Petition for Writ of Certiorari — Walker v. Texas

rc

(1) FILED

001727MAY 1 7 2007

NO. —__eemoe of THE CLERK

In The

Supreme Court of the United States

STANLEY JERMAIN WALKER,

Petitioner,

vs.

THE STATE OF TEXAS,

Respondent.

On Petition For Writ Of Certiorari To The

Court Of Appeals, Eighth District Of Texas

o

PETITION FOR WRIT OF CERTIORARI

¢

M. “Mateo” DeKkoatz

Counsel of Record

1108 North Carnpbell

El Paso, Texas 79902

T.B.L. No. 05722300

Phone: 915-541-8891

Fax: 915-541-8892

E-mail: necrite@prodigy.net

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

OR CALL COLLECT (402) 342-2831

—oeeeeee

i

QUESTION PRESENTED FOR REVIEW

(1.) Whether Petitioner’s right to confrontation and

effective cross-examination, under the Sixth Amendment

to the United States Constitution was violated by the

exclusion of evidence that the named complainant in this

murder prosecution had been recently arrested for pos~

session of a prohibited weapon, a 9 mm Colt, in light of

the Supreme Court’s decision in Davis v. Alaska, 415 U.S.

308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974)?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............

TAME OF CORIO. ii

TABLE OP AUITIAOIITIOE 55 ok oss eae iii

OPINIONS AND ORDERS DELIVERED BELOW... 1

JURISDICTION OF THIS COURT .........0.:eceee: 1

CONSTITUTIONAL PROVISIONS AND STATUTES

MEIER... ee eel 2

STATEMENT OF THE CASE..........-..s.scsseees 3

REASONS FOR GRANTING THE WRIT ........... 6

ARGUMENT AND AUTHORITIES...........-..... 7

CONCIINON 16

iii

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Alford v. United States, 282 U.S. 687, 51 S. Ct. 218,

FO Rav Bee GE CUBS) ccc ccnccccccétetnieusensn cs 11, 13

Barracota v. United States, 45 F. Supp. 38 (S.D.N.Y.

Ps Shae kdscctnssecoccveviseud tkbeckesssapheebas 10

California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26

Ra es Ae ET CROW hc conc edacucedescasaneuss 8, 9, 10

Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 298, 101 L. Ed.

Be GOP b 6 ch bo cncs cccandstesanteceses tucewa 8, 9

Chapman v. California, 386 U.S. 18, 24 P. 21 (1967) ..... 7

Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L.

Bs Sk. OU SPE sc vecbecccclesisteavasgnss 7, 10, 11

Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct.

Ba, BP be BG. Ae GS CEG ig viv cnc scnccnsccecasic 12

Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13

i PE EEE cc cccedcccccevenscbesheccbesee 11

Dowdell v. United States, 221 U.S. 325, 31S. Ct. 590, -

SEs aN DEO GEPEED vensceccesuduevcasecsodustdedss 9

Ex parte Milligan, 71 U.S. 2, 4 Wall. 2, 18 L. Ed. 281

PE tc tededceheckséccshigevenseussducehtsnidacde 9

Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400, 3 L.

ee Case osaeh so nkche oe (eat nei eaide tiene 8

Kirby v. United States, 174 U.S. 47, 19 S. Ct. 574, 43

Se EE a's dw on Geweneécnes catutaess vanes 10

Les @. Hilneia, 476 US. S30 (1985) . . 2.5. esecsceciess 7

Lee v. Illinois, 476 U.S. 530, 106 S. Ct. 2056, 90 L.

ee ie CIN si ccbweshS Gi ods be sokc al 10

iv

TABLE OF AUTHORITIES - Continued

Page

Maryland v. Craig, 497 U.S. 836 (1990)............006- 8

_ Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337,

SP Las es GS I ok dadakeucdnccnsendecassaueses 9

Ohio v. Roberts, 448 U.S. 56 (1980)..............2000es 7

Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L.

ih Bee We Gs 6.9 06 0a nead 6404400600 65000 0008 04 10

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980)............ 9

Salinger v. United States, 272 U.S. 542, 47 S. Ct. 173,

FE Gc: Se oid Ken ie cade ease ei skeaseakas 8

Smith v. Illinois, 390 U.S. 129, 88 S. Ct. 748, 19 L.

ES ee 06k bobabsaneresetkiesen cee 11, 12

Tla-koo-yel-lee v. United States, 167 U.S. 274, 17 S.

Ce. Gis. SS Bi. TR Be Ge ooo cvevcdwecdsesaceesss 11

Williamson v. United States, 512 U.S. 594 (1994)....... 7

State Cases

Amunson v. State, 928 S.W.2d 601 (San Antonio

| OP Pe OnE po rE pene BE Boge y Be eee 14

Carroll v. State, 916 S.W.2d 494 (Crim. App. 1996) .... 14

Tate v. State, 981 S.W.2d 189 (Crim. App. 1998)...... 14

FEDERAL STATUTES

Fourteenth Amendment of the United States Con-

ah ce a a eS eal ee ee ae 6, 13

Rule 10(c) of the Supreme Court Rules............... 1

eT AT ee TOT Co TN RETR Ta

Vv

TABLE OF AUTHORITIES —- Continued

Page

Sixth Amendment of the United States Constitu-

COM co cccdesndadccnoadutndectens Wahab ees taba passim

RS a Per Teer PEC erT Terre re wineeeckins 1

StaTE STATUTES :

Article I, Section 10 and 19 of the Texas Constitu-

BOGE. a cchawsweceecscsecdagaceensaudsnteagaetanuea 13

Tes: BR. App. P4642 2c cc tcccdccceeinsssseassverwaes 2, 5

Tex. Rules of Evidence, Rule 401................... |

Tex. Rules of Evidence, Rule 404(b).................. 5

Tex. Rules of Crim. Evidence, Rules 608, 609, 404

Wn GD a ndvckevakcdpdneshictuaccenscnaseriee 13

PuRSUASIVE AUTHORITY

Duke of Dorset v. Girdler (1720), Finch’s Prec Ch.

