Case Information
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151-15
No. 08-11-00317-CR ORIGINAL Court of Criminal Appeals of Texas Capital Station, Austin, Texas RECENTHER EN COURT OF CRINHAL APPEALS Johnny Green us. The State of Texas MAY 012015 Abel Acosta, Clerk FILED IN COURT OF CRIMINAL APPEALS On Petition for Discretionary Review from the Eighty Court of Appeals in Appeal*08-11-00317-CR Adfieming the Conviction in Case" 118947HD from 372nd Judicial District Court of Treadut County, Texas
Appellant's Petition For Discretionary Review
Johnny Green TREN 01738876 Mark Stiles Unit 3060 FM 3314 Berumunt, Texas 77705 Appellant, FIn Se.
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Index
Index
List of Authorities Name of All Poeties Sinterment Requealing Dea/Argument
Anremont at the Case
Boceoued History
Ground the Review 1
The Tein/Couet Eerdero in holding the evidence To be Legally sufficient to sustain the conuiction of the Appellant because the evidence was insufficient to estralism that the appellant do it commit the affense of murderer. (RR. Vol. IVpp. 27-43; Vol. Vpp. 9-255, Vol. VI pp. 9-215) Genuino the Review 2 It was neuse of Discreting the the Tain/ Couer to Overwile Appellants Rule 403 Tex.R. Eird. Objectinn. (RR V. pp. 137-138)
*3 Genuno fira Review-3 I was Abuse of Discretions the Teial Couet To Overcule Appellants Rule 403 Tex.R.Evid. Objection. (RR.V.pp. 141 ) Genund fira Review 4 It was Abuse of Discretions the Teial Couet To Overcule Appellants Rule 403 Tex.R.Evid. Objection (ER Vol.V.pp. 189-192) Genund fira Review 5 It was Abuse of Discretions the Teial Couet To Overcule Appellant's Rule 403 Tex.R.Evid. Objection (RR Vol.V. pp. 209-211) Genund fira Review 6 It was Abuse of Discretions the Teial Couet To Overcule Appellants Rule 403 Tex.R.Evid. Objection (RR. Vol.Vpp. 229-230) Genund fira Review 7 It was Abuse of Discretions the Teial Couet To Overcule Appellant's Rule 401 Tex.R.Evid. Objection (RR. Vol.V. pp. 233-234)
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Exerued the Review 8: It wins House of Discretions the the Taini Court To Overaale Appellants Rule 403 Tex.R.Evid. Objection. (RR. Vol. VI p. 22).
Genued the Review 9:
It wins Abuse of Discretions the the Taini Cunert To Overaale Appellants Rule 403 Tex.R. Evid. Objection. (RR Vol. VI p. 198).
Summary of Recurrent Fenver the Relief Sumen Declarations Certificate of Jervice Appensix (Cuner of Appent's Opinions)
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List of Avermesties
Cases ..... pAges Ares v. Srnte 644 S.W. 2d 843,845 ..... Eerzo v. Srnte 144 S.W. 3d 6488 (Tex. Ceim. App. 2004) ..... Mentivez v. Srnte 22 S.W. 3d 504,507 (Tex. Ceim. App. 2000) ..... 6 Moff v. Srnte 131 S.W. 3d 8488 ..... 6 Montgomery v. Srnte 810 S.W. 2d 372 (Tex. Ceim. App. 1991) ..... Phillips v. Srnte 297 S.W. 2d 6135 ..... Richic v. Srnte 149 S.W. 3d 6857 (Tex. App. Ammeilln 2004) ..... Warsaw v. Srnte 160 S.W. 3d 628-29(Tex. App. When 2005) ..... Williams v. Srnte 275.W.3d 602-603(Tex. App. When 2000) ..... 6 Zumiga v. Srnte 144 S.W. 3d 477 (Tex. Ceim. App. 2004) ..... Codes, Rules, and Structures Peanl Code 397.02 (6)(1),(2) ..... Rule 38.1 Tex.R.App.P. ..... V. Rule of Evid. Rule 103 (n)(1) ..... 6 Texas Rule. App. P. 33.1 (n)(1)(a) ..... 6 Texas Code of Ceim. Proc. Ass. Atticle 38.03 ..... Tex. Rule. Evid. 401 ..... 6 Tex. Rule. Evid. 403 ..... Texas Peunl Code 36.03 (n),(b) .....
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Name of All Poeties
Riesumet in Rule 38.1, Tex.R.App. P., the following is a complete listing of all poeties in the teial ouners final sndgement and their counselin the teial ouner.
