McNac v. State

420 Coleman,

сeeding.” parte Ex 599 S.W.2d 305, McNAC, Appellant, If 307 the rec Calvin Ervin (Tex.Crim.App.1978). evidentiary support ord is of for a devoid v. conviction, evidentiary challenge cog corpus. nizable on writ of habeas The STATE of Texas. Brown, 367, parte 757 Ex S.W.2d 368-69 Williams, No. PD-1950-05. Ex (Tex.Crim.App.1988); parte 674, (Tex.Crim.App. 703 679-80 S.W.2d Court of Criminal of Texas. 1986). Amarillo Court 14, 2007. Feb. Appeals’ allegation of conclusions that an delivery a controlled substance

actual transfer to an unborn child cannot delivery,

constitute which we have held manual “contemplates transfer property from the transferor to the trans agents feree or to the transferee’s or to someone identified in law with the trans State, Heberling feree.” v. 834 S.W.2d 350, (Tex.Crim.App.1992). 354 We have

also held that such a transfer occurs when dr surrenders ac the defendant transfers possession tual and control ‍‌​​‌‌‌​‌‌​‌​​‌​‌​​​​​​​‌​​​​‌‌‌‌​​‌​‌‌​​​‌​‌​​​​‍of a controlled to another. See Thomas v. substance State, 47, (Tex.Crim.App. 832 51 S.W.2d State,

1992); v. 767 Nevarez S.W.2d (Tex.Crim.App.1989); Daniels (Tex.Crim.App.1988). 754 S.W.2d delivery such an actual transfer Sincе possi a mother to her unborn child is ble, that, law, a matter of we conclude

delivery by alleged actual transfer as did not occur. findings sup- are

The habeas court’s ported by Accordingly, the record.

grant judgment relief. The in this cause is acquittal ren- vacated and A copy opinion dered. of this shall be sent Department ‍‌​​‌‌‌​‌‌​‌​​‌​‌​​​​​​​‌​​​​‌‌‌‌​​‌​‌‌​​​‌​‌​​​​‍to the Texas of Criminal Jus- Division. tice—Corrеctional Institutions KELLER, P.J., concurred. J., WOMACK, participate. did not Wetherholt, Dallas, Matthew B.

Anne Austin, Paul, Attorney, for state. State’s

OPINION

HERVEY, J., opinion of delivered the KELLER, P.J., which, the Court JOHNSON, MEYERS, PRICE, COCHRAN, KEASLER, HOLCOMB and JJ., joined. in this discretionary review Appeals’s deci- to review the Court of

