STATE'S OPENING BRIEF

Transcription

1 IN THE COURT OF APPEALS FOR THE FIFTH COURT OF APPEALS DISTRICT OF TEXAS THE STATE OF TEXAS, APPELLANT NO CR V. TERRANCE GERMAINE WILKINS, APPELLEE 5th Court of Appeals FILED: 07/03/ :00 Lisa Matz, Clerk APPEALED FROM CAUSE NUMBER F IN THE CRIMINAL DISTRICT COURT NUMBER 6 OF DALLAS COUNTY, TEXAS; THE HONORABLE JEANINE HOWARD, JUDGE PRESIDING. STATE'S OPENING BRIEF CRAIG WATKINS Criminal District Attorney Dallas County, Texas MICHAEL R. CASILLAS, Assistant Criminal District Attorney Chief Prosecutor - Appellate Division The privilege of presenting 133 N. Riverfront Blvd., LB19 oral argument is hereby Dallas, Texas respectfully requested. (214) / FAX (214) State Bar No

2 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL... iv TABLE OF AUTHORITIES...v SUMMARY OF THE CASE...1 STATEMENT OF FACTS...2 SUMMARY OF STATE'S SOLE ISSUE...7 PRELIMINARY OUTLINE OF STATE'S ARGUMENTS STATE S SOLE ISSUE: GRANTING THE MOTION FOR NEW TRIAL WAS NOT JUSTIFIED UNDER ANY REASONABLE VIEW OF THE RECORD BECAUSE THE EVIDENCE WAS NOT SUFFICIENT TO JUSTIFY THE GRANTING OF THE MOTION FOR NEW TRIAL ON THE GROUNDS OF NEWLY-DISCOVERED EVIDENCE. LEGAL AUTHORITY...8 Motions for New Trial...8 a) Burden of Proof...8 b) Standard of Review...9 c) Claims of Newly-Discovered/Newly-Available Evidence APPLICATION...14 THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY GRANTING APPELLEE S MOTION FOR NEW TRIAL BECAUSE SUCH A RULING CANNOT BE JUSTIFIED BASED ON ANY REASONABLE VIEW OF THE RECORD AS A WHOLE IN THAT ANY SUCH REASONABLE VIEW OF THE RECORD AS A WHOLE SHOWS THAT THE EVIDENCE WAS INSUFFICIENT TO JUSTIFY THE GRANTING OF THE MOTION BASED ON THE CLAIM OF NEWLY-DISCOVERED EVIDENCE/ NEWLY-AVAILABLE EVIDENCE...14 ii

3 CONCLUSION AND PRAYER...22 CERTIFICATE OF SERVICE...23 iii

4 Appellant: The State of Texas Identity of Parties and Counsel Represented by: The Honorable Craig Watkins, Criminal District Attorney Michael R. Casillas, Assistant Criminal District Attorney David Alex, Assistant Criminal District Attorney Office of the Criminal District Attorney of Dallas County 133 N. Riverfront Blvd., LB 19 Dallas, Texas Appellee: Terrance Germaine Wilkins Represented by: The Honorable Lalon Clipper Peale (lead trial counsel) 901 Main Street 6300 Dallas, Texas The Honorable John Tatum (lead appellate counsel/co-counsel at trial) 990 S. Sherman Street Richardson, Texas iv

5 TABLE OF AUTHORITIES CASES PAGES Anderson v. State, 717 S.W.2d 622 (Tex. Crim. App. 1986)...12 Bolden v. State, 634 S.W.2d 710 (Tex. Crim. App. [Panel Op.] 1982) ,14 Brown v. State, No CR, 2002 Tex. App. LEXIS 1626 (Tex. App. Dallas March 5, 2002, pet. ref d)(not designated for publication) ,14 Charles v. State, 146 S.W.3d 204 (Tex. Crim. App. 2004) ,15,20 Cuellar v. State, Nos CR, 2005 Tex. App. LEXIS 5597 (Tex. App. Dallas July 19, 2005, no pet.)(not designated for publication) Dawson v. State, No CR, 2001 Tex. App. LEXIS 92 (Tex. App. Dallas January 9, 2001, no pet.)(not designated for publication) Dedesma v. State, 806 S.W.2d 928 (Tex. App. Corpus Christi 1991, pet. ref'd) ,10,13 Drew v. State, 743 S.W.2d 207 (Tex. Crim. App. 1987), cert. denied, 510 U.S (1994) Eddlemon v. State, 591 S.W.2d 847 (Tex. Crim. App. 1979)...14 Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996), cert. denied, 520 U.S (1997)... 10,13 Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996) In re American Homestar of Lancaster, Inc., 50 S.W.3d 480 (Tex. 2001)... 10,11 v