Appellant: Jounny Green Je. Complaintant: Hounanble Judge Jne Shamanu Je. Appellant Teial Counsel: J. Wharen St. John
Share Teial Counsel: Robert K. Gill Sheael L. Wagner Teial Judge: Sall Wisch Appellant Counsel on Appal: J. Warren St. John Stares Counsel on Appal: Debra Ann Windsoe
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Statement Requesting Oral Argument
Appellant does not request oral argument as the decisional process of this Court would not be significantly aided by oral argument since the facts and legal arguments are adequately presented in the fétition submitted to this Court by the Appellant.
The appellant does not request oral argument, if the state does so. Other than that he does not.
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Statement ofCase
Appellant was conuicted, as cunages oy indictment of muader in Chuse "11994740 in the 372 nd Disraict Cunat of Tireant County, Texas, The Hounenble Judge Jenth blisch presiding. On August 23 sel 2011, appellant plena not guilty to atrense cunages in indictment. A zuey tainl was held and appellant was tnivel guilty as cunages. Appellant uns sentenkeo to Litle in the Texas Department of Criminal Justice, with a 110, 1000 tine. Appellant tinnely titeo a Motion the New Tain I and a Notice of Appenl.
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Pereeoual History
Appellant was found guilty of muader Cause in the 372nd Judicial District Cuet, Taranst County, Texas. Appellant Theo Matian the Nattice of Appeal on 8/31/11. Appellant appenleo in 820 Cuet of Appeal in El Asa, Texas, Cause which issued a Memorandum Opinion on, Nov. 22nd 2013, Afiaming appellant's conviction. Appellant now Dies his Pen Se fettitism for Disarefinisay Review.
*10 The Trial Court Errarea in holding the evidence to be legally sufficient to sustain the conviction of the Appellant because the evidence was insufficient to establish that the Appellant oin to commit the offence of munder. (RE. Vol. Wpp. 27-63; Vol.V.pp.9-255, Vol. VIpp.9-215)
Argument and Authorities: It is well recognized principle of law in this state that, to sustain a conviction, it should appear naturally that an offence as changeo has been committed, but there should also be proof to a degree of certainty greater than a mere peribability or strong suspicion tending to establish that the party changeo was the present who committed it or was a participant in its commission. There, must be legal and competent evidence permanently identifying the determinant with the transaction constituting the offence changeo against him. See Ares v. State 6443.W.2d 843, 845 (citing Ph.IIps v. State 297.5.W. 2d 8155).
The jury connected the Appellant of munder. A person is guilty of munder if he (i) intentionally or knowingly cause the death of another relative or (e) interests to cause seriously end, by injury and commits an act dangerously to human life, that causes the death of an individual. See Tex. Penn/Code 319.02(e)(c), (e).
Citing Richie v. State 1493.W.3d 857 (Tex. App. Amarillo 2004). The sative requires the because to have also a particular minetset or the prohibito result. Given this it is erene to inform the sary that it can convict one of the offence if it finds the occasion netzo either intentionally or knowingly with required to the conviber that untimely tend to the result. See Tex. Penn/Code 36.03(a); Tex. Penn/Code 36.03(b).
*11 The evidence oio not legally support the consuctions of muadere. The evidence olenely places appellant at the seene of cerime out un evidence shows He committeto the net of muatore. Tex. Code of Cerminal Procedures. Anw. Article 38.03; which penvides that un precond may be convicted of an atterise unless enen element is pervided expond a reasonable coust. Evidence is factually insufficient to support a veectict. Se. Zuniga v. State 14/3.4/3d/477(Tex. Caim. App. 2004); Martow v. State 1603.4.3d@628-29(Tex. App. When 2005) (Ex. Vol. 27-63; Vol. V. pp.9-255; Vol. VI pp.9-215)
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Grounds : It was Abuse of Discretion the Teial Court To Overrule Appellants Rule 403 Tex. Rule. Evid. Objection. (RR. Vol. Vpp. 137-138; Vol. V.p. 141; Vol.V.p. 189-192; Vol. Vpp. 209-211; Vol.V.pp. 229-230; Vol. VI p. 22; Vol. VIp. 198)
Arguments and Authorities:
Rule 403 of Texas Rule of Evidence provides the following: Although eelevent, evidence maybe excluded if it's penante values is substantially outweighes by the orrger of unddie prejudice, confusion of the issues, or misleadiag the juay, or by considerations of undue delay, or needess presentation of cumulative evidence. Rule 403 creates a presumption of admissibility of all relevant evidence and authorize a teial judge to exclude such evidence only when there is a "clear dispenity, eetween the degree of prejudice of the atferent evidence and it's probative value." Ground Two: The appellant's objection should not have been overruled due to the fact that the beick useo in the attense was ircelcvent because it did not obtaim any DNA by the appellant. As well as the flect that the cause of death was suflacation. (RR. Vol.V. pp. 137-138).