case in admit- any constitutional error sion that punishment evidence at the ting Crawford trial was harmless be- phase appellаnt’s the other yond a doubt because reasonable overwhelmingly showed “evidence Tex.R.App. 44.2(a), Rule guilt.”1 lant’s Proo., (if appellate record criminal case subject constitutional error that is reveals review, court of to a harmless error of con- must reverse a appeals court de- or unless the viction doubt that termines reasonable to the convic- the error did not contribute or punishment). tion charged with the first- Appellant was sexual assault degree felony aggravated child, M.B. M.B. tes- sixteen-year-old of a sexually assaulted tified Korioth, Dallas, testified that her.2 She also Sue for 05-04-00492-CR, her, sliр her alone in his bedroom No. he left 1. McNac v. shower, (Tex.App.-Dallas, take a but soon returned op. at 2005 WL 1983551 went to 18, 2005) (not August designated again. Early forcefully rape delivered for the next publication). morning, appellant drove M.B. back to M.B., up. picked her apartments where he presented 2. Evidеnce was also friend, visibly by rape, told a traumatized 3, 2002, sixteen-year- September trial that on Foster, happened. Foster what had Nakesha apart- staying at an old M.B. was with friends police, and an ambulance took called the complex a ride in Dallas. She needed hospital rape-kit where M.B. house in Pleasant Grove to her cousins performed. hospital and in subse- At the Appel- arranged appellant's son. a ride from gave quent police questioning, M.B. a detailed ‍‌​​‌‌‌​‌‌​‌​​‌​‌​​​​​​​‌​​​​‌‌‌‌​​‌​‌‌​​​‌​‌​​​​‍son, lant, give up instead of his showed appellant, appellant's description of got appellant, M.B. in the cаr with ride. appellant’s house. taking her to her cousin’s but instead of Jerry con- house, police detective Williams Dallas appellant took her to his house. Appellant volun- appellant about M.B. dragged by tacted pellant M.B. the hair into his arranged appointment with raping tarily painfully raped came to her. After house gun to harm her if of loud.” The car drove and was and threatened she anyone. told Evidence “going kind of fast” when the woman may guns M.B. have lied about the and the attempted get open- out and denied Appellant threats. ing passenger sticking the door and out having despite sex M.B. DNA evi- driving The man the car foot. contrary. During dence to the cross-ex- “grabbed her the back of the head” amination, appellant admitted he had against and slammed her head the dash. April an 2003 assault of been arrested for later, A “came few minutes the woman (Tonia); however, his wife he denied com- сar,” tumbling Murray out of the mitting jury this offense.3 The convicted police and an The called ambulance. second-degree appellant of the lesser felo- stopping, man drove without ny of sexual assault of a child.4 woman, appellant’s the identified as punishment phase The record from the McNac, wife, Murray Tonia ran over to reflects that the State and said the man was her husband.[6] appellant’s April of the details of 2003 Appellant objected testimony to this (Tonia), did not assault of his wife who the it was testimonial and basis testify trial. appellant’s Over therefore “not within limits.” Crawford’s objections un- lant’s Confrontаtion Clause objected that the Appellant also State Washington,5 der the State Crawford a foundation for the state- had not laid through testimony the of a se- presented, an ment’s admission as excited utter- curity guard (Murray) police and a Dallas ance. The trial court overruled both (Bryson), officer out-of-court statements objections. to them about this 2003 Tonia made police Bryson Dallas officer Hans testi- Appeals’ opinion The assault. ques- fied he arrived on the scene and states: Tonia, “very upset, tioned who was trial, the punishment phase At the very visibly hysterical, sobbing, [and] testimony of Earl State introduced the objected to Appellant again shaken.” Murray, apart- at an of statements Tonia the admission that, Murray complex. Bryson the statements made to because man call a woman April he saw a hearsay appellant’s