# Petition for Writ of Certiorari — Walker v. Texas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 816

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1820%3A1. Public record. Not legal advice.