssss 8

Steagald v. United States, 451 U.S. 204, 101 S.Ct.

Bem, Ge Enme.ae SO CISB1).. 2.2... cece ccccrccces. 12

Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4

L.Ed.2d 654 (1960)

Webb v. Webb, 451 U.S. 493, 101 S.Ct. 1889, 68

ee ME ED... cn sta ncccccccence 6, 8, 11, 12, 16

iv

TABLE OF AUTHORITIES - Continued

Page

Wilson v. State, 692 S.W.2d 661 (Tex. Cr. App. 1984) .... 12

STATUTES:

28 USC. Section 125Ma)........cscscccccccccccsscess 5

OTHER:

Rule 21.1(h), Rules of the Supreme Court of the

SINR TUMIIB ooo a ccccwcccsccceswornscsscsdesedsces 6

24 Tex. Jur. 2d, Evidence, Section 742, p. 422........ 17

No. 90-139

La.

4

In The

Supreme Court of the United States

October Term, 1990

a.

4

THE STATE OF TEXAS,

Petitioner,

vs.

JOHN SKELTON,

Respondent.

y%

.

On Petition For A Writ Of Certiorari

To The Court Of Criminal Appeals Of Texas

y%

4

RESPONDENT JOHN SKELTON’S BRIEF

IN OPPOSITION TO THE PETITION

FOR WRIT OF CERTIORARI

y%

_

TO THE HONORABLE JUSTICES OF THE SUPREME

COURT:

Respondent, John Skelton, respectfully requests that

this Court deny the petition for writ of certiorari, seeking

review of the opinion of the Court of Criminal Appeals of

Texas. That opinion is not yet reported, but is reprinted in

its entirety in the State’s petition at A-1 to A-17 (hereinaf-

ter referred to as Pet. at ).

~-.

—

2

NATURE OF THE CASE AND PROCEDURAL

HISTORY OF THE CASE

On July 17, 1982, a two paragraph indictment for,

respectively, capital murder and murder was filed.

Therein, it was alleged that on April 24, 1982, Respondent

did:

“... knowingly and intentionally while in the

course of commiting and attempting to commit

arson of a vehicle owned by Joe Neal, inten-

tionally cause the death of Joe Neal, hereafter

styled the Complainant “{ pms an explosive

t

weapon on the vehicle o complainant, and

causing said weapon to explode.

“... did then and there unlawfully, knowingly

and intentionally cause the death of Joe

Neal . . . by placing an explosive weapon on the

vehicle of the Complainant, and causing said

weapon to explode. .. . ”

Upon learning of the indictment, Respondent voluntarily

returned to Odessa from Missouri, turned himself in, and

was thereafter released on bond.

In June 1983, the case proceeded to trial. Petitioner

waived the second paragraph and proceeded to the jury

only on the capital murder charge. The defense, simply

stated, was that Respondent was in Missouri at the time

of the commission of the alleged offense, as substantiated

by numerous independent witnesses and documents. The

jury was submitted a charge which allowed a conviction

on a theory of individual OR party liability. A general

verdict of guilty was returned and after affirmative

answers to special issues were returned, a verdict of

death was assessed on July 8, 1983. Respondent was

taken into custody and has been on death row at the

Texas Department of Corrections since on or about July 8,

1983.

The mandatory appeal dictated by Article 37.071,

Vernon’s Ann. C.C.P. was pursued. In February 1985,

Respondent’s current counsel became involved in the

case. At that point in time, no brief had yet been filed on

behalf of Respondent due to massive delays in the prepa-

ration of the record on appeal.

On April 18, 1985, Respondent, with leave of court,

timely filed a 156 page brief containing 63 grounds of

errov.

On April 4, 1986, almost one year later, Petitioner

filed its 41 page response.

On May 20, 1986, Respondent filed an 85 page sup-

plemental brief.

On May 21, 1986, oral argument was presented to the

Court of Criminal Appeals of Texas.

From May 1986 through November 1987, Respondent

filed three post oral argument supplemental briefs and

three motions to expedite disposition of the appeal by the

Court of Criminal Appeals. The State did not file any

documentation with the Court of Criminal Appeals other

than its brief on April 4, 1986.

On December 13, 1989, the Court of Criminal

Appeals delivered an opinion reversing the judgement

and ordering the entry of a judgement of acquittal due to

insufficient evidence to show Respondent guilty as an

individual or as a party. See Pet. at A-1 to A-17.

On December 29, 1989, Petitioner untimely filed its

motion for rehearing, a copy of which was attached as

Exhibit 2 to Respondent's response to Petitioner’s motion

to stay issuance of mandate filed with this Court on or

about July 16, 1990 (hereinafter referred to Respondent's

response). See Pet. at B-1. See Rule 230, Texas Rules of

Appellate Procedure.

On February 1, 1990, Respondent filed his response

to Petitioner’s motion for rehearing, a copy of which was

attached as Exhibit 3 to Respondent's response filed with

_ this Court on or about July 16, 1990.

