CAUSE NO CR IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT AT DALLAS, TEXAS JEROME KELLY EDWARDS, APPELLANT, THE STATE OF TEXAS,

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1 ORAL ARGUMENT REQUESTED CAUSE NO CR IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT AT DALLAS, TEXAS JEROME KELLY EDWARDS, APPELLANT, V. THE STATE OF TEXAS, APPELLEE. CRIMINAL DISTRICT COURT NO. 2 DALLAS COUNTY, TEXAS NO. F I APPELLANT S BRIEF BRUCE ANTON STATE BAR NO SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road, Suite 250 Dallas, Texas / / fax

2 TABLE OF CONTENTS TABLE OF CONTENTS ii IDENTITY OF PARTIES AND COUNSEL iii INDEX OF AUTHORITIES iv, v PROCEDURAL STATEMENT OF THE CASE (CHRONOLOGY) vi STATEMENT OF FACTS POINT OF ERROR NUMBER ONE THE TRIAL COURT ERRED IN ALLOWING THE STATE TO CROSS- EXAMINE THE APPELLANT CONCERNING HER OPINION OF THE VERACITY OF ANOTHER WITNESS. Relevant Facts Standard of Review Abuse of Discretion When a Plea Must Be Withdrawn Waiver Bradshaw v. Stumpf Application of Law to Facts Harm PRAYER CERTIFICATE OF SERVICE ii

3 IDENTITIES OF PARTIES APPELLANT DEFENSE COUNSEL AT TRIAL APPELLANT S ATTORNEY ON APPEAL STATE S ATTORNEYS AT TRIAL STATE S ATTORNEY ON APPEAL JUDGE Jerome Kelly Edwards Vickie A. Rice, Asst. Public Defender 133 N. Riverfront Blvd, LB2 Dallas, Texas Bruce Anton Sorrels, Udashen & Anton 2311 Cedar Springs Road, Suite 250 Dallas, Texas Herschel Victor Woods Assistant District Attorney Office of the District Attorney of Dallas County 133 N. Riverfront Blvd., LB19 Dallas, Texas Craig Watkins Dallas County District Attorney Appellate Section 133 N. Riverfront Blvd., LB19 Dallas, Texas Hon. Don Adams Criminal District Court No N. Riverfront Boulevard, LB39 Dallas, Texas iii

4 INDEX OF AUTHORITIES CASES PAGE Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) , 8 Graves v. State, 803 S.W.2d 342 (Tex. App. Houston [14th Dist.] 1990, pet. ref'd) , 6 Griffin v. State, 703 S.W.2d 193 (Tex. Crim. App. 1986) (op. on reh g) , 6 Hall v. State, No CR, 2010 WL , at *4 (Tex. App.--El Paso Feb. 24, Hargrave v. State, 10 S.W.3d 355, 359 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd) Hodges v. State, 116 S.W.3d 289 (Tex. App.--Houston [1st Dist.] 1999, pet. ref d) Hunter v. State, WL , 12 (Tex. App.--Houston [14th Dist.] 2001) McCarthy v. United States, 394 U.S. 459, 465 (1969) , 9 Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004) , 8 Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978) , 6 Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) cert. denied, 526 U.S (1999) North Carolina v. Alford, 400 U.S. 25 (1970) Payne v. State, 790 S.W.2d 649 (Tex. Crim. App. 1990) , 8 Rainbolt v. State, 2005 WL , *2 (Tex. App.--Houston [14th Dist.] Rivera v. State, 123 S.W.3d 21 (Tex. App.--Houston [1st Dist.] 2003, pet. ref d Rivera v. State, 952 S.W.2d 34 (Tex. App.--San Antonio 1997, no pet.) Solis v. State, 945 S.W.2d 300 (Tex. App.--Houston [1st Dit.] 1997, pet. ref d.) , 8 iv