DORs ks svdindcand¥inpasidian saan: Kobe nesabeaieeeiaes 9

5 Wigmore on Evidence (3d ed. 1940) Sec.

WIGS in sks bone deni ti teeccen eee te ees 8, 9, 10

Freely, Malcom M., The Oxford Companion to the

Supreme Court of the United States, p. 935

FRE 6c cchCesrhcndccsddghariiivavateserseuesteks 9

Pollitt, The Right of Confrontation: Its History

and Modern Dress, 8 J.Pub.L. 381, 384-388

Bo) Oey Te Perr Seo DT PEN Ey Prey ny Seer

TO THE HONORABLE JUSTICES

OF THE SUPREME COURT:

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment of the Court of Appeals for

the Eighth District of Texas.

oo

OPINIONS AND ORDERS DELIVERED BELOW

The October 5, 2000 opinion, not reported, of the

Court of Appeals, Eighth District of Texas, affirming the

trial court’s judgment of conviction is attached and

_freprinted at App. 1-11.

The March 21, 2001 order, not reported, of the Texas

Court of Criminal Appeals denying Stanley Walker’s

Petition for discretionary review is attached and

reprinted at App. 12.

The order of the Court of Appeals, Eighth District of

Texas, seeking Stanley Walker’s Motion to Stay Mandate,

not reported, is pending decision. Petitioner’s motion to

stay mandate is reprinted at App. 13-16.

,*

4

JURISDICTION OF THIS COURT

This petition for writ of certiorari seeks review of the

October 5, 2000 decision of the Court of Appeals, Eighth

District of Texas.

Jurisdiction of this Court to review the decision of

that court is invoked under 28 U.S.C.A., and Rule 10(c) of

the Supreme Court Rules.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

U.S. Const. amend. VI:

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 has 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 wit-

nesses against him; to have compulsory process of obtain-

ing witnesses in his favor and to have the Assistance of

Counsel for his defence.

Tex. R. App. P. 44.2 provides:

(a) Constitutional Error. If the appellate record in a

criminal case reveals constitutional error that is subject to

harmless error review, the court of appeals must reverse a

judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did

not contribute to the conviction or punishment.

(b) Other Errors. Any other error, defect, irregu-

larity, or variance that does not affect substantial rights

must be disregarded.

Tex. Rules of Evidence, Rule 401 provides:

“Relevant evidence” means any evidence having any

tendency to make the existence of any fact that is of

consequence to the determination of the action more

3

probable or less probable than it would be without the

evidence.

STATEMENT OF THE CASE

The Evidence

On the 11th day of December, 1994, in Northeast El

Paso, Texas, and near the 10300 block of Newport Street,

a group of individuals attended a party. During the

course of the evening, and into the morning of December

11, 1994, and shortly after midnight, an argument ensued

between Albert “Kiki” Gandara and Bear Barley. These

two individuals began mutual combat by fighting one

another. There is conflicting testimony on what happened

during their fight. Albert’s brother, Joe Gandara, joined

the fight to assist his brother after Bear slammed Joe to

the ground. During the fight, others also joined in, but,

again, the testimony is not consistent as to the precise

nature of the occurrence. A friend of the Gandara

brothers, Mark Herrera pulled out a screwdriver and

used it as a deadly weapon. Further, a friend of the

Gandara brothers, Tommy Madrid fired his 38-caliber

weapon into the area of the fight.

According to the State’s witnesses, Petitioner

allegedly fired a 22-caliber weapon which resulted in the

death of Joe Gandara and which resulted in non-fatal

wounds to Albert “Kiki” Gandara. The police obtained

two statements from the accused, the first of which was

completely exculpatory (State’s Exhibit 59), and the sec-

ond of which (State’s Exhibit 60) stated that Petitioner

fired a weapon to defend his (then girlfriend) wife, Shan-

non Walker.

Petitioner proffered his objections, legal argument

and the nature of the evidence excluded by the trial court

(rr4-p76-94)! (rr4-p90). Petitioner preserved error at the

trial level: rr2-p155-156, 238-242; rr3-p3-12, 21, 47, 82-100,

122-123; rr4-76-94. Petitioner sought to defend the case by

impeaching the testimony of Hortencia Gardea, Victor

Garcia and Albert Gandara. Id. and cr-84. These three

named witnesses testified, in summary, that the com-

plainant, Joe Gandara was: a helpful person who took

care of his little brother, his young blood; who didn’t

need a weapon; a nice person who looked after his kids

and “who never hurt nobody,” who always took care of

his friends and told others to go straight to school, and

who would not use weapons because: he knew martial

arts. Id. Petitioner believed he was required to confront,

cross-examine and impeach this evidence, particularly

because Petitioner vigorously disputed the statements

and opinions given by these three witnesses.

Petitioner proffered controverting evidence through

Officer Adrian Fonseca to show Petitioner’s reasonable

apprehension in relation to the defense of his wife, and to

show that the deceased and his brother were the initial

aggressors. Petitioner’s purpose in offering Officer Fon-

seca’s testimony was not to prove the complainant's char-

acter, but rather to prove the complainant’s intent and

motive to cause his wife harm on the night in question; to

1 That on August 6, 1994, Jose Gandara was stopped by the

police and found to be in possession of a 9mm handgun, Colt

Commander, that was within his arm’s length.

directly impeach the witnesses’ testimony; and to correct

a false impression left with the jury. Thus, the evidence of

Joe Gandara carrying a firearm within five months of the

incident had relevance beyond its tendency to demon-

strate the complainant’s character. A reasonable jury

could have believed this evidence shed light upon Joe

Gandara’s and Albert Gandara’s state of mind? at the

time of the incident on the night in question, and, as long

as it was otherwise admissible, Petitioner possessed the

right to present it for the jury’s consideration. The prof-

fered evidence tended to make the existence of a conse-

quential fact more probable. Rule 401 of the Texas Rules

of Evidence. Petitioner argues that he demonstrates harm,

(see T.R.A.P., Rule 44.2.) by the trial court’s exclusion of

the evidence. In other words, this fact that Albert Gan-

dara was in possession of the 9mm Colt was probative of

his state of mind, his brother’s state of mind, and possi-

bly indicated a motive or demonstration of intent behind

the confrontation that evening. In sum, the proffered

testimony was probative of whether he and his brother

were, in fact, the aggressor(s) and admissible for “other

purposes” besides demonstrating character and actions in

conformity therewith. See Tex. R. Evid. 404(b). Therefore,

Petitioner contends that the Eighth Court of Appeals

erred in upholding the trial court’s decision to exclude

the evidence.

