Appendix — Delaney v. Rodriguez
Supreme Court brief1997
Ask Donna
What actually matters in this document.
Text
“fy ,
97305 may 20 1997
NO 2 ne nex
IN THE
SUPREME COURT OF THE UNITED STATES
OctoberTerm , 1996
JOSEPH H. DELANEY,
Petitioner
Vv.
CHRISTINE RODRIGUEZ,
R espondent
On Petition For The Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
APPENDIX TO PETITION FOR
WRIT OF CERTIORARI
Joseph H. Delaney, Pro Se
P. O. Box 957
Alpine, Texas 79831
(915) 837-3700
Appendix, Page 2
TABLE OF CONTENTS
PAGE
Order of the Sth Circuit Court of Appeals,
entered 2/21/97 denying reconsideration 5
Order of the 5th Circuit Court of Appeals,
entered 1/23/97 dismissing appeal 6
Order entered by Judge Lucius D. Bunton
entered 5/2/96 7
FAX Dated 4/29/96 from Petitioner to
Lucius Bunton, U.S. District Judge
Wester Distnct of Texas, Pecos Div. 8
Order entered by the U.S. Distnct Court,
Wester District of Texas, 4/26/96,
denying new tnal 9-10
Judgment entered by the U.S. District Court, |
Wester District of Texas 2/16/96 11-28
Judgment and Opinion, entered 10/13/93, 8th
District Court of Appeals of Texas, El Paso,
and mandate thereon entered 5/25/94 29-44
Judgment entered 10/4/91, 83rd District Court,
Appendix, Page 3
Brewster County, Texas 45-53
Transcript, cause No. 2733, 83rd District Court,
Brewster County, Texas 54-56
Supplemental Transcript, Cause No. 2733,
83rd District Court,Brewster County,Texas 57-60
Charge of the court, cause No. 2733, 83rd District
court, Brewster County, Texas & jury’s verdict 61-68
U.S. Constitution, Amend. 5 69
U.S. Constitution, Amend. 6 69
U.S. Constitution, Amend. 14 69
U.S. Supreme Court Rule 10 69-70
28 U.S.C. 1254 a 70-71
P.L. 104 - Amendments to 28 U.S.C. § 2254
and Federal Rules of Appellate Procedure, ]
Rule 22(b) 71
Texas Penal Code, § 1.03 (a) 71-72
Texas Penal Code, § 107 (AX 11)(b) 72
Texas Penal Code, § 107 (a) (22) 72
Texas Penal Code, § 9.01 72
iL. 6d...) 66*.0lU KS) See... eee
Appendix, Page 4
Texas Penal Code § 9.32
Texas Penal Code § 15.01
Texas Penal Code § 19.01
Texas Penal Code § 19.02
Texas Penal Code § 22.01
Texas Penal Code § 22.02 (a\(4)
Texas Penal Code § 22.04 (a)
Texas Code Of Criminal Procedure § 38.08
Texas Code Of Criminal Procedure § 39.02
Texas Rules Of Criminal Evidence R. 6.02
Texas Rules Of Cnminal Evidence R. 8.01
Texas Rules Of Appellate Procedure
R. 30(bX 28) & (9)
73
73-74
74
74.75
75
75
16
76
16
77
77
77
Appendix, Page 5
Filed 2/21/97
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50422
JOSEPH H DELANEY
Petitioner - Appellant
V.
CHRISTINE RODRIGUEZ, Adult Probation
Officer
Respondent - Appellee
Appeal from the United States District Court for the
Western District of Texas, Pecos
Before SMITH, DUHE and BARKSDALE, Circuit Judges.
BY THE COURT:
A member of this panel has previously denied
appellant's requeste for a certificate of appealability. After
consideration by this panel upon request of appellant, IT IS
ORDERED that appellant's motion for reconsideration is
denied
MOT-29
Appendix, Page 6
FILED 1/23/97
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
JOSEPH H. DELANEY,
No. 96-50422
Se USDC No. P-94-CV-31
CHRISTINE RODRIGUEZ, AdultProbation Officer
Appeal from the United States Distnct Court for the Western
District of Texas
ORDER:
Joseph H. Delaney seeks a certificate of appealability
(COA) to appeal the district court's denial of his petition for
writ of habeas corpus, filed pursuant to 28 U.S.C. © 2254.
BecauseDelaney has failed to make the showing required to
obtain a COA , his motion is DENIED.
s/s JOHN M. DUHE", JR.
UNITED STATES CIRCUIT JUDGE
Appendix, Page 7
THE UNITED STATES DISTRICT COURT
THE WESTERN DISTRICT OF TEXAS
PECOS DIVISION
JOSEPH H. DELANEY
Vv P-94-CA-031
DAN MORALES, Attorney General of
The State Of Texas, et al.
ORDER
BEFORE THE COURT, in the above-captioned cause
of action, is a request in the form of a letter from Petitioner to
appeal the denial of his habeas corpus petition. Although this
court does not accept fax filings, see Fed. R. Civ. P. 5(e);
Local Rules CV-5(a0, (c) and (e), the Court shall nevertheless
grant Petitioner’s request ro appeal this cause to the Fifth
Circuit Court of Appeals pursuant to Fed. R. App. P. 22(b).
IT IS SO ORDERED.
SIGNED this Ist day of May, 1996
s/s HONORABLE LUCIUS D. BUNTON III
SENIOR DISTRICT JUDGE
eee ——
Appendix, Page 8
JOSEPH H. DELANEY
P.O. BOX 957
Alpine, Texas - 7983!
Telephone (915) 837-3700
Fax (915) 837-3700
By Fax to: 915/445-9859
April 29, 1996
Hon. Lucius Bunton, Senior U. S. Distnct Judge
Western District Of Texas, Pecos Division
P.O. Box 191
Pecos, Texas - 79772
Re: P94CA 031
Dear Judge Bunton:
] am in receipt of your order in the above dated
4-25-96 and filed with the office of the clerk on 4-26-96. It is
my intention to appeal this order to the Sth Circuit Court of
Appeals, for which purpose | will require a certificate of
probable cause, Per F.R.A.P. 22 (b).
Kindly advise me as soon as possible whether it is your
intention to grant or to deny me this certificate.
Very truly yours,
s/s Joseph H. Delaney
Appendix, Page 9
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
PECOS DIVISION
JOSEPH H. DELANEY
V.
DAN MORALES, Attomey General of )
the State of Texas. et al.
P-94-CA-031
ORDER
BEFORE THE COURT is, inter alia, Petitioner's federal
habeas corpus (filed 7/15/94, Doc. # 1), Magistrate Judge
Louis Guirola's Proposed Report and Recommendation (filed
5/18/95, Doc. # 50), Petitioner's Objections (filed 5/30/95,
Doc. # 53), District Court Judge Royal F urgeson's Order
Adopting Magistrate's Report and recomendation (2/16/96,
Doc. # 86), Petitioner's Motion to Disqualify Judge Furgeson
(filed 2/20/96, Doc. #88), and Petitioner's Objections to Judge
Furgeson's Order Adopting the Report and Recommendation
(filed 2/26/96, Doc. # 89).
After a complete review of the record,' this Court is
Satisfied that there has been no showing of constitutional
violations in the state court proceeding below. F urthermore,
this Court is satisfied that all issues argued by Petitioner have
been duly addressed and disposed of by the Proposed Report
and Recommendation of Magistrate Guirola filed on May 18,
1995, and likewise all objections and additional issues argued
by Petitioner have been duly addressed and disposed of by the
Order of Judge Furgeson filed February 16, 1996.
Appendix, Page 10
Accordingly, IT IS ORDERED Petitioner’s wnt of habeas
corpus is hereby DENIED.
SIGNED THIS TWENTY- FIFTH day of April, 1996
s/s HONORABLE LUCIUS D. BUNTON, _III
SENIOR U.S. DISTRICT JUDGE,
Pecos Division
1/ A record that has been painstakingly and thoroughly
compiled by Judge Furgeson prior to this Court's review.
Appendix, Page | 1
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
PECOS DIVISION
JOSEPH H. DELANEY,
Petitioner,
V P-94--CA-03 1
CHRISTINE RODRIGUEZ
Respondent.
ORDER ACCEPTING MAGISTRATE’S PROPOSED
FINDINGS OF FACT AND RECOMMENDATIONS AND
DENYING PETITIONER’S WRIT OF HABEAS CORPUS
RELIEF UNDER 28 U.S.C. 2254
On this date, this court considered United States Magistrate
Judge Louis Guirola's PropoBed.Findings of Fact and
Reccomendations filed on May 16, 1995. The court is of the
opinion that said findings should be accepted and said
recommendations should be adopted, for the reasons stated
herein.
|. PROCEDURAL HISTORY
Petitioner wao charged by a Brewster County, Texas iis
jury.with "intentionally and knowingly by act engage (sic)
inconduct that caused to an individual. Malone V. Hill, who
is eighty-five (85) years of age or older, bodily injury by
strikingand hitting said Malone V. Hill with his fists."
Petitioner, a lawyer licensed by the State of Texas, pled "not
guilty to the charge and represented himself at trial. A jury
found him guilty on October 4, 1991, and punishment waa
assessed at four years probation. Petitioner appealed his
conviction to the Eighth District of Texas Court of Appeals,
which affirmed the judgment of the trial courton October 19,
1993. Delaney v State,
Appendix, Page 12
]
No. 08-91-00403-CR. His petition for discretionary review
was refused by the Texas Court of,Criminal Appeals.
Petitioner filed a state application for wnt of habeas
corpus purouant to Article V, Section 8 of the Texas
Constitution. The trial court.coriducted a hearing and declined
to issue the writ June 3., 1994. Although Petitioner filed an
appeal of the trial court's denial of his application, he
withdrew the'appeal soon afterward. It is not clear whether
Petitioner has fully exhausted his state court habeas remedies.
However, a petitioner generally need not utilize state habeas
corpus or other state collateral proceedings to satisfy the
requirement that he exhaust available state remedies. Brown v
Allen, 344 U.S.,443, 447 (1953); Lowe M. Scott, 48 P.3d 873,
875, (Sth Cir. 1995). In this case, Petitioner has presented
each of the issues in his federal petition to the Texas Court of
Criminal Appeals through the direct appeal of his conviction
and sentence. Therefore, he has adeqately exhausted hie state
court remedies through the appellate process.
11. STANDARD OF REVIEW
When a party objects to a Memorandum
and'Recommendation the court is required to "make a de
novo determination of those portions of the report or
specified proposed findings or recommndettions to which
objection is made. 28 U.S.C. 636(b)(1). See also Longmire v.
Guste, 921 F.2,d 620, 623 (Sth Cir. 1991) (party is "entitled to
a de novo review by an Article II] judge as to those issues to
which an objection is made”).
9
Such a review mans that the court will examine the entire
record, and will make an independent assessment of the law.
The court need not, however, consider objections that are
frivolous, conclusive or general in nature. Battle v. United
States Parole Comm'n, 834 P.2d 419, 421 (Sth Cir. 1987).
a a
Appendix, Page 13
III. PETITIONER’S OBJECTIONS
Petitioner objects to each and every conclusion of law and
finding of fact by the Magistrate. The objections are generally
focused around five separate issues: A) sufficiency of the
evidence; B) the prosecutor's closing argument; C) misconduct
by judge and jury; 1 )) the form of the Judment; and E)
pre-trial matters.
IV, ANALYSIS
A. Sufficiency of the evidence
Petitioner argues that not all the elements of this offense
have been proven beyond a reasonable doubt. Petitioner cites
to § 1.07 of the Texas Code to support his contention that
there are four elements to this crime. Petitioner has
incorrectly cited to the definition section of the Texaa Penal
Code which sets out what an "element of the offense means.