6 Jackson v. Virginia, 443 U.S. 307 (1979)...20n Jones v. State, 711 S.W.2d 35 (Tex. Crim. App. 1986) Keeter v. State, 74 S.W.3d 31 (Tex. Crim. App. 2002) Lewis v. State, 911 S.W.2d 1 (Tex. Crim. App. 1995) ,13 McIntire v. State, 698 S.W.2d 652 (Tex. Crim. App. 1985)... 9,14 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991)... 10,13 Moore v. State, 882 S.W.2d 844 (Tex. Crim. App. 1994), cert. denied, 513 U.S (1995)...12,13,14 Norton v. State, 564 S.W.2d 714 (Tex. Crim. App. [Panel Op.] 1978)... 15,16 Oldham v. State, 977 S.W.2d 569 (Tex. Crim. App. 1996)(Meyers, J. dissenting) ,14 Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995), cert. denied, 517 U.S (1996)... 9,14 Peacock v. State, 77 S.W.3d 285 (Tex. Crim. App. 2002) ,16 Peoples v. State, 477 S.W.2d 889 (Tex. Crim. App. 1972) ,16 Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990)...10 Sargent v. State, No CR, 1999 Tex. App. LEXIS 1771 (Tex. App. Dallas March 17, 1999, pet. ref d)(not designated for publication) ,13 State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999)...10 vi

7 State v. Bennett, No CR, 2012 Tex. App. LEXIS 24 (Tex. App. Dallas January 4, 2012, pet. filed)(not designated for publication) State v. Choice, 319 S.W.3d 22 (Tex. App. Dallas 2008, no pet.)... 11,21 State v. Gonzalez, 820 S.W.2d 9 (Tex. App. Dallas 1991), aff d, 855 S.W.2d 692 (Tex. Crim. App. 1993)...12 State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007)...9,10,11,14,21 State v. Moore, 240 S.W.3d 324 (Tex. App. Austin 2007, pet. ref d)... 9,14 State v. Nkwocha, 31 S.W.3d 817 (Tex. App. Dallas 2000, no pet.)...12 State v. Ordonez, 156 S.W.3d 850 (Tex. App. El Paso 2005, pet. ref d)... 9,14 State v. Saylor, 319 S.W.3d 704 (Tex. App. Dallas 2009, pet. ref d) ,21 State v. Smith, No CR, 2010 Tex. App. LEXIS 3093 (Tex. App. Dallas April 15, 2010, no pet.)(not designated for publication) Williams v. State, 375 S.W.2d 449 (Tex. Crim. App. 1964)...9 Ex Parte Ybarra, 629 S.W.2d 943 (Tex. Crim. App. 1982)...9 Zaragosa v. State, 588 S.W.2d 322 (Tex. Crim. App. 1979)...9 vii

8 ARTICLES, CODES, RULES and CONSTITUTIONS: Tex. Code Crim. P. art ,13,14 OTHER AUTHORITY: Ray, Tex. Prac: Law of Evidence...19 nd Webster s American Dictionary College Edition (2 ed. 2000) viii

9 TO THE HONORABLE COURT OF APPEALS: The instant State s Opening Brief is submitted on behalf of Craig Watkins, the Criminal District Attorney of Dallas County, Texas, in regard to the trial court s having erroneously granted Appellee s motion for new trial. SUMMARY OF THE CASE While Appellee was indicted for capital murder in regard to having shot and killed Carlon Hellner, the State did not seek the imposition of the death sentence. (CR: 6, 9, 20, 58, 72, 93, 96, 110; RR-2: 4; RR-7: 4-6). Appellant entered a not guilty plea, but was convicted by the jury and sentenced to imprisonment for life without the possibility of parole. (CR: 9, 58,72, 93, 96, 110, 109, ; RR-3: 17; RR-7: 4-6). Appellee subsequently filed a motion for new trial that advanced only a single claim, a claim of newly-discovered/newly-available evidence. (CR: ). Appellee s claim was based on the results of DNA testing of fingernail clippings that had been taken from Hellner 1 during the autopsy process. (CR: ; RR-5: 4-11; RR-MNT: 3-16). The trial court granted Appellee s motion for new trial despite the fact that the record was wholly undisputed regarding how, no later than May 2011, Appellee had been provided with a copy of the autopsy report that showed that Hellner s fingernail clippings were part of the evidence that had been preserved and despite the admission of Appellee s counsel that 1 While all the volumes of the Reporter s Record save one are numbered sequentially from 1 to 8, the Reporter s Record volume from the hearing on the motion for new trial bears the number 1 as well. In an effort to avoid any confusion, the abbreviation RR-MNT is used to refer to the volume of the Reporter s Record that pertains to the hearing on Appellee s motion for new trial. 1

