NO CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS. TOMMY EDWARDS III, Appellant. vs.

Transcription

1 NO CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS 5th Court of Appeals FILED: 02/15/ :00 Lisa Matz, Clerk TOMMY EDWARDS III, Appellant vs. THE STATE OF TEXAS, Appellee th On appeal from the 195 Judicial District Court of Dallas County, Texas The Honorable Fred Tinsley, Judge Presiding Cause No. F N APPELLANT'S BRIEF Counsel of Record: APRIL E. SMITH STATE BAR NO P.O. BOX MESQUITE, TEXAS (FAX) ATTORNEY FOR APPELLANT

2 IDENTITY OF PARTIES AND COUNSEL PARTIES TO THE JUDGMENT: APPELLANT: Tommy Edwards # Collin County Detention Facility 4300 Community Avenue McKinney, TX APPELLEE: Craig Watkins, Dallas County Criminal District Attorney 133 N. Riverfront Blvd., LB 19 Dallas, TX PRESIDING JUDGE: Fred Tinsley DEFENSE TRIAL COUNSEL: Michael Howard (plea) Theo Pugh (revocation) Denise Campbell (revocation) TRIAL PROSECUTOR: Don Guidry (plea) Aja Reed (revocation) Brandie Wade (revocation) APPELLATE COUNSEL: April E. Smith P.O. Box Mesquite, TX i

3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL.... i TABLE OF CONTENTS...i i INDEX OF AUTHORITIES... iii STATEMENT OF THE CASE...1 ISSUE PRESENTED...2 THE TRIAL COURT ERRED IN ADMITTING STATE S EXHIBIT 4, RECORDED PHONE CALLS EDWARDS MADE FROM THE JAIL, BECAUSE THEY WERE IRRELEVANT AND PREJUDICIAL BECAUSE THEY WERE MADE AFTER THE DATE OF CONTACT ALLEGED IN THE MOTION TO ADJUDICATE. STATEMENT OF THE FACTS...2 SUMMARY OF THE ARGUMENT....4 ISSUE PRESENTED, RESTATED....5 PRAYER...10 CERTIFICATE OF SERVICE ii

4 INDEX OF AUTHORITIES CASES PAGE Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007)...5 Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002)...5 Salas v. State, 629 S.W.2d 796 (Tex. Crim. App. 1981)...5 Willover v. State, 70 S.W.3d 841 (Tex. Crim. App. 2002)...5 STATUTES TEX. PEN. CODE ANN (a)(2) (Vernon 2009)...1 RULES TEX. R. EVID , 8 TEX. R. EVID iii

5 TO THE HONORABLE COURT OF APPEALS: COMES NOW, Tommy Edwards III, Appellant, and respectfully submits this brief urging error from a conviction for the offense of aggravated assault with a deadly weapon. STATEMENT OF THE CASE Edwards was indicted for the second degree felony offense of aggravated assault with a deadly weapon, a violation of TEX. PEN. CODE ANN (a)(2) (Vernon 2009). (CR: 5). On June 8, 2009, Edwards entered a plea of guilty and was placed on eight years deferred adjudication community supervision and was assessed a $2,500 fine. (CR: 20, 21-24, 25, 26-27, 28-29). On March 1, 2010, the State filed a Motion to Adjudicate Guilt. (CR: 35-36). On June 11, 2010, Edwards entered a plea of true to all of the allegations, except "q". (CR: 42-43). After a hearing, the trial court denied the State's motion, but ordered Edwards to serve 90 days in the Dallas County Jail. (RR-3: 1-34; CR: 44). On September 29, 2010, the State filed a Motion to Adjudicate Guilt. (CR: 49-50). On June 17, 2011, Edwards pled true to the allegation. (CR: 53-54). The Court sentenced Edwards to 20 years confinement in the Texas Department of Criminal Justice - Institutional Division. (CR: 55-56). The trial court certified that Edwards had the right to appeal. (CR: 58). Notice of Appeal was timely filed. (CR: 59). 1

6 ISSUE PRESENTED THE TRIAL COURT ERRED IN ADMITTING STATE S EXHIBIT 4, RECORDED PHONE CALLS EDWARDS MADE FROM THE JAIL, BECAUSE THEY WERE IRRELEVANT AND PREJUDICIAL BECAUSE THEY WERE MADE AFTER THE DATE OF CONTACT ALLEGED IN THE MOTION TO ADJUDICATE. STATEMENT OF THE FACTS Edwards sister, Tomisha Edwards testified that their father killed their mother in (RR-4: 11-12). Edwards has told her that he wants to kill the complainant, Natasha Edwards. (RR-4: 12-13). Prior to their mother s death, Edwards began exhibiting disturbing behavior. (RR-4: 12). Tomisha said that Edwards was just like their father, but worse, because he was younger. (RR-4: 15). Tomisha listened to three calls on State s Exhibit 4 (from October, November and March) and recognized the voices. (RR-4: 17). Tomisha believed that Edwards would kill Natasha. (RR-4: 18). Dallas Police Officer Felicia Moore testified that Natasha came to the station on September 25, 2010, to file a report because Edwards had been sending her text messages wherein he threatened to kill her. (RR-4: 19-20). Natasha testified that after Edwards was released from jail (after serving 90 days as a condition of reinstating his probation), he began contacting her grandmother requesting to see their children. (RR-4: 23). Natasha went on Edwards Facebook page and requested that he not contact her grandmother. (RR-4: 24, 42-43). Eventually, they had phone contact and about a week later, he began threatening to kill her and their children. (RR-4: 25). Edwards 2