The particular elements of the offense for which the
Pet:itioner was charged are set forth, as noted by the
Magistrate, in § 22.04 of the Texas Penal Code. TEX.
PENAL CODE Ann.. § 22.04 (Vernon 1.994).
Petitioner argues that Texas. law demands that each
element of the crime muat be proven. He claims that this
Texas standard for affirming a conviction is more demanding
than the federal standard and cites Arceneaux v State, in
support of that proposition. 803 S.W.2d 267 (Tex. cr. App.
1990). Because the Texas standard is more demanding
Petitioner claims the federal
a
me
standard applied to this case "Must rise to the higher plane
and insist on full complete compliance.’ Petitioner cites
Jackson v Virginia in support of this preposition. 443 U.S.
307, rehearing denied, 444 U.S. 890 (1979).
To begin with, the court fails to see a holding in Jackgon
an argued by Petitioner. Rather, the court's obligation in
reviewing a state court conviction is to prohibit a criminal
Appendix, Page 14
conviction of any person except upon proof of guilt beyond a
reasonable doubt. "The applicant is entitled to habeas corpus
relief if it is found that upon the record evidence adduced at
the trial no rational trier of fact could have found proof of
guilt beyond a reasonable doubt.” Id. at 324.
Further, the court does not find any distinction along the
lines argued by Petitioner between the Texas standard and the
federal standard as outlined in the holdings of Jackson and
Arcceneaux respectively. 443 U.S. at 320-21; 803 S.W.2d at
271- 72. The court in Arceneaux dealt primarily with the
prosecutor's obligation to meet its burden of production as set
forth in the jury charge. The court specifically referenced the
holding in Jackson, namely that the sufficiency of the
evidence is reviewed in the light most favorable to the
verdict. Arceneaux, 802 S.W.2d at 270 (quoting Benson v.
State, 661 S.W.2d 708, 72.5 (Tex. Cr. App. 1982), cert.
denied, 467 U.S. 1219 (1984)).
4
Thus, in determining whether to grant Petitioner the habeas
relief he has requested, the court reviews his conviction to
determine whether a rational tner of fact could have found
proof of guilt beyond a reasonable doubt. Petitioner argues
that the Magistrate’s report does not specify any place in the
record of the trial or the state court appeal which establishes
that the elements of the crime are proven. Further, Petitioner
lists a litany of facts in his objections whi.ch he believes
compels a reversal of his conviction. They include, but are
not limited to, evidence of a sloppy police investigation
which failed to check for blood at the scene, claims that no
evidence tied the cut in the victim’s buttocks to Petitioner's
actions, contradictions and physical inconsistencies in the
victim's testimony, problems with the victim's credibility and
evidence that Petitioner was defending himself from
impending deadiy force.
heer
Appendix, Page 15
After reviewing the record, this court concludes that a
rational trier of fact could easily have found proof of guilt
beyond a reasonable doubt. The evidence is undisputed that
Hill was over the age of 65, thus satisfying the first element
of the offense. As to the second element. excerpts of the
swom courtroom testimony of Hill describing the incident are
as follows:
Q.- What happened next, sir?
A. He reached down with ... between ... I was...he was up,
almost up to this ... above me, and he reached down
between my
lega...
Q: Yes, sir?
A: Between this leg here, and this one, and lifted me
P)
up...to shoulder level...
Q; Yes, sir?
A: ...and slammed me down with my head to the north...
Q: All night.
A- ...onto the sidewalk.
Q: How did that feel?
A: Pardon? °
Q: How did that feel?
A: well, I saw a faw ... a few stars, and it...it knocked me
out.
Q: What, uh...
A: The back of my head hit.
Qi What did he do ... What happened once he threw you
down?
A; What? Well ... once he threw me down he got on top of
me with bis body and his weight... and got his knees down on
me and so forth, and hi(t) ine in the face several times.
Q: What did he hit you with?
Appendix, Page 16
A: His fists, I guess. I don't know.
Q: All nght.
A But he had me...
Q: Then what happened?
A: He had me down. Well, let's see. Finally, he got ... he
got up and he says...he says, Stand up, you son-of-a-
bitch. He wouldn't say alnything to me that it didn’t and
up with that word.
Q: All right, sir. And did you starnd -up?
A: I tried to gret up, and he says, hurry up!" And reached
down and got my nght wnst.-.
Q: All right.
A.- ...which had been holding the rock.
Q: Did he help you up?
A; And he pulled me to a ..."Now, Stand up!,,
Q: All nght.
A: "Stand up! And so J stood up as straight as | could. |
didn't have any idea he was going to shove me through the
window.
Q: What happened after you stand up?
A: Well, almost immediately, as 1 got nght, he took both
hands from my shoulders and shoved me backward, nght
through the middle of the glass.
(eight questions later)
Q: Did you go through the window?
A: Oh, yes. I went through the window. And, uh... my back
was, of...
Q! All nght.
A: ...course, part that went thr ough.
Q: I take it then, that you went through backwards? is that
correct?
A: Correct. Absolutely.
R. 8 P. :L43-147). Moreover, in resolving this issue on
6
Appendix, Page 17
Delaney's appeal, the appellate court summarized the facts as
follows:
(O)n October 31, 1989, Dr. Malone Hill was going to buy
some candy. He found a street blocked and drove into an
alley and encountered the Appellant walking several dogs on
a leash. Hill related that the Appellant then came up to his car
and put his hands on the hood and accused Hill of trying to
kill hirn. Hill denied such intent and the Appellant cursed
him and challenged him to fight. Hill initially declined this
invitation. Hill testified that he tried to back his car in an
attempt to leave. He was afraid of the Appellant. The
Appellant stayed in front of the car and then got up on the
sidewalk and name-called and again invited Hill to fight. Hill
testified he picked up a rock to use in possible self-defense
figuring that he would hit the Appellant on the jaw or scare
him off. Hill left the car and approached the Appellant and he
hit Hill on the wrist causing the rock to fall. Hill related that
the Appellant then picked him up and threw him on the
ground causing the back of his head to hit the pavement. The
Appellant then got on top of Hill and hit him in the face
several times causing Hill to experience pain. Hill testified
that the Appellant got off of him, told him to stand up, and
then pushed the Appellant through a plate glass window. Hill
stated that he received a cut on the left side of his buttocks.
Opinion, p. 8 & 9
Pursuant to Title 28 U.S.C. Section 2254(d), factual
findings such as those above are entitled to great deference
from this court. See 28 U.S.C. 9 2254(d); -Burden v. -Zant,
498 U.S 433, 436-37 (1991): LLoyd v Smith, 899 F.2d 1416,
1425 (Sth Cir . 1990) (“Federal courts in habeas proceedings
are required to grant a presumption of correctness to a state
court’s explicit and implicit findings of fact if supported by
the record.") Both implied and explicit fact findings fall
ii i a il
Appendix. Page 18
within the ambit of Section 2254(d), as do factual
determinations made by either a trial court or an appellate
court. Marshall v Lonberger, 459
-
U.S. 422, 433-34 (1983); Sumner v. Mata, 449 U.S. 539,
547, (1981). The burden is on the habeas petitioner to
establish by clear and convinc,,4ng evidence that the factual
determnations of a state court were erroneous. Sumner, 499
U.S. at 547. Where a atate appellate court has conducted a
thoughtful review of the evidence, ita determination ts
entitled to great deference. Callins v Collins, 998 P.2d 269
276 (Sth Cir. 1993) cert. denied,—- US.—, 114S.Ct.
1127 (1994). The facts found by the appellate court are fully
supported by the record and compel a conclusion that
Delaney acted intentionally or recklessly and caused bodily
injury to a person over the age of 65 years.
Petitioner also argues that, as in Arceneaux, the
prosecutor did not prove the actual events that were alleged
inthe indictment. 802 SW2d at 270-71. Specifically, the
charge here required proof that injury was inflicted by a
particular instrumentality, "fists," and in a particular manner,
‘stnking.~
Petitioner adds: "Is it possible to punch a guy in the butt with
a fist, penetrate the cloth of hiS pants and produce an
incision? Hardly.”
The testimony of the victim, as outlined above,
demonstrates that Petitioner hit the victim with his fists after
he had initially thrown the victim down on the sidewalk. Such
testimony nullifies Petitioner's argument. Assuming
arguendo that the evidence on this point was unclear, the
charge in the indictment would nonetheless be satisfied. A
rational trier of fact could also have concluded beyond a
reasonable doubt from the evidence
8
Appendix, Page 19
that Petitioner picked up the victim and threw him down on
the sidewalk, and struck the victim with his hand which
caused the victim to fall through a plate glass window. These
facts also prove the events alleged in the indictment.
Petitioner's objections to the F indings of Fact and
Recommendations on this issue are, therefore, meritless.
B. The Prosecutor’s Closing Argument
During closing argument, the prosecutor made the
following comments regarding Petitioner's closing statement:
A final argument with unswom allegations that | cannot
cross examine. Talking about a Motion to Dismiss the
Indictment that I cannot cross-examine, and that is
convenient, but that is not justice. This man (the victim) took
the stand and told you what happened to him.
(R. 14 p.34).
I don't know because | didn't hear him say whether or not
he tried to give the rock to Mr. Ward. Or whether he went to
the grand jury with the rock himself, and was denied
testimony. I just don't know.
(R. 14 p.37). The state appellate court reviewing the trial
concluded that Petitioner had not preserved his complaint on
appeal regarding improper comments on an accused's decision
not to testify because he had not obtained a ruling on his
objection. For this reason, the Magistrate concluded that
Petitioner's appeal on this issue is barred from federal habeas
review, and even if it was not barred, the state appellate court
determined that Under the "invited argument rule” the
prosecutor was Justified in responding to Petitioner's closing
argument.
Petitioner objects, arguing that the appellate court’s
9
Appendix, Page 20
determination was "dead wrong” and that no objection or
ruling was necessary to preserve this error:
The Barajas; court neither knew nor cared what the law
was, it relied on misdirection. The magistrate has been
careful not to committ himmelf to an indepemndent posture.
He does not seem to know what the Texas law on the point is
either.
Petitioner goes on to say that "each and every word uttered
on defense (sic) closing argument was a fair comment on the
evidence” because Petitioner was responding to one of the
prosecutorl's own exhibits. The prosecutor's comments were a
"devastating... comment to the jury on the [Petitioner’s]
election not to testify.”
The state appellate court ruled that Petitioner had not
preserved his objection during the trial. The court, therefore,
cannot review his claim except under certain circumstances.
Coleman v. Thompson, 501 tl.s. 722, 750 (1991) (“ (I] n all
cases in which a state petitioner has defaulted his federal
claims in state court pursuant to an independent and adequate
state procedural rule, federal habeas review of the claim is
barred unless the petitioner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to consider the
claim will result in a fundamental miscarriage of justice,”).
Petitioner has not successfully shown that any of these
circumstances are present. He claims that the lack of a ruling
Incurred because a Texas trial judge cannot be forced to rule if
he does not want to and, further, that in this case the trial
judge found that the prosecutor's apology was sufficient. The
10
court has not been cited to, nor has it found, Texas case law or
Statutes to uupport this argument. The court cannot, therefore,
accept this explanation as cause for the default.
Appendix, Page 21
Further, Petitioner cannot show actual prejudice an a result
of the alleged violation of his federal right not to tesufy
because no violation of his federal right occurred. The Fifth
Amendment prohibits a prosecutor from commenting on a
defendant's failure to testify. United States v. Dul, 989 F.2d
772, 776 (Sth Cir.) . cert. denied, - U.S. --, 114 S. Ct. 172
(1993). The prosecutor's comments, however, 'must be
viewed within the context of the trial in which they are
made." Id, (citing United States v. Bight, 630 F.2d 804, 826
(Sth Cir.).
