COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS CASE NO. 05-09-00617-CR ANGEL DANIEL CARDONA, Defendant-Appellant v. STATE OF TEXAS Plaintiff-Appellee. APPEAL FROM COUNTY CRIMINAL COURT #2 OF DALLAS COUNTY, TEXAS JUDGE FRIZELL SITTING FOR JUDGE BOWERS BRIEF OF DEFENDANT-APPELLANT ORAL ARGUMENT REQUESTED MICHAEL C.LOWE Texas Bar No. 24007573 700 N. Pearl Street Plaza of the Americas, N. Tower Suite 2170 Dallas, Texas 75219 214.526.1900 214.969.0258 (Facsimile) Attorney for Angel Daniel Cardona Defendant-Appellant
IDENTITY OF PARTIES AND COUNSEL Plaintiff-Appellee: State of Texas Trial Counsel: Assistant District Attorney, Travis Wiles Dallas County District Attorney's Office 133 N. Industrial Blvd. LB 19 Dallas. Texas 75201 Appellee Counsel: Assistant District Attorney Michael Casillas Dallas County District Attorney's Office 133 N. Industrial Blvd., LB 19 Dallas, Texas 75201 Defendant-Appellant: Angel Daniel Cardona Trial Counsel: Michaela Himes. Public Defender Dallas County Public Defender's Office 133 N. Industrial Blvd.. 9th floor Dallas. Texas 75201 Appellant Counsel: Michael C. Lowe Board Certified - Criminal Law Texas Board of Legal Specialization State Bar No. 24007573 700 N. Pearl St., Suite 2170 Dallas. Texas 75201 Phone: (214)526-1900 Facsimile: (214)748-4348
TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL ii TABLE OF CONTENTS iii INDEX OF AUTHORITIES iv STATEMENT OF CASE 1 ISSUE PRESENTED 1 STATEMENT OF FACTS 2-3 SUMMARY OF THE ARGUMENT 3 ARGUMENT 3-7 PRAYER 7 CERTIFICATE OF SERVICE 8 in
INDEX OF AUTHORITIES Cases Haddadv. Slate, 860 S.W.2d 947,954 (Tex.App.-Dallas 1993, writ refd) Stahl v. State, 749 S.W.2d 826, 830 (Tex.Crim.App.1988) Hodge v. State, 488 S.W.2d 779, 781-82 (Tex.Crim.App.1972) LandlJ1v. State, 706 S.W.2d 105, III (Tex.Crim.App.1985) Page 3,4,5,6 4 4 4 IV
STATEMENT OF CASE Angel Daniel Cardona ("Appellant") was arrested on May 13.2007 and charged by information with Class "B" misdemeanor Driving While Intoxicated. Appellant plead not guilty and elected to be tried by a jury. Appellant's trial counsel obtained a pre-trial ruling from the Trial Court wherein the Court instructed the Assistant District Attornev. ~ Travis Wiles ("Mr. Wiles") to first approach the bench before offering any physical evidence. Without notice to the Court or to Appellant's Trial CounseL Mr. Wiles elicited testimony from Officer Michael Bryan ("Officer Bryan") that State's Exhibit Number One \vas a bar tab retrieved from Appellant's front pocket. The Trial Court sustained Appellant's timely objection and instructed the jury to disregard Officer Bryan's previous testimony and denied Appellant's Motion For Mistrial. Appellant was convicted on April 24.2009 and sentenced to 24 months community supervision and a $750.00 line. Appellant timely tiled Notice of Appeal and Motion For New Trial. ISSUE PRESENTED Does a prosecutor's refusal to comply \\lith a Trial Court's pre-trial order to approach before offering physical evidence amount to prosecutorial misconduct wherein the prosecutor intentionally elicited inadmissible and prejudicial testimony from a witness regarding the physical evidence?