7 posted on Facebook that he was going to kill her. (RR-4: 26). She called the police. (RR-4: 26). The last threat he made was on December 11, (RR-4: 26). She has not had contact with him in (RR-4: 26). Natasha saw Edwards once at the Salvation Army where he was staying. (RR-4: 30). Natasha said that Edwards called her times while he was jailed and she accepted three or four of the calls. (RR-4: 32-33). Natasha acknowledged that Edwards had been diagnosed with a mental health disorder. (RR-4: 40). Ben Abebe, the mental health case manager for the Dallas County Public Defender s Office, has been Edwards case manager for one and one-half years. (RR-4: 45). Edwards has been diagnosed with schizo-effective disorder. (RR-4: 45-46). Abebe recommended that Edwards be placed in the Atlas Program for mentally ill probationers which requires intensive weekly monitoring and weekly reporting. (RR-4: 49-50). Abebe also noted that Edwards might have an undiagnosed personality disorder that should be addressed or evaluated. (RR-4: 50). Abebe noted that Edwards exhibits some symptoms (inappropriate smile, gestures and being uncompassionate to others) of a personality disorder. (RR-4: 50). Edwards testified that he began counseling and began taking medication for his mental illness after his mother s murder. (RR-4: 57). The medication allowed him to control his thoughts and emotions. (RR-4: 57). When he responded to Natasha s Facebook message, she came to see him within minutes. (RR-4: 59). In September 2010, he met her at her place of employment. (RR-4: 60). She gave him instructions on how to get there on the 3

8 DART (Dallas Area Rapid Transit) system. (RR-4: 60). They left her work, had sex and then he returned to the Salvation Army where he was staying. (RR-4: 60). Defense Exhibits 1-6, text messages from Natasha to Edwards phone, were admitted. (RR-4: 62). In the messages, she indicates she wants to meet for sex and that she loves him. (RR-4: 62-64). All of these text messages occurred prior to the filing of the motion to adjudicate. (RR-4: 63-64). He did not really mean that he was going to kill Natasha. (RR-4: 67). He put it on his Facebook page, but took it down the next day because he had calmed down. (RR-4: 67). SUMMARY OF THE ARGUMENT The trial court erred in admitting State s Exhibit 4, recorded telephone calls from the jail made by Edwards, because they occurred after the motion to adjudicate guilt was filed and were irrelevant to the proceedings. The sole allegation in the motion to adjudicate guilt was that Edwards had contact with the complainant, Natasha Edwards, by telephone, internet/facebook. (CR: 49-50). Edwards pled true to that allegation, admitting that he had been in contact with the complainant prior to the filing of the motion on 9/28/10". (CR: 54; RR-4: 5). Thus, the allegation was that Edwards had contact with the complainant prior to the filing of the motion to adjudicate. Subsequent contact with Natasha was not alleged. (CR: 49-50). Thus, the trial court erred in admitting the recordings of jail calls made subsequent to the filing of the motion to adjudicate guilt. The admission of this evidence 4

9 contributed to Edwards receiving the maximum possible sentence and, thus, he is entitled to a new punishment hearing. ISSUE PRESENTED, RESTATED THE TRIAL COURT ERRED IN ADMITTING STATE S EXHIBIT 4, RECORDED PHONE CALLS EDWARDS MADE FROM THE JAIL, BECAUSE THEY WERE IRRELEVANT AND PREJUDICIAL BECAUSE THEY WERE MADE AFTER THE DATE OF CONTACT ALLEGED IN THE MOTION TO ADJUDICATE. ARGUMENTS AND AUTHORITIES Standard of Review The trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). The trial court s decision is reversed only if that decision was clearly wrong and outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). The trial court s decision is upheld if it is correct on any theory the evidence supports. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). The decision is upheld even if the trial judge gives the wrong reason for its decision. See Osbourn, 92 S.W.3d at 538 (citing Salas v. State, 629 S.W.2d 796, 799 (Tex. Crim. App. 1981)). 5

10 Relevant Statutes Rule 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. TEX. R. EVID Rule 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, [or] confusion of the issues.... TEX. R. EVID Application to the Instant Case When the State initially offered State s Exhibit 4, recordings of telephone calls made by Edwards while in the jail, defense counsel objected that it was not relevant. (RR-4: 9). When questioned by the Court, the prosecutor stated that the evidence was relevant because the calls they also substantiate the allegations that he s accused of, and it goes to character and considerations that this Court needs to take into consideration when it plans the punishment of this defendant. (RR-4: 10). The Court sustained the objection and found the evidence irrelevant. (RR-4: 10). Subsequently, the State re-offered State s Exhibit 4 (except for two calls in December which had not been authenticated). (RR-4: 17). Again, defense counsel objected that the calls were irrelevant because they occurred after the filing of the motion. (RR-4: 17). The Court overruled the objection. (RR-4: 18). Defense counsel renewed her relevance objection when State s Exhibit 4 was re-offered in its entirety. (RR-4: 31). The Court overruled the 6