It is well settled that an attorney "may not express his
personal opinion concerning the merits of the case.” United
States v Morris, 568 F.2d 396, 401 (Sth Cir. 1978); United
States v. Herrera, 531 P.2d 788, 790 (Sth Cir. 1976).
Additionally, a prosecutor may “comment on the defendants
failure to produce evidence on a phase of the defense upon
which he seeks to rely.” Dula, 989 F.2d at 777 (citing Bright,
630 F-2d at 825). In the context of this trial, the prosecutor
"[was] not obliged to sit quietly" while Petitioner made
references to his mental state at the time of the incident during
his closing argument. Bright, 630 F.2d at 824. Thus,
Petitioner’s Fifth Amendment right not to testify was not
violated by the prosecution's response to those references.
Even if the claim was not barred, there has been no
11
fundamental miscarriage of justice in this case. The state
appellate court concluded that the prosecutor was "justified in
commenting upon the Petitioner's unsworn allegations in his
closing argument pursuant to the “invited argument rule”.
Opinion, P. 4. Again, the court reiterates the conclusion of the
Magistrate Judge, namely that federal courts’ will defer to
state courts’ Interpretations of their own laws. Dickerson v
Guste, 932 F.2d 1142, 1145 (Sth Cir.), cert. denied, 502 U.S.
Appendix, Page 22
875 (1991); Moreno v. Estelle, 717 F.2d 171, 179 (Sth Cir.
1983), cert. denied, 466 U.S. 975 (1904).
Petitioner's objections to the Finding of Fact and
Reccomendations on this issue are, therefore, meritless.
C. Misconduct of the Trial Judge and Jury
Petitioner objects that, with regard to this Issue, the
Magistrate Judge limited his discuasion solely to the
confiscated exhibits. He cites the court to his Appellant Brief
_and several other documents to note other instances of judicial
misconduct that violated his due process night to a fair trial.
The court, having made an exhaustive effort to insure a
complete record in this case, has reviewed these documents.
Petitioner's additional claims of judicial misconduct include
claims that the tral judge purgered himself, that he “engaged
in conduct which directly benefited the former district
attorney,” that he joined the prosecutor in a "campaign of
abuse against Petitioner" and was openly hostile to the
Petitioner. Having reviewed the record, the court finds no
evidence to support any of these claims.
12
Petitioner also objects to the Magistrate's conclusion that
the tral judge's decision to withdraw exhibits from the jury
while witnesses were testifying and to make the exhibits
available to the jury only when requested was not reversible
error. Again, he claims the Magistrate has incorrectly applied
the federal law to this issue and not the relevant Texas law.
Further, he argues that "Petitioner alone had standing to object
to the jury's handling of the exhibits and that once the
evidence is in the jury's hands the judge has no nght, as
opposed to the power, to confiscate it, because the jury is the
trier of fact and is supreme in that role under Texas law." He
claims that "the jury concluded from the judge's earlier
instruction that the exhibits had been ordered atricken.”
Appendix, Page 23
These objections are similarly meritless. The appellate
court found that under state law, the trial court did not commit
error either by removing the exhibits or by failing to provide
the exhibits to the jury during deliberations. Lopez v. State,
628 S.W.2d 82, 85 (Tex. Cr. App. 1982). The tnal judge's
decisions involve questions of state procedure. Thus, a
federal habeas court is not free to second guess the
determination of the state appellate court. Arizona v,
Washington, 434 U.S. 497, 511 (1978). This court is not
applying federal procedural law, as Petitioner suggests.
Rather, it is applying the federal standard of review to a
Texas court's determination of Texas procedural law. In any
event, the trial judge's instruction clearly indicate that the
exhibits were available to the jury upon
13
request. Petitioner's objections to the Magistrate's findi ng that
no jury misconduct occurred are also meritless, for reasons
adequately explained in the Findings of Fact and
Recommendations.
D. The Form of the Judgement
Petitioner claims that because the judgment has been
reformed by the trial court to remove the words "crime of
moral turpitude,” he has been confined under a void Judgment.
According to Petitioner, under Texas law “judgments must
conform to verdicts, and nothing may be added or taken away.
If anything is added or taken away the judgment is void.”
Petitioner cites the court to Ex Party Gibson, Smith v State
and Moore v. State in support of this argument. 126 S.W.2d
396 (Tex. Cr. App.1939); 234 S.W. 893 (Tex. CR. App.
1921); 203 S.W. 51 (Tex. Cr. App. 1918). —
Petitioner's reliance on these cases is misplaced. In Texas,
the trial court has the full power and control of its judgments
and, in exercising that authority, may c6rrect its judgments
during the term at which they were made. Williams v. State,
Appendix, Page 24
170 S.N.2d 482, 486 (1943); Shavers v. State, 881 S.W.2d 67,
79 (Tex. App. Dallas 1994, no pet. h.). Similarly, the
appellate court can reform the judgment and sentence when
the error is not contrary to the verdict. Bogany v. State, 663.
S.W.2d 957, 958 (Tex. Cr. App. 1963). While reform of the
judgment and sentence cannot be done it there is an unlawful
verdict or punishment, that is not the case here. The trial
i
court was well within its authority to reform this judgment.
Petitioner's remaining objections, disputing the clerical
nature of the error, are meritless and were adequately
addressed in the Findings of Fact and Recommendations.
E. Pre-trial. :Issues
Petitioner claims that the state failed to conduct a proper
investigation, interfered with Petitioner's investigation and
deliberately delayed his trial. Patitioner’s objections to the
Findings of Fact and Recommendation regarding the state’s
investigation are meritless for reasons adequately addressed in
the Magintrate’s findings.
Petitioner objects to the Magistrate's conclusion that no
prejudice arose as a result of the state's interference with his
preparation for tnal. Specifically, Petitioner notes the
prosecution failed to turn over two of Hill’s statements until
just before the tal. In his objections, Petitioner argues that
meven the knowledge they existed would have altered the
entire defense strategy, but more importantly, there would
have time to investigate leads that had grown cold and useless
by the time they were furnished.” Petitioner also claims Hill
told him of many instances of his criminal activity, but the
prosecutor refused to supplied Petitioner with the records of
these crimes. ‘
As the Magistrate noted, delay in providing exculpatory
evidence violates Petitioner's rights only when the delay itself
causes prejudice. United States v. Patrick, 965 F.2d 13_ 0,
Appendix, Page 25
1400 (6th Cir.), cert. denied, 506 U.S. 940 (1992).
Petitioner’s
15
claim that he would have altered the entire defense-strategy
does not show prejudice to his defense sufficient to overturn
his conviction. Id. Again, Petitioner claims that the
Magistrate has applied federal law to this issue where he
should have consulted Texas law. Again, the Court points out
to Petitioner that it is not applying federal law on this issue.
but a federal standard of review to a Texas court's
determination of Texas law. As to claims of Hill's criminal
convictions, the Magistrate found no factual basis for such
claims and the court concurs in that determination.
Petitioner's objections to the Magistrate's F indings of Pact
and Reconnendations regarding claims that the state
deliberately delayed his trial stem from the Magistrate's
alleged miscalculation of a number of factors. Petitioner
argues that the delay was twenty-two (22) not twenty (20)
months. Further, he argues that he made his speedy trial
demand was part of his Motion to Dismiss Indictment in
October 1990. The demand the Magistrate alludes to in April
1991 was in fact his second request for a speedy trial.
Petitioner also claims that the delay in this case was not his
fault, and cites the court to a dialogue he had with the trial
judge during a pre-trial motions
hearing.
Assuming arguendo that Petitioner's mathematical
calculatiorm are correct, he still has not shown a violation of
his right to a speedy trial for the reason's outlined by the
Magistrate. Further, Petitioner has taken the trial judge's
16
comments as to the responsibility for the delay completely out
of context. The state appellate court found that there was
"some indication that there was a delay due to [Petitioner's]
Appendix, Page 26
need to obtain discovery.” The court will not disturb this
finding.
Petitioner also argues that he did suffer prejudice as a
result of the clelay because he did not have leave of the court
to depose the witnesses whom he would have Called to
testify. The two individuals who died before the trial were
defense witnesses who were willing to testify on Petitionerl's
behalf. Citing Texas Code of Criminal Procedure, Article
39.02, Petitioner claims that he could not preserve the
testimony of these witnesses for trial because, (i)f a witness is
willing to talk he cannot be deposed.”
The court rejects such an interpretation of the Texas Code
of Criminal Procedure. Article 39.02 makes no distinction
between witnesses willing and unwilling to talk and the court
has not been cited to, nor has it found, any cases making such
a distinction. Rather, Petitioner need only file "an affidavit
stating the facts necessary to constitute a good reaon for
taking the imposition of a wi.tness] . TEX. CRIM PROC.
ANN. art. 39.02 (Vernon 1979). Petitioner has not given any
other reason why he could not take the desired deposition of
his own witnesses.
Finally, Petitioner also argues, without citing to any case,
that the Supreme Court has told courts to "bend over
backward to avoid finding waiver of constitutional! nghts.
" To the Contrary: No procedural
principle is more familiar to thi.s Court than
that a constitutional right may be forfeited In
criminal ...
17
cases by failure to make timely assertion of the nght
before a tribunal having jurisdiction to determine it.”
Coleman-, 501 U..S. at 751 (citing Yakus v United States, 321
U.S 414, 444 (1944)).
Appendix, Page 27
Petitioner's objections to the Findings of Fact and
Recommendations on this issue are, therefore. meritless.
V. THE RECORD
Compilation of a complete record of this matter has been a
subject of uninterrupted and vociferous debate. The
controversy over the record and the alleged need to complete
the record has been the primary reason for the delay in
reaching a final decision in this case. Over the past seven
months, the court has attempted to insure that a complete
record has been filed with the clerk. The court has now
reviewed all of the record, considering only those matters
which have evidentiary authenticity. The court believes that
the record is now complete and no longer in doubt. From all
indications, no important detail of the record remains unfiled.
Even then, if either party believes documents should be added
to the record for purpoaes of appeal, if any, the party shall be
allowed to supplement the
record in accordance with law within fifteen (15) days from
the date of this Order.
VI. CONCLUSION
As required by 28 U.S.C. S 636(b)\ 1), the court has
conducted an independent review of the entire record and a de
novo review of the matters raised by the objections. For the
reasons set forth above, the court concluded that Petitioner's
18
objections lack merit, and that they should be overruled. The
court further concludes that the Findings of Fact and
Recommendations are an accurate statement of the facts and a
correct analysis of the law in all regards. Therefore, the court
accepts, approves and adopts the Magistrate Judge’s factual
findings and legal conclusions contained in the F indings of
Fact and Recommeddations.
Appendix, Page 28
Accordingly, itis ORDFRED that the United States
Magistrate Judge Louis Guirola's Findings of Fact and
Recommendations are ACCEPTED pursuant to 28 U.S.C. §
636(b) (3.), and that Petitioners claim be DISMISSED WITH
PREJUDICE.
It is further ORDERED that, in light of thils decision,
Petitioner's Application for Judgment by Default and Motion
for Judgment on the Pleadjngs are both DENIED.
It is further ORDERED that all other pending motions are
DENIED AS MOOT.