10 he had overlooked the reference in the autopsy report indicating that Hellner s fingernail clippings were part of the evidence that had been preserved. (CR: 131; RR-5: 4-11; RR-2: 5; RR-7: 3-7, 16). During the hearing on Appellee s motion for new trial, the trial court and the parties were all in agreement regarding how Appellee had been provided with discovery in May 2011 in regard to a trial in which the voir dire had commenced on November 28, 2011 and that the discovery had included a copy of autopsy report which contained the reference to the fingernail clippings that had been taken from Hellner. (RR-2: 1; RR-MNT: 6-7). The record was also undisputed that, once Appellee noticed the fingernail clippings were part of the evidence, the results of the DNA testing on them were available within a short number of days. (RR-5: 4-11, 23-26; RR-6: 1, ; RR-7: 1, 4; RR-MNT: 4-5). It is the trial court s ruling granting Appellee s motion for new trial based on the claim of newly-discovered/newly-available evidence that is the subject of the instant State s appeal. STATEMENT OF FACTS The record was undisputed that Hellner was killed on October 26, 2010 as a result of having been shot by two bullets that had been fired from the same gun and that Hellner was killed in the apartment he shared with Sarah Malesky. (RR-3: 24-25, 43, 133, 197; RR-4: ; RR-6: 29-31). The record was also undisputed that there was no evidence of any defensive wounds on Hellner s body and no evidence on Hellner s body indicating that Hellner had taken any action to defend himself. (RR-4: , ). According to Malesky, she was awakened in her bedroom by Appellee, who pointed 2

11 a revolver in her face and demanded to know where the money and the marijuana were located. (RR-3: ; RR-5: 77-78). During his statement (of which a video recording was made and admitted into evidence), Appellee admitted that he had gone into the apartment of Hellner and Malesky on the night Hellner was killed. (RR-4: 63-64). While Appellee at first repeatedly denied that he had been armed when he was in Hellner s apartment, Appellee eventually admitted that he had indeed been carrying a pistol at the time he was in Hellner s apartment. (RR-4: 64). Moreover, Appellee eventually admitted that he had walked into Malesky s bedroom while carrying the pistol in his hand and that he had awakened Malesky. (RR-4: 66-67). According to Malesky, Appellee led her around the apartment looking for either money or drugs. (RR-3: ). Malesky stated that she told Appellee that she and Hellner were out of marijuana, but that she also told Appellee that there might be some more marijuana in the freezer and that Appellee did go and open the freezer. (RR-3: 152, ). During his recorded statement, Appellee eventually admitted that he had searched the freezer looking for marijuana. (RR-4: 67-68). Detective Robert Quirk explained that Appellee offered his admission of having searched the freezer after having been prompted by Detective Quirk s comment seeking a potential explanation of how Appellee s fingerprints could have come to be found on the freezer. (RR-4: 67-68). While Appellee admitted to Detective Quirk that he had searched the freezer, the record was undisputed that no fingerprint identifiable as having been from Appellee had been found within the crime scene. 3

12 (RR-4: 78-79). According to Malesky, Appellee eventually placed her inside one of the apartment s bathrooms. (RR-3: ). Malesky established that Appellee said to her, Sarah, I am sorry about what happened to your daddy, but he started tripping. (RR-3: 156). Malesky, who had a father-daughter-type relationship with Hellner, admitted that she had no idea what Appellee was talking about because she had not yet gone into Hellner s bedroom at the time Appellee made the aforementioned comment. (RR-3: , 156). Malesky stated that she remained in the bathroom for approximately 5 minutes before she emerged therefrom and soon found Hellner s body on the floor of his bedroom. (RR-3: ). Appellee admitted during his recorded statement that he had fled from Hellner s apartment and explained that he had left because he had drugs on his person and wanted to get rid of them. (RR-4: 68). Appellee claimed that he sold the pistol he had been carrying to an Hispanic family and described the house where they lived as being in South Dallas and on a particular corner located near Lincoln High School. (RR-4: 64-65). Detective Quirk established that he had approached the family, left a business card at their residence, had been called by the family, had been unable to recover any firearm from the family, and that the family had stated that they had not known Appellee. (RR-4: 64-66, ). Detective Quirk also established that he had been able to have no contact with Appellee for a period of approximately 20 days after Hellner had been murdered. (RR-4: 68-69). Detective Quirk made clear that Appellee had admitted that he had known that the 4

13 police had been looking for him and explained that Appellee had not surrendered voluntarily nor made any effort to contact any members of law enforcement. (RR-4: 69). Moreover, Detective Quirk explained that Appellee had admitted that there had been bad blood between himself and Hellner and that Hellner had called him on the night that Hellner eventually came to be murdered. (RR-4: 71-72, 133, 137). In regard to this point, Detective Quirk made clear that Appellee had admitted that Hellner had called him and talked to him personally only a short time before Hellner came to be dead. (RR-4: 137). According to the testimony of the forensic pathologist who conducted the autopsy of Hellner s body, the temperature of Hellner s body indicated that Hellner had to have been shot no more than 30 minutes before Hellner s body temperature had been measured. (RR-4: ). The forensic pathologist explained that Hellner s body temperature had been measured at the hospital at 9:57 PM and that Hellner s body temperature had been 98.9 degrees at that time. (RR-4: 168). Since there had been no significant, post-mortem loss of body temperature, the gunshots that killed Hellner had to have been inflicted only a matter of minutes before the emergency medical services personnel had begun treating Hellner. (RR-4: 168). The forensic pathologist made clear that Hellner s body temperature would have been considerably lower if more than an hour had passed since the time Hellner had been shot. (RR-4: 177). According to the combination of the testimony of the forensic pathologist and the person who conducted the examination of the bullets ( the bullet examiner ) that had been 5

