Carell, Michael Dewayne
PD-1109-15
| Tex. App. | Oct 29, 2015Background
- Carell was convicted by a jury in Tarrant County of aggravated robbery and sentenced to 50 years’ confinement.
- Evidence linked Carell to the offense via Smith’s testimony, rings sold at Amy’s Gold and Silver, and a business card and receipts found in Carell’s possession.
- Witness identifications included tentative in photo lineups and open-court identification by S.B. and Soto, with corroborating electronic records connecting calls to Smith.
- The 11th Court of Appeals affirmed the conviction; the case was transferred from the 2nd COA pursuant to a Supreme Court order, with waiver arguments under Tex. Gov’t Code §54.657.
- Carell claimed error in jury-voir dire referral to an unelected magistrate and Petitioner asserted ineffective assistance of counsel and insufficient evidence.
- The court held that the magistrate issue was waived for failure to object, and affirmed the trial court’s judgment on all issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of magistrate referral issue | Carell (Carell) argues magistrate lacked authority due to no referral order. | State contends waiver applies because no objection was raised. | Waived; 11th COA correctly applied Fort Worth precedent. |
| Ineffective assistance of counsel | Carell asserts counsel failed on multiple trial tactics, including voir dire and cross-examination. | State argues no deficient performance and no prejudice shown under Strickland. | No reversible error; Strickland standard not met. |
| Sufficiency of the evidence | Carell contends insufficient link to the robbery given some witness identifications and physical evidence. | State maintains circumstantial and testimonial evidence reasonably connected Carell to the offense. | Sufficient evidence supports conviction. |
| Conflict with systemic rights on referral | Carell contends Mendez v. State establishes a systemic right to referral that cannot be waived/forfeited. | State relies on Nash/DeLeon line to argue waiver when no objection is raised. | Waiver applies; no reversal based on systemic-right argument. |
Key Cases Cited
- Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004) (magistrate referral is a systemic right that cannot be waived)
- Ex parte Pardun, 727 S.W.2d 131 (Tex. Crim. App.-Dallas 1987) (referral order required for magistrate; systemic right)
- Nash v. State, 123 S.W.3d 534 (Tex. App.—Fort Worth 2003) (preservation of objection required to challenge magistrate referral)