STATEMENT OF FACTS Angel Daniel Cardona ("Appellant") was arrested on May 13.2007 and charged by information with Class "B" misdemeanor Driving While Intoxicated. Appellant plead not guilty and elected to be tried by a jury. At a pretrial hearing. Appellant requested a court ruling on his pre-trial motion. In particular. the court granted request number eight which requested a sub rosa hearing concerning the admissibility of any physical evidence prior to said evidence being offered by the State of Texas. See C.R. Vol. I. p.20: R.R. Vol.lI. p.127. line 16. Prior to granting this request. the Court also made certain that the State's attorney. Mr. Wiles. had read and did understand Defendant's Pre-Trial Motion. See R.R. VoU!. p.124. Without notice to the Court or to Appellant's Trial Counsel. Mr. Wiles elicited testimony from Officer Michael Bryan ("Officer Bryan") that State's Exhibit Number One was a bar tab retrieved from Appellant's front pocket in violation or the Court's pre-trial order concerning Defendant's request number 8. See R.R. Vol.lI. p.162. lines 3-7. Defense counsel renewed her previous objection concerning the physical evidence made pre-trial "off of the record". See R.R. Vol.1l, p.162, line 25. The record in this case was supplemented \V ith an aflidavit from Appellant's trial counsel concerning the nature of the objection she made off of the record. See C.R. 2nd Supplemental Vol.l, p. 21. Trial counsel preserved error by objecting that Mr. Wiles had committed prosecutorial misconduct by intentionally violating thc court's pre-trial ruling. The Trial Court slistained Appellant's timely objection and instructed the jury to disregard Officer Bryan's previolis testimony. Mr. Wiles subsequently reminded the jury 2
of the inadmissible bar tab by asking the Officer Bryan about where the pre'viously referenced State's exhibit number one came from and how he \vas able to obtain it. See R.R. Vol.II. p.163,lines 9-25 & p.164, lines 1-8. Appellant was convicted on April 24. 2009 and sentenced to 24 months community supervision and a $750.00 fine. Appellant timely tiled Notice of Appeal and Motion For New Trial. SUMMARY OF ARGUMENT Prosecutorial misconduct is reversible error and would entitle a Defendant to a new trial when all of the following three conditions are met: (I) the Defendant objected to the prosecutor's conduct, (2) the prosecutor's actions deliberately violated an express court order. and (3) the prosecutor's misconduct was so blatant as to border on being contumacious. Haddadv. State. 860 S.W.2d 947,954 (Tex.App.-Dallas 1993. writ rerd). Mr. Wiles \vas clearly a\vare of the Court's prior ruling requiring a sub rosa hearing before offering any physical evidence. Notwithstanding the courts clear ruling. Mr. Wiles invited his witness. Officer Bryan. to testi ty concerning the contents of an unadmitted and inadmissible piece of physical evidence without first approaching the bench. Mr. Wiles' stubborn refusal to adhere to the court's pre-trial ruling amounts to prosecutorial misconduct and is reversible error. ARGUMENT The Court should examine each claim of prosecutorial misconduct on a case-by- 3
case basis. Slahl v. State. 749 S. W.2d 826. 830 (Tex.Crim.App.1988). Texas Courts typically not only look at the facts of each case. but also consider the probable effect on the jurors' minds. Haddad v. State. 860 S. W.2d 947. 954 (Tex.App.-Dallas 1993. writ ret'd) (citing Hodge v. State. 488 S. W.2d 779. 781-82 (Tex.Crim.App.1972)). The Court of Criminal Appeals has reversed \vhen (I) the defendant objected to the prosecutor's conduct. (2) the prosecutor's actions deliberately violated an express court order. and (3) the prosecutor's misconduct \vas so blatant as to border on being contumacious. ld. (citing Slahl. 749 S. W.2d at 831; Land,~v v. Slate. 706 S. W.2d 105. II I (Tex.Crim.App.1985)). Prosecutorial misconduct may be shown where the prosecutor's conduct is calculated to inflame the minds of the jury. See Stahl. 749 S.W.2d at 832. At a pretrial hearing in this matter. Defendant Cardona requested a court ruling on his pre-trial motion. In particular. the court granted request number 8 which requested a sub rosa hearing concerning the admissibility of any physical evidence prior to said evidence being offered by the State of Texas. See C.R. Vol. I. p.20; R.R. VoUI. p.127. line 16. Prior to granting this request. the Court also made certain that the State's attorney. Mr. Wiles. had read and did understand Defendant's Pre-Trial Motion. See R.R. VoUI. p.124. During the testimony phase. Mr. Wiles elicited certain testimony from Officer Mike Bryan in violation of the Court's pre-trial order concerning Defendant's request number 8. In particular. Mr. Wiles approached Officer Bryan and showed him State Exhibit number one and immediately asked him what it \vas. See R.R. VoUI. p.162. 4