On May 2, 199J, the Court of Criminal Appeals

denied Petitioner’s motion for rehearing. See Pet. at C-1.

Pursuant to Orders of the Court of Criminal Appeals,

the mandate of the Court of Criminal Appeals was stayed

from May 16, 1990, until July 23, 1990. On or about July

16, 1990, Respondent, in anticipation that Petitioner

would file a motion to stay (and due to the anticipated

absence from the state of Respondent’s counsel) filed

with this Court his response to Petitioner’s motion to stay

issuance of mandate (hereinafter referred to as Respon-

dent’s response). On or about July 20, 1990, Petitioner

filed its motion to stay issuance of mandate and petition

for writ of certiorari. On July 23, 1990, Mr. Justice White

granted Petitioner’s motion to stay.

+

5

REASONS FOR DENYING

THE WRIT OF CERTIORARI

1. THIS COURT DOES NOT HAVE JURISDICTION.

“Petitioner’s claim is based on the Fourteenth

Amendment to the United States Constitution”. Pet. at 2.

Petitioner also asserts jurisdiction under 28 U.S.C. Section

1257(a). Pet. at 2.

Assuming, arguendo, that Petitioner is referring to the

due process clause of the Fourteenth Amendment, it

should be pointed out that nothing contained therein

affords the State of Texas due process of law. Indeed, the

Fourteenth Amendment is a limitation on the actions of

the State of Texas. And, under Collier v. Poe, 732 S.W.2d

332, 344 (Tex. Cr. App. 1987), appeal dismissed, ___ U.S.

___, 108 S.Ct. 51 (1987) [dismissed for want of substantial

federal question, which is a ruling on the merits], the

State of Texas is not entitled to due process of law. Peti-

tioner’s reliance upon the Fourteenth Amendment is seri-

ously misplaced.

Furthermore, 28 U.S.C. Section 1257(a) provides that

this Court has jurisdiction to review, via writ of certiorari,

a decision of the Court of Criminal Appeals where:

“... the validity of a treaty or statute of the

United States is drawn in question or where the

validity of a statute of any State is drawn in

uestion on the ground of its being repugnant to

the Constitution, treaties or laws of the United

States, or where any title, right, privilege or

immunity is specially set up or claimed under

the Constitution or the treaties or statutes of, or

any commission held or authority exercised

under, the United States.”

Clearly, the validity of a treaty or statute of the United

States is not in question. Similarly, no statute of the State

of Texas is involved in this case. Finally, Petitioner (as

demonstrated in the second through sixth reasons in sup-

port of a denial of the writ) failed in the state court to

specially set up or claim any title, right, privilege or

immunity under the Constitution of the United States. See

Webb v. Webb, 451 U.S. 493, 101 S.Ct. 1889, 68 L.Ed.2d 392

(1981)[Mr. Justice White, speaking for the Court, noted

that petitioner failed to properly raise or preserve a fed-

eral question in the Georgia courts and that the petition

for writ of certiorari must be dismissed due to that fail-

ure]. Respondent respectfully submits that jurisdiction

over the instant petition for writ of certiorari does not

exist and that the petition for writ of certiorari should be

denied.

2. PETITIONER PROCEDURALLY BYPASSED THE

COURT OF CRIMINAL APPEALS BY FAILING TO

PRESENT IN ANY MANNER, IN ITS RESPONSE

BRIEF, THE QUESTION PRESENTED IN THE

PETITION FOR WRIT OF CERTIORARI.

The “question presented” is:

“Whether the Texas Court of Criminal Appeals

has misapplied the Rule of Jackson v. Virginia

443 U.S. 307 (1979) by holding that the prosecu-

tion is under an affirmative duty to disprove

every hypothesis except that of guilt beyond a

reasonable doubt.” Pet. at i.

Petitioner has complied with Rvle 21.1(h) of the

Rules of this Court by stating, pet. at 2, that “in this

motion for rehearing the state specifically alleged that the

Texas Court of Criminal Appeals had misapplied the rule

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

Respondent contends that Petitioner did not raise the

“question presented” in its motion for rehearing (see

number 3, infra), Petitioner’s statement is an undeniable

concession that Petitioner failed to present the “question

presented” at any point in time prior to the motion for

rehearing. Respondent asserts that this concession and

the ramifications thereof justify a denial of certiorari.

Petitioner had the clear opportunity to raise the

“question presented” in the Court of Criminal Appeals.

In Respondent’s opening brief, the standard of review

was stated to be the following with respect to the

grounds of error addressed by the Court of Criminal

Appeals in its opinion:

“Under Jackson v. State, 672 S.W.2d 801, 803 (Tex.

Cr. App. 1984), the standard of review is that set

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

applying that test, this Court has agreed that the

‘exclusion of outstanding reasonable hypoth-

eses’ test is still applicable. Id. at 803 citing

Denby v. State, 654 ow 457 (Tex. Cr. App.