5 Table of Authorities cont d. Starks v. State, 266 S.W.3d 605, 613 (Tex. App.--El Paso 2008, no pet.) Stone v. State, 951 S.W.2d 205 (Tex. App.--Houston [14th Dist.] 1997, no pet.) , 6 Thomas v. State, 599 S.W.2d 823 (Tex. Crim. App. 1980) Waters v. State, 958 S.W.2df 186, 194 (Tex. Crim. App. 1997) Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997) Wilson v. State, Nos CR, CR, CR, 2006 WL , at *3 (Tex. App.--Dallas Dec. 20, 2006, pet. ref'd) Young v. State, 8 S.W.3d 656 (Tex. Crim. App. 2000) STATUTES TEX. CODE CRIM. PROC. ANN. art TEX. R. APP. P. 33.1(a) TEX. R. APP. PROC. 44.2(a) , 9 v

6 PROCEDURAL STATEMENT OF THE CASE (CASE CHRONOLOGY) CHARGE PLEA PLEA BARGAIN AGREEMENT TRIAL BY JURY JUDGMENT AND SENTENCE VERDICT ON PUNISHMENT MOTION FOR NEW TRIAL NOTICE OF APPEAL Aggravated Assault w/deadly Weapon Offense date: March 18, 1998 Arrest date: March 16, 2007 Indictment: August 10, 1998 (CR.2-3) No contest (RR:2) State agreed to impose a limit of 15 years (CR.38-39) Waived March 8, 2010 (CR.38-39) by Court (CR.44-45) May 3, years (RR:3) June 2, 2010 (CR.49) Overruled by operation of law May 3, 2010 (CR.50) vi

7 STATEMENT OF FACTS Jerome Edwards, ( Edwards ) was charged with aggravated assault with a deadly weapon. Pursuant to a plea agreement that capped Edwards s sentence at fifteen years, he waived a jury trial and entered a plea of no contest. The court then heard the following testimony. Ricky Wesley testified that on March 18, 1998, he had attended a funeral, and then went to shoot pool with Lee Robertson. (RR:3.9). As they entered the pool hall, they saw two other men, Cedric Davis and Dale Henry, engaged in an altercation with four others. (RR:3:9, 16). Wesley knew the four men from pick-up basketball. (RR:3.18). Wesley and Robertson intervened to act as peacemakers. (RR:3.10). Several of the men left, but Wesley stayed. (RR:3.10). Wesley had stepped outside to speak to Davis (RR:3.11) when he saw a car cruise by. (RR:3.11). An AK-47 protruded from the rear window. (R3.11). Wesley said Edwards was holding the gun. (RR:3.11). Wesley advised Davis to move because a shooting was about to occur. (RR:3.11). Davis ran off, but Wesley approached the car to again act as a peacemaker. (RR:3.12). The driver of the other car demurred. (RR:3.12). Wesley then asked if he could be permitted to leave because his car was blocked in. (RR:3.12). Wesley then went to ask Trina Ballard and her mother, who were in a nearby vehicle, to leave. (RR:3.12). Wesley next went to his car to leave. As he drove off, the shooting started. (RR:3.13). He observed Trina Ballard s van get hit by gunfire. (RR:3.13). Wesley returned to check on Trina, and saw that she had been shot. (RR:3.14). The shooters drove away. (RR:3.14). Wesley did not see who did the shooting (RR:3.23) and only saw the one gun that Edwards held. (RR:3.24). -1-