lines 3-5. Before Appellant's trial counsel had an opportunity to rene\v her objection. Officer Bryan testi tied "This is a bar tab I pulled out of his front pocket." See R.R. VoU!. p. I 62, lines 6-7. Defense counsel renewed her previous objection conceming the physical evidence made pre-trial. "off of the record". See R.R. Vol.I I. p.162. line 25. The Court then sustained Defendant's "oltthe record" objection. denied Defendant's request for a mistrial and then instructed the jury to disregard the previously elicited testimony referenced herein above. The record in this case was supplemented with an affidavit from Appellant's trial counsel conceming the nature of the objection she made off of the record. See C.R. 2nd Supplemental Vol.L p. 21. Trial counsel preserved error by objecting that Mr. Wiles had committed prosecutorial misconduct by intentionally violating the court's pre-trial ruling. Prosecutorial misconduct can be reversible error \vhen all of the following three conditions are met: (1) the Defendant objected to the prosecutor's conduct, (2) the prosecutor's actions deliberately violated an express court order. and (3) the prosecutor's misconduct was so blatant as to border on being contumacious. Haddad v. State. 860 S.W.2d 947, 954 (Tex.App.-Dallas 1993. writ refd). In this case, Mr. Wiles was clearly aware of the request to have a hearing before admitting any physical evidence. Nonvithstanding the courts very clear ruling. Mr. Wiles invited his witness. Officer Rryan. to testity conceming the contents of an unadmitted and inadmissible piece of hearsay physical evidence without even attempting to have a sub rosa hearing conceming its admissibility. Mr. Wiles' stubbom refusal to adhere to the court's pre-trial ruling in 5
this regard amounts to the type of prosecutorial misconduct that should result In reversible error. Although the misconduct demonstrated in this case clearly meets all of the three prongs in Haddad. this court must also consider the likely effect that such misconduct had on the minds of the jurors. It is true that the Court eventually instructed the jury to disregard the improperly elicited testimony of Officer Bryan concerning the inadmissible bar tab. See R.R. YoI.II, p.163. lines 6-8. However, Mr. Wiles subsequently reminded the jury of the inadmissible bar tab by asking the Officer Bryan about where the previously referenced State's exhibit number one came from and how he \vas able to obtain it. See R.R. YoUr. p.163, lines 9-25 & p.164, lines 1-8. That is, after the court had instructed the jury to disregard Officer Bryan's description of State's exhibit number one as a bar tab found in Defendant's front pocket, Officer Bryan repeatedly testified that State's exhibit number one came from Appellant's front pocket. In fact, the Court did nothing to ensure that it's instruction would be curative. Because we cannot simply assume that the court's instruction to disregard had any curative effect, \ve should consider the likely effect Officer Bryan's testimony had on the minds of the jurors. Officer Bryan testified that Appellant wasn't being truthful when he stated that he had nothing to drink shortly before his arrest for Driving While Intoxicated. See R.R. Yol.TI, p.147.lines 1-8. In closing argument. Mr. Wiles emphasized that Appellant had not been truthful with Officer Bryan about his drinking alcohol on the night of his arrest. See R.R. YoUII. p.23. lines 22-24. Of/icer Bryan's testimony that 6
State's exhibit number one, the bar tab folllld in Appellant's fron t pocket, is the only contradictory evidence ta ken [rom Appellant. Appell ant never testifi ed and the record docs not show any other statement made by Appellant contrary to his statement to Officer Bryan wherein he denied having consumed any alcohol before his eventual arrest. Therefore, the jury cou ld easily have used their knowledge of th e bar lab referenced by Officer Bryan to show Appellant was not truthful with Officer Bl)'an and he had consumed alcohol at a bar before his arrest. Without an effective curative instruction. Officer Bryan's improper test imony did in ll ame the minds of th e jury. These statements concerning State's Exhibit number one were clearly ca lculated with the purpose of showing Appellant to be a liar and to show that he did come from a bar and had alcoholic beverages at the bar. PRAYER In accordance with the foregoin g argument. this COLllif should reverse the judgment and order a new trial. Michael C. Lowe Board Certified - Criminal Law Texas Board of Legal Speciali za ti on Statc Bar No. 24007573 700 N. Pearl S1.. Suite 2 170 Dallas, Texas 75201 Phonc: (2 14) 526-1900 Facsimile: (214) 748-4348 7
CERTIFICATE OF SERVICE This wi ll certify that a true and correct copy orlhe foreg ing document has been mailed to counsel for Appellee. Assistant District Attorney Michael Casil las. Dall as County Distri ct Att orney's Office. 133 N. Ri verfront 19. Dallas. Texas 75 20 I 011 this the 121h da y of February. 20 10. Michael C. Lowe 8