Case Information
*0 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 9/3/2015 3:26:28 PM PAM ESTES Clerk *1 ACCEPTED 12-14-00368-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 9/3/2015 3:26:28 PM Pam Estes CLERK
No. 12-14-00368-CR IN THE
COURT OF APPEALS TWELTH DISTRICT OF TEXAS AT TYLER ________________________________________________________________
JOHN CALVIN MARSHALL, APPELLANT
V. THE STATE OF TEXAS, APPELLEE
_________________________________________________________________
APPELLEE’S BRIEF ________________________________________________________________
On appeal from Cause Numbers CR11-00070 294 th Judicial District Court Van Zandt County, Texas ________________________________________________________________
APPELLEE’S BRIEF Van Zandt County Criminal District Attorney Richard A. Schmidt, First Assistant State Bar Number 24043907 400 S. Buffalo, Canton, TX 74103 903-567-4104 – 903-567-6258fx Attorney for the State of Texas *2 IDENTITIES OF PARTIES
APPELLANT: John Calvin Marshall
Trial & Appellate Attorneys for the Appellant:
Dean White Nolan White 690 West Dallas, 690 West Dallas Canton, TX 75103 Canton, TX 75103 dwatty@etcable.net nwatty@etcable.net Attorneys for the State at Trial and on Appeal:
Richard A. Schmidt Chris Martin 1st Asst. Crim. Dist. Att. Criminal District Attorney 400 S. Buffalo 400 S. Buffalo Canton, TX 75103 Canton, TX 75103 rschmidt@vanzandtcounty.org chrismartin@vanzandtcounty.org *3 TABLE OF CONTENTS PAGE IDENTITIES OF PARTIES AND COUNSEL 2
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 5
ISSUES PRESENTED 5
ISSUE NUMBER ONE: The trial court did not err by denying Appellant’s motion to suppress.
ISSUE NUMBER TWO: The trial court did not err by permitting the State to introduce 404(b) evidence through witness Jean Mullins.
ISSUE NUMBER THREE: The trial court acted properly by excluding the irrelevant and improper testimony of Martha Wetherholt and did not deny Appellant his right to present a defense.
ISSUE FOUR: The State’s argument to the jury was proper and misconstrued by Appellant’s brief.
SUMMARY OF THE FACTS 5
ISSUES PRESENTED WITH ARGUMENT 7
PRAYER 21
CERTIFICATE OF SERVICE 22
CERTIFICATE OF COMPLIANCE 22
INDEX OF AUTHORITIES PAGE STATUTES & CODES Tex. R. of Evid. 404(b)………………………………………… 9, 10, 12
Tex. R. of Evid. 412……………………………………………. 16, 17
Tex. R. of Evid. 511. …………………………………………... 8
TEX. CRIM. PROC. ART. 38.22(3)………………………….. 8
CASE LAW
Alonzo v. State, 67 S.W.3d 346, 350, 2001 Tex. App.
LEXIS 8489, *1 (Tex. App. Waco 2001). ……………………….. 16-18
Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).. 10
Corley v. State, 987 S.W.2d 615, 617, 1999 Tex. App.
LEXIS 1221, *1 (Tex. App. Austin 1999)……………………….. 12,11
Faison v. State, 59 S.W.3d 230, 235, 2001 Tex. App.
LEXIS 2718, *1 (Tex. App. Tyler 2001). ………………………. 11
Gomes v. State, 9 S.W.3d 373, 379 (Tex. App.—Houston
[14th Dist.] 1999, pet. ref'd)……………………………………… 9
Hinojosa v. State, 433 S.W.3d 742, 747, 2014 Tex. App. LEXIS
4884, *1, 2014 WL 1800317 (Tex. App. San Antonio 2014)…….. 20
Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005)…. 10
Sims v. State, 273 S.W.3d 291, 292, 2008 Tex. Crim. App.
LEXIS 820, (Tex. Crim. App. 2008). ……………………………….. 10
Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim. App. 2002). …. 10
*5 TO THE HONORABLE JUSTICES OF THE COURT OF APPEAL:
The State of Texas, Appellee, by and through her attorney of record, Richard A. Schmidt, files this response brief on appeal:
STATEMENT OF THE CASE Appellee accepts and adopts Appellant’s statement of the case as outlined in Appellant’s brief and incorporates it herein for all purposes.