11 objection. (RR-4: 32). Defense counsel requested a running objection to the entire CD (State s Exhibit 4) which was granted by the Court. (RR-4: 34). The Court took judicial notice of the contents of the Court s file. (RR-4: 6). Thus, the Court was aware that it had previously denied the State s motion to adjudicate but had ordered Edwards to serve 90 days in jail. (CR: 44, 47; RR-3: 34). Edwards would have been released from the jail on or about September 9, (CR: 44, 47; RR-3: 34). The subsequent motion to adjudicate was signed September 28, 2010 and filed on September 29, (CR: 49). At the initial adjudication hearing on June 11, 2010, Edwards entered a plea of not true to the allegation that he had telephone contact with Natasha on specific dates. (RR-3: 5). Natasha admitted to contact with Edwards despite knowledge of the stay-away order. (RR-3: 7-14). At that time, Natasha testified that Edwards threatened to kill her. (RR-3: 11-12). She also testified that she feared for her life. (RR-3: 12). Shalesa Smith, Edwards cousin, testified that the contact was initiated by Natasha. (RR-3: 17). Lakesha Edwards testified that on the day Edwards was released from jail, Natasha asked Lakesha to pick her up so that she could see Edwards. (RR-3: 19). Edwards testified that Natasha instigated the contact between them on the dates alleged in the motion. (RR-3: 30). When pronouncing his ruling, the Court stated, I m not going to make any findings about condition Q, because I think the whole situation is ridiculous. I think it s a waste of the taxpayer s time, the 7

12 voter s time, the Court s time. I d [sic] don t have the kind of time to put on cases like this. It s ridiculous. (RR-3: 33-34). At the previous hearing, held a year before the final adjudication hearing, the Court did not believe Natasha and found the whole situation to be ridiculous. (RR-3: 33-34). The second motion was filed four months after the first revocation hearing. (CR: 49; RR-3: 1). However, the second adjudication hearing did not actually occur for another year. (RR-4: 1). After the recorded phone calls from Edwards in jail in December, Natasha had no further contact with Edwards. (RR-4: 26). The evidence reflects that Edwards had moved on and was no longer making threats toward Natasha at the time of the second adjudication hearing. Edwards admitted having contact with Natasha by telephone and internet/facebook. (RR-4: 5). Thus, the recorded calls (State s Exhibit 4) were not relevant to the allegation in the motion to adjudicate. The calls were not relevant as they did not have a tendency to make the existence of any fact of consequence more or less probable as required by Rule 401. Rather, the calls were admitted to obtain a harsh sentence and their probative value was substantially outweighed by the prejudice. Thus, the trial court abused its discretion in admitting State s Exhibit 4. The Court s decision to admit State s Exhibit 4 was clearly wrong and outside the zone of reasonable disagreement. Harm Analysis Several months before this, the Court denied the State s first motion with regard to allegation Q (contact with Natasha) because he thought the whole situation was ridiculous 8

13 and a waste of time (RR-3: 33). The testimony at that hearing was substantially similar to that at the second hearing: Natasha testified that Edwards had threatened to kill her. (RR-3: 11-12; RR-4: 25). Additional evidence in the form of the recorded jail calls was admitted over defense counsel s objection at the second hearing. (RR-4: 9, 10, 17, 18, 32, 34). The recorded phone calls appear to be the only evidence admitted at the second hearing which did not relate to the allegation itself. Edwards sister s testimony was admitted, but the Court noted that he was no longer seeing the relevance of it. (RR-4: 15-16). The Court admonished the prosecutor to talk about the contact and not the dysfunctional family. (RR-4: 16). A police officer testified that she took Natasha s report regarding the threatening phone calls in December. (RR-4: 19-22). Abebe testified as to Edwards diagnosed mental illness and a treatment plan upon his re-release onto community supervision. Because State s Exhibit 4 was the only new evidence offered at the second hearing, it is clear that the Court relied on this evidence in determining to sentence Edwards to 20 years confinement the maximum period of confinement. Thus, Edwards was harmed by the wrongful admission of State s Exhibit 4. He is entitled to a new hearing. 9

14 PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that his conviction will be reversed and the case remanded for a new hearing. Respectfully submitted, APRIL E. SMITH STATE BAR NO P.O. BOX MESQUITE, TEXAS (Fax) aesmithlaw@tx.rr.com CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing brief has been served on Craig Watkins, Dallas County Criminal District Attorney, 133 N. Riverfront Blvd., LB-19, Dallas, Texas , by fax and by to Michael Casillas, Chief of the Appellate Division, at michael.casillas@dallascounty.org on February 14, APRIL E. SMITH 10