As trial counsel for the defense correctly pointed out

to the trial court, the above exception is applicable in this

2 Albert Gandara was aware that his brother was arrested

for possession of the 9mm — on August 6, 1994. rr4-

p122-123.

case. On examination, three witnesses indicated that Joe

Gandara was the sort of person who did not carry a

weapon, did not need a weapon and would not initiate a

fight, supra. These statements easily could have conveyed

to the jury the impression that the complainant was an

exemplary citizen who had never been in trouble with the

police before, or was not the sort of person who would

start a fight or carry a weapon, and it opened the door for

impeachment by Petitioner of the proffered testimony.

Accordingly, Petitioner argues that he was entitled to

expose the falsity of these representations by showing

that the complainant had been arrested and found in

possession of the 9mm Colt. Petitioner maintains that his

right to confront his accusers was violated to such an

extent that certiorari is proper in the instant case.

At trial and on appeal, Petitioner argued that he was .

denied the right to effectively confront and cross-examine

his accusers by the trial court’s disallowance of Officer

Adrian Fonseca’s testimony that Joe Gandara possessed

the 9mm Colt in August of 1994. This fact directly contra-

dicted the testimony and representations made by Hor-

tencia Gardea, Victor Garcia and Albert Gandara.

Petitioner contends that this error of constitutional mag-

nitude (Sixth and Fourteenth Amendments) was not

harmless, and should result in new trial.

¢

REASONS FOR GRANTING THE WRIT

The Texas Eighth Court of Appeals has decided an

important question of federal law in a way that conflicts

with relevant decisions of the United States Supreme

Court.

ARGUMENT AND AUTHORITIES

1. Whether Petitioner’s right to confrontation and

effective cross-examination, under the Sixth

Amendment to the United States Constitution was

violated by the exclusion of evidence that the

named complainant in this murder prosecution had

been recently arrested for possession of a prohib-

ited weapon, a 9mm Colt, in light of the Supreme

Court’s decision in Davis v. Alaska, 415 U.S. 308,

316, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974)?

In the instant case, Petitioner argues that the trial

court committed reversible error in failing to allow the

defense to bring before the jury the subject of the 9mm

Colt through Officer Fonseca’s testimony, described

above. The Supreme Court has jurisdiction over Peti-

tioner’s Confrontation Clause claim. He expressly argued

the claim in his brief to the Texas Court of Appeals and

Texas Court of Criminal Appeals. See, Williamson v.

United States, 512 U.S. 594 (1994); and, Lee v. Illinois, 476

U.S. 530 (1985). The exclusion of Petitioner’s evidence

and proffer violated Petitioner’s Confrontation Clause

rights. Adhering to the Court’s general custom of allow-

ing state courts initially to assess the effect of erroneously

excluded evidence in light of substantive state criminal

law, the Texas courts are to consider in the first instance

whether this Sixth Amendment violation was “harmless

beyond a reasonable doubt.” Chapman v. California, 386

U.S. 18, 24. P. 21 (1967); see also, Ohio v. Roberts, 448 U.S.

56, 66. Pp. 4-21 (1980). The Confrontation Clause ensures

the reliability of evidence against a defendant by subject-

ing it to rigorous testing in an adversary proceeding,

Maryland v. Craig, 497 U.S. 836, 845 (1990), as by cross-

examination of a declarant, see California v. Green, 399

U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970).

The right of confrontation has ancient roots. Greene v.

McElroy, 360 U.S. 474, 79 S. Ct. 1400, 3 L. Ed. 2d 1377

(1959). Over two thousand years ago the Roman Gover-

nor Porcius Festus reported to King Agrippa: “It is not

the manner of the Romans to deliver any man up to die

before the accused has met his accusers face to face, and

has been given a chance to defend himself against the

charges.” Coy v. Iowa, 487 U.S. 1012, 1015-1016, 108 S. Ct.

2798, 2800, 101 L. Ed. 2d 857 (1988) (quoting Acts 25:16).

See also, 5 Wigmore on Evidence (3d ed. 1940) Sec. 1364

(origin of right to confront witnesses).

The right of confrontation was also recognized in

English common law. Salinger v. United States, 272 U.S.

542, 548 47 S. Ct. 173, 175, 71 L. Ed. 398 (1926). See also,

Pollitt, The Right of Confrontation: Its History and Mod-

ern Dress, 8 J.Pub.L. 381, 384-388 (1959) (describing con-

frontation of witnesses in England). Initially, the right of

the accused to confront witnesses was recognized in trials

for treason. Wigmore, at 123. Arguably, the most noto-

rious treason trial in England was that of the Sir Walter

Raleigh, accused of conspiring to overthrow the King of

England. See, F. Heller, The Sixth Amendment to the

Constitution, 104 (1968). See also, Pollitt, at 388. Raleigh

was charged with treason after a third party, Cobham,

confessed under torture, to conspiring with Raleigh. At

trial, Raleigh was denied the opportunity to confront

Cobham and Cobham’s statement was used to convict

and ultimately execute Raleigh. Pollitt, at 388-389. It was

common during these times for an accused to be tried

upon written “evidence which consisted solely of ex

parte affidavits and depositions.” California v. Green, 399

U.S. 149, 156, 90 S. Ct. 1930, 1934, 26 L. Ed. 2d 489 (1970);

Dowdell v. United States, 221 U.S. 325, 330, 31 S. Ct. 590,

592, 55 L. Ed. 753 (1911) (Purpose of confrontation clause

was to exclude accusation by written deposition.); Mattox

v. United States, 156 U.S. 237, 242-243, 15 S. Ct. 337, 339, 39

L. Ed. 409 (1895) (Confrontation provision enacted to

prevent accusation of crime by written deposition at

trial.). By the seventeenth century the right to confront

witnesses had grown in favor. Coy v. Iowa, 487 U.S. 1012,

1015-16, 108 S. Ct. 2798, 2800, 101 L. Ed. 2d 857 (1988). See

also, 5 J. Wigmore, Evidence Section 1395, p. 122 (3d ed.