ISSUES PRESENTED ISSUE NUMBER ONE: The trial court did not err by denying
Appellant’s motion to suppress.
ISSUE NUMBER TWO: The trial court did not err by permitting the
State to introduce 404(b) evidence through witness Jean Mullins.
ISSUE NUMBER THREE: The trial court acted properly by excluding
the irrelevant and improper testimony of Martha Wetherholt and did
not deny his right to present a defense.
ISSUE FOUR: The State’s argument to the jury was proper and
misconstrued by Appellant’s brief.
SUMMARY OF FACTS The victim in this case, Carolyn Walters, was casually acquainted with Appellant, John Marshall, through her work and with business
dealings with Appellants wife. IV RR 15-16. [1] On April 23, 2011,
Appellant entered the home of Carolyn Walters without her consent or
invitation. IV RR 14. After entering Carolyn Walters’ residence, and
*6 being confronted by Carolyn Walters as to why he was there, Appellant
pushed her into a bedroom, began removing his clothing and the
clothing of Carolyn Walters, pinned her to the bed, and began
attempting to penetrate her vagina with his flaccid penis. IV RR 17-23.
In an attempt to get Appellant to leave, Carolyn Walters began ridiculing Appellant’s impotence. IV RR 24. Appellant then got dressed
and left Carolyn Walters’ residence with her following behind him
verbally attacking Appellant. IV RR 24-25. At no point did Carolyn
Walters give Appellant consent to be in her residence and at no point
did Carolyn Walters consent to sexual contact with Appellant. IV RR
24-25.
Carolyn Walters did not call the police because she did not think she would be believed due to Appellant’s status in the community. IV
RR 25. Ultimately, Carolyn Walters was able to make contact with
Matthew Jackson, a family friend, who contacted the Canton Police
Department. II RR 204. The Canton Police Department dispatched
Sergeant Steve Hall to investigate a possible sexual assault to 1230 Big
Rock St (the residence of Carolyn Walters). II RR 38, 40. Sergeant Hall
contacted Detective Michael King who arrived on scene approximately
one hour later. II RR 41. Also arriving on scene was Carla Ward, an
employee of the East Texas Crisis Center. II RR 89. Ms. Walter
wouldn’t communicate with the police or identify the Appellant stating
only that he was a prominent member of the community and that she
wouldn’t be believed. II RR 50. Based on his knowledge of a prior
incident that was sexual in nature and involving a prominent member
of the community, Detective King contacted the alleged victim of that
prior incident, Jean Mullins, for help in identifying a potential suspect.
II RR 113. Jean Mullins eventually spoke with Ms. Walter and
convinced her to speak with police. IV RR 29. Ms. Walter then spoke
with Detective King and relayed the events as she testified to at trial
and as described above. IV RR 31. Jean Mullins also testified about
the incident that she experienced involving Appellant. III RR 89-111.
ARGUMENT AND AUTHORITIES ISSUE NUMBER ONE: The trial court did not err by denying
Appellant’s motion to suppress.
On or about the 29 th Day of April 2011, the Appellant was arrested for burglary with intent to commit sexual assault. EH RR 21. Appellant
complains that Detective Michael King, of the Canton Police
Department, denied him the right to private conversation with
individuals who have privilege with the Appellant. Appellant
unsuccessfully attempted to contact an attorney in the presence of
Detective King. EH RR 51. Appellant then contacted his wife in the
presence of Detective King and had a brief conversation with her.
These phone calls were recorded by Detective King and took place
during the routine book in process of the Appellant and at the
Appellant’s request. EH RR 42-46.