1983).” (as to liability as the sole actor: Ground

of Error No. 7; Respondent’s brief at pages

25-26)

“Thus, while the circumstances are suspicious, a

jury is not allowed to convict on speculation,

Jackson v. State, 536 S.W.2d 371, 375 (Tex. Cr.

App. 1976), and suspicion does not justify an

affirmance by this Court; only proof beyond a

reasonable doubt. Waldon v. State, 579 S.W.2d

499 at 502 (Tex. Cr. App. 1979). (as to liability as

a party; Ground of Error No. 6; Respondent’s

brief at page 23). :

In Petitioner’s brief filed in response to Respondent’s

opening brief, Petitioner totally failed to set forth any

standard of review, let alone present to the Court of

Criminal Appeals any assertion that the standard cited to

it by Respondent was inconsistent with Jackson v. Virginia,

supra. Petitioner’s brief at pages 5 to 23. In fact, Petitioner

only cited one case: Rodriguez v. State, 496 S.W.2d 46 (Tex.

Cr. App. 1973), which addressed knowledge and control

over narcotic drugs and did not address, directly or indi-

rectly, the “question presented” in Petitioner’s submis-

sion to this Court. Accordingly, Petitioner failed to afford

the Court of Criminal Appeals the opportunity to pass

upon the question it has presented to this Court. The

failure to afford the Court of Criminal Appeals an oppor-

tunity to pass upon the question it seeks this Court to

review is a procedural bypass of the Court of Criminal

Appeals. See Bloeth v. New York, 369 U.S. 133, 82 S.Ct. 661,

7 L.Ed. 2d 780 (1962) [Mr. Justice Harlan, on application

for stay of execution, stated that “it appears on the face of

the present-application that the two questions proposed

for review were not raised in the Court of Appeals until

the second motion for reargument. In such circumstances

it is clear that this Court would be without jurisdiction to

consider them]; Webb v. Webb, supra [outlining policy

reasons why a petitioner must present to the state court

the question he desires to present on certiorari or appeal].

Petitioner’s procedural default justifies the denial of cer-

tiorari.

9

3. PETITIONER PROCEDURALLY BYPASSED THE

COURT OF CRIMINAL APPEALS BY FAILING TO

PRESENT, ON MOTION FOR REHEARING, THE

QUESTION PRESENTED IN THE PETITION FOR

WRIT OF CERTIORARI.

Respondent contends that Petitioner’s assertion that

it raised the precise “question presented” in its motion

for rehearing, Pet. at 2, is inaccurate, lacking in candor,

and directly contrary to the record. Petitioner did not

raise the “question presented” and has thus failed to

present the issue to the Court of Criminal Appeals and

has procedurally bypassed its opportunity to complain to

this Court.

In Petitioner’s motion for rehearing to the Court of

Criminal Appeals, Petitioner presented four points of

error, as follows:

“Point of Error Number One: The Court erred in

holding that the reasonable hypothesis of the

Appellant must be excluded to a moral cer-

tainty.”

“Point of Error Number Two: The hypothesis

relied on by the Court i.e., that another unbe-

knownst to the Appellant committed the

offense, is not a reasonable hypothesis.”

“Point of Error Number Three: The facts of the

instant case are distinguishable from Nathan and

Flores and-the evidence is sufficient to uphold

the conviction.”

“Point of Error Number Four: It is proper to

uphold Appellant’s conviction based on his sta-

tus as a party.”

See Petitioner’s motion for rehearing, contained in

Exhibit 2 to Respondent's response to Petitioner’s motion

10

to stay issuance of mandate filed with this Court on or

about July 16, 1990.

Under Point of Error Number One in its motion for

rehearing, (i.e., Exhibit 2 attached to Respondent's

response at page 3), Petitioner stated the following to the

Court of Criminal Appeals:

“The proper standard to apply in circumstantial

evidence cases has known no little argument.

Butler v. State, 769 S.W.2d 234 (Tex. Crim. App.

1989). The current accepted status of the test holds

that there are two components: first that “ . . . after

reviewing the evidence in the light most favor-

able to the prosecution, any rational trier of fact

could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Vir-

ginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560

(1979); and second, “A conviction based on circum-

stantial evidence must exclude every other reason-

able hypothesis except the guilt of the accused .. . It

is not required that the circumstance should, to

a moral certainty, actually exclude every

hypothesis that the act may have been commit-

ted by another person, but that the hypothesis is a

reasonable one consistent with the circumstances and

the facts proved . . . Each fact need not point

directly and independently to the guilt of the

accused, as the cumulative effect of all the

incriminating facts may be sufficient to s rane

the evidence.” Carlsen v. State, 654 :S.W.

447 (Tex. Cr. App. 1983); Bulter, supra 238 foot-

note 1. The second step in this application, the

exclusion of the reasonable hypothesis, is well settled

in Texas Criminal Jurisprudence, and is “implicit”

in any review based on Jackson. Bulter supra, id.”