1940). In Duke of Dorset v. Girdler (1720), Finch’s Prec. Ch.

531, the right of confrontation was recognized as being

fundamental to a fair trial: “The other side ought not be

deprived of the opportunity of confronting the witnesses

and examining them publicly, which has always been

found the most effectual method for discovering the

truth.” Wigmore, at 123. (Internal quotations omitted.)

Although the right of confrontation had gained wide

acceptance in England, it was not originally recognized in

the United States Constitution. Ex parte Milligan, 71 U.S.

2, 4 Wall. 2, 18 L. Ed. 281 (1866). See also, Freely, Malcom

M., The Oxford Companion to the Supreme Court of the

United States, p. 935 (1992). Its recognition did not occur

until the ratification of the Sixth Amendment. U.S. Const.,

Amend. VI. See, Richmond Newspapers, Inc. v. Virginia, 448

U.S. 555, 590, 100 S. Ct. 2814, 2834-2835, 65 L. Ed. 2d 973

10

(1980) (Brennan, J., concurring); California v. Green, 399

U.S. at 175, 90 S. Ct. at 1943 (Harlan, J., concurring);

Barracota v. United States, 45 F. Supp. 38, 38 (S.D.N.Y.

1942). The United States Supreme Court has since heid

the right to confrontation is “one of the fundamental

guarantees of life and liberty . . . long deemed so essential

for the due protection of life and liberty that it is guarded

against legislative and judicial action by provisions in the

Constitution of the United States and in the constitutions

of most if not of all the States composing the Union.” n.3

Kirby v. United States, 174 U.S. 47, 55-56, 19 S. Ct. 574, 577,

43 L. Ed. 890 (1899). Indeed, the right of confrontation

helps to establish a criminal justice system “in which the

perception as well as the reality of fairness prevails.” Lee

v. Illinois, 476 U.S. 530, 540, 106 S. Ct. 2056, 2062, 90

L. Ed. 2d 514 (1986). The right of confrontation was

extended to State criminal proceedings through the Four-

teenth Amendment. Pointer v. Texas, 380 U.S. 400, 407, 85

S. Ct. 1065, 1070, 13 L. Ed. 2d 923 (1965).

The right to confront one’s accuser necessarily

includes the right to cross-examine. As the Supreme

Court held in Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct.

1105, 1110, 39 L. Ed. 2d 347 (1974): “The main and essen-

tial purpose of confrontation is to secure for the opponent

the opportunity of cross-examination. The opponent

demands confrontation, not for the idle purpose of gaz-

ing upon the witness, or of being gazed upon by him, but

for the purpose of cross-examination, which cannot be

had except by the direct and personal putting of ques-

tions and obtaining immediate answers.” Id., 415 U.S. 308,

315-316, 94 S. Ct. 1105, 1110 (1974) (quoting 5 J. Wigmore,

11

Evidence Section 1395, p. 123 (3d ed. 1940)). (Emphasis in

original.) See also, Douglas v. Alabama, 380 U.S. 415, 419,

85 S. Ct. 1074, 1077, 13 L. Ed. 2d 934 (1965) (Jurors were

entitled to make informed judgment as to the weight to

assign to witness’ testimony.); and, Smith v. Illinois, 390

U.S. 129, 132, 88 S. Ct. 748, 750, 19 L. Ed. 2d 956 (1968)

(citing Alford v. United States, 282 U.S. 687, 692-694, 51

S. Ct. 218, 219-220, 75 L. Ed. 624 (1931) (“Prejudice ensues

from a denial of the opportunity to. . . put the weight of

[the witness’] testimony and his credibility to the test,

without which the jury cannot fairly appraise them.”) In

short, confrontation is the check and balance that ensures

fairness in our adversary system of justice, and cross-

examination is the essential means by which opponents

test evidence proffered against them. Davis, 415 U.S. 308,

316, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974).

Cross-examination serves three general purposes:

cross-examination may serve to identify the witness with

his community so that independent testimony may be

sought and offered concerning the witness’ reputation for

veracity in that community; cross-examination allows the

jury to assess the credibility of the witness; and, cross-

examination allows facts to be brought out tending to

discredit the witness by showing that his testimony in

chief was untrue or biased. Alford v. United States, 282

U.S. 687, 691-92, 51 S. Ct. 218, 219, 75 L. Ed. 624 (1931)

(citing Tla-koo-yel-lee v. United States, 167 U.S. 274, 17

S. Ct. 855, 42 L. Ed. 166 (1897)). Cross-examination is by

nature exploratory and there is no general requirement

that the defendant indicate the purpose of his inquiry.

Ibid. Indeed, the defendant should be granted a wide

12

latitude even though he is unable to state what facts he

expects to prove through his cross-examination. Ibid.

The Constitutional right of confrontation is violated

when appropriate cross-examination is limited. The scope

of appropriate cross-examination is necessarily broad. A

defendant is entitled to pursue all avenues of cross-exam-

ination reasonably calculated to expose a motive, bias or

interest for the witness to testify.