The Appellant characterizes Detective King’s presence and recording of Appellant’s side of the conversations during the Appellant’s
attempt to make phone calls as a violation of the Fifth and Sixth
Amendments to the Constitution of the United States, applicable State
constitutional law and Article 38.22 of the Texas Code of Criminal
Procedure. Although the Appellant has the right to confidential
communications with counsel, that protection can be waived by a
defendant. Appellant initiated the telephone calls in the presence of
Detective King. The Appellant never requested a private phone or area
in which to make his phone calls, nor was the Appellant denied that
opportunity at a later date or time. EH RR 45, 51. The Appellant had
no conversation with an attorney while in the presence of Detective
King. EH RR 20-57. Any privilege enjoyed by the Appellant in the
communications with his wife was voluntarily waived by the Appellant
when he initiated the telephone call in the presence of Detective King.
See Tex. R Evid. 511.
Article 38.22 generally conditions the evidentiary use of a defendant's statement stemming from custodial interrogation on
compliance with its procedural safeguards. See TEX. CRIM. PROC.
ART. 38.22(3).
However, article 38.22 does not preclude the admission of statements that do not result from custodial interrogation. See TEX. CODE CRIM. PROC. ANN. art. 38.22(5) (Vernon 2005); Morris v. State, 897 S.W.2d 528, 531 (Tex.App.--El Paso 1995, no pet.). If either the "custodial" or the "interrogation" predicates are not met, article 38.22 does not apply.
Gomes v. State, 9 S.W.3d 373, 379 (Tex. App.--Houston [14th
Dist.] 1999, pet. ref'd).
In the instant case, the Appellant was in custody. However, he was not being interrogated as contemplated by article 38.22. Any
statements he made in the presence of Detective King were voluntary
and any privileges that may have been enjoyed by the Appellant were
waived when the Appellant knowingly and voluntarily made telephone
calls in the presence of Detective King. See Id at 379.
ISSUE NUMBER TWO: The trial court did not err by permitting the
State to introduce 404(b) evidence through witness Jean Mullins.
Appellant’s second issue of appeal is the trial court’s ruling allowing 404(b) evidence to be introduced against Appellant
through the testimony of Gene Mullins. At trial, Ms. Mullins
testified about an assaultive incident that she suffered at the
hands of the Appellant. III RR 94-.
Generally, a trial court’s decision to admit evidence is reviewed under an abuse of discretion standard. See Martin v. State, 173 S.W.3d
463, 467 (Tex. Crim. App. 2005). The Appellate Court must uphold the
trial court’s ruling if it is reasonably supported by the record and is
correct under any theory of law applicable to the case. Willover v. State,
70 S.W.3d 841, 845 (Tex.Crim. App. 2002). An Appellate Court should
not reverse a trial court’s ruling admitting evidence unless that ruling
falls outside the zone of reasonable disagreement. See Burden v. State,
55 S.W.3d 608, 615 (Tex. Crim. App. 2001).
As a general rule, “evidence of extraneous offenses is inadmissible at the guilt phase of trial to prove action in conformity therewith. Tex. R. Evid. 404(b). . . . But Rule 404(b) does allow for the admission of extraneous-offense evidence at the guilt phase of trial for specific, non-character-conformity purposes, such as to prove motive, opportunity, intent, preparation, plan, etc.
Sims v. State, 273 S.W.3d 291, 292, 2008 Tex. Crim. App. LEXIS 820,
(Tex. Crim. App. 2008).
Furthermore, the Appellate Courts have held that: Identity and the rebuttal of defenses are both valid purposes for admitting evidence under Tex. R. Evid. 404(b). To be *11 admissible to show identity, an extraneous offense must be so similar to the offense charged that the offenses are marked as the accused's handiwork. By raising a defensive theory, a defendant opens the door for the State to offer rebuttal testimony regarding an extraneous offense if the extraneous offense has common characteristics with the offense for which the defendant was on trial.
Faison v. State, 59 S.W.3d 230, 235, 2001 Tex. App. LEXIS 2718,
*1 (Tex. App. Tyler 2001).