Signed this the 15th day of February, 1995.
s/s ROYAL FURGESON
UNITED STATES DISTRICT JUDGE
19
Appendix, Page 29
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
NO. 08-91-00403-CR
Appeal from 83rd
District Court of Brewster :
County, Texas (TC/ 2733)
JOSEPH DELANEY Appellant,
Vv
THE STATE OF TEXAS, Appellee
JUDGMENT
This cause came on to be heard on the record of the court
below, and the same being considered, and it being the
opinion of this Court that there was no error in the Judgment,
it is therefore ordered, adjudged and decreed by the Court that
the judgment be in all things affirmed in accordance with the
opinion of this Court, that the Appellant pay all costs in this
behalf expended, and that this decision be certified below for
observance.
IT IS SO ORDERED THIS 13TH DAY OF OCT OBER,
1993.
FILED At 4:00 O'clock P.M, October 19. 1993, District
Clerk, Brewster County
s/s Max N. Osborn
Chief Justice, Court of Appeals
for the Eighth District of Texas
Appendix, Page 30
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JOSEPH DELANEY, Appellant,
No. 08-91-00403-CR
V.
THE STATE OF TEXAS, Appellee.
Appeal from 83rd District Court of Brewster
County, Texas (TC/ 2733)
OPINION
This is an appeal from a jury conviction for the offense of
injury to an elderly individual. The court assessed punishment
at four years' probation. We affirm.
In Point of Error No. One, the Appellant asserts that during
argument, the prosecutor commented on the Appellant's
failure to testify. At tnal, the Appellant, a lawyer, represented
himself p.ro se. The Appellant did not testify during tnal.
During the State's closing argument, the following exchange
occurred:
STATE: May it please the Court? Counsel? ladies
and Gentlemen of the Jury — as a matter of justice, |
sincerely hope that you will never forget that
everything said to you in the last thirty minutes is
not evidence.
So important, because what we have here is a man
defending himself, in making a final argument and giving you
unsworn allegations.
Appendix, Page 31
A final argument with unswor allegations that I cannot
cross examine. Talking about a Motion to Dismiss the
Indictment that I cannot cross examine, and that is convenient:
but that is not justice.
This man took the stand and swore an oath and tol d you
what happened to him.
DEFENSE: Your Honor, I'm going to object. Uh ..
uh, there's an instruction, uh . . .that deals with my
right not to appear on the stand and testify. And I believe that
Mr. Woolard’s crossed the line on that.
And I would ask the Court to again renew it’s instruction.
STATE: I apologize, Your Honor, if | made a comment
on that right — I did not mean to. And, I .. . and I certainly
will not comment on that.
We note initially that the Appellant did not obtain a
ruling on his objection; he has failed to preserve his
complaint on appeal. Nastu V. State, 589 S.W.2d 434, 441
(Tex.Crim.App. 1979). The scope of proper jury argument
is: (1) summation of the evidence; (2) any reasonable
deduction from the evidence; (3) an answer to the argument of
_Opposing counsel; and (4) pleas for law enforcement. Whiting
v. State, 797 S.W.2d 45, 48 (Tex.Crim.App. 1990). The
invited argument rule allows prosecutorial arguments outside
the record in response to defense argument which goes outside
the record; however, the prosecutor may not stray beyond the
invitation. Valenciano v. State,, 705 S.W.2d 339, 342-43
(Tex.App.—San Antonio 1986, pet. refld), cert. denied 484
-U.S. 861 1987. The invitation may, in proper
2
circumstances, include a comment on the accused's failure to
testify. Porter v. State, 601 S.W.2d 721, 723 (Tex.Crim-App.
1980), Lopez v. State, 793 S.W.2d 738, 742
(Tex.App.--Austin
7
Appendix, Page 32
1990), dism'd as Improvidently granted, 810 S.W.2d 401
(Tex.Crnm.App. 1991).
The facts of the present case focused upon an altercation
that occurred on October 31, 1989 between the Appellant and
an eighty-five year old physician named Malone Vincent Hill
in Alpine, Texas. During the Appellant's closing argument, he
made numerous references to his mental state at the time of
the incident. He related that with regard to his claim of self-
defense: A
I know what's going on in my mind. And
it's what's going on in my mind and what I see,
what I'm confronted with that's going to
determine how much force I use.
And | used what was necessary. | used
what it takes. And after that has happened,
then I try to leave.
ses: +8
I have . . . 1 have a substantial amount of
pity for this man. He is old. He is forgetful.
Uh.. he isin poor health. But that's the
emotion that I feel when I look him (sic), and I
consider his condition, and | think — well,
maybe someday, I'll like that. That doesn't
excuse what he did to me, a I'm not gonna .. .
I'm not gonna apologize for defending myself
against him. His punches hurt. They hurt. They
caused me pain.
When | was under attack, | still couldn't
find it myself to hurt this man, and I didn’t
hurt him —ever.
And I! never would. | wouldn't hurt him
Appendix, Page 33
These assertions are testimonial in nature and are not
found
3
anywhere in the record.! We find that the State was justified
in commenting upon the Appellant's unswom allegations
and, as such, we find no error. Point of Error No. one is
overruled.
/1 The Appellant asserts that his arguments find support in
State’s Exhibit No. 9, 2 motion to dismiss the indictment.
However, this document contains various factual allegations
none of which provide a factual basis from which the
above-mentioned statements can be deduced.
In Point of Error No. Two, the Appellant contends that the
court erred in failing to hold an evidentiary hearing on the
Appellant's motion for new trial. The Appellant filed his
motion for new trial on October 4, 1991. The court denied
the motion on the same day. The motion for new trial alleged
that the court refused to allow certain exhibits to be published
to the jury when Appellant so requested and it further alleged
that the failure of the jury to later request the exhibits thereby
causing them to not consider all the evidence. There were no
affidavits of any jurors attached to the motion for new trial.
Prior to the presentation of the Appellant's evidence and at
the close of his opening statement, the court stated:
Mr. Reporter, uh . . . go ahead and get the
exhibits and put lem back here. I'm not gonna allow
the Jury to be reading while the testimony is coming
in. They'll have plent (sic] of time to go over the
exhibits later, sir.
Appendix, Page 34
The, Appellant did not object to the court's statement. In
the charge, the jury was instructed that:
Upon your written request therefor, any exhibits admitted
as evidence in this case will be furnished to you.
The record is devoid of any such request.
4
In order for an appellant to have his contention considered
attacking the verdict on any matter extnnsic the record itself,
as a matter of pleading, he must support it by his own affidavit
or the affidavit of someone else specifically showing the truth
of the grounds of the attack. McIntire v. State, 698 S.W.2d
652, 658 (Tex.Crim.App. 1985). This pleading must, as a
prerequisite to obtain a hearing, sufficiently demonstrate that
reasonable grounds exist for believing that jury isconduct
occurred, a quotient verdict was agreed upon, or a juror
conversed with an unauthorized person regarding the case. Id.
In the present case, we find that the Appellant has not
demonstrated that in a matter extrinsic of the record,
reasonable grounds exist that jury misconduct occurred. The
Appellant provides no authority in support of his contention
that the failure of the jury to request the exhibits constituted
jury misconduct. Further, it is unclear how these allegations
constitute matters extrinsic of the record. TEX.CODE
CRIM.PRoc.ANN. art. 36.25 (Vernon 1981) provides that,
"There shall be furnished to the jury upon its request any,
exhibits admitted as evidence in the case." Trial exhibits are
not automatically furnished to the jury. The furnishing of
those exhibits to the jury is mandatory in nature only upon the
request of the jury. Refusal or failure to allow the jury to have
such exhibits is not error unless the
jury requests the exhibits. Lopez v. state, 628 S.W.2d 82, 85
(Tex.Crim.App. 1982); Novak v. State, 837 S.W.2d 681, 685
—
Appendix, Page 35
(Tex.App.—Houston [Ist Dist.] 1992, pet. refld). We find that
5
the court did not abuse its discretion in failing to provide the
Appellant a hearing on his motion for new trial. Point of
Error No. Two is overruled.
In Point of Error No. Three, the Appellant alleges that the
court erred in denying his motion for new trial. The
Appellant urges three contentions in support of his contention
that a new trial should have been granted. First, he alleges
judicial misconduct in having the court reporter take the
exhibits from the jury. Second, he alleges jury misconduct in
that the jury did not request the exhibits. The Appellant
provides no authority for the first proposition and, as stated
above, the request for the exhibits is within the province of the
jury.
Thirdly, the Appellant contends there was insufficient
evidence to support the conviction. A motion for new trial
based on the insufficiency of the evidence presents the same
legal question that is presented on appeal—that is, whether,
viewing the evidence in the light most favorable to the verdict,
any rational trier of fact could have found the essential
elements of the offense charged beyond. a reasonable doubt.
State v. Macias, 791 S.W.2d 325, 329-30 (Tex.App.—San
Antonio 1990, pet. reffd). This matter will be discussed below.
Point of Error No. Three is overruled.
In Point of Error No. Four, the Appellant contends there
was insufficient evidence to support the conviction. In
reviewing the sufficiency of the evidence to support a criminal
conviction, we are constrained to view all the evidence in a
light most
6
favorable to the verdict to determine whether any rational trier
of fact could find the essential elements of the crime as
alleged beyond a reasonable doubt. Jackson v. Virginia, 443
Appendix, Page 56
U.S. 307, 318-19, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979);
Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991);
Enriquez v. State, 826 S.W.2d 191 (Tex.App.-El Paso 1992,
no pet.). Our role is not to ascertain whether the evidence
establishes guilt beyond a reasonable doubt, Stoker v. State,
788 S.W.2d 1, 6 (Tex.Crim.App. 1989), cert. denied, 111 S.Ct.
371 (1990). Nor do we resolve any conflict of fact or assign
credibility to the witnesses as it was the function of the trier of
fact to accept or reject any, part, or all of any witnesses
testimony. See Adelman v. State, 828 S.W.2d 418, 421
(Tex.Crim.App. 1992). Instead, an appellate court's duty is
only to determine if both the explicit and implicit findings of
the trier of fact are rational by viewing all the evidence
admitted at trial in a light most favorable to the verdict. Id. at
421-22. In so doing, any inconsistencies in the evidence are
resolved in favor of the verdict. Matson, 819 S.W.2d at 843
quoting Moreno v. State, 755 S.W.2d 866, 867
(Tex.Crim.App. 1988).
At tnal, the jury was charged:
Now if you find from the evidence beyond a
reasonable doubt that on or about the 31st day of
October, 1989 in Brewster County, Texas, the Defendant,
Joseph Delaney, did then and there intentionally and
knowingly engage in conduct which did then and there
cause bodily injury to Malone Hill, to-wit: by striking
him with his fists, and that Malone Hill was then and
there an elderly individual who was sixty-five years of
age or older, then you will find the defendant guilty
of intentionally and knowingly causing bodily injury to
7
an elderly individual who is sixty-five years of age or
older.
Appendix, Page 37
The charge also stated:
By the term ‘bodily injury, is meant physical
pain, illness, or any impairment of physical condition.
The jury was instructed upon the law of self-defense.
Viewing the evidence in the light most favorable to the
verdict, the testimony adduced at trial revealed that on
October 31, 1989, Dr. Malone Hill was going to buy some
candy.
He found a street blocked and drove into an alley and
encountered the Appellant walking several dogs on a leash.
Hill related that the Appellant then came up to his car and put
his hands on the hood and accused Hill of trying to kill him.
Hill denied such intent and the Appellant cursed him and
challenged him to fight. Hill initially declined this invitation.