Ground Three: The appellant's objection should not have been overruled due to the fact that the blood swab from the street, cueb, or gersstive doesn't indicate the appellant committee the crime. The phoтns and buccal swabs was irrelcvent because it never proved appellant committee the offense. (RR. Vol. V.p. 141)
*13 Grenuno Five: The appellant's objection should not have been overruled due to the fact that the appellant was an trial for munder so it was irrelevant to present DNA test from appellant. It shoued at some point appellant had contract with the victim but it did not prove he was the killer. (ER. Vol.V.pp. 189-192). Grenuno Five: The appellant's objective should not have been overruled due to the fact that the blue pants found near the body was irrelevant because it does not prove appellant removed them. She does it prove appellant committed the crime. (ER. Vol. Vpp 209-211). Grenuno Six: The appellant's objection should not have been overruled due to the instruction of, swab, from beick, Hais from beick, Hais from panties, swab from curb, swab from sandals, Hais from sea, and finger nail cuttings. Neither item links to the appellant and misled juey to believe it did. Therefore it left each item to remain irrelevant to both appellant and trial. (ER. Vol. V. pp. 229-230). Grenuno Eight: The appellant's objection to the TANe TOp and one piece TOp should not have been overruled due to the fact that it was irrelevant dueingy trial because it persuaded juey to believe it was removed due to a sexual attempt on victim. As well as the fact that it did not pretain to the offense of murder. (ER. Vol. VI.pp. 22) Grenund Nine: The appellant's objection should not have been overruled due to the fact that buccal swab kit from San Callaway led juey to believe it was a different person. Therefore it was irrelevant to present DNA test of San Callaway to the juey because it only confused them. (RR. Vol. VI. p. 198).
*14 Citing Erara v. Strte 144 3.W. 3d 4876488 (Tex. Ceim. App. 2004) "Srates that photographs is inndmissible uneler 403 if it is substantially more prejudical than penbative." As they were.
The count oio not conduct a balancing test as is required by Rule 403. The Thial Cuurt Rouseo it's Discretions of allowing the introduction of the evidence. See Montgomery v. Srate 810 3.W. 2d 372 (Tex. Ceim. App. 1991) (Ex Vol. V.pp. 137-138; Vol. Vp.141; Vol. Vpp. 189-192; Vol.Vpp. 209-211; Vol. V.pp 229-230; Vol. VIp. 22; Vol. VI.p. 198) Appellant recieveo life in pensom. Reveasal is requiredo.
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GROUND 1:
It was Amsuse of Disertion for The Trial Court To Overrule Appellants Rule 401 Tex. R. Evid. (ibjection (RRVal.V.pp 232-234)
Argument and Authorities:
Jury was misled by Ms. Lopez's testimony that twice fiumo at crime scene was useo no allegor weapon on deceased. But the evidence was irrelevant due to the fact that there was no evidence such as DNA that suppoets the fact that appellant useo the brick on the victim. "Relevant Evidence "meaning have any tendency to make the existence of any fact that is of consequence to the action more perennble or less pernbable than it would be without evidence. (Tex.R. Evid. 401) And Ms. Lopez's testimony did not uphold that.
Citing Martinez v. State 223.W.3d 504, 507 (TEx. (kim. App. 2000) To preserve error, regulnating the Admission of Evidence, a defendant must lndge a timely and specific objection. The purpose of Requiring the objection is to give to the trial court or the other party the opportuity to correct the error or remove the basis the the objection. See Rules of Evidence, Rule 103(A), (i); Williams v. State 273.W.3d@ 602.603 (Tex. App. (1) 2000)
To preserve a complaint for appellant review the complaining pnaty must lndge a timely and specific objection stating the geninets with sufficient clareity to Advise the teia court of the basis for the complaint. See Tex.R.App.P.33.(A) (i)(A); Wolff. State 1313.W.3d. 6488 .