(emphasis added)

Thus, in its motion for rehearing, Petitioner was NOT

COMPLAINING THAT THE COURT OF CRIMINAL

11

APPEALS HAD MISAPPLIED JACKSON V. VIRGINIA,

supra, but was complaining only about the application of

a standard that, under state law, contained a “moral cer-

tainty” component. Accordingly, Petitioner’s statement,

Pet. at 2, that “in this motion for rehearing the state

specifically alleged that the Texas Court of Criminal

Appeals had misapplied the rule of Jackson v. Virginia,

443 U.S. 307 (1979)”, is inaccurate, lacking in candor and

directly contrary to the express wording of its motion for

rehearing. Indeed, Petitioner failed to present to the

Court of Criminal Appeals the “question presented” in

the petition for writ of certiorari and thus procedurally

bypassed its right to present the “question presented”.

See Bloeth v. New York, supra; Webb v. Webb, supra. Peti-

tioner’s procedural default justifies the denial of cer-

tiorari.

4. PETITIONER SHOULD BE ESTOPPED FROM PRE-

SENTING THE “QUESTION PRESENTED” TO

THIS COURT SINCE PETITIONER REPRESENTED

TO THE COURT OF CRIMINAL APPEALS THAT

THE UTILIZATION OF THE “EXCLUSION OF

OUTSTANDING REASONABLE HYPOTHESIS

TYST” WAS PROPER AND WELL ESTABLISHED

UNDER STATE LAW AND IMPLICIT IN ANY

REVIEW BASED ON JACKSON V. VIRGINIA.

As reflected above in the quotation from Petitioner’s

motion for rehearing to the Court of Criminal Appeals,

(see Exhibit 2 attached to Respondent’s response at page

3), Petitioner affirmatively stated that the utilization of

the “exclusion of outstanding reasonable hypothesis test”

was proper, well established under state law, and implicit

in any review based on Jackson v. Virginia, supra.

12

In its petition for certiorari, Petitioner has not only

disregarded its previous representations to the Court of

Criminal Appeals, Petitioner has also affirmatively mis-

led this Court concerning what it did in fact represent to

the Court of Criminal Appeals. It bears repeating: Peti-

tioner’s motion for rehearing did not allege that the

Court of Criminal Appeals had misapplied Jackson v. Vir-

ginia, supra, contrary to the assertions of Petitioner. See

Pet. at 2. Any cursory review of the motion for rehearing

will reflect the accuracy of this statement.

Notions of comity indicate that this Court should not

review matters which were not presented to the Court of

Criminal Appeals. Webb v. Webb, supra. Furthermore, Peti-

tioner’s express representations contained in its motion

for rehearing concerning the propriety of the “exclusion

of outstanding reasonable hypothesis test” should be

held as inconsistent with its position at trial and on

appeal. Under the ruling in Steagald v. United States, 451

U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), the Govern-

ment may not raise issues before this Court:

uM

. when it has made contrary assertions in

the courts below, when it has acquiesced in con-

trary findings by those courts, or when it has

failed to raise such questions in a timely fashion

during the litigation.” Id., at 1646.

Cf. Wilson v. State, 692 S.W.2d 661 (Tex. Cr. App. i984)

[citing and following Steagald]. Since Petitioner actually

affirmatively represented that the standard utilized (i.e.,

“the exclusion of outstanding reasonable hypothesis

test”) was well settled in “ . . . Texas Criminal Jurispru-

dence and is ‘implicit’ in any review based on Jack-

son...”, Petitioner should not now be allowed to assert

A=

13

otherwise. This change in position did not afford the

Court of Criminal Appeals an opportunity to address,

directly or indirectly, the question presented in its cer-

tiorari petition, and therefore, this Court should deny

certiorari.!

5. PETITIONER’S COMPLAINT TO THE COURT OF

CRIMINAL APPEALS REGARDING THE EXCLU-

SION OF REASONABLE HYPOTHESIS TO A

“MORAL CERTAINTY” DID NOT PRESERVE PETI-

TIONER’S RIGHT TO SEEK THIS COURT’S

REVIEW OF THE “QUESTION PRESENTED”.

Petitioner’s complaint in its motion for rehearing

regarding the exclusion of all reasonable hypothesis to a

“moral certainty” did not include, directly or indirectly,

any complaint that the Court of Criminal Appeals had

1 Petitioner mentioned the “question presented” only after

the Court of Criminal Appeals denied Petitioner’s motion for

rehearing on May 2, 1990. In Petitioner’s first motion for stay,

filed with the Court of Criminal Appeals on or about May 5,

1990 (see Exhibit 5 to Respondent's July 16, 1990, submission to

this Court opposing Petitioner’s anticipated motion for stay),

Petitioner asked the Court to stay the execution of the mandate

because: “The petition for review to this Court presents a

substantial federal question: Whether the Texas Court of Crim-

inal Appeals has misapplied the United States Supreme Court

ruling in Jackson v. Virginia (citation omitted) and it’s progeny

by using an incorrect standard in analyzing the sufficiency of

evidence in a circumstantial evidence case”. It should be noted

that Petitioner did not, in that stay document, even point out

how the Court of Criminal Appeals had allegedly misapplied

the rule of Jackson v. Virginia. Furthermore, Petitioner did not

file a second motion for rehearing asking the Court of Criminal

Appeals to consider that question.