Hill testified that he tried to back his car in an attempt to
leave. He was afraid of the Appellant. The Appellant stayed
in front of the car and then got up on the sidewalk and
name-called and again invited Hill to fight. Hill testified he
picked up a rock to use in possible self-defense figuring that
he would hit the Appellant on the jaw or scare him off. Hill
left the car and approached the Appellant and he hit Hill on
the wrist causing the rock to fall. Hill related that the
Appellant then picked him up and threw him on the ground
causing the back of his head to hit the pavement. The
Appellant then got on top of Hill and hit him in the face
several times causing Hill to experience pain. Hill testified
that the Appellant got off of him, told him to stand up, and
then pushed
8
the Appellant through a plate glass window. Hill stated that
he eceived a cut on the left side of his buttocks. The
investigating officer,! Bryan Ward, stated that upon arrival at
Appendix, Page 38
the scene, he observed that Hill had a black eye and a cut on
his buttocks.
The Appellant maintains that the evidence demonstrates as
a matter of law that he acted in self-defense in response to
Hill’sattack with a deadly weapon. However, there is some
evidencefrom the investigating officer that Hill's use of the
rock did not constitute the use of a deadly weapon. There was
evidence that Hill was eighty-five years old at the time of the
incident.
While there were conflicts in the testimony, it is the jury's
province to resolve these conflicts. Viewing the evidence in
the light most favorable to the verdict, we find that the jury
could conclude that the force the Appellant used against Hill
was not immediately necessary to protect himself and such
belief that it was necessary was unreasonable See TEX -
PENAL CODE ANN. §S 9.31(aX Vernon 1974). Point of
Error No. Four is overruled.
In Point of Error No. Five, the Appellant alleges
misconduct on the part of the judge and the prosecution
resulting in a denial of due process and a fair trial.
Prosecutorial misconducd may constitute a denial of due
process. This misconduct may implicate a specific provision
of the Bill of Rights incorporate into the Fourteenth
Amendment by the due process clause, or it may constitute a
generic substantive due process violation.
Davis v. State, 780 S.W.2d 945, 949 (Tex.App.--Fort Worth
1989,
9
pet. refld). Inthe latter instance, the reviewing court asks
whether the prosecutorial misconduct so infected the trial with
unfairness making the resulting conviction a denial of due
process. Id. The test to determine whether a trial error made
trial fundamentally unfair is whether there is a reasonable
probability that the verdict might have been different had the
Appendix, Page 39
trial been properly conducted. Id. However, the mere fact that
a prosecutor or trial court engages in improper or prejudicial
conduct or comments does not automatically render a
trialfundamentally unfair. For example, repeated prejudicial
statements by the trial court will not result in a denial of due
process if all the statements are made outside thepresence of
the jury and therefore-do not affect the verdict. Ostos v. State,
713 S.W.2d 402, 403 (Tex.App.—El Paso 1986, pet. refld).
Aside from the alleged misconduct of the prosecutor or trial
court, the strength of the evidence of guilt and the trial court's
attempts to cure any possible mistaken impressions should
also be considered in determining whether there is a
reasonable possibility that the verdict might have been
different. Davis, 780 S.W.2d at 950. The Appellant initially
complains of the court's action in denying his motion to
dismiss the indictment for prosecutorial misconduct, his
motion for speedy trial, and his motions to sanction the
prosecution for failure to comply with discovery orders. The
Appellant's arguments with regard to the speedy trial motions
are discussed below. With regard to the other
10
motions, the Appellant presents no legal argument regarding
the legal impropriety of their denial.
The Appellant asserts that the trial judge engaged in conduct
which benefitted the district attorney.
2/ A special prosecutor was appointed to try this case. His
first appearance was on August 12, 1991.
This allegation appears to center on the contention that the
trial judge allegedly engaged in an ex parte communication
with the opposing party in a suit the Appellant filed. This suit
was filed to forestall the payment of legal fees to the district
attorney in another suit that the Appellant filed to remove the
Appendix, Page 40
district and county attorneys. However, it does not appear that
this matter came before the jury or affected the verdict.
The Appellant asserts that he was denied due process in that
the investigating officer utilized improper investigating
procedures. Further, the Appellant contends that the
investigating officer failed topreserve some evidence and
deliberately concealed some evidence he secured. In support
of the first contention, the Appellant cites Ex parte Brandley,
781 S.W.2d 886 (Tex.Crim.App. 1989). In Brandley, the
Court of Criminal Appeals held that where the State’s
investigative procedure is so improper, it may result in a
denial of an accused's right to due process of law. Id. at 891.
The case was replete with egregious examples of improper
and incomplete investigative procedures where the
investigating authorities failed to investigate substantive leads
and evidence which tended
11
to exculpate the accused. In the present case, the Appellant
complains that the investigating officer, Bryan Ward, failed to
secure evidence, find other witnesses to the incident, and
make complete report. In particular, the Appellant asserts that
the officer failed to observe skid marks from the complainant's
vehicle and failed to secure the rock that Hill picked up prior
to the incident. However, Ward testified that he saw no other
witnesses, did not see the rock and, although he looked, did
not see any skidmarks. Given the state of the record, we are
unable to conclude that the investigation rose to the level of
impropnety contemplated in Brandley.
With regard to the concealment of evidence, the Appellant
appears to state that Ward's presentation to the grand jury was
based upon an inadequate report in that it failed to make
mention of the rock. Of course, this Court will not look
behind the actions of the grand jury to determine whether
sufficient evidence existed to justify the return of an
Appendix. Page 41
indictment. Smith v. State, 708 S.W.2d 518, 521
(Tex.App.--Houston (Ist Dist.] 1986, pet. refid), cart. denied,
481 U.S. 1050 (1987). Further an accused does not have the
right to be confronted with and to cross-examine witnesses
who appear before a grand jury nor does prospective
defendant have to be given notice of the grand jury
deliberations. Moczygemba v. State, 532 S.W.2d 636, 638
Tex.Crim.App. 1976). As to whether Ward’s presentation to
the grand jury constituted improper police investigation, we
find the allegation too speculative to conclude that it
amounted to a
12
deprivation of due process.
The Appellant contends that he failed to receive exculpatory
material in the form of two statements of the complainant
from the prosecution until a week before trial. However, such
non-disclosure constitutes error only if its suppression might
have affected the outcome of the trial. United States v.
Bagley, 473 U.S. 667, 87 L.Ed.2d 481, 105 S.Ct. 3375 (1985).
The matenal was disclosed prior to trial and we cannot
perceive how it affected the outcome of the trial with regard to
the examination of the witnesses or other trial considerations.
The Appellant contends that the prosecutor and his assistant
escalated and intensified a campaign of abuse against him in
that the special prosecutor agreed with the trial judge not to
consent to a waiver of a jury trial. Under oath, the special
prosecutor denied this allegation thereby presenting a factual
_ determination outside the ambit of this Court's review on
appeal. Further, the Appellant states in his brief that these
matters came to light in developments subsequent to trial and
therefore could not have been before the jury or affected the
verdict.
The Appellant asset.s that he was denied due process due
to prosecutonal misconduct in that he was denied discovery
Appendix, Page 42
and the prosecution interfered with his attempts to interview -
witnesses. With regard to this last allegation, the Appellant
refers to an argument before the court at a pretrial hearing
where the Appellant stated that these allegations were
suspicions on his part. The discovery process appears to have
been protracted, but
13
it appears that the discovery process was completed on the
12th and 13th of Augjust 1991. Again, there is no showing
that this matter affected the jury or the verdict.
The Appellant next asserts numerous examples of the tral
judge’s alleged incompetence. We have examined these
allegations and find that none of these alleged inadequacies
affected the trial or were before the jury. Point of Error No.
Five is overruled.
In Point of Error No. Six, the Appellant alleges that he was
denied a speedy trial in violation of the United States
Constitution, the Constitution of the State of Texas, and
Article 1.05 of the Code of Criminal Procedure. Four criteria
govern whether a criminal def endant has been denied the
constitutional right to speedy tral: (1) length of delay; (2)
reason for delay; (3) assertion of the mght; and (4) prejudice to
the defendant. Barker v Wingo, 407 U.S. 514, 530, 33
L.Ed.2d 101, 117, 92 S.Ct. 2182 (1972). Here, the Appellant
was indicted on January 8, 1990. His right to a speedy trial
arose on that date.
3/ Both parties in thir briefs speak of a twenty-two month
delay. However, neither party indicates when the speedy tnal
right commenced and we are unable to determine if the
Appellant was arrested prior to his indictment. Chapman v.
Evans, 744 S.W.2d 133, 136 (Tex.Crim.App. 1988). The
Appellant filed a speedy tnal demand on April 3, 1991. On
July 5, 1991, he filed a motion for discharge based upon his
Appendix, Page 43
denial of a speedy tnal. On August 12, 1991, a hearing was
held on the Appellant's motion fo: discharge. Trial began on
me AG
August 19, 1991. Approximately twenty months elapsed
between indictment and trial. Deay in trying a criminal
charge must be of sufficient lengti to create a presumption of
prejudice before we reach the renaining Barker factors.
Russell v. State, 598 S.W.2d 238,248 (Tex.Crim.App. 1980);
Lazcano v. State, 836 S.W.2d 65¢ (Tex.App.—El Paso 1992,
pet. refld). In the present case, there is some indication that
there was a delay due to the Appelant's need to obtain
discovery. More importantly, the rial was held four months
after the Appellant filed his demand for speedy trial. Under
these circumstances, we find the dlay was not presumptively
prejudicial. Point of Error No. Six is overruled.
The judgment of the trial >ourt is affirmed.
October 13, 1993
s/s MAXN. OSBORN, Chid Justice
Before Panel No. |
Osborn, C_J., Koehler and Larsen, !J
(Do Not Publish)
Appendix, Page 44
MANDATE
TO THE 83RD DISTRICT COURT OF BREWSTER
COUNTY, GREETING:
Before our Court of Appeals for the Eighth District of Texas,
on the 13th day of October A.D. 1993, the cause upon appeal
to revise or reverse your judgment between
JOSEPH DELANEY, Appellant,
No. 08-91-00403-CR and
THE STATE OF TEXAS, Appellee,
was determined; and therein our said Court made its order in
these words:
This cause came on to be heard on the record of the court
below, and the same being considered, and it being the
opinion of this Court that there was no error in the judgment,
it is therefore ordered, adjudged and decreed by the Court that
the judgment be in all things affirmed in accordance with the
opinion of this Court, that the Appellant pay all costs in this
behalf expended, and that this decision be certified below for
observance.
WHEREFORE, WE COMMAND YOU to observe the
order of our saidCourt of Appeals for the Eighth District of
Texas, in this behalf, and in all things have it duly recognized,
obeyed and executed.
WITNESS, the HON. RICHARD BARAJAS, Chief Justice
of our court of Appeals, with the Seal thereof affixed, at the
City of El Paso, -this the 25th day of May, A.D. 1994.
s/s Barbara B. Dorris, Clerk
Appendix, Page 45
IN THE 83RD JUDICIAL DISTRICT COURT OF
BREWSTER COUNTY, TEXAS
THE STATE OF TEXAS |
VS. NO. 2733
JOSEPH DELANEY
JUDGMENT ON JURY VERDICT OF GUILTY
PUNISHMENT FIXED BY COURT--PROBATION
GRANTED
JUDGE PRESIDING: ALEX R. GONZALEZ -
JUDGMENT DATE: OCTOBER 4, 1991
SPECIAL PROSECUTOR: STEVEN L. WOOLARD
ATTORNEY FOR DEFENDANT: JOSEPH DELANEY,
PRO SE
OFFENSE CONVICTED OF: INJURY TO THE ELDERLY
DEGREE: THIRD OFFENSE DATE: OCTOBER 31,
1989
CHARGING INSTRUMENT: INDICTMENT PLEA: NOT —
GUILTY
JURY VERDICT: GUILTY
PRESIDING JUROR: TIMOTHY BONE
PLEA TO ENHANCEMENT FINDINGS ON
ENHANCEMENT
PARAGRAPH(S): N/A PARAGRAPH(S): N/A
Appendix, Page 46
FINDINGS ON USE OF DEADLY WEAPON: N/A
PUNISHMENT ASSESSED BY: JUDGE ALEX R.