8 Demetria Adams (RR:3.27) was with her daughter,trina Ballard, at the pool hall that night. (RR:3.28). They had come from a funeral (RR:3.28) and were headed to a nearby apartment complex. (RR:3.29). As Adams left the hall, she heard someone she knew as Dalbert say that he was going to get a gun. (RR:3.29, 34). Adams told Trina it was time to leave. (RR:3.35). Adams saw Dalbert go to a nearby car. A gun barrel protruded from the car s rear window. (RR:3.30). She and Trina climbed into Trina s van and ducked down as they saw the gun drawn. (RR:3.30, 35). As Trina put the van in gear to leave, the vehicle was hit by gunshots. Trina and a passenger were hit. (RR:3.30). Trina was instantly paralyzed. (RR:3.31). Theodore Weissenborn of the Dallas Police Department, conducted the police investigation. (RR:3.39). He determined that three men were involved in the shooting, and Edwards was one of the three. (RR:3.40). The other two were subsequently convicted of the offense and spent time in prison. (RR:3.41). Johnsey Vann, a Dallas Police Department Detective (RR:3.45), stopped Edwards s vehicle on March 15, 2007, at a driver s license checkpoint. (RR:3.46). Edwards used the name Jawaun Gee. (RR:3.46). Edwards presented a fake ID and was arrested. (RR:3.47). His true identity was established through fingerprinting. (RR:3.47). He was then linked to the outstanding warrant from the 1998 shooting incident. (RR:3.49). Susan Allen, a firearms examiner, (RR:3.51) said that the casings at the scene, which were comparable, came from one gun. (RR:3.53). She could not rule out multiple weapons, however, (RR:3.57) and was not provided the alleged weapon. (RR:3.58). Trina Ballard, the victim, (RR:3.60) testified in the co-defendants cases. (RR:3.62) As a result of the shooting, Ballard was paralyzed and could not walk. (RR:3.64). No one ever -2-

9 apologized for her injuries. (RR:3.65) The medical bills bankrupted her. (RR:3.66). The Court permitted her to read a prepared victim impact statement. (RR:3.68). She never saw the shooter. (RR:3.72). For the defense, Gerald Baker, Jr. (RR:3.77) testified. He was a former employer of Edwards (RR:3.78) and testified that Edwards worked as a janitor and was dependable. (RR:3.78). Edwards was peaceful and non-confrontational. (RR:3.80). Jerry Robinette, a football coach for Edwards s son (RR:3.83), stated that Edwards was peaceful. (RR:3.84). Eric Don Brown, another coach (RR:3.88), also knew Edwards as a peaceful man (RR:3.88) who helped quell disputes. (RR:3.89). Sammarion Matthews, the mother of Edwards s child (RR:4.7), testified that Edwards treated her other two children as his own as well. (RR:4.7-8). Her relationship with Edwards lasted sixteen years. (RR:4 8). Edwards was a family man and a churchgoer (RR:4.8) who was not abusive or violent. (RR:3.8). She wanted Edwards to get probation. (RR:3.9). Edwards collects social security. (RR:4.13). She was unaware of the warrant. (RR:4.14). She did not know his brother went to prison for six years as a result of the shooting. (RR:4.14). She was unaware of his fake ID. (RR:4.15). Vincent Gee (RR:4.23), Edwards s step-brother (RR:4.23), also stated that Edwards was peaceful and caring. (RR:4.24). He knew his other brother was involved in the shooting (RR:4.26) but was surprised to learn that Edwards was involved (RR:4.26), although he had heard rumors. (RR:4.30). Elizabeth Gee (RR:4.40), a niece, considered Edwards calm and loving. (RR:4.40). Edwards acted like a surrogate father to her son. (RR:4.42). She was willing to help Edwards on -3-

10 probation. Eddy Fulton, a friend (RR:4.47), knew Edwards to be peaceful, law abiding (RR:4.48), and a peacemaker. (RR:4.49). Edwards testified in his own behalf and proclaimed his innocence. (RR:4.70). He was at the pool hall (RR:4.53), where he witnessed a fight involving his brother. (RR:4.54). He and his brother left before the shooting occurred. (RR:4.56). He expressed sympathy for Ballard. (RR:4.58). He never discussed the shooting with his brother. (RR:4.60). He did not know he was a suspect until (RR:4.61). He used a fake ID to avoid arrest. (RR:4.63). Edwards suffers from a near-lupus condition for which he collected disability income. (RR:4.63, 65). On that evidence, the court assessed a fourteen-year sentence. (RR:4.89). This appeal is taken therefrom. POINT OF ERROR NUMBER ONE THE TRIAL COURT ERRED IN FAILING TO WITHDRAW THE APPELLANT S PLEA SUA SPONTE WHEN TESTIMONY RAISED A LEGITIMATE CONCERN ABOUT THE FACTUAL BASIS FOR THE PLEA. Relevant Facts Edwards testified in his own behalf and proclaimed his innocence. (RR:4.70). He was at the pool hall (RR:4.53), where he witnessed a fight involving his brother. (RR:4.54). He and his brother left before the shooting occurred. (RR:4.56). He never discussed the shooting with his brother. (RR:4.60). He did not know he was a suspect until (RR:4.61). -4-