Appellant timely objective to Ms. Lopez's testimony, and the teia court overruled appellants objection. (ER. Val.V.pp. 232-234)
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Summary of Requimert
The trial Cuurt erreo in Holding the evidence in be sufficient to sustain the conviction of the Appellant because the evidence was insufficient to establish that the Appellant has committed the atense at punder. The appellant has established it was Abuse of Discretion for the trial Cuurt to Overrule Appellants Rule 403 Tex.R.Evid. Objections. Furthermore, the appellant was prejudices by allowing the testingly effice the jury of Sunday's lopez as it relates to the relevance of placing ericle pieces together deseo on her intexpectation of How they should go.
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Prayer for Relief
Appellant has presented nine prints of Eerene, any of which, I sustaineo, would whenant reversal of the case. Appellant therefore prays that his conviction be overturned with the instructions that the rain/ourent agnst Appellant of all clanges against him.
Alternatively, Appellant request reversal of the conviction against him and nanured thus eemured in the rain/ourent the new rain/. Finally, Appellant requests fracture relief either in house in equity in which he is justly entitled.
Respectilly Submitted Gebiean Johny Green Stiles Unit 3060 PM 3514 Benumanit Texas 777705
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Suman Decibartins
I, Jinnuy Green TDCJ" 01738876 , Decibne undere penatry of Reyivay that the beegning Retitins is Tene and Coerect in the best of my bunulledge. Executed on the 23 eay of Apeil 2015.
Gekreen Johnuy Greend TDCJ"OI738876 Petitioner Pen D
Cerificare of Eravice
I there of ceetity that a true and cnerect copy of the beegning Retitions the Discretianney Review, Has beeu bresmeded by U.S. mail, postage pre pind, Best class to the Cuet of Caiminal Appents, Able Anosta, Cteak; at P.O. Box 12308, Cnpital Station, Austin, Texas 78711 and State Rnsecuting Attomney, P.O. Box 12405, Austin, Texas 78711 on this oate. 23 ed ony of Apeil 2015
Gekreen Johnuy Greend TDCJ*61738876
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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
JOHNNY GREEN, JR., Appellant, v.
THE STATE OF TEXAS, Appellee.
No. 08-11-00317-CR Appeal from the 372nd District Court of Tarrant County, Texas (TC# 1199474D)
OPINION
A jury found Appellant guilty of the offense of murder, sentenced him to life in prison, and assessed a fine on August, 262011 . TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011).
Appellant raises nine issues on appeal.
BACKGROUND
On July 7, 2002, the body of Carolyn Roberson was found in an open field in Fort Worth. [1] An autopsy revealed that Ms. Roberson was smothered to death. Ms. Roberson also suffered a laceration to the back of her head consistent with being struck with a brick, gliding abrasions on her knees and shoulders, facial lacerations, and defensive wounds on both hands. Several of Ms.
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Roberson's belongings were recovered at the crime scene and investigators were able to extract DNA samples from multiple items, including her top, bra, pants, the curb, and a brick. The DNA samples were consistent with the DNA of the victim, and of one unidentified suspect. In 2009, investigators were notified that the unknown suspect's profile DNA was connected to the existing DNA profile of Appellant, Johnny Green, in the State's Combined DNA Index System (CODIS) offender database. After obtaining a DNA sample from Appellant, scientists were able to identify that the DNA obtained from blood on Ms. Roberson's top, bra, and pants originated from Appellant. It was also discovered that Appellant lived a few blocks away from the crime scene at the time of Ms. Roberson's death. A grand jury indicted Appellant for capital murder in Tarrant County, Texas on May 12, 2010.
DISCUSSION
In Issue One, Appellant challenges the legal sufficiency of the evidence to support his conviction. Appellant recites the standard for reviewing evidence and determining legal sufficiency, and then asserts that the State did not meet its burden of proof beyond a reasonable doubt that Appellant committed the offense. However, without citing to any legal authority, Appellant merely notes what federal courts "indicate" about reasonable doubt and the nature of proof which satisfies the purported reasonable doubt standard. In his concluding paragraph for Issue One, Appellant sets forth Texas case law regarding appellate court examinations of the evidence for sufficiency, followed by a single citation to three different portions of the record which comprise almost five hundred pages. Appellant neither sets out any specific relevant facts from the cited pages of the record nor attempts to apply the law to the facts contained in the cited pages of the record. Appellant presents no legal argument explaining why the evidence on the
*22 cited pages is legally insufficient to support his conviction. Because we are under no obligation to make Appellant's arguments for him, we find this issue is inadequately briefed and presents nothing for our review. TEX.R.App. P. 38.1(i); see Lucio v. State, 351 S.W.3d 878, 896-97 (Tex.Crim.App. 2011), cert. denied, 132 S.Ct. 2712, 183 L.Ed.2d 71 (2012), citing Busby v. State, 253 S.W.3d 661, 673 (Tex.Crim.App. 2008) and Cardenas v. State, 30 S.W.3d 384, 393-94 (Tex.Crim.App. 2000). Issue One is overruled.