and violated were talking. car and The over to his start the Clause. Murray rights no- under Confrontation got woman in the appellant’s “got kind The trial court overruled couple’s ticed the conversation Williams, gave seeing again in the Caucasian race is and admitted that he Detective trillion; However, in the African-Ameri- car. he denied one in 8.65 M.B. a ride in his trillion; Hispanic race can one is 25.9 house and vehe- that she ever went inside his Only is one in 5.54 trillion.” mently having her. denied sex with questioning by Detective after further phase guilt 3. was instructed at the appellant M.B. had Williams did admit that only issue of this evidence on the consider A search warrant was been in his house. credibility. appellant’s house, and a obtained to search buccal swab was obtained Pen.Code, 22.011(a)(2). 4. See Tex. § rape from M.B.’s kit DNA evidence recovered possible as a contributor. identified 1354, 158 L.Ed.2d 5. 541 U.S. 124 S.Ct. expert testified that: The State's DNA (2004). probability finding unrelated in- "the way dividual with—to include him the same was, identify man in Murray we will talk about unable to that Calvin McNac races, probability the car. it in three of the to be used expect the statement sonably objections, stating specifically state- circum- prosecutorially. Under Bryson not testimonial. tes- ments were husband, conclude of this we told him that her stances tified Tonia its discretion court did not abuse overnight” and trial appellant, “kept Murray statement to ruling that Toma’s taking her to a different location” “was ad- and therefore when, was not “testimonial” fearing safety, for her she tried (Citations appellant bit missible. get out of the car and from the her and “shoved her deciding that Tonia’s Assuming without vehiclе.” “testimoni- were statements al,” conclude slip op. case admission. In the harmed their appellant’s 2003 emphasized The State error, must reverse of constitutional jury support Tonia in of its assault of and remand for of conviction is a “wife beater” argument trial unless we determine a new general and abuser of women. that the error did a reasonable doubt to the maximum sen- sentenced (Cita- contribute to the conviction. not twenty years’ and a tence of confinement omitted). If, errone- without the tions $10,000.7 of fine evidence, the record con- ously admitted Appellant appeal claimed on direct guilt, of overwhelming evidence tains of state- the admission Tonia’s out-of-court beyond a the error is harmless then Murray and his ments violated (Citation doubt. reasonable rights Clause under Craw- Confrontation in shows M.B. The record this case of decided that Appeals The Court ford. his house appellant took her to claimed secu- Toma’s out-of-court statement repeatedly. M.B. was raped rity guard (Murray) that “the man who the inside of able to describe hus- pushed her out of the car was her tak- identify appellant. DNA house and band” was not “testimonial” and therefore rape via the kit indicated en from M.B. McNac, slip op. admissible. See at 3. The ap- of a match between probability Appeals of then decided DNA one in 25.9 and the pellant admitting constitutional error in Toma’s trillion, of the population more than the police out-of-court offi- statements considering Tonia’s tes- world. Without beyond а (Bryson) cer was harmless rea- timony any purpose, for the evi- [sic] sonable doubt because the other “evidence overwhelmingly showed dence overwhelmingly appellant’s guilt.” showed circumstances, these guilt. lant’s Under added). McNac, slip op. (emphasis at 3 See in Tonia’s state- any error of Aрpeals The Court decided: beyond a reason- ments was harmless Here, Murray the man who Tonia told (Citation omitted). doubt. able her hus- pushed her out of the was slip op. See Murray band. discretionary authori- our We exercised To- police not a officer. The statement grounds this decision. The ty to reviеw Murray immediately fol- nia made to discretionary re- which we upon being thrown from a lowed view state: or not this constituted car. Whether utterance, the Honorable Court 1. Whether