Evidence to show bias or interest of a witness in a

cause covers a wide range and the field of external cir-

cumstances from which probable bias or interest may be

inferred is infinite. The rule encompasses all facts and

circumstances, which when tested by human experience,

tend to show that a witness may shade his testimony for

the purpose of helping to establish one side of the cause

only.

Nevertheless, there are several areas where cross-

examination may be inappropriate and, in those situa-

tions the trial judge has the discretion to limit cross-

examination. Delaware v. Van Arsdall, 475 U.S. 673, 682,

106 S. Ct. 1431, 1436-1437, 89 L. Ed. 2d 674 (1986). Speci-

fically, a trial judge may limit cross-examination when a

subject is exhausted, or when the cross-examination is

designed to annoy, harass, or humiliate, or when the

cross-examination might endanger the personal safety of

the witness. See generally, Van Arsdall, 475 U.S. at 679,

106 S. Ct. at 1435 (Trial judge may exercise discretion to

prevent harassment, prejudice, confusion of the issues,

the witness’ safety, and repetitive or marginally relevant

interrogation.); Smith, 390 U.S. at 132-134, 88 S. Ct. at

13

750-751; and, Alford, supra. See also, Tex. R. Crim. Evid.

608, 609, 404 and 405.

In the instant case, Petitioner moved for reversal at

the Texas Eighth Court of Appeals based upon denial of

confrontation and effective cross-examination:

ISSUE NO. FIVE:

THE TRIAL COURT ERRED IN DISALLOWING

THE DEFENSE TO EFFECTIVELY CONFRONT

AND CROSS-EXAMINE HIS ACCUSERS.

Appellant adopts the record citations, supra,

issue three and four, in support of this issue. In

short, Appellant argues that he was denied the

right to effectively confront and cross-examine

his accusers by the trial court’s disallowance of

Officer Adrian Fonseca’s testimony that Joe

Gandara possessed the 9mm Colt in August of

1994. This fact directly contradicted the testi-

mony and representations made by Hortencia

Gardea, Victor Garcia and Albert Gandara.

Appellant contends that the trial court commit-

ted error similar to Carroll error. And that this

error was of constitutional magnitude (6th and

14th Amendments), not harmless, and should

result in new trial.

The defendant is to be provided an opportunity

to effectively cross-examine and impeach the

State’s witnesses adverse to the defense, and to

adduce testimony which contradicts the State’s

case in chief (compulsory process). This right is

founded in the common law, and the 6th and

14th Amendment rights, and their Texas coun-

terparts under Article I, Section 10 and 19 of the

Texas Constitution. The right to expose potential

14

bias or motive on the part of the testifying wit-

ness is essential to a fair trial. Further, cross

examination is probably the most effective (

method known throughout civilization and law

to expose bias, motive, error, inaccuracy, exag-

geration, and fault within the witness’ testi-

mony. Carroll v. State, 916 S.W.2d 494 (Crim.

App. 1996); and Amunson v. State, 928 S.W.2d

601 (San Antonio 1996). In the instant case,

Appellant argues that the trial court committed

reversible error in failing to allow the defense to

bring before the jury \he subject of the 9mm Colt

through Officer Fonseca’s testimony. For this

reason, Appellant moves for new trial.

In support of his petition for discretionary review

with the Texas Court of Criminal Appeals, Petitioner

argued:

Argument and Authority

Petitioner cited the Court to Tate v. State, 981

S.W.2d 189 (Crim. App. 1998) in support of the

proposition that he was improperly denied his

right to effectively impeach and cross-examine

the State’s case. The Court held, in part, that

since trial counsel could argue the facts

excluded by the trial court that Petitioner was

not harmed. Petitioner argues that Tate, cited,

does not stand for that proposition. Argument is

not evidence. Petitioner contends that he was

harmed because the trial court excluded the evi-

dence as described in Petitioner’s brief, and as

discussed by the intermediary court. Opinion,

pages 6-9; Petitioner’s brief, issues 3-5.

gy A

Petitioner argues that it does not follow, upon a |

denial of the right to cross-examine and

15

impeach the State’s case, that because trial coun-

sel was allowed to argue something that was not

in evidence, by the trial court’s exclusion, that

he suffered no harm. It is axiomatic that argu-

ment does not replace evidence before the jury.

For these reasons, Petitioner moves that his peti-

tion be granted. Petitioner was harmed because

the trial court excluded impeachment evidence.

Had this evidence been admitted through Offi-

cer Fonseca, Petitioner submits that he would

have prevailed in the case.

The testimony was not cumulative, for the

admission of the evidence through the arresting

officer would not be cumulative of the scant

evidence admitted through the lay witness. For

the above reasons, Petitioner respectfully moves

that his petition be granted.

The rationale for no reversible error was that trial

counsel for the defense was allowed to argue before the

jury some of the matters of the excluded evidence. App.

1, pp. 8-9. Petitioner reiterates that argument, which is not

evidence, cannot replace excluded evidence in violation of

Petitioners Sixth Amendment right to confront and cross-

examine the State’s case.

16

CONCLUSION

The Petitioner respectfully requests that his Petition

for Certiorari be granted and that the judgment of the

Court of Appeals, Eighth District of Texas be reversed,

and that the case be remanded for new trial.

Respectfully submitted,

For Petitioner:

M. “Mateo” Dexoatz

1108 North Campbell

E] Paso, Texas 79902

T.B.L. No. 05722300

Phone: 915-541-8891

Fax: 915-541-8892

E-mail: necrite@prodigy.net

App. 1

(LOGO)

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

STANLEY JERMAIN WALKER,

No. 08-98-00297-CR

Appellant,

Vv Appeal from the

THE STATE OF TEXAS,

Appellee of El Paso County,

Texas

(TC# 76948)

)

)

)

)

) 384th District Court

)

)

)

)

)

OPINION

This is an appeal from a jury verdict finding Appel-

lant, Stanley Jermain Walker, guilty of murder and

attempted murder. We affirm.