11 Standard of Review The duty to ensure that a plea is based upon competent evidence is part and parcel of the constitutionally required determination that the guilty plea was truly voluntary. McCarthy v. United States, 394 U.S. 459, 465 (1969); North Carolina v. Alford, 400 U.S. 25, (1970). Constitutional error is reviewed pursuant to Texas Rule of Appellate Procedure 44.2(a). Under Texas law, if a jury has been waived,...a defendant shall not be convicted of a felony offense upon his plea without sufficient evidence to support the same. TEX. CODE CRIM. PROC. ANN. art. 1.15; Young v. State, 8 S.W.3d 656, (Tex. Crim. App. 2000). The State has the burden to prove the offense by introducing sufficient evidence to support the conviction. Young, 8 S.W.3d at 661 n. 9; Hodges v. State, 116 S.W.3d 289, 295 (Tex. App.--Corpus Christi 2003). Abuse of Discretion The trial court has discretion to withdraw the plea sua sponte in a bench trial. See Graves v. State, 803 S.W.2d 342, 346 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd). A trial court's decision whether to withdraw a plea of guilty or nolo contendere is reviewed under an abuse of discretion standard. Griffin v. State, 703 S.W.2d 193, 197 (Tex. Crim. App. 1986) (op. on reh'g); Stone v. State, 951 S.W.2d 205, 207 (Tex. App.--Houston [14th Dist.] 1997, no pet.). When a Plea Must Be Withdrawn In Moon v. State, 572 S.W.2d 681 (Tex. Crim. App. 1978), the Court of Criminal Appeals held that a trial court is not required to sua sponte withdraw a plea of guilty for a defendant when the defendant waives a jury trial and enters a plea of guilty, even if evidence is cited that might raise an issue of fact as to the defendant s guilt. Id. at 681; Hargrave v. State, 10 S.W.3d 355, 359 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd) (holding that trial court not required to -5-

12 withdraw a guilty plea sua sponte after bench trial even if evidence makes defendant's innocence evident). The trial judge, as the trier of the facts, may decide the issue, without withdrawing the plea, either finding the defendant not guilty or guilty as he believes the facts require. Thomas v. State, 599 S.W.2d 823, 824 (Tex. Crim. App. 1980). This is because the judge is free to make any finding based on the evidence before her--guilty, not guilty, or guilty of a lesser-included offense-regardless of the plea. Rainbolt v. State, 2005 WL , *2 (Tex. App.--Houston [14th Dist.] 2005; see also Griffin v. State, 703 S.W.2d 193, 197 (Tex. Crim. App. 1986) (op. on reh'g); Rivera v. State, 123 S.W.3d 21, (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd); Solis v. State, 945 S.W.2d 300, (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd); Graves v. State, 803 S.W.2d 342, 346 (Tex. App.--Houston [14th Dist.] 1990, pet. ref'd); Rivera v. State, 952 S.W.2d 34, 35 (Tex. App.--San Antonio 1997, no pet.). A trial court is not required to withdraw a defendant's plea of guilty or no contest after it has adjudicated the defendant's guilt or has taken the case under advisement, even if evidence is later admitted raising an issue as to the defendant's guilt. Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978); Solis, 945 S.W.2d at 302. Ordering a PSI constitutes taking the case under advisement. Stone v. State, 951 S.W.2d 205, 207; Hunter v. State, 2001 WL , *1 (Tex. App.--Houston [14 Dist.] 2001). Nonetheless, the Court should not entertain a plea if the defendant's testimony raised an issue about the voluntariness of his guilty plea. Payne v. State, 790 S.W.2d 649 (Tex. Crim. App. 1990). -6-