GONZALEZ
DATE SENTENCE IMPOSED: OCTOBER 4, 1991
PUNISHMENT:
PLACE OF CONFINEMENT: INSTITUTIONAL DIVISION,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
DATE TO COMMENCE: OCTOBER 4, 1991
TIME CREDITED: | DAY TOTAL AMOUNT-OF
RESTITUTION/ REPARATION:
RESTITUTION TO BE PAID TO:
NAME: MALONE V. HILL
ADDRESS: 123 N. SIXTH STREET
ALPINE, TEXAS 79830
JUDGMENT OF CONVICTION
On the 19th day of August, 1991, this cause was called for
trial, and the State appeared by STEVEN L. WOOLARD,
Special Prosecutor, and the Defendant, JOSEPH DELANEY,
having been duty arraigned, appeared in person, in open
Court, pro se, as an attorney licensed to practice Law in the
State of Texas, and both parties announced ready for trial;
thereupon a jury of good and lawful men and women, to-wit
Timothy Bone and eleven others, was duty selected,
impaneled and sworn, according to Law, the indictment was
read, and the Defendant entered his plea of "NOT GUILTY”
—
Appendix, Page 47
thereto, and the evidence for the State and Defendant was
submitted and concluded, and the Court charged the jury as to
the Law applicable to said cause, and argument of counsel for
PAGE |
the State and the Defendant was duty heard and concluded,
and the jury retired in charge of the proper Officer to consider
their verdict; and afterwards was brought into Court by the
proper Officer, the Defendant and his counsel being present,
and in due form of Law returned into open Court on the 21st
day of August, 1991, the following verdict, which was
received by the Court and is here now entered upon the
minutes of the Court, to-wit:
VERDICT
We, the Jury, find the Defendant, JOSEPH DELANEY,
guilty of Injury to the Eldery, a third degree felony.
s/s TIMOTHY BONE
PRESIDING JUROR
Prior to commencing the case the said Defendant in open
Court requested that his punishment be assessed by the Court,
and the Court proceeded to the punishment phase of the treat.
The evidence submitted for the State and for the Defendant
was duty heard, and at the conclusion of such evidence,
argument of counsel for the State and for the Defendant was
duty heard and concluded, and the Court thereupon fixed the
Defendant's punishment by payment of a fine in the amount of
$ __, and confinement in the Institutional Division of the
Texas Department of Criminal Justice for a term of 4 years.
IT IS THEREFORE CONSIDERED AND ADJUDGED by
the Court that the Defendant, JOSEPH DELANEY, is guilty of
the offense of Injury to the Eldery, a crime of moral turpitude,
which offense occurred on the 31st day of October, 1989, and
Appendix, Page 48
that he be punished by confinement in the Institution at
Division of the Texas Department of Criminat Justice for a
term of 4 years, and a fine assessed in the amount of $__,
and that the State of Texas do have and recover of the said
Defendant alt costs in this prosecution expended, for which
Let execution issue; ;
PROBATED SENTENCE
And thereupon the Defendant was asked by the Court
whether he/she had anything to say why sentence should not
be pronounced against him/her and the Defendant answered
nothing in bar thereof. Whereupon the Court Proceeded, in
the presence of said defendant to pronounce sentence against
Defendant; and the Court after due consideration is of the
opinion, and so finds, that the ends of justice and the best
interests of both the pubtic and the Defendant will be served if
the imposition of sentence in this cause be suspended and the
Defendant be ptaced on probation under the supervision of the
Court.
IT IS THEREFORE ORDERED by the Court that the
imposition of the sentence in this cause be,and the same is
hereby suspended during the good behavior of the Defendant,
and the said Defendant be and is hereby placed on probation
for a term of 4 years, beginning on this date under the
. supervision of the Court and the duly appointed and acting
AduLt Probation Officer of the 83rd Judicial District of this
County, subject to the following conditions of probation; that
during the term of probation the Defendant shall:
(1) Obey all orders of the Court and the Probation Officer;
(2) Commit no offense against the laws of this-or any other
State or of the United States; (3) Avoid injurious or vicious
habits, including the use of narcotics or habit forming drugs
and alcoholic beverages; further, without medical
prescription, not to own, use, sell or distribute, or have under
control any
Appendix, Page 49
PAGE 2
“controlled substance or dangerous drug" as defined by the
"Controtted Substance Act" and/or "Dangerous Drug Act" as
passed or amended by the Texas Legislature; (4) Avoid
persons or places of disreputable or harmful character,
including not frequenting or going to places where
intoxicating beverages are sold excluding bona fide eating
establishments; and not associate or communicate with any
person known to have a criminal record or is otherwise known
to have a reputation; (5) Report in person to the Probation
Officer monthly on or before the 10th day of each succeeding
and successive month hereafter; or in such manner and times
as directed hereafter in writing by the Probation Officer, and
promptly reply to any communication from the Probation
Officer; (6) Permit the Probation officer to visit you at your
home or elsewhere; (7) Work faithfully at suitable
_employment; (8) Report any change of address or
employment to the Probation officer within 2 working days;
(9) Remain within the county in which this action is pending,
excepting temporary absences due to employment (not to
exceed 24 hours), untess given permission to leave by the
Probation Officer, (10) Support your dependents, should you
have any dependents; (11) At all times conduct yourself in an
honorable manner as a good member of the community and
not endanger in any way the person, property, rights, dignity or
morals of yourself or others; (12) Not possess or exercise
control over any type of firearm, i.e., rifte, pistol, shotgun,
etc., whether in public or in private, during said term of
probation, without the prior written consent of your probation
officer, (13) Report any arrests of Probationer herein,
including traffic violations and regardless of disposition
thereof, to the Probation Officer
within 10 days of said arrest;
MONEY ASSESSMENTS
Appendix, Page 50
(14) Pay to the Probation officer an administrative fee of
$40.00 each month, hereinafter referred to as "Probation
Fees", beginning on the 10th day of each month following the
month inwhich this order is signed betow, until this term of
probation is terminated;
(15) Pay to the Probation officer, who shail pay the same
over to the District CLerk, all Court Costs in this cause as
follows:
(a) Reimbursement for attorneys fees paid by the County in
which the offense occurred to the Court-Appointed Special
Prosecutor in this cause inthesumof $__.
(b) All other Court costs in the sum $84.50)
(16) Pay to the Probation Officer, who shall pay the same
over to the District Cterk, the fine assessed by the Court in the
sum of $35.00
(17) Pay to the Probation Officer, who shall pay the same
over to the victim(s) of the Defendant's crime, as restitution
and reparation thereof in the sum of $__.
TOTAL OF MONEY ASSESSMENTS (excluding monthly
Probation Fees): $__.
SPECIAL CONDITIONS OF PROBATION
ONLY THE FOLLOWING ITEMS, NUMBERED 18-22,
WHICH ARE INITIALED BY THE JUDGE, ARE TO BE
INCLUDED AS
A CONDITION OF PROBATION:
(18) Voluntarily and forthwith submit to urine or other
tests for the purpose of checking for drug or alcohol traces as
directed by the Probation Officer, authorizing the attending
~ physician to release same to said ProbatiQn Officer, and to
pay all costs incurred in said testing to the physician and/or
Probation Department; (not initialed)
(19) Be at your place of residence every night between
12:00 midnight and 6:00 a.m. the
PAGE 3
Appendix, Page 51
following morning, and remain there unless working in the
employment that you have previously advised the Probation
Officer, if ANY exception is needed, you shall first obtain and
keep in your possession, written permission from the
Probation Officer;
(not initialed)
(20) Participate in the foLLowing community service
work as directed by the Probation Officer, for:
Ist degree fetony-more than 320 hours but tess than 1000
hours
2nd degree fetony-more than 240 hours but tess than 800
hours
3rd degree fetony-more than 160 hours but tess than 600
hours
to wit:___ hours. (not initialed)
(21) The Defendant is ORDERED to the__ County
Community Corrections Facility for not tess than 3 months nor
more than | year until released by the Court to ordinary
probation supervision and is to secure employment and obey
all rules and regulations of and to make a payments as
required by said Rehabititation Center. The Court finds the
defendant is employable, did not use a deadly weapon, did not
commit bodily or serious bodity fniury or cause death in this
offense; (not initialed)
(22) Other:
IT IS ORDERED that the money assessments hereinabove
ordered shall be paid by the Defendant according to the
foltowing schedule:
$__ on or before the 10th day of each month next
following the the month of the signing and entering hereof, as
shown below and a like amount on or before the 10th day of
each month thereafter until such sums, except unaccured
Appendix, Page 52
Probation fees have been paid in full; provided, however, that
if the amount required to pay the balance due on the aggregate
of all such money assessments, except unaccured Probation
fees, is less than the amount of a regular monthly payment as
set forth in this paragraph, then the last such payment shall be
accordingly reduced. Thereafter, the Defendant shall pay the
Probation Fee each month on or before the 10th day of each
month until the Defendant's Probation is terminated. (not
initialed)
IT IS FURTHER ORDERED that all sums of money paid
by or for the Defendant on account of the money assessments
hereinabove imposed on the Defendant, regardless of to whom
such sums are paid, shall be applied first to pay the fees for
collecting and processing checks or other similar sight orders,
if any such fees have been assessed hereinabove, until paid in
full. Next to pay monthly Probation Fees, both for the month
in which paid and for att the months for which such monthly
Probation Fees shall then be in arrears, if any. Next, to pay
the Court Costs until the Court costs are paid in full. Next pay
the fine, if any, assessed as punishment herein, until the fine is
paid in full. And Last, to pay restitution and reparation, if any
has been assessed hereinabove, until paid in full. If the Court
shall hereafter revoke the defendant's Probation, IT IS
ORDERED that the money assessments imposed herein, or
any part thereof may be collected by any person authorized by
Law to collect or case the collection thereof.
You are hereby advised that under the Laws of this State,
the Court shall determine the terms and conditions of your
probation, and may at any time during the period of probation,
without hearing, modify the conditions of your probation. The
Court also has the authority at
PAGE 4
any time during the period of your probation to revoke your
probation for violation of any of the conditions set out above.
Appendix, Page 53
SIGNED on October 4, 1991
s/sAlex R. Gonzales
Judge Presiding
Defendant's Left
index Finger
Defendant’s Left
Index Finger
On this the 4th day of October, 1991, the defendant, Joseph
Delaney, refused to submit a fingerprint sample for
identification purposes.
s/s Wanda Gunn, Witness _ s/s Daniel Kaase, Witness
PAGE 5
Appendix, Page 54
INDEX
No. 2733
THE STATE OF TEXAS x IN THE DISTRICT
COURT
VS. x 83RD JUDICIAL DISTRICT
JOSEPH DELANEY x BREWSTER COUNTY,
TEXAS
INDEX
VOLUME |
PAGE
Caption
Presentment of Indictment (not included. Not
necessary) ... I.
I te a
~
BS CRGRIIE TINE sciscccsecensenioniosvevessanis
4
Correspondence -Defendant's na...