14 recovered from Hellner s body, the bullets had been fired from the same firearm and there were indications on the bullets that were consistent with what would be expected if the bullets had been fired from a revolver. (RR-4: ; RR-6: 29-33). The bullet examiner explained that the weight of the bullets was consistent with what would be expected of.32 long caliber, Smith & Wesson bullets, which were a cartridge that was typically used in revolvers. (RR-6: 33). The bullet examiner went so far as to note that she was unaware of any semi-automatic firearm that fired the.32 long caliber, Smith & Wesson bullets. (RR- 6: 33). The testimony of the bullet examiner was consistent with that of Malesky regarding how Appellee had been carrying a revolver at the time he was in Hellner s apartment. (RR-3: 149). The forensic pathologist also explained that clippings from the fingernails of Hellner had been taken and preserved. (RR-4: 170). On December 1, 2011, Appellee asked for DNA testing of the fingernail clippings that had been taken from Hellner. (RR-5: 1, 4-11). The record was undisputed that Appellee had the autopsy report in advance of trial and that the third page of the autopsy report indicated that the fingernail clippings taken from Hellner had been preserved. (RR-2: 5; RR-5: 4-11; RR-MNT: 6-7). In a show of conduct fully consistent with only the highest regard for honesty and legal ethics, Appellee s counsel candidly admitted having overlooked the autopsy report s reflection that the fingernail clippings taken from Hellner had been taken and preserved. (RR-5: 6). The trial court had the fingernail clippings sent to Southwestern Institute of Forensic 6

15 Sciences (SWIFS) and ultimately succeeded in having DNA testing conducted thereon in an expedited fashion. (RR-5: 23-26; RR-MNT: 3-7). The results of the DNA testing showed the presence of the DNA of some unidentified person on the fingernail clippings that had been taken from Hellner. (CR: 120; RR-MNT: 3-8). The results of the DNA testing were available at some point during the time the jurors were conducting their deliberations on guilt/innocence, which began at 12:20 PM on December 2, 2011 and concluded at 11:03 AM on December 5, (RR-6: 1, ; RR-7: 1, 4; RR-MNT: 3-8). The actual report of the DNA testing conducted by SWIFS was dated December 3, (CR: 120). Accordingly, once Appellee s counsel asked for DNA testing on December 1, 2011, the results of such testing were available by either December 3, 2011 or, at the very latest, December 5, (CR: 120; RR-5: 4-11, 23-26). SUMMARY OF STATE'S SOLE ISSUE The trial court erred and abused its discretion by granting Appellee s motion for new trial. The trial court s granting of Appellee s motion for new trial was erroneous and constituted an abuse of discretion because the trial court s ultimate ruling cannot be justified by any reasonable view of the record as a whole because any such reasonable view of the record as a whole discloses that the evidence was insufficient to justify the granting of the motion for new trial on grounds of newly-discovered/newly-available evidence. 7

16 PRELIMINARY OUTLINE OF STATE S ARGUMENTS: In a single issue, the State respectfully contends that the trial court erred and abused its discretion in granting Appellee s motion for new trial based on the grounds of newlydiscovered/newly-available evidence. The trial court erred and abused its discretion by granting Appellee s motion for new trial on the grounds of newly-discovered/newly-available evidence because such a ruling cannot be justified based on any reasonable view of the record as a whole because any such reasonable view of the record as a whole reveals that the evidence was insufficient to justify the granting of the motion for new trial on the grounds of newly-discovered/newly-available evidence. In developing the State s arguments, the State will first set out the legal authority regarding motions for new trial and claims of newly-discovered/newly-available evidence. Thereafter, the State will apply those legal authorities, as relevant, to demonstrate that the trial court erred and abused its discretion by granting Appellee s motion for new trial on the grounds of newly-discovered/newly-available evidence when such granting of the motion for new trial cannot be justified by any reasonable view of the record as a whole due to the complete and absolute insufficiency of the evidence to justify the issuance of such a ruling. LEGAL AUTHORITY Motions for New Trial a) Burden of Proof The burden of proof at a hearing on a motion for new trial rests on the party who 8

17 claims to have some grounds for entitlement to the new trial. See, e.g., State v. Herndon, 215 S.W.3d 901, 907, 909 (Tex. Crim. App. 2007); Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995), cert. denied, 517 U.S (1996); Ex Parte Ybarra, 629 S.W.2d 943, 945 (Tex. Crim. App. 1982); Zaragosa v. State, 588 S.W.2d 322, (Tex. Crim. App. 1979). Accordingly, the party asserting the entitlement to the new trial has the burden of producing not only evidence that substantiates the basis of the claim, but also evidence that is competent for that purpose. See, e.g., State v. Moore, 240 S.W.3d 324, (Tex. App. Austin 2007, pet. ref d); State v. Ordonez, 156 S.W.3d 850, 851 (Tex. App. El Paso 2005, pet. ref d). The burden of proof at a hearing on a motion for new trial is by a preponderance of the evidence. See, e.g., McIntire v. State, 698 S.W.2d 652, 662 (Tex. Crim. App. 1985); Oldham v. State, 977 S.W.2d 569, 573 (Tex. Crim. App. 1996)( Of course, it is not enough to simply state that appellant carries a burden without assigning a particular burden to her. Recognizing the fact that, in the absence of compelling reasons to do otherwise, our system assigns preponderance of the evidence as the default burden,... )(Meyers, J. dissenting), citing McIntire, 698 S.W.2d at 662. b) Standard of Review In making a decision at a motion-for-new-trial hearing, the trial judge may consider the evidence and what transpired at the trial, any affidavits involved, and the testimony adduced at the hearing on the motion. See Williams v. State, 375 S.W.2d 449, 451 (Tex. Crim. App. 1964); Dedesma v. State, 806 S.W.2d 928, 934 (Tex. App. Corpus Christi 9