14

misapplied the standard of Jackson v. Virginia, supra. Evena

cursory review of Petitioner’s motion for rehearing will

reveal the accuracy of this statement.

Also, as noted in Respondent’s response to Peti-

tioner’s motion for rehearing (contained in Exhibit 3

attached to Respondent’s response filed with this Court

on or about July 16, 1990), the opinion of the Court of

Criminal Appeals did not actually employ a test whereby

all reasonable hypothesis were excluded to a moral cer-

tainty. As stated by Respondent (see Exhibit 3 at pages

13-14):

“... the plain language of the opinion in this

case indicates that an exclusion to a moral cer-

tainty “test” was not ACTUALLY employed by

the Court. There were three portions of the

opinion regarding the standard of review gov-

erning the Court’s analysis of the evidence in

this case. In order of appearance, they are as

follows:

(1) “In both circumstantial evidence and

direct evidence cases the standard by which

evidence is reviewed is whether any ratio-

nal trier of fact could have found the essen-

tial elements of the crime beyond a

reasonable doubt. Houston v. State, 663

S.W.2d (Tex. Cr. App. 1984); Carlsen v. State,

654 S.W.2d 444 (Tex. Cr. App. 1983); Bulter

v. State, 759 S.W.2d 234, 238 (Tex. Cr. App.

1989). In Denby v. State, 654 S.W.2d 457, 464

(Tex. Cr. App. 1983) (Opinion on Rehear-

ing), this Court noted that ‘if the evidence

supports an inference other than the guilt of

the appellant, a finding of guilt beyond a

reasonable doubt is not a rational finding.’

Froof which amounts to only a strong suspi-

cion or mere probability is insufficient. It is

15

the appellate courts’ function to ensure that

no one is convicted of a crime except on

proof beyond a reasonable doubt.”

“After viewing the evidence in the light

most favorable to the verdict, as we are

constrained to do, Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560

(1979), we find that we agree with appellant

as to both points. Although there is plenti-

ful evidence to show that appellant made

numerous threats against the victim and

that two weeks before the offense he was in

possession of materials similar to those

used in the commission of the offense, we

find no evidence which connects appellant

with the actual setting of the bomb, nor is

there any evidence showing that he solic-

ited, encouraged, directed, aided or

attempted to aid another to place the bomb.

V.T.C.A., Penal Code, Section 7.02(a)(2). The

evidence, even when viewed in the light

most favorable to the verdict, suggests at

least one hypothesis other than the guilt of

appellant: that is, that someone else unbe-

knownst to appellant committed the

offense”. Slip op. at 9-10.

(2) “Although the evidence against appel-

lant leads to a strong suspicion or proba-

bility that appellant committed this capital

offense, we cannot say that it excludes to a

moral certainty every other reasonable

hypothesis except appellant’s guilt. Nathan

v. State, 611 S.W.2d (Tex. Cr. App. 1981);

Flores v. State, 551 S.W.2d 364 (Tex. Cr. App.

1977). Specifically, there remains the out-

standing possibility that someone other

than appellant committed the offense.” Slip

op. at 14.

16

(3) “We see no difference between Nathan.

Flores and the instant case. Although this

Court does not relish the thought of revers-

ing the conviction in this heinous case and

ordering an acquittal, because the evidence

does not exclude every other reasonable

hypothesis, we are compelled to do so. The

judgement is reversed and an order of

acquittal is entered. Burks v. United States,

437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978);

Green v. Massey, 437 U.S. 19, 98 S.Ct. 2151,

57 L.Ed.2d 15 (1978).” Slip op at 16.

The first and third references do not contain any

mention of the ‘moral certainty’ test. Only the

second reference contains a reference to the

‘moral certainty’ test, and the second reference

is not the ‘holding’ of the opinion.”

Accordingly, it is clear that Petitioner’s complaint on

motion for rehearing did not preserve the question which

Petitioner seeks this Court to review. Cf. Bloeth v. New

York, supra; Webb v. Webb, supra. Certiorari should be

denied.

6. THE STANDARD OF REVIEW UTILIZED BY THE

COURT OF CRIMINAL APPEALS HAS BEEN UTI-

LIZED IN TEXAS FOR OVER 100 YEARS AND

THIS COURT SHOULD NOT REVIEW A DECI-

SION BASED ON AN ADEQUATE AND INDEPEN-

DENT STATE LAW BASIS.

As reflected above in the quotation from Petitioner’s

motion for rehearing, Petitioner conceded in his motion

for rehearing that the standard employed by the Court of

Criminal Appeals is well settled in Texas jurisprudence.