13 Waiver In Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004), the Court of Criminal Appeals held that a guilty plea may not be withdrawn without a specific, timely request at trial. [TEX. R. APP. P. 33.1(a)]. A defendant's right to plead not guilty is a waivable right. Mendez, 138 S.W.3d at Absent a request to withdraw a guilty plea, a defendant cannot raise the voluntariness of his plea for the first time on appeal despite punishment evidence received by the trial court that may raise an issue as to his guilt. Mendez, 138 S.W.3d at 344. Similarly, the Dallas Court of Appeals has held that once a defendant has been fully admonished of his rights following his plea of guilty, he may not raise the issue of voluntariness for the first time on appeal, despite punishment evidence suggesting he did not understand an element of the offense, without first asserting that complaint to the trial court. See Wilson v. State, Nos CR, CR, CR, 2006 WL , at *3 (Tex. App.--Dallas Dec. 20, 2006, pet. ref'd) (not designated for publication). When a defendant fails to contest in the trial court the voluntariness of his guilty plea, he may not raise the issue for the first time on appeal. Starks v. State, 266 S.W.3d 605, 613 (Tex. App.--El Paso 2008, no pet.); Hall v. State, No CR, 2010 WL , at *4 (Tex. App.--El Paso Feb. 24, 2010, no pet.) (designated for publication). Bradshaw v. Stumpf The absolute requirement of a contemporaneous objection is at odds with the constitutional requirements of a voluntary plea as discussed in Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). There, the Supreme Court stated: -7-

14 [A] guilty plea would indeed be invalid if [the defendant] had not been aware of the nature of the charges against him, including the elements of the aggravated murder charge to which he pleaded guilty. A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences. Brady v. United States, 397 U.S. 742, 748 (1970). Where a defendant pleads guilty to a crime without having been informed of the crime's elements, this standard is not met and the plea is invalid. Henderson v. Morgan, 426 U.S. 637, (1976). Nothing in Bradshaw supports the conclusion that a contemporaneous objection is necessary for a review of the voluntariness of the plea. In light of Bradshaw, the Mendez analysis cannot obtain. Application of Law to Facts Here, Edwards clearly and consistently maintained that he had no involvement in the shooting. Edwards did not assault the complainant and was not present when the shooting occurred. When questioned about the offense, he repeated his denials. Therefore, unlike Solis v. State, 945 S.W.2d 300, 302 (Tex. App.--Houston [1st Dist.], 1997) wherein the conflicting evidence was raised only through the PSI, Edwards s testimony demonstrated that his plea was , 1998 WL , *3 (Tex. App.--Beaumont, 1998). The case represents more than an equivocating defendant. Edwards refused to admit any liability whatsoever. When asked, he denied his guilt and presented additional testimony in support of his innocence. Under Payne, the facts before the Court were sufficient to raise a legitimate concern about the voluntary nature of his plea. The Court fell into error by not withdrawing the plea. not supported by competent evidence. Solis, 945 S.W.2d 300; see also Waters v. State, No

15 Harm A harm analysis is required to determine whether the error calls for reversal of the judgment. TEX. R. APP. P The harm in accepting an unknowing plea is constitutional in nature. See TEX R. APP. P. 44.2(a) (constitutional standard). McCarthy, 394 U.S Accordingly, this Court must reverse the trial court's judgment unless it is determined beyond a reasonable doubt that the error did not contribute to Edwards's conviction or punishment. TEX. R. APP. P. 44.2(a); see Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). In applying the harmless error test, the question is whether there is a reasonable possibility that the error might have contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998), cert. denied, 526 U.S (1999). In this matter, the Judge assessed a fourteen-year penitentiary sentence because he disbelieved Edwards s protestations of innocence. A new trial is required. PRAYER WHEREFORE, premises considered, Appellant prays that this court will remand the case to the trial court for a new trial. -9-

16 Respectfully submitted, BRUCE ANTON STATE BAR NO Sorrels Udashen & Anton 2311 Cedar Springs Road, Suite 250 Dallas, Texas / / facsimile CERTIFICATE OF SERVICE This is to certify that a true and correct copy of Appellant s brief was served on the Assistant District Attorney of Dallas County, Appellate Section, 133 Riverfront Boulevard, LB19, Dallas, Texas 75207, via regular mail on the 17th day of December BRUCE ANTON -10-