18 1991, pet. ref d). The granting or denying of a motion for new trial rests within the sound discretion of the trial court. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). The trial court s discretion relative to a motion for new trial is not, however, unbounded or unfettered. Herndon, 215 S.W.3d at 907. A trial court s ruling relative to a motion for new trial constitutes an abuse of discretion if no reasonable view of the record could support the trial court s ultimate ruling. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). In the context of issuing a ruling on a motion for new trial, the trial court is supposed to balance the substantive content of the defendant s claim or claims against both the interests of the public in finality and the harmless-error standards set out in Rule 44.2 [of the Texas Rules of Appellate Procedure]. Herndon, 215 S.W.3d at 908. A trial court abuses its discretion when it acts without reference to any guiding rules or principles such that its conclusion is so arbitrary and capricious as to fall outside the zone within which reasonable minds can disagree. See, e.g., Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996), cert. denied, 520 U.S (1997); Lewis, 911 S.W.2d at 7; Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). Also, a trial court has no discretion in regard to determining what the law is or applying it to the facts and abuses its discretion per se when it misapplies the law to the facts. See State v. Ballard, 987 S.W.2d 889, 891, 893 (Tex. Crim. App. 1999), citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); see also, e.g., In re American Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001)( A trial 10

19 court has no discretion to determine what the law is or in applying the law to the facts.... ); Huie v. DeShazo, 922 S.W.2d 920, (Tex. 1996). According to the Court of Criminal Appeals, a trial court judge cannot grant a new trial on mere sympathy, an inarticulate hunch, or simply because he believes that the defendant is innocent or received a raw deal. Herndon, 215 S.W.3d at 907. Moreover, trial courts have expressly been admonished not to grant motions for new trial when the record fails to show any impact upon the substantial rights of the defendants in question, because doing so renders the phrase interest of justice nothing more than a mere platitude of absolutely no substantive legal content. Id. In this regard, a trial court cannot properly grant a motion for new trial unless the defendant shows that the trial was not conducted in accordance with the law. Id. When a trial court s improper granting of a motion for new trial occurs after the pronouncement and imposition of the assessed punishment, the proper remedy is to vacate the trial court s order granting the new trial and to reinstate the prior judgment of the trial court. See, e.g., State v. Saylor, 319 S.W.3d 704, 706, 711 (Tex. App. Dallas 2009, pet. ref d); State v. Choice, 319 S.W.3d 22, 23, (Tex. App. Dallas 2008, no pet.); see also, e.g., State v. Bennett, No CR, 2012 Tex. App. LEXIS 24, at *10-11 (Tex. App. Dallas January 4, 2010, pet. filed)(not designated for publication); State v. Smith, No CR, 2010 Tex. App. LEXIS 3093, at *2 (Tex. App. Dallas April 15, 2010, no pet.)(not designated for publication). 11

20 c) Claims of Newly-Discovered/Newly-Available Evidence Motions for new trial based on newly discovered or newly available evidence are treated as the same under the law. See State v. Nkwocha, 31 S.W.3d 817, (Tex. App. Dallas 2000, no pet.), citing Anderson v. State, 717 S.W.2d 622, 626 (Tex. Crim. App. 1986). Additionally, such motions are not favored under the law and are to be viewed with great caution. See Sargent v. State, No CR, 1999 Tex. App. LEXIS 1771, at *11 (Tex. App. Dallas March 17, 1999, pet. ref d)(not designated for publication), citing Drew v. State, 743 S.W.2d 207, 225 (Tex. Crim. App. 1987), cert. denied, 510 U.S (1994). However, an accused is entitled to a new trial where material evidence favorable to the accused has been discovered since trial. Sargent, No CR, 1999 Tex. App. LEXIS 1771, at *11, citing: Tex. Code Crim. P. art and Moore v. State, 882 S.W.2d 844, 849 (Tex. Crim. App. 1994), cert. denied, 513 U.S (1995) and State v. Gonzalez, 820 S.W.2d 9, 11 (Tex. App. Dallas 1991), aff d, 855 S.W.2d 692 (Tex. Crim. App. 1993). Under the code of criminal procedure as interpreted by the Texas Court of Criminal Appeals, the defendant must show that (1) the newly discovered or newly available evidence was unknown to the accused at the time of trial, (2) the accused s failure to discover or obtain the evidence was not due to a lack of diligence on the accused s part, (3) the evidence would probably bring about a different result in another trial, and (4) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching. Tex. Code Crim. P. art. 12