I. SUMMARY OF THE EVIDENCE!

On December 10, 1994, Appellant was at a party with

his girlfriend, Shannon Steinhoff.2 As he was leaving the

party, Steinhoff called out to him. When he reached the

area where Steinhoff was, he saw a “Mexican guy” with a

knife fighting with his friend, Bear. The guy told Bear,

“one on one,” and Bear said, “okay.” The guy put the

1 Appellant gave two statements to the police regarding the

events on the night of December 10, 1994. The summary is taken

from these statements.

2 Appellant and Steinhoff have since married.

App. 2

knife in his back pocket and the two started fighting. Bear

was “whipping” on the guy, picked him up, and slammed

him to the ground. Bear slipped and fell on the ground.

The other guy then pulled out the knife and was going

towards Bear. Steinhoff was right behind Bear and it

appeared to Appellant that she was going to be stabbed.

Appellant panicked, took out a .22-caliber gun, and fired

“about five” shots at the guy with the knife. Appellant

told police later he “shot the guy because I knew in my

heart that he was going to stab Shannon.”

Appellant was indicted for the murder of Jose Gan-

dara (“Joe”) (Count I) and the attempted murder of

Alberto Gandara (“Kiki”) (Count II). Appellant was sen-

tenced to fifteen years’ confinement on the murder charge

and ten years’ confinement on the attempted murder

charge. The trial court sentenced Appellant in accordance

with the jury’s verdict.

Il. DISCUSSION

Appellant presents five issues on appeal. We will

address Issue Two first, as it raises a factual sufficiency

point. Next, we will address Issue One, in which Appel-

lant complains of error in the jury charge. Finally, we will

address Issues Three through Five, which involve alleged

error in the exclusion of testimony.

Factual Sufficiency Issue

In reviewing factual sufficiency, we consider all of

the evidence, but we do not view it in the light most

favorable to the verdict. See Clewis v. State, 922 S.W.2d

App. 3

126, 129 (Tex.Crim.App.1996); Levario v. State, 964 S.W.2d

290, 295 (Tex.App. — El Paso 1997, no-pet-.). We will set

aside the verdict only if it is so contrary to the over-

whelming weight of the evidence as to be clearly wrong

and unjust. See Levario, 964 S.W.2d at 295. In conducting a

factual sufficiency review, the reviewing court cannot

substitute its conclusions for those of the jury. See id. It is

not within the province of this Court to interfere with the

jury’s resolution of conflicts in the evidence or to pass on

the weight or credibility of the witness’s testimony. See

Levario, 964 S.W.2d at 295. Where there is conflicting

evidence, the jury’s verdict on such matters is generally

regarded as conclusive. See id.

In Issue Two, Appellant asserts that the evidence was

factually insufficient to support the finding of guilt. Spec-

ifically, Appellant contends the State did not prove that

the cause of death was by a .22-caliber round fired from

his weapon. Appellant also argues “there was no evi-

dence in relation to the specific round that struck Albert

Gandara” and thus the evidence is insufficient to support

the conviction for attempted murder. The State notes, and

we agree, that because Appellant has challenged only the

factual sufficiency of the evidence, he has conceded that

the evidence was legally sufficient to support the convic-

tions. See Clewis, 922 $.W.2d at 133.

In his statement to police, Appellant stated that he

“took out a .22, black with brown grips, gun that I had in

my pants, I took about five shot [sic] at the guy with the

knife.” Bear Barley testified that Appellant told him that

he “shot that guy last night.” Victor Garcia testified that

he heard two different guns being fired. Tommy Madrid

testified that he fired two warning shots in the air with

App. 4

his .38-caliber revolver. Officer James Holmes testified

that as a part of the crime scene unit, he took photo-

graphs, processed the crime scene, and collected evidence

from the autopsy. Officer Holmes stated that he recovered

two .22-caliber bullet fragments while at the autopsy. He

admitted that he could tell the bullets were .22-caliber

slugs, but he could not testify from what weapon they

were fired. Dr. Juan Contin, the Chief Medical Examiner

for El Paso County, testified that Joe was shot in the groin

and in the chest. He determined the chest wound to be

the fatal wound.

Steinhoff testified that she heard “numerous guns”

and “it sounded like it was just coming at you every

different direction.” Simon Sampson testified that he saw

someone hanging out of a passenger window of a white

four-door Regal shooting at the victim. He stated that he

heard two shots coming from the passenger’s side of the

car. Andrew Sampson testified that he heard four or five

shots coming from a brown Impala, but he did not see

who fired the shots. Anna Rider testified that she heard

“a lot of shots” and only saw one person with a gun. He

was an Hispanic male across the street from the party and

she stated that he fired a couple of shots. Rider also

“heard a couple of other gunshots.” Ronnie Kirby testi-

fied that he saw someone running from the direction of

the shots. Kirby “guessed” it was an Hispanic male and

he saw what looked like a gun in his hand. Orlando

Hairstone testified that he too saw what he believed to be

an Hispanic male with something that “looked like the

- shape of a gun” in his hand running from the direction of

the shots.

App. 5

Finally, Kiki testified that he heard shooting and

when he looked back to see where the shooting was

coming from, he saw Appellant. He stated that Appellant

was “shooting his gun wildly.” Kiki testified that he saw

a gentleman in the middle of the street with a firearm, but

that person was not firing in his direction. He stated that

at that angle, it would have been difficult for the individ-

ual to hit him. When asked if Appellant was the man who

shot him, Kiki answered “yes.”

In reviewing all of the evidence, but not in the light

most favorable to the verdict, we find the verdict is not so

contrary to the overwhelming weight of the evidence as

to be clearly wrong and unjust. We believe the jury could

have concluded that Appellant's .22-caliber handgun and

Madrid’s .38-caliber revolver were the only two guns

fired. Since the testimony showed that Joe was killed by a

.22-caliber bullet, the jury could have concluded that it

came from Appellant’s gun. And because the evidence

was that Madrid did not fire his gun in the direction of

the fight, the jury could have concluded that it was

Appellant who shot Kiki. The jury heard testimony from

numerous witnesses and it was the jury’s function to

resolve any conflicts in the evidence and weigh the cred-

ibility of the witnesses’ testimony. We cannot substitute

our conclusions for those of the jury. The verdict is not so

contrary to the overwhelming weight of the evidence as

to be clearly wrong and unjust. We overrule Issue Two.