Accordingly, Petitioner’s assertion that the opinion rested

primarily upon federal law and that an independent state

17

law ground was not apparent from the four corners of the

opinion, pet. at 4, is not well taken. Indeed, Petitioner’s

concession in its motion for rehearing that the test is well

settled in Texas jurisprudence should estop it from assert-

ing that an adequate and independent state law basis

does not exist, particularly given Petitioner’s failure to

present the “question presented” to the Court of Criminal

Appeals (which failure denied the Court of Criminal

Appeals a concrete reason and opportunity to clarify, if it

did not, the fact that the test employed was premised on

over 100 years of well settled state law).

The existence of an adequate and independent state

law basis for the decision of the Court of Criminal

Appeals clearly indicates that review by this Court would

be inappropriate. And, there can be no question that it is

a state law standard. See also Montgomery v. State, __

S.W.2d ___ (No. 1090-88; delivered May 30, 1990) (McCor-

mick, Presiding Judge, for the Court, stated that “Texas

law” dictates that outstanding reasonable hypothesis

inconsistent with guilt have to be considered on appeal

where insufficient evidence has been alleged).

The “exclusion of outstanding reasonable hypothesis

test” utilized by the Court of Criminal Appeals in this

case has been utilized in Texas for over 100 years. See 24

Tex. Jur. 2d, Evidence, Section 742, p. 422, cited with

approval in Flores v. State, 551 S.W.2d 364 (Tex. Cr. App.

1977) (one of the cases cited by the Court of Criminal

Appeals in the instant opinion). Indeed, at page 423 of

this volume of Texas Jurisprudence, the following state-

ment is made:

“In felony cases, s lly where death sentence

has been neem pms court rigorously

18

insists on moral certainty of guilt of one con-

victed on circumstantial evidence”. (citing six-

teen Texas cases going back to 1869)

Indeed, the first case cited at page 422 after this quotation

is Perkins v. State, 32 Tex. 110 (1869), where the Court,in a

noncapital felony, stated:

“... in all trials for felony, involving the liberty or

the life of a party, the circumstances to show the

guilt of the party ——_ must be of a conclusive

nature and tendency. any other hypoth-

esis can be ted on the facts proved, consis-

tent with innocence of the party accused, it

would be tyranny, oppression and the grossest

injustice, to demand a victim to expiate an offense

against the law from such uncertain demonstra-

tions by the evidence . . . And unless there were

sufficient circumstances, developed by the

mony, to fix a rational conviction in the mind that

it was the one, rather than the other (ie., one

person who might have stole the property as

opposed to another who might have stole the prop-

erty), neither the verdict nor the judgment ought to

be permitted to stand.” (explanation added).

Similarly, in Kunde v. State, 3 S.W. 325 (Tex.Ct.App. 1886),

the Court stated:

“The twenty-second assignment ©/ error calls in

question the sufficiency of the evidence to sup-

port the conviction. Circumstantial evidence

alone is relied upon by the state to sustain the

conviction. After very careful and repeated

examination of the evidence as presented in the

statement of facts, we unhesitatingly say that to

our minds it is wholly insufficient to warrant

the conviction. There are but few circumstances

which tend even remotely to prove this defen-

dant’s connection with the murder, and none of

19

these inculpatory circumstances are at all incon-

sistent with his innocence, nor are any of them

incapable of explanation upon any other

hypothesis but that of his guilt. Taken alto-

gether, the circumstances are far from being of a

conclusive nature. They do not lead the mind to

a satisfactory conclusion, and do not produce a

reasonable and moral certainty of the defen-

dant’s guilt; in other words the evidence, being

wholly circumstantial, is not of that force, cer-

tainty, and conclusiveness demanded by the law

in support of a conviction for felony. Pogue v.

State, 12 Tex. App. 283; Lovelady v. State, 14 Tex.

App. 545; Rye v. State, 8 Tex. App. 153; Hunt v.

State, 7 Tex. App. 235; Robertson v. State, 10 Tex.

App. 602; Black v. State, 1 Tex. App. 369; Barnes

v. State, 41 Tex. 342.”

Clearly, the “exclusion of outstanding reasonable hypoth-

esis test” has been a consistent and uniform aspect of

Texas law for over 100 years. Petitioner’s efforts to con-

vince this Court that there was no clear indication that

the opinion of the Court of Criminal Appeals rests on an

adequate and independent state law ground, Pet. at 4,

n.1, is not well taken given the historical background of

the “exclusion of outstanding reasonable hypothesis test”

in Texas, Petitioner’s concession in his motion for rehear-

ing that it is a well settled portion of Texas jurisprudence,

and the reliance of the Court of Criminal Appeals upon

Flores v. State, supra, which was decided well before Jack-

son v. Virginia, supra. Even Judge Berchelmann, who dis-

sented with written opinion, utilized the “exclusion of

reasonable hypothesis test”. Pet. at A-17. And, it should

be recalled Texas is free to afford more protection to its

citizens than that amount mandated by the Constitution

20

of the United States. Clearly, this is what Texas has done

as a matter of state law.