21 40.001; see Moore, 882 S.W.2d at 849. The defendant has the burden of demonstrating all four of the aforementioned components. See Brown v. State, No CR, 2002 Tex. App. LEXIS 1626, at *10 (Tex. App. Dallas March 5, 2002, pet. ref d)(not designated for publication), citing Bolden v. State, 634 S.W.2d 710, (Tex. Crim. App. [Panel Op.] 1982). The trial court s decision to grant or deny a motion for new trial based on newlydiscovered/newly-available evidence is reviewed under an abuse of discretion standard. See Cuellar v. State, Nos CR, 2005 Tex. App. LEXIS 5597, at *15 (Tex. App. Dallas July 19, 2005, no pet.)(not designated for publication), citing Keeter v. State, 74 S.W.3d 31, (Tex. Crim. App. 2002). A trial court does not abuse its discretion unless its decision is made without reference to any guiding rules or principles such that it is so arbitrary and capricious as to fall outside the zone within which reasonable minds can disagree. See, e.g., Green, 934 S.W.2d at 102; Lewis, 911 S.W.2d at 7; Montgomery, 810 S.W.2d at 380. Additionally, Where it should appear to the trial court, under the circumstances of the case, that the weight or credibility of the new evidence would probably not bring about a different result in a new trial, it is within the sound discretion of the trial court to deny the motion. Sargent, No CR, 1999 Tex. App. LEXIS 1771, at *12, citing: Jones v. State, 711 S.W.2d 35, (Tex. Crim. App. 1986) and Dedesma, 806 S.W.2d at 934. Finally, a defendant s failure to demonstrate all four of the components of the newly-discovered/newly-available evidence claim will not lead to a reversal of the trial 13

22 court s decision to deny the motion for new trial because the defendant bears the burden of proving the grounds of his claim. See Dawson v. State, No CR, 2001 Tex. App. LEXIS 92, at * 7 (Tex. App. Dallas January 9, 2001, no pet.)(not designated for publication), citing Eddlemon v. State, 591 S.W.2d 847, 849 (Tex. Crim. App. 1979). APPLICATION THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY GRANTING APPELLEE S MOTION FOR NEW TRIAL BECAUSE SUCH A RULING IS WHOLLY UNJUSTIFIED BY ANY REASONABLE VIEW OF THE RECORD AS A WHOLE IN THAT ANY SUCH REASONABLE VIEW OF THE RECORD AS A WHOLE REVEALS THE INSUFFICIENT NATURE OF THE EVIDENCE TO JUSTIFY THE ISSUANCE OF SUCH A RULING BASED ON THE CLAIM OF NEWLY-DISCOVERED/NEWLY-AVAILABLE EVIDENCE. Since Appellee advanced a claim of newly-discovered/newly available evidence in his motion for new trial, Appellee had the duty of showing by a preponderance of the competent evidence that he was entitled to a new trial based on his proof of the four components contained in Tex. Code Crim. P. art See, e.g., Herndon, 215 S.W.3d at 907, 909; Patrick, 906 S.W.2d at 498; Moore, 882 S.W.2d at 849; McIntire, 698 S.W.2d at 662; Bolden, 634 S.W.2d at ; see also, e.g., Oldham, 977 S.W.2d at 573 (Meyers, J. dissenting), citing McIntire, 698 S.W.2d at 662; Moore, 240 S.W.3d at ; Ordonez, 156 S.W.3d at 851; Brown, No CR, 2002 Tex. App. LEXIS 1626, at *10. The trial court erred and abused its discretion by granting Appellee s motion for new trial because under no reasonable view of the record did Appellee produce competent evidence sufficient to meet all four components of his newly-discovered/newly-available evidence claim. See, 14

23 e.g., Charles, 146 S.W.3d at 208. Moreover, on the record in this case, it is actually undisputed that the evidence failed to prove at least one of the required components of the newly-discovered/newly-available evidence claim. While the State maintains that Appellee failed to meet all four components, the failure to meet the diligence-related component constitutes the most glaring and overt of the evidentiary failures. Diligence means, 1. constant and earnest effort to accomplish what is undertaken; 2. the degree of care and caution expected of a person, esp. a party to an nd agreement. Webster s American Dictionary College Edition, 225 (2 ed. 2000). The Court of Criminal Appeals has cited, as an example of a failure to exercise due diligence, a defendant s having waited until a day or two before trial to apply for compulsory process relative to a potential witness. See Norton v. State, 564 S.W.2d 714, 717 (Tex. Crim. App. [Panel Op.] 1978), citing Peoples v. State, 477 S.W.2d 889, 891 (Tex. Crim. App. 1972). In the context of probation revocations, the Court of Criminal Appeals has previously agreed that the State s merely entering a capias warrant into the TCIC computer system and merely sending a letter to the probationer s last known address had failed to constitute due diligence on the part of the State. See Peacock v. State, 77 S.W.3d 285, 288 (Tex. Crim. App. 2002). Appellee s claim of newly-discovered/newly-available evidence was based on the evidence of the DNA testing that was conducted on the fingernail clippings that had been taken from Hellner at the time the autopsy of Hellner s body was conducted. (CR: ; RR-MNT: 3-16). However, the record is totally undisputed regarding how a reference to the 15