Jury Charge Issue

In Issue One, Appellant contends the trial court erred

in placing a duty to retreat in relation to the defense of

App. 6

others. Specifically, Appellant argues that the trial court

imposed a more onerous duty than is required by law, in

that the court commingled self-defense with the defense

of others. Trial counsel objected to the charge, stating the

following:

Your Honor, the defense is going to object to

the charge specifically on page 9, 10, 11, 15 and

16, in those paragraphs, where it requires us, in

defense of a third person, for the actor, that

being Stanley Walker, to have to the obligation

to determine whether or not the third person

has the duty to retreat.

I know that’s what the law is, but I don’t

think the law is right. I don’t think we should be

having to establish that in order to get a defense

of a third person. We would object to inclusion

of that requirement in any of those paragraphs

on page 9, 10, 11, 15 and 16.

Section 9.32 of the Texas Penal Code provides that a

person is justified in using deadly force against another if

a reasonable person in the actor’s situation would not

have retreated. See Tex.Pen.Code Ann. § 9.32(a)(2) (Ver-

non Supp.2000). Section 9.33 of the Texas Penal Code

provides that a person is justified in using deadly force

against another to protect a third person if, under the

circumstances as the accused reasonably believes them to

be, the accused would be justified in using deadly force

to protect himself against the unlawful deadly force he

reasonably believes to be threatening the third person he

seeks to protect, and the accused reasonably believes his

intervention is immediately necessary to protect the third

person. See Tex.Pen.Code Ann. § 9.33 (Vernon 1994).

pee?

App. 7

The only duty to retreat found in Section 9.33 is

placed upon the person being protected. See Hughes v.

State, 719 S.W.2d 560, 564 (Tex.Crim.App.1986). In Hughes,

the Court noted:

So long as the accused reasonably believes

that the third person would be justified in using

deadly force to protect himself, the accused may

step in and exercise deadly force on behalf of

that person. Part of what goes into the assess-

ment of whether the third pérson had a right to

exercise deadly force in defense of himself is

whether or not a reasonable person in his posi-

tion would have retreated instead. Thus, in

deciding intervention is necessary, the accused

must reasonably believe that ‘a reasonable per-.

son in [the third person’s] situation would not

have retreated.’

The jury would correctly be instructed,

then, that to find the conduct of the accused to

have been justified as defense of a third person,

inter alia, it must believe, or have a reasonable

doubt whether the accused, from his standpoint,

reasonably believed that a reasonable person in

the third person’s situation would not have

retreated.

Hughes, 719 S.W.2d at 564.

The court’s charge correctly applied the law with

regard to defense of a third person. The jury was

instructed that for Appellant’s actions to be justified, he

would have to reasonably believe that under the circum-

stances then existing, a reasonable person in Steinhoff’s

situation would not have retreated before using deadly

force in her own defense. This is the proper charge under

Section 9.33 and the trial court did not err in placing a

App. 8

duty to retreat in relation to the defense of others. Issue

One is overruled.

Evidentiary Issues

The trial court has broad discretion in determining

the admissibility of evidence, and we should not reverse

absent a clear abuse of discretion. See Allridge v. State, 850

S.W.2d 471, 492 (Tex.Crim.App.1991), cert. denied, 510 U.S.

831, 114S.Ct. 101, 126 L.Ed.2d 68 (1993); Chavarria v. State,

876 S.W.2d 388, 391 (Tex.App. — El Paso 1994, no pet.). A

trial court’s ruling will be sustained on appeal if it is

correct on any theory of law applicable to the case, even

if the trial court gives the wrong reason for the decision,

and this is especially true with regard to admission of

evidence. See Romero v. State, 800 S.W.2d 539, 543

(Tex.Crim.App.1990).

In Issues Three through Five, Appellant essentially

argues that the trial court erred in excluding the testi-

mony of Officer Adrian Fonseca regarding Joe Gandara’s

arrest for unlawfully carrying a weapon to impeach the

testimony of Hortencia Gardea, Victor Garcia, and Kiki

Gandara regarding Joe’s character for being a good per-

son.3 Appellant was allowed to introduce evidence of

3 In Issue Three, Appellant contends that the trial court

erred in disallowing the defense to make inquiry about the

complainant’s having carried/possessed a weapon. In Issue

Four, Appellant asserts that the trial court erred in disallowing

the defense to correct a false impression with the jury. In Issue

Five, Appellant argues that the trial court erred in disallowing

the defense to effectively confront and cross-examine his

accusers.

App. 9

Joe’s arrest from Kiki. After Kiki testified for the State,

defense counsel, pursuant to the motion in limine,

informed the court that he wanted to ask Kiki about Joe’s |

use of firearms. The trial court decided to allow defense

counsel to question Kiki about Joe’s arrest for unlawfully

carrying a weapon, to rebut the statements of Gardea that

Joe “was peaceable, a good man, loving father. .. . ” Kiki ~

was asked whether Joe carried weapons and he

responded, “No.” When asked again whether his brother

carried weapons, the following exchange occurred:

Defense Counsel: You may answer that ques-

tion, sir. Did your brother

carry weapons?

Alberto Gandara: No, he didn’t carry

weapons.

Defense Counsel: Did you know that he was

arrested by the El Paso

Police Department on the

6th of August, 1994 for car-

rying a nine-millimeter pis-

tol? Did you know that, sir?

Alberto Gandara: Yeah, I knew - I knew that.

Defense Counsel: I guess at least once he car-

ried a weapon.

Alberto Gandara: It was - there was more than

one person in the car.

Defense Counsel: They charged him with it,

though, didn’t they?

Alberto Gandara: I don’t know what hap-

pened on that.