excited the statement was refusing to failing Appeals not rea- erred and ‍‌​​‌‌‌​‌‌​‌​​‌​‌​​​​​​​‌​​​​‌‌‌‌​​‌​‌‌​​​‌​‌​​​​‍Tonia could police, made 7. See Tex. Pеn.Code, § 12.33. Appeals per-

consider the effect of the assumed Craw- decide the Court twenty year error on the maximum harm proper pun- formed “a as to ford sentence assessed in the even Appeals’ ishment” because the Court of though the evidence the court assumed opinion discussed all the admissible evi- erroneously admitted was admitted dence, including Murray’s punishment evi- punishment phase of trial. dence. the Honorable Court of Whether Rule Appeals misconstrued Texas agree nevertheless with the We 44.2(a) pellate Procedure when it ana- judicial that “in the interest of econo State lyzed error in admission of my” unnecessary, and we will remand is by considering only evidence whether analysis.9 generally harm perform overwhelmingly trial (Tex. McDonald v. 179 S.W.3d 571 proved appellant’s guilt. (Cochran, J., Cr.App.2005) at 579-80 appel with the claim concurring). Appellant challenge does not lant’s brief that “the Cоurt of Appeals’ decision that the Court determined whether it could should have properly admitted Tonia’s out- trial court beyond a the reasonable doubt—that find— to the of-court statement alleged admitting in this error (Murray) pushed that the man who her out as evidence contributed to the sentence car her husband. moving of the was sessed, This finding guilt.”8 not to the harm op. proper At 3.10A slip only during evidence was admitted the therefore, have to take into analysis, would punishment phase and was not offered evidence and unchallenged account this trial; during guilt phase the of the there shows that unchallenged that this evidеnce fore, the error could not have affected the of a appellant pushed Tonia out trial. In guilt phase outcome of the the addition, In away.11 this and then drove addition, by not the persuaded we are essentially cumu- unchallenged should evidence is argument State’s that this Court (Rec- assault. Emрhasis original. of the lesser included sexual 8. omitted). used the The State ord reference aggravated discretionary Appellant’s improperly proven brief on review of- extraneous following analysis phase] impeach- along [guilt the harm in this case. fers assault with (not any questions supported affir- analysis necessary proper in this A harm questions or extrin- mative answers to such aggravated The assault on Tonia was case. assaults) to any evidence of extraneous sic only which the State the extraneous offense argue appellant a serial abuser of that attempted prove punishment. even to punished as such. women and should be only eye as- The witness to the extraneous omitted). (Footnote and record reference sault, many Murray, admitted that he was assessing jury responded by the maxi- The yards vehicle when the offense behind the legal penalty. mum allegedly occurred ‍‌​​‌‌‌​‌‌​‌​​‌​‌​​​​​​​‌​​​​‌‌‌‌​​‌​‌‌​​​‌​‌​​​​‍and that he could not identify appellant as the man in the properly admitted evidence shows 10. Other although claimed to have seen the and he appellant husband. was Tonia’s Tonia, push that the man he then admitted window of the car was in fact tinted to back proposed set out Appellant’s harm out, dеgree was blacked which it take this unchal- nine does not in footnote essentially negated his testimo- the value of addition, if lenged account. In evidence into (Record ny. reference In addi- case to the Court tion, we remanded this obviously disbelieved the had incorpo- nothing prohibit it from (M.B.’s) peals, would testimony primary complainant re- rating unchallenged into anoth- deadly this evidence garding deadly weapon threats, only analysis. appellant guilty er harm since it found error, says opinion the Court’s harmless statements to of Tonia’s out-of-court lative it I pages. do its first six Bryson. ” “ is n the interest economy’ judiciаl testimony The State also 422) (ante, also to do the for this Court Carter, father, Dwayne to de of Tonia’s process was analysis. The Court’s harm of the he witnessed as result scribe what review, require parties grant and To appellant’s violence toward himself deliberate, and deliver brief appel testified that the nia. Mr. Carter summarily If opinion. him verbally lant had threatened remanded the case review and threats phone through letters. These it could have corrected Appeals, Court of because promised violence to Mr. Carter some months rebriefing its error without believed that Mr. Carter judicial econo- That have been ago. would Mr. appellant. Tonia keeping my. seen his he had Carter daughter on an occasion after seeing her

had beaten her. He recalled face, eyes, badly bloodshot swollen bitten, back, legs on her bruised fights all after with the unchallenged admission of this the likelihood that er further reduces Tonia’s out-of-court state ror WALTON, Appellant, Lamar Bryson “materially affected the ments v. jury’s deliberations.” See Wesbrook State, (Tex.Cr.App. 29 S.W.3d DALLAS, Texas and OF COUNTY 2000) (if there is reasonable likelihood Evans, Derrick Constable that erroneous admission of evidence 7, Appellees. Precinct materially violation of constitution affected No. 05-03-00727-CV. deliberations, jury’s then the error was doubt). beyond not harmless a reasonable Texas, Appeals Dallas. circumstances, deter Under these mine a reasonable doubt June Tonia’s out-of-court error statements to was harmless. See (Tex. 713, 717

Leday v. 983 S.W.2d (improper of evi Cr.App.1998) admission if the same dence is not reversible error is are other evidence which facts shown challenged). of the Court of affirmed.

WOMACK, J., dissenting opinion. filed

WOMACK, J., dissenting. Appeals’ opin-

I that the Court language incorrect ion contained some

Case Details

Case Name: McNac v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Feb 14, 2007

Citation: 215 S.W.3d 420

Docket Number: PD-1950-05

Court Abbreviation: Tex. Crim. App.