24 fingernail clippings was contained in the autopsy report and that Appellee had a copy of the autopsy report in May 2011, which was well in advance of the trial of the case, and Appellee admittedly overlooked the reference therein to the fingernail clippings. (RR-2: 5; RR-5: 4-11; RR-MNT: 6-7). The failure of Appellee to notice how the copy of the autopsy report he possessed had on its face actually referenced the fingernail clippings constitutes a wholesale and complete failure on Appellee s part to prove his not having had the evidence by the time of trial was not due to a lack of his own diligence. See, e.g., Peacock, 77 S.W.3d at 288; Norton, 564 S.W.2d at 717, citing Peoples, 477 S.W.2d at 891. Furthermore, the record is also wholly undisputed that once Appellee made a request on December 1, 2011 for the DNA testing to be conducted, the results thereof were available in the SWIFS report by December 3, 2011 or at the very latest December 5, (CR: 120; RR-5: 4-11, 23-26; RR-7: 1, 4). Accordingly, had Appellee noticed the autopsy report s reference to the fingernail clippings and lodged a request for DNA testing thereof at any time during the May-to-November-2011 time frame in which he had been in the possession of a copy of the autopsy report, Appellee could have had the results of such DNA testing well before the commencement of the trial on the merits. As such, the evidentiary record is wholly undisputed regarding how the evidence establishing that Appellee s having not had the DNA testing results at the time of trial is and was the direct result of Appellee s having failed to exercise any diligence whatsoever relative to the contents of the copy of the autopsy report that was in his possession well from May 2011, which was well before the 16

25 commencement of the voir dire process on November 28, 2011 and the trial on merits on November 29, (RR-2: 1; RR-3: 1). Beyond the complete failure of any reasonable view of the record to justify the granting of the motion for new trial relative to the diligence component of Appellee s claim, no reasonable view of the record justifies granting the motion for new trial because such review also shows that the evidence would not probably bring about a different result in another trial and fails to show that the evidence was not merely collateral or impeaching. As the State argued during final summation, the undisputed evidence regarding Appellee s admission of having spoken to Hellner while Appellee was on the way to Hellner s apartment, in connection with the undisputed evidence of Hellner s post-mortem body temperature and when the 911 call was placed, established the extremely limited time frame of approximately 15 minutes within which Hellner had to have been killed. (RR-4: 64-67, 71-72, 137, , 177; RR-5: 91-99; RR-6: 60-61, ). The evidence in the form of Appellee s statement and the testimony of Malesky was also undisputed as to how Appellee was present in the crime scene and armed with a gun just shortly before Hellner s body was found and the 911 call was made. (RR-3: , , ; RR-4: 64-67, 137; RR-5: 77-78). The evidence in the form of Appellee s own recorded statement was undisputed as to how Appellee had admitted that there had been bad blood between himself and Hellner. (RR-4: 133). The evidence in the form of the bullet examiner s testimony was 17

26 undisputed regarding how the bullets recovered from Hellner s body were consistent with a certain type of ammunition that, in the bullet examiner s experience, was used only in a gun that was a revolver. (RR-6: 29-33). Malesky established that Appellee had been armed with a revolver while he was in the crime scene and had made a cryptic/suspicious comment apologizing in regard to what had happened to Hellner, but seeking to excuse whatever had happened to Hellner by stating that Hellner had started tripping and implying thereby that Hellner s death had been the result of Hellner s conduct. (RR-3: , 156, 188, ). In addition to all the aforementioned evidence, the undisputed evidence of Appellee s conduct before and during his own recorded statement also conduces to show that, under no reasonable view of the record, would the evidence of the DNA testing results probably have brought about a different result in another trial. The evidence of the content of Appellee s recorded statement and of Appellee s having fled the crime scene and stayed a fugitive for some 20 days after Hellner had been murdered was wholly undisputed in any manner. (RR- 4: 63-69). Appellee s admission of having fled the crime scene was evidence that proved Appellee s guilt of having shot Hellner, especially in light of the related and undisputed evidence that Appellee had failed to approach the police despite his having been aware that they were looking for him. (RR-4: 69-70). See, e.g., Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989), cert. denied, 494 U.S (1990); Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim. App. 1982). Moreover, Appellee s recorded statement showed how, for approximately an hour and a half, Appellee had denied even having had a gun on his 18