Furthermore, Respondent would point out that under

the Eighth and Fourteenth Amendments, a heightened

scrutiny of the evidence on appeal -- which is what

Petitioner is attempting to complain about -- is not appro-

priate in a capital case. Denial of certiorari is appropriate.

7. GRANTING THE PETITION FOR WRIT OF CER-

TIORARI WOULD VIOLATE RESPONDENT’s

RIGHTS AGAINST DOUBLE JEOPARDY, AS

GUARANTEED BY THE FIFTH AMENDMENT TO

THE CONSTITUTION OF THE UNITED STATES.

In Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671,

___ L.Ed.2d _____ (1962), this Court held, in essence, that

once a verdict of acquittal is entered, no matter how

egregiously erroneous the foundation therefor, the double

jeopardy clause of the Fifth Amendment would prevent

review of that acquittal and a retrial.

Respondent believes that under more recent pro-

nouncements of this Court, see e.g., Burks v. United States,

437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), there is

indeed a serious question of whether this Court can

review a state court judgment of acquittal without violat-

ing the double jeopardy clause of the Fifth Amendment.?

Respondent recognizes that Burks does not affirmatively

answer this question, but his interpretation of Burks is consis-

tent with Fong Foo, supra. Respondent also acknowledges that

Burks, supra at 5, noted that “[t]he United States has not cross-

petitioned for certiorari on the question of whether the Court

(Continued on following page)

i

21

Indeed, the bottom line of Petitioner’s request is to

obtain another bite at the apple: to obtain a third oppor-

tunity to convince the Court of Criminal Appeals that the

evidence was sufficient for any rational trier of fact to

have found Respondent guilty as an individual actor or

as a party. The Court of Criminal Appeals, in its original

opinion, held that no rational trier of fact could have

found Respondent guilty under either theory. The State

then sought a second bite at the apple in its motion for

rehearing, which the Court of Criminal Appeals rejected.

Now, Petitioner wants this Court to order the Court of

Criminal Appeals to again consider the sufficiency of the

evidence. This action violates the Fifth Amendment’s bar

against double jeopardy and runs counter to notions of

comity. Certiorari should be denied.

(Continued from previous page)

of Appeals was correct in holding that the Government had

failed to meet its burden of proof with respect to the claim of

insanity. Accordingly, that issue is not open for review here”.

Of course, in Burks, the defendant had raised a prima facie

defense of insanity and the government had failed to fulfill its

burden to effectively rebut that insanity, which is different

from a situation where, as in the present case, the prosecution

has failed to meet its burden of production and persuasion

regarding the elements of the offense. In this regard, Respon-

dent herein moved for an instructed verdict at the close of the

prosecutions’ case R. XX - 550-558, at the close of all of the

evidence, R. XXIII - 970-971, in his motion for new trial, R. I -

83-88, and in his first amended motion for new trial, R. I 89-95.

All of these efforts to obtain a ruling of insufficient evidence

contained the same grounds as reflected in Respondent’s brief

to the Court of Criminal Appeals (Grounds of Error Nos. es

5, 6, and 7).

22

8. THE JUDGMENT OF ACQUITTAL WAS PROP-

ERLY.ENTERED BY THE COURT OF CRIMINAL

APPEALS OF TEXAS.

In a well reasoned opinion authored by Presiding

Judge McCormick, the Court of Criminal Appeals held

that the evidence was insufficient for any rational trier of

fact to have found Respondent guilty as an individual

actor or as a party. Respondent begs this Court to read his

motion for rehearing attached to Respondent’s response

filed with this Court on July 16, 1990. That motion for

rehearing, along with the original brief of Respondent at

grounds of error six and seven, unequivocally demon-

sirate that the Court of Criminal Appeals was correct

when it held that the evidence was insufficient.

Two brief excerpts and one comment from that

motion for rehearing are appropriate. First, as reflected at

page 5 of Respondent’s motion for rehearing:

“...at the hearing on the motion for new trial,

the State did not even argue that the evidence

was sufficient to show individual liability, only

party liability. See R. XXVI-124, L. 2-13, appar-

ently made in response to the Court’s comments

at R.XXVI-99, L. 8-22.

Also, the State has ignored the fact that the trial

judge found there was no evidence to show

Appellant was in Odessa at the time of the

commission of the offense and the conviction

had to be made on the law of parties. R.

XXVI-99, L. 8-15 (hearing on motion for new

trial and amended motion for new trial).”