6
Letter to Jake Sibley dated May 29, 1990
Letter to James Johnson dated May 29, 1990
Letter to Jane Coats dated May 29, 1990
Letter to Tom Coats dated May 29, 1990
Letter to Emilie D. Severin dated May 29,1990
Letter to Anna D. Linn dated May 29, 1990
Letter to Emesto Bermudez dated May 29, 1990
Letter to James Luecke, M.D. dated May 29, 1990
Letter to Bryan Ward dated May 29, 1990
0. Letter to Ruben Melgoza dated May 29, 1990
NDULS WN
— © 2
Appendix, Page 55
11. Letterto Chester Wilson dated May 29, 1990
12. Letter to Mike Barclay dated May 29, 1990
13. Letter to Richard Barajas dated May 29, 1990
14. Letterto Richard Barajas dated October 23, 1990
15. Letter to Richard Barajas dated November 6, 1990
16. Letter to Richard Barajas dated November 19,
1990
Application to Take Deposition & Order (Mike Barclay, et- al
Notice tom P. Gallego dated October 8, 1990
a. to Take Deposition of Pete P. Gallego .....
ee to Take Deposition of Richard Barajas ....
ci. of office, Steven Woolard
ees Speedy Trial Demand
a to Val C. Beard dated April 8, 1991
pees to Take Deposition of Val Clark Beard
— for Setting of Motion to Recuse Judge
ces to Serve on Judicial Assignment - Order
er Motions - Orders
64
Defendant’s Motion for Instructed Verdict
Chae of The Court
0
Appendix, Page 56
Presentence Investigation Report
79
Defendant’s Motion For New Tnal
96
Defendant’s Notice Of Appeal
102
Judgment on Jury Verdict of Guilty
103
Defendant’s First Bill of Exception
108
Appendix, Page 57
JOANN SALGADO
District Clerk
BREWSTER COUNTY
P.O. DRAWER 119/ ALPINE. TEXAS 79831
915-837-3366
TRIAL COURT CAUSE NUMBER 2733
No. 08-91-00403-CR
THE STATE OF TEXAS iN THE DISTRICT
COURT
VS. 83RD JUDICIAL
DISTRICT
JOSEPH DELANEY BREWSTER COUNTY.
TEXAS
INDEX
SUPPLEMENTAL TRANSCRIPT
Volume I
Letter from District Clerk to Joseph Delaney for
Page |
setting on "Conditions of Probation dated April 2, 1992
Order Setting Bail Bond and Conditions Upon Said Bail
?
Bond Pending Defendant's Appeal
Letter from Joseph H. Delaney to R.L. McLaughlin dated
Apni 15, 1992 regarding supplementary proceedings be
Appendix, Page 58
included in statement of facts
5
Letter from Joseph H. Delaney to Jo Ann Salgado requesting
6
pleadings filed be included in transcript dated April | 5,
1992
Motion To Recuse And Disqualify District Judge filed
7
Apnil 15, 1992
Notice to: Albert Valadez, District Attomey filed
16
April 15, 1992
Request For Setting of Motion To Recuse Judge filed
17
Apnil 15, 1992
Defendant's Motion To Set Hearing filed May 4, 1992
18
Defendant's Motion To Modify Conditions of Bail
21
Pending Appeal filed May 4, 1992
Order on Defendant's Motion to Recuse and disqualify
24
District Judge, assigning Virgil Mulanax, signed by
Hon. Wm. Moody, filed August 19, 1992
Order-on Appellant's Pro Se Motion for leave to Supple'ment
Transcnpt with copy of Appellant's motion for for leave
Appendix, Page 59
to supplement transcripit filed Spetember II,,1992
25
PRE-TRIAL MOTIONS
DEFENDANT’S PRE TRIAL MOTIONS
NOTION FOR DISCOVERY
MOTION FOR DISCOVERY
MOTION FOR DISCOVERY AND INSPECTION
MOTION FOR DISCOVERY AND INSPECTION
MOTION FOR CONTEMPT
SECOND MOTION FOR CONTEMPT
MOTION FOR SANCTIONS
MOTION TO DISMISS INDICTMENT
MOTION FOR DISCOVERY AND INSPECTION OF
PROSECUTION SMEAR
CAMPAIGN., MATERIAL
MOTION FOR APPOINTMENT OF SPECIAL
PROSECUTOR
MOTION FOR DISCHARGE
MOTION FOR SANCTIONS
STATES PRE- TRIAL NOTIONS
Appendix, Page 60
States Response To Defendant's Motion For Discovery
States Response To Motion For Discovery of Grand Jury
Witnesses
States Response To Motion For Discovery and Inspection
States Response To Defendant's Motion For Discovery of
Witnesses
State of Texas Notion To Rule for Costs
State of Texas Motion For Protection
State's Amended Response To Defendant's Pre-Trial Motion
To List State's
Witnesses
State's Motion To Withdraw And For Substitution of Counsel
and Order
Request For Instruction On Mode Of Interrogation
State's First Motion In Limine
Appendix, Page 61
IN THE 83RD JUDICIAL DISTRICT COURT
OF
BREWSTER COUNTY, TEXAS
STATE OF TEXAS
VS. NO. 2733
JOSEPH H. DELANEY
CHARGE OF THE COURT
LADIES AND GENTLEMEN OF THE JURY:
The Defendant, JOSEPH R. DEIANEY, stands charged
by indictment with Injury To An Elderly Individual, alleged to
have been committed on or about the 31st day of October,
1989, in Brewster County, Texas. The Defendant has pleaded
not guilty. | now charge you with the law applicable in this
case.
1.
Our law provides that a person commits an offense if
he intentionally or knowingly, by act or omission, engages in
conduct that causes bodily injuiry to an elderly individual
who Is sixty-five (65) years of age or older. }
9)
By the term “bodily injury" is meant physical pain,
illness, or any impairment of physical condition.
"Conduct" means an act br omission and its
acompanying mental state.
Page. |
"A person acts intentionally, or with intent, with
Appendix, Page 62
respect to a result of his conduct when it is his conscious
objective or desire to cause the result."
"A person acts knowingly, or with knowledge, with
respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.”
3.
Now if you find from the evidence beyond a reasonable
doubt that on or about the 31st day of October, 1989 in
Brewster County, Texas, the Defendant, Joseph Delaney, did
then and there intentionally and knowingly engage in conduct
which did then and there cause bodily injury to Malone Hill,
to-wit: by striking him with his fists, and that Malone Hill was
then and there an elderly individual who was sixty-five years
of age or older, then you will find the defendant guilty of
intentionally and knowingly causing bodily injury to an elderly
individual who is sixty-five years of age or older.
Unless you so find beyond a reasonable doubt, or if you
have a reasonable doubt thereof, you will acquit the Defendant
of iitentionally and knowingly engaging in conduct that
caused bodily injury to Malone Hill.
4.
Upon the law of self defense, you are instructed that
a person is justified in using force against another when and to
the degree he reasonably believes the force is immediately
neces-sary to protect himself against the other person's use or
attempted use of unlawful force.
Page. 2.
When a person is attacked, or an attempt is made to
attack such person, with unlawful force, and there is created
in the mind of such person a reasonable expectation of fear
of some bodily injury, then the law excuses or justifies such
person in resorting to force to the degree that he reasonably
believes is immediately necessary, viewed from his
Appendix, Page 63
standpoint at the time, to protect himself from attack or
attempted attack.
A person is under no obligation to retreat to avoid
the necessity of repelling or defending, with force less than
deadly force, against an attack or attempted attack.
By the term ‘deadly force’ as used herein, is meant
force that is intended or known by the person using it to
cause, or in the manner of its use or intended use is capable
of causing, death or serious bodily injury. ;
Now, if you find and believe from the evidence beyond
a reasonable doubt that on the occasion in question the
Defendant did beat with his fists on the complainant, Malone
Hill, but you further find from the evidence, or you have
reasonable doubt there- of, that at that time the Defendant was
under attack or attempted attack from the complainant,
Malone Hill, and that the Defendant reasonably believed, as
viewed from his standpoint, that such force as he used was
immediately necessary to protect himself against such attack
or attempted attack, and so believing, he beat with:. his fists
the complainant, Malone Hill, and that such force was not
deadly force used by the Defendant, then you will acquit the
Defendant and say by your verdict not guilty.
Page. 3
a
If you find from the evidence beyond a reasonable doubt
that at the time and place in question the Defendant did not
reasonably believe that the degree of force actually used by
him was immediately necessary to protect himself against
Malone Hill's use or attempted use of unlawful force, if any,
as viewed from Defendant's standpoint, at the time, then you
must find against the Defendant on the issue of self defense.
6.
Our law provides that a Defendant may testify in his
own behalf if he elects to do so. This, however, is a privilege
Appendix, Page 64
accorded a Defendant, and in the event he elects not to testify,
the fact cannot be taken as a circumstance against him.
:
A grand jury indictment is the means whereby a
Defen- dant is brought to trial in a felony prosecution. It is not
evidence of guilt nor can it be considered by you in passing
upon the issue of guilt of the Defendant. The burden of proof
in all cnminal cases rests upon the State throughout the trial,
and never shifts to the Defendant.
All persons are presumed to be innocent and no person
may be convicted of an offense unless each and every element
of the offense is proved beyond a reasonable doubt. The fact
that a Defendant has been arrested, confined, or indicted for,
or other- wise charged with the offense gives rise to no
inference of guilt at the trial. In case you have a reasonable
doubt as to a
Page. 4
Defendant's guilt after considering all the evidence before
you, you will acquit him.
You are instructed that neither arguments nor state-
ments of counsel for the State or counsel for the Defendant is
evidence. In your deliberations, you must not relate to your
fellow jurors any personal experience of your own, nor shall
you relate any occurrence, happening, or event known to you
and not shown by the evidence of this case. And you shall
not speculate on, nor concern yourselves with, matters not
shown by the evidence in this case and about which you are
not called upon to make any decisions. In all your
deliberations, you will confine yourselves strictly to the
evidence introduced before you in this trial under the rulings
of the Court and the definitions and in- structions given to you |
by the Court. If any member of the jury attempts to violate |
these instructions, the other members shall stop him or her at
Appendix, Page 65
once. If the juror persists in the violations, the Presiding Juror
shall immediately report that fact to the Court in writing.
You are instructed that you are not to allow yourselves to
be influenced in any degree whatsoever by what you may
think or surmise the opinion of the Court to be. The Court
has no right by any word or act to indicate any opinion
respecting any matter of fact involved in this case, nor to
indicate any desire respecting its outcome. The Court has
not intended to express any opinion upon any matter of fact in
this case. If you have
Page. 5
observed anything which you have or may interpret as the
Court's opinion upon any matter of fact in this case, you must
wholly disregard it.
8.
Do not let bias, prejudice or sympathy play any part in
your deliberations.
You are the exclusive judges of the facts proved, of the
credibility of the witnesses and the weight to be given their
testimony, but I, and I alone, shall advise you of the law in the
form of these written instructions, and you are governed
thereby.
9.
After you retire to the jury room, you should select one of
your members as your Presiding Juror. It is his or her duty to
preside at your deliberations, vote with you, and when you
have unanimously agreed upon a verdict, to certify to your
verdict by using the appropriate form attached hereto, and
sign-ing the same as Presiding Juror.
Once you begin your deliberations, no one has any
authority to communicate with you except the officer who has
you in charge. During your deliberations in this case, you
must not consider, discuss, nor relate any matters not in
evidence before you. You should not consider nor mention
Appendix, Page 66
any personal knowledge or information you may have about
any fact or person connected with this case which is not
shown by the evidence.
10.
During your deliberations, you may communicate with
this Court, but only in wnting, through the officer who has
you
Page. 6
in charge. Do not attempt to talk to the officer who has you in
charge, or the attorneys, or the Court, or anyone else
concerning any question you may have. Af ter you have
reached a unanimous verdict, the Presiding Juror will certify
thereto by filling in the appropriate form attached to this
charge and signing his or her name as Presiding Juror.
You will not decide your verdict by lot or by drawing
straws or by any other method of chance, nor shall you
compromise your verdict in any manner.