27 person and then admitted having had a pistol while having approached and awakened Malesky while she was in her bedroom within the apartment that constituted the larger crime scene. (RR-4: 63-69). The evidence of Appellee s failure to maintain a consistent story is not only evidence of Appellee s consciousness of his guilt, but also is the type of evidence that the law recognizes as the very strongest evidence of Appellee s guilt. See, e.g., Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005); Couchman v. State, 3 S.W.3d 155, (Tex. App. Fort Worth 1999, pet. ref d); Lee v. State, 866 S.W.2d 298, 302 (Tex. App. Fort Worth 1993, pet. ref d); Torres v. State, 794 S.W.2d 596, 599 (Tex. App. Austin 1990, no pet.), citing, 2 Ray, Tex. Prac: Law of Evidence, 1538, at 242 (1980). While Appellee never admitted having shot and killed Hellner, Appellee s failure to maintain a consistent story and his testimonial demeanor as depicted in his recorded statement were such that the jurors were entitled to infer not only that Appellee was not telling the truth, but also that the objective truth was that Appellee had shot and killed Hellner. See, e.g., Padilla v. State, 326 S.W.3d 195, (Tex. Crim. App. 2010). Additionally, the testimony of Detective Quirk showing that Appellee had lied in his story of having sold the gun to some Hispanic family further conduced to demonstrate Appellee s guilt in regard to Hellner s murder and his consciousness of that guilt. (RR-4: 64-66, ). As for the results of the DNA testing, the record established that Hellner was treated by paramedics before he was taken to have the autopsy performed. (RR-4: ). In 19

28 regard to this point, the State expressly argued to the trial court that the treatment of Hellner provided by the emergency-medical-services personnel had been such that there had been the potential of that treatment to contaminate whatever might have been on or under Hellner s fingernails. (RR-5: 8-9). Additionally, Hellner s body showed absolutely no signs of any defensive wounds or that Hellner had done anything to try and defend himself. (RR-4: , ). Accordingly, the presence of the DNA from some unidentified person on or about Hellner s fingernails was at best collateral or impeaching and would not probably bring about a different result in another trial, especially in light of the remainder of the evidence already discussed herein. In light of what a comprehensive review of the record shows, considered in conjunction with a balancing of the substance of Appellee s claim (and what Appellee was required to prove) against the aforementioned evidence, the trial court abused its discretion by granting Appellee s motion for new trial based on the newly-discovered/newly-available evidence claim because the trial court s ultimate ruling cannot be justified by any reasonable 1 view of the record as a whole. See Charles, 146 S.W.3d at 208. Stated differently, any reasonable view of the record as a whole shows that the evidence upon which the trial court based its conclusion was insufficient to justify the granting of the motion for new trial 1 As a matter of clarification, the State s arguments regarding the sufficiency or insufficiency of the evidence are not in the nature of assertions that the State s evidence was merely sufficient to justify the conviction under the sufficiency standard of Jackson v. Virginia, 443 U.S. 307 (1979). Since the proper analysis of the trial court s ruling requires an assessment and balancing of all the evidence, it is the State s position that the evidence relied on by the trial court in support of its ruling is insufficient to justify the trial court s ruling under an accurate performance of the proper relevant analysis. 20

29 because Appellee failed to meet his burden relative to the four components of the newlydiscovered/newly-available evidence claim upon which the trial court based its ruling granting Appellee s motion for new trial. For all the aforementioned reasons, the trial court s ruling granting the motion for new trial based on the newly-discovered/newly-available evidence claim cannot be sustained and must be reversed. Since the trial court s ruling granting the motion for new trial was not proper in this case, this Court should sustain the State s sole issue and enter an order not only vacating the trial court s order that granted Appellee s motion for new trial, but also reinstating the trial court s original judgment of conviction. See Herndon, 215 S.W.3d at 907; Saylor, 319 S.W.3d at 706, 711; Choice, 319 S.W.3d at 23,

30 CONCLUSION AND PRAYER Since the trial court erred by granting Appellee s motion for new trial based on a claim of newly-discovered/newly-available evidence and since the trial court s granting of Appellee s motion for new trial cannot be justified under any reasonable view of the record as a whole (because any such reasonable view reveals the insufficient nature and quality of the evidence upon which the trial court s ruling was based), the trial court abused its discretion by granting Appellee s motion for new trial, such that this Court should sustain the State s sole issue. Moreover, the State prays that this Court will vacate the trial court s order granting Appellee s motion for new trial and enter an order reinstating the trial court s judgment of conviction and the sentence that accompanied Appellee s conviction. Respectfully submitted, CRAIG WATKINS Criminal District Attorney Dallas County, Texas MICHAEL R. CASILLAS, Assistant Criminal District Attorney Chief Prosecutor - Appellate Division 133 N. Riverfront Blvd., LB 19 Dallas, Texas (214) FAX (214) State Bar No

31 CERTIFICATE OF SERVICE A true copy of the instant State's Opening Brief has been served on counsel for Appellee, the Hon. John Tatum, 990 S. Sherman Street, Richardson, TX 75081, by depositing th said copy with the United States Postal Service, postage pre-paid, no later than the 6 day of July 2012 and by transmitting a copy in an electronic format via no later than the 6 th day of July, MICHAEL R. CASILLAS J:\BRIEFS-COA-AND-CCA\CON-DIG-SIG\PDF VERSIONS\Case No CR-[Wilkins-Terrance]; State's Opening Brief; The State of Texas.wpd 23