Second, as reflected at pages 8 to 9 of Respondent’s

motion for rehearing:

23

“The State has failed to prove the prelimi-

nary facts essential to a finding that Appellant

was involved in the bombing. At pages 26-27 of

his original brief or appeal, Appellant noted

that:

“The State failed to establish when the vehi-

cle was last driven by anyone on Friday, April

23, 1982, and that Appellant did in fact place an

explosive weapon on the vehicle after it was last

driven. Indeed, the State was so enthralled with

the various threats made by Appellant that it

failed to introduce evidence, if it existed, that

Appellant: (1) knew where Joe Neal lived; (2)

knew that Joe Neal drove a pickup truck, let

alone what type and color of truck and/or the

license number of that truck; and (3) knew that

Joe Neal parked that truck in the Furr’s parking

lot. In this connection, not only did the State fail

to elicit evidence to these necessary facts, the

State declined the opportunity to cross-examine

Appellant on them. (11)”

(11) The State did cross-examine Appel-

lant as to whether he knew where Joe Neal

was working in late 1980, and Appellant

was not sure. R.XXII-829. The vehicle which

was blown up was a 1982 pickup. R.XVII-15.

There is no evidence Appellant had ever

seen Joe Neal in that vehicle or knew that it

was driven by Joe Neal. The State and the

jury simply assumed Appellant knew this as

well as the location where Joe Neal lived as

of April 24, 1982. This may explain the

State’s failure to introduce evidence of own-

ership, as demonstrated in GROUND OF

ERROR NO. 5

“Without evidence of Appellant’s knowledge of

these elementary facts, the jury could not have

logically found that Appellant would have been

able to personally place the explosive weapon

24

on the vehicle. No one testified that Appellant

had any personal contact with Joe Neal after

Neal left Husky in 1980. Too, no one testified

that Appellant, at any time, drove by Neal’s

house or was at Neal’s house at any time. Sim-

ilarly, the State failed to produce any evidence

that Appellant was in Odessa on April 23, 1982,

after the vehicle was ‘finally, parked and thus

had an opportunity to place the explosive

weapon on the vehicle before 7:30 a.m. on April

24, 1982.”

The comment is as follows: As reflected at pages 10

to 12 of the motion for rehearing, Petitioner also ignored

the evidence developed on a motion for new trial which

showed that the State of Texas had suppressed evidence

which showed that there was a reasonable doubt that two

men other than Respondent were involved in the bomb-

ing.

In light of the contents of the motion for rehearing, it

is understandable why the Court of Criminal Appeals

rejected Petitioner’s pleas for rehearing. Simply stated,

no rational trier of fact could have found Respondent

committed the offense and the Court of Criminal Appeals

properly entered an acquittal.

9. APPLICATION OF THE EXCLUSION OF OUT-

STANDING REASONABLE HYPOTHESIS TEST IS

NOT A CONSTITUTIONAL VIOLATION.

Petitioner attempts to insinuate that application of

the exclusion of outstanding reasonable hypothesis test is

a constitutional violation. In addition to the comments

stated above regarding the lack of jurisdiction and the

lack of any constitutional right to which Petitioner is

25

entitled, it should be noted that neither Holland v. United

States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954) nor

Jackson v. Virginia, supra held as unconstitutional a stan-

dard of appellate review based on the exclusion of out-

standing reasonable hypothesis. Indeed, Holland, supra.

addressed the trial court’s failure to instruct the petite

jury that in assessing the government’s case, it must

exclude every reasonable hypothesis other than guilt. The

Court stated:

“There is some support for this type of instruc-

tion in the lower court decisions . . . (citations

omitted), but the better rule is that where the

jury is properly instructed on the standards for

reasonable doubt, such an additional instruction

on circumstantial evidence is confusing and

incorrect.”

Similarly, in Jackson this Court rejected the “no evidence”

rule of Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4

L.Ed.2d 654 (1960) and set forth the rule to be applied by

federal judges reviewing state sufficiency challenges via

federal habeas corpus. In applying that rule (i.e., whether

any rational trier of fact could have found every element

of the offense beyond a reasonable doubt), the Court held

the evidence sufficient and noted, in passing, that:

“Only under a theory that the prosecution was

under an affirmative duty to rule out every

hypothesis except that of guilt beyond a reason-

able doubt could this petitioner’s challenge be

sustained. That theory the Court has rejected in

the past. Holland v. United States (citation omit-

ted). We decline to adopt it today.” (emphasis

added)

The Court in Jackson, it should be noted, cited Holland.

but omitted a critical word: “REASONABLE”. Jackson

26

thus rejected the notion that the prosecution must rule

out every hypothesis except guilt, but it did not neces-

sarily reject the notion that the prosecution must rule out

every REASONABLE hypothesis but guilt. And certainly

there is nothing in Holland or Jackson that would indicate

a constitutional violation if a state court uses a standard

more favorable to the citizen accused. Certiorari should

be denied.

a

vv

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, Respon-

dent respectfully prays that this Honorable Court deny

the petition for writ of certiorari.

Respectfully submitted,

Davip L. BoTtsForRD

Counsel of Record

Avis, CARssow, CUMMINS,

-HoerrNer & Botsrorp, P.C.

800 Southwest Tower

7th at Brazos

Austin, Texas 78701

512/476-9121

3 Contrary to the express wording of Holland, the jury was

not instructed (let alone properly instructed) on the standards

for reasonable doubt. See Respondent’s Supplemental Brief at

page 55 (Ground of Error No. 67), filed on May 20, 1986.