In Issue Seven, Appellant asserts that the trial court abused its discretion by overruling his Rule 401 relevancy objection to three of the State's exhibits. TEX.R.Evid. 401. Appellant then states that the testimony of witness, Ms. Sundaye Lopez, "could only inflame the jury based on her best effort to reconstruct pieces of brick found at the crime scene," and "[t]he photo of the pieces of brick were not relevant as to any alleged weapon used by the perpetrator on the deceased." These statements are followed by a recitation of the rule and an excerpt from the record containing the objection and the trial court's ruling on it. Appellant concludes by reciting the standard for preserving error under Texas Rule of Appellate Procedure 33.1 and asserting that he timely objected to Ms. Lopez's testimony at trial. TEX.R.App.P. 33.1.
We disagree that Appellant objected to and therefore preserved error as to Ms. Lopez's testimony. The objection cited in the brief is to the State's proffer of Exhibits 86-88. The record contains no objection to Ms. Lopez's testimony regarding Exhibits 86-88. Furthermore, Appellant's brief lacks a legal argument supported by authority asserting how the trial court abused its discretion or how the evidence to which he objected was irrelevant. Because it presents unpreserved error and is inadequately briefed, Issue Seven is overruled. TEX.R.App.P. 38.1(i); see Lucio, 351 S.W.3d at 896-97, citing Busby, 253 S.W.3d at 673 and Cardenas, 30 S.W.3d at
*23 In Issues Two through Six, Eight and Nine, Appellant complains that the trial court abused its discretion by overruling his Rule 403 objections to various physical evidence exhibits. Appellant correctly states that Rule 403 carries a presumption of relevance unless the trial court finds a clear disparity between the probative value of the evidence and the degree of prejudice its admittance would create. Tex R. Evid. 403. He then sets forth the correct standard of review, that a trial court's admission of evidence is only reversed after a clear abuse of discretion, and that the reviewing court should not assume that the trial judge did the required balancing and did not rule arbitrarily or capriciously, but must measure the ruling against relevant criteria. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999). Appellant concludes by stating, "The [trial] court did not conduct a balancing test as is required by Rule 403," but fails to set forth the required balancing test or identify any portion of the test which the trial court failed to perform. Each issue has a record cite at the end of its respective page [2] which is presumably meant to direct us to the evidence and relevant testimony for each objection at issue. However, Appellant neither states what each piece of specific evidence is nor provides us with the relevant facts from the cited pages. Furthermore, Appellant does not apply the law to any facts from the record nor presents any legal arguments explaining how the trial court abused its discretion or how the evidence was prejudicial to his case.
As in Issue One, absent a clear and concise argument with proper citations to authorities and the record, we conclude that Appellant's remaining seven issues are inadequately briefed and present nothing for our review. TEX.R.APp.P. 38.1(i); see Lucio, 351 S.W.3d at 896-97, citing
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Busby, 253 S.W.3d at 673 and Cardenas, 30 S.W.3d at 393-94. Issues Two through Six, Eight and Nine are overruled.
The State raises a sole cross-point in its brief requesting that the judgment, which currently contains no fine, be reformed to reflect the jury's verdict of a fine. An appellate court may modify a judgment to ensure the trial court's judgment conforms with the jury's verdict. Tex.R.App.P. 43.2(b). Nelson v. State, 149 S.W.3d 206, 213 (Tex.App.—Fort Worth 2004, no pet.). If there is a discrepancy between the oral pronouncement of sentence and the sentence as written in the judgment, the oral pronouncement controls. Thompson v. State, 108 S.W.3d 287, 290 (Tex.Crim.App. 2003), Caffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App. 1998). In its written judgment, the trial court marked "Fine" as "N/A." However, the oral pronouncement of Appellant's sentence included the imposition of a fine in the amount of . We sustain the State's cross-issue and reform the judgment to reflect the fine of as assessed by the jury.
CONCLUSION
We affirm the trial court's judgment as reformed.
GUADALUPE RIVERA, Justice
November 22, 2013 Before McClure, C.J., Rivera, and Rodríguez, JJ. (Do Not Publish)
NOTES
As this case was transferred from our sister court in Fort Worth, we decide it in accordance with the precedent of that court. TEX.R.APP.P. 41.3.
We note that each issue is set forth on a single page, the text of which is identical except for the citation to the record at the end.