Defense Counsel: Whose car was it?

App. 10

Alberto Gandara: My brother’s car.

Defense Counsel: Did they find it in the glove

compartment, sir?

Alberto Gandara: No.

Since evidence of Joe’s arrest was elicited from Kiki,

the officer’s testimony would have been cumulative. See

Tex.R.Evid. 403. (“Although relevant, evidence may be

excluded if its probative value is substantially out-

weighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of

undue delay, or needless presentation of cumulative evi-

dence.”); Mosley v. State, 983 S.W.2d 249, 258

(Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct.

1466, 143 L.Ed.2d 550 (1999) (finding that the admission

of evidence similar to what the appellant wished to offer

may mitigate the harm he would have otherwise suf-

fered.). We also note that during closing arguments,

defense counsel argued that Joe had been arrested for

carrying a nine-millimeter pistol four months prior to the

current incident and suggested that the arrest “goes

directly to contradict Mr. Garcia over there, who told you

that Joe Gandara was so tough that he didn’t need a

weapon. He didn’t use weapons. Wouldn’t need them, he

was so tough.” He also stated that such evidence contro-

verted Gardea’s testimony that Joe “would never do any-

thing like this, that he was a good guy, that he was a

family man, that he went out of his way to prevent

fights.” The trial court did not abuse its discretion in

excluding Officer Fonseca’s testimony. We overrule Issues

App. 11

Three through Five. Having overruled all of Appellant's

issues, we affirm the judgment of the trial court.

DAVID WELLINGTON CHEW,

Justice

October 5, 2000

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

App. 12

OFFICIAL NOTICE FROM COURT OF

CRIMINAL APPEALS ON TEXAS

P.O. BOX 12308, CAPITOL STATION,

AUSTIN, TEXAS 78711

March 21, 2001

COA#: 08-98-00297-CR

RE: Case No. 2099-00

STYLE: WALKER, STANLEY JERMAIN

On this day, the Appellant’s Petition for Discretion-

ary Review has been REFUSED.

MATTHEW DEKOATZ

1108 N CAMPBELL

EL PASO TX 79902

App. 13

NO. 08-98-00297-CR

IN THE

COURT OF APPEALS

EIGHTH SUPREME JUDICIAL DISTRICT OF TEXAS

STANLEY WALKER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

MOTION TO STAY MANDATE

Motion To Stay Mandate

To the Honorable Justices of the Eighth Court of Appeals.

Comes now Appellant and respectfully files and urges

this motion to stay mandate of the Court’s decision

affirming the decision below. In support of same, Appel-

lant would show:

I.

Appellant makes this motion pursuant to Rule 18.2 of

T.R.A.P.

Il.

Appellant shall, and is in the process of filing, file a

petition for writ of certiorari with the United States

Supreme Court.

A. The circumstances surrounding the writ focus upon

an alleged denial of confrontation; to wit:

App. 14

ISSUE NO. FIVE:

THE TRIAL COURT ERRED IN DISALLOWING

THE DEFENSE TO EFFECTIVELY CONFRONT

AND CROSS-EXAMINE HIS ACCUSERS.

Appellant adopts the record citations, supra,

issue three and four, in support of this issue. In

short, Appellant argues that he was denied the

right to effectively confront and cross-examine

his accusers by the trial court’s disallowance of

Officer Adrian Fonseca’s testimony that Joe

Gandara possessed the 9 mm Colt in August of

1994. This fact directly contradicted the testi-

mony and representations made by Hortencia

Gardea, Victor Garcia and Albert Gandara.

Appellant contends that the trial court commit-

ted error similar to Carroll error. And that this

error was of constitutional magnitude (6th and

14th Amendments), not harmless, and should

result in new trial.

The defendant is to be provided an-opportunity

to effectively cross-examine and impeach the

State’s witnesses adverse to the defense, and to

adduce testimony which contradicts the State’s

case in chief (compulsory process). This right is

founded in the common law, and the 6th and

14th Amendment rights, and their Texas coun-

terparts under Article I, Section 10 and 19 of the

Texas Constitution. The right to expose potential

bias or motive on the part of the testifying wit-

ness is essential to a fair trial. Further, cross

examination is probably the most effective

method known throughout civilization and law

to expose bias, motive, error, inaccuracy, exag-

geration, and fault within the witness’ testi-

mony. Carroll v. State, 916 S.W.2d 494 (Crim.

App. 1996); and Amunson v. State, 928 S.W.2d

App. 15

601 (San Antonio 1996). In the instant case,

Appellant argues that the trial court committed

reversible error in failing to allow the defense to

bring before the jury the subject of the 9mm Colt

through Officer Fonseca’s testimony. For this

reason, Appellant moves for new trial.

These grounds were stated in Appellant’s brief and his

petition for discretionary review.

ITI.

Appellant maintains that to disallow the requested stay

would work a serious hardship upon him and that, in

light of his Sixth Amendment claim, that there are sub-

stantial grounds to pursue relief through the Supreme

Court of the United States.

Conclusion: Appellant thanks the Court for and for

review of this motion.

Prayer for Relief: Wherefore, Appellant prays that the

Honorable Eighth Court of Appeals grant the requested

relief and order a stay of the mandate pending review by

the United States Supreme Court.

Respectfully Submitted,

For Appellant

M. “Mateo” DeKoatz, Attorney

1108 Campbell

El Paso, Texas 79902

phone: 915-541-8891; fax: 915-541-8892

State Bar ID: 05722300

App. 16

ACKNOWLEDGMENT OF SERVICE

Undersigned counsel hereby acknowledges that on this

17th day of April, 2001, a copy of the above motion for

rehearing was served via hand delivery on/to Mr. Jaime

Esparza, District Attorney of the 34th Judicial District by

and through his Appellate Division at 500 East San Ant-

onio, 9th floor, El Paso, Texas 79901

/s/ 4/17/01

M. “MATEO” DEKOATZ, counsel for Appellant