You shall have this written charge with you when you go
to the jury room to deliberate.
Upon your written request therefor, any exhibits admitted
as evidence in this case will be furnished to you.
Suitable forms for your verdict are hereto attached. Your
sole duty at this time is to determine the guilt or innocence of
the Defendant under the indictment in this cause. You are to
restrict your deliberations solely to the issue of guilt or
innocence of the Defendant.
You may now retire to consider your verdict.
SIGNED AND ENTERED this 22nd day of August,
1991,
at 10:00 A.M.
s/s Alex R. Gonzalez
Judge Presiding
Pe ee ee ee ee ee
Appendix, Page 67
IN THE 83RD JUDICIAL DISTRICT COURT
OF
BREWSTER COUNTY, TEXAS
STATE OF TEXAS
VS.
JOSEPH H. DELANEY
NO. 2733
VERDICT
We, the Jury, find the Defendant, JOSEPH DELANEY,
not guilty, of Injury To An Elderly Individual.
PRESIDING JUROR
Appendix, Page 68
STATE OF TEXAS
VS.
JOSEPH H. DELANEY
NO. 2733
VERDICT
We, the Jury, find the Defendant, JOSEPH DELANEY,
guilty of Injury To An Elderly Individual, a felony of the third
degree, as charged in the indictment.
Appendix, Page 69
U. S. Constitution, Amendment 5
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for
public use, without just compensation.
U.S. Constitution, Amendment 6
In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and
to have the Assistance of Counsel for his defense.
U.S. Constitution, Amendment XIV, Section 1.
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nordeny to any person within its jurisdiction
the equal protection of the laws.
Supreme Court Rule 10
—————
° _--—- a -
Appendix, Page 70
Rule 10. Considerations Governing Review on Writ of
Certiorari
Review on a wnt of certiorari is not a matter of nght, but of
judicial discretion. A petition for a writ of certiorari will be
granted only for compelling reasons. The following, although
neither controlling nor fully measuring the Court's discretion,
indicate the character of the reasons the Court considers:
*(a) a United States court of appeals has entered a decision in
conflict with the decision of another United States court of
appeals on the same important matter; has decided an
important federal question in a way that conflicts with a
decision by a state court of last resort; or has so far departed
from the accepted and usual course of judicial proceedings, or
sanctioned such a departure by a lower court, as to call for an
exercise of this Court's supervisory power; *(b) a state court of
last resort has decided an important federal question in a way
that conflicts with the decision of another state court of last
resort or of a United States court of appeals; *(c) a state court
or a United States court of appeals has decided an important
question of federal law that has not been, but should be,
settled by this Court, or has decided an important federal
question in a way that conflicts with relevant decisions of this
Court.
A petition for a writ of certiorari is rarely granted when the
asserted error consists of erroneous factual findings or the
misapplication of a properly stated rule of law.
28 U.S.C §1254. Courts of appeals; certiorari; certified
questions
Cases in the courts of appeals may be reviewed by the
Supreme Court by the following methods:
Appendix, Page 71
(1) By wnt of certiorari granted upon the petition of any party
to any civil or criminal case, before or after rendition of
Judgment or decree;
Public Law 104, Section 103, amending
Supreme Court Rule 22(b) and Title 28, Section 2254
U.S.C.
(b) CERTIFICATE OF APPEALABILITY
In a habeas corpus petition in which the detention
complained of arises out of process issued by a state court, the
applicant for the writ may not proceed unless a district or a
circuit judge issues a certificate of appealability pursuant to
section 2253(c) of Title 28, United States Code. If an appeal
is taken by the applicant the district judge who rendered the
Judgmentshall either issue a certificate of appealability or
State the reasons why such a certificate should not issue. The
certificate or the statement shall be forwarded to the court of
appeals with the notice of apeal and the file of the proceedings
in the district court. If the district judge has denied the
certificate the applicant for the writ may then request issuance
of the certificate by a circuit judge. If sucha request is
addressed to the court of appeals, it shall be decined addressed
to the judges thereof and shall be considered by a circuit
judge or judges as the court deems appropriate. If no express
request for a certificate is filed, the notice of appeal shall be
deemed to to constitute a request addressed to the judges of
the court of appeals. If an appeal is taken by a state or its
representative, a certificate of appealability is not required.
Vernon's Annotated Texas Penal Cede, Section 1.03 (a)
Offenses
Conduct does not constitute an offense unless it is
defined as an offense by statute, municipa! ordinance, order
Appendix, Page 72
—— .... Of a-countycommissioners court,-or rule authorized by and___.___
lawfully adopted under a statute.
Vernon's Annotated Texas Penal Code, Section 107 (A) (11)
(b)
Deadly weapon - defined
A deadly weapon is anything that in the manner of its use
or intended use is capable of causing death or serious bodily
injury.
Vernon's Annotated Texas Penal Code, Section 1.07 (a) (22)
Elements - defined
"Element of Offense means":
(A) the forbidden conduct
(B) the required culpability
(C) any required result
(D) the negation of any exception to the conduct
Vernon's Annotated Texas Penal Code, Section 9.01
Deadly force- defined
In this chapter:
(3) "Deadly force" means force that is intended or
known by the actor to cause, or in the manner of its use or
intended use is capable of causing, death or serious bodily
injury.
Vernon's Annotated Texas Penal Code, Section 9.31
Self-Defense
(a) Except as provided in subsection (b) of this
section, a person is justified in using force against another
when and to the degree he reasonably believes that the force is
immediately necessary to protect himself against the other's
use or attempted use of unlawful force.
(b) The use of force against another is not justified:
1) In response to a verbal provocation alone:
Appendix, Page 73
2) To resist an arrest or search that the actor knows
is being made by a peace officer, or a person acting in a peace
officer's presence and at his direction, even though the arrest
or search is unlawful, unless the resistance is justified under
subsection (c) of this section.
3) If the actor consented to the exact force used or
attempted by the other: or
4) If the actor provoked the other's use or
attempted use of unlawful force, unless:
(A) The actor abandons the encounter, or clearly
communicates to the other his intent to do so reasonably
believing he cannot safely abandon the encounter: and
(B) The other nevertheless continues to use
unlawful force against the actor.
(c) (Section (c) relates to arrest and search only].
Vernon's Annotated Texas Penal Code, Section 9.32
Deadly Force In Defense Of The Person
A person is justified in using deadly force against another:
1) if he would be justified in using force against the
other under Section 9.31 of this code;
2) if a reasonable person in the actor's situation would
not have retreated; and
3) when and to the degree he reasonably believes the
deadly force is immediately necessary:
(A) to protect himself against the other's use or
attempted use of unlawful deadly force, or
(B) to prevent the other's imminent commission of
aggravated kidnapping, murder, sexual assault, aggravated
sexual assault, robbery, or aggravated robbery.
Vernon's Annotated Texas Penal Code, Section 15.01
Attempts - defined
—_- ----
Appendix, Page 74
oor
al
——
(a) A person commits an offense if, with specific intent
to commit an offense he Does an act amounting to more than
mere preparation that tends but fails to effect the commission
of the offense intended.
(b) If a person attempts an offense that may be
aggravated, his conduct constitutes an attempt to commit the
aggravated offense if the element that aggravates the offense
accompanies the attempt.
(c) It is no defense to prosecution for criminal attempt
that the offense was actually committed.
(d) An offense under this section is one category lower
than the offense attempted and if the offense attempted is a
felony of the third degree, the offense is a class A
misdemeanor.
* (If the offense attempted is murder, a first degree felony,
then the attempt is a felony of the second degree).
—
Vernon's Annotated Texas Penal Code, Section 19.01
emichie. defined
(a) A person commits criminal homicide if he
intentionally, knowingly, recklessly, or with criminal
negligence causes the death of an individual.
(b) Criminal homicide is murder, capital murder,
voluntary manslaughter, involuntary manslaughter, or
criminally negligent homicide.
Vernon's Annotated Texas Penal Code, Section 19.02
Murder - defined
(a) A person commits an offense if he:
1) Intentionally or knowingly causes the death of
an individual:
Appendix, Page 75
ooo
nl a
2) Intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the
death of an individual: or,
3) [This section deals with homicide committed
during the course of another felony].
(b) An offense under this section ts a felony of the
first degree.
Vernon's Annotated Texas Penal Code, Section 22.01
Simple assault - defined
(a) A person commits an offense if the person:
1) intentionally, knowingly, causes bodily to another,
including the person's spouse, or;
2) intentionally or knowingly threatens another with
imminent bodily injury, including the person's spouse, or;
3) intentionally or knowingly causes physical! contact
with another when the person knows or should reasonably
believe that the other will regard the contact as offensive or
provocative.
(b) An offense under Subsection (a) (1) is a Class A
Misdemeanor unless: (Exceptions do not apply).
(c) An offense committed under Subsection (a) (2) is a
Class C Misdemeanor unless (Exceptions do not apply).
(d) An offense committed under Subsection (a) (3) is a
Class C Misdemeanor unless - (Exceptions do not apply).
Vernon's Annotated Texas Penal Code, Section 22.02 (a) (4)
Aggravated Assauit, by Deadly Weapon - defined
(a) A person commits an offense if the person commits
an assault as defined under Section 22.01 of this code and the
person:
4) uses a deadly weapon.
Appendix, Page 76
_ eee -
— — — S eneeneaaREEReEENRE ome
Vernon's Annotated Texas Penal Code 22.04 (a)
Injury To Child, etc. - defined
(a) A person commits an offense if he intentionally,
knowingly, recklessly, or with criminal negligence, by act or
intentionally, knowingly, or recklessly by omission, causes to
a child, elderly individual, or invalid individual:
(1) serious bodily injury;
(2) serious physical or mental hea iciency or
impairment;
(3) disfigurement or porn or,
(4) bodily injury.
Vernon's Annotated Texas Code Of Criminal Procedure,
Article 38.08
ofemtonte' chacti , if
Any defendant in a criminal action shall be permitted
to testify in his own behalf therein, but the failure of any
defendant to so testify shall not be taken as a circumstance
against him, nor the same be alluded to or commented upon
by counsel in the cause.
Vernon's Annotated Texas Code nog Criminal Procedure,
Article 39.02
Depositions For Defendant
Depositions of witnesses may be taken by the
Defendant. When a defendant desires to take the deposition
of a witness he shall, by himself or counsel, file with the clerk
of the court in which the case is pending, an affidavit stating
the facts necessary to constitute a good reason for taking the
same. Provided that upon the filing of such application, and
after notice to the attorney for the state, the courts shall hear
the application and determine if good reason exists for taking
the deposition. Such determination shall be based on the facts
Appendix, Page 77
_— _a
made known at the hearing, and the court, in its judgment,
shall grant or deny the application on such facts.
Vernon's Annotated Texas Rules Of Criminal Evidence,
Rule 602
Lack Of Personal knowledge
A witness may not testify to a matter unless evidence
is introduced sufficient to support a finding that he has
personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the testimony of the
witness himself. This rule is subject to the provisions of Rule
703, relating to opinion testimony by expert witnesses.
Vernon's Annotated Texas Rules Of Criminal Evidence,
Rule 801 (d)
Definition of Hearsay
“Hearsay” is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
Vernon's Annotated Texas Rules Of Appellate Procedure,
Rule 30(b)(2), (8), & (9)
Grounds For New Trial
(b) A new tnal shall be granted an accused for the
following reasons:
(2) Where the court has misdirected the jury as to
the law or has committed some other material error calculated
to injure the rights of the accused.
(8) Where the court finds that the jury has engaged in
such misconduct that the accused has not received a fair and
impartial trial.
(9) Where the verdict is contrary to the law and the
evidence.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.