In addition, proof of intent has been held a proper use of 404(b) evidence when consent of the victim is at issue. The Court
in Corley v. State engaged in a detailed discussion of the matter
which is on point here:
When a defendant is charged with aggravated sexual assault, the State is required to prove the defendant intentionally caused penetration of complainant's sexual organ without her consent. See Wiggins v. State, 778 S.W.2d 877, 882 (Tex. App.-Dallas 1989, pet. ref'd). When, as here, a defendant charged with aggravated sexual assault raises the defense of consent, he disputes his intent to commit the offense and thereby places his intent at issue. Wiggins, 778 S.W.2d at 884-85 (citing Rubio v. State, 607 S.W.2d 498, 501 (Tex. Crim. App. 1980)). …Evidence of other sexual assaults may be relevant to prove a defendant had the intent to commit sexual assault as charged. See, e.g., Webb v. State, 995 S.W.2d 295, 299 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (other sexual assaults relevant to prove intent in charged sexual assault); Corley v. State, 987 S.W.2d 615, 619 (Tex. App.-Austin 1999, no pet.) (past attack on woman relevant to prove defendant's intent to commit attempted aggravated sexual assault); Suarez v. State, 901 S.W.2d 712, *12 721 (Tex. App.-Corpus Christi 1995, pet. ref'd) (en banc) (other sexual assault committed during medical exam relevant to prove defendant's intent to commit sexual assault during a different medical exam); Duckworth v. State, 833 S.W.2d 708, 711 (Tex. App.-Beaumont 1992, no pet.) (other acts of aggravated sexual assault relevant to prove intent in charged aggravated sexual assault). Here, the trial court could reasonably have determined the extraneous offense evidence was relevant to the issue of intent. Thus, we conclude the trial court did not abuse its discretion in finding the extraneous offense evidence had relevance apart from its value to show character conformity. McCoy v. State, 2000 Tex. App. LEXIS 6054, *8-9, 2000 WL 1246455 (Tex. App. Dallas Sept. 5, 2000). Where intent is a material issue and is not inferable from the act itself, evidence of other acts probative of such intent is relevant. Where the State's direct evidence, however, clearly shows the intent element of the crime and that evidence is uncontradicted by the defendant, the offer of other crimes is unjustified due to lack of relevancy.
Corley v. State, 987 S.W.2d 615, 617, 1999 Tex. App. LEXIS 1221,
*1 (Tex. App. Austin 1999).
Here, the 404(b) testimony of Gene Mullins was relevant to the issue of identity, intent, and absence of mistake. III RR 94-. Mullins
testified that sometime in late 2010 or early 2011, and prior to the case
at issue here, Appellant entered the residential building that housed
the Children’s Advocacy Center without invitation or business to
conduct. III RR 94-96. Mullins recognized Appellant from casual
encounters at the Methodist Church that they both attended. III RR
97. After offering Appellant a tour of the center and then giving
Appellant a tour of the center, Appellant unexpectedly came up behind
Mullins and began to rub her arm up to her neck and smelled her. III
RR 98. Appellant was interrupted by a CAC volunteer and left. III RR
99. Appellant returned to the CAC again at a later date; again,
uninvited and without business to conduct. On this occasion Mullins
testified that Appellant made unwanted sexual advances and then
assaulted her. III RR 99-102. Specifically, Appellant conveyed a desire
to have an intimate relationship with Mullins. Mullins declined and
asked Appellant to leave the center. At this point, Appellant extended
his hand across the desk to apologize and shake Mullins’ hand, and she
accepted the hand shake.
According to Mullins’, when she gave him her hand, he pulled her across the desk and she was able to stop herself from being pulled by
Appellant. A short struggle ensued and Mullins was tilted back in her
chair by Appellant. Appellant then came around the desk behind the
chair and put his arm around her neck and pulled her back and began
to open mouth kiss and lick her face. III RR 100. Mullins was able to
free herself from Appellant and then asked him to leave; which he did
very slowly. III RR 101.
After the incident, Mullins saw Appellant driving past her house and the center on several occasions. III RR 101. Eventually, Appellant
approached Mullins to apologize. III RR 101.
The testimony given by Mullins relays an incident that is very similar in nature to the actions Appellant took when he assaulted
Walter. He was a casual acquaintance of both women, he showed up to
their residence/business unannounced and uninvited. He made sexual
advances that were rebuked. He then used force to carry out his sexual
advances. After he completed his attack, he left and later apologized.
It was precisely because the incidents fit the same pattern that
Detective King was able to piece the two together, contact Mullins, and
identify Appellant as the person who sexually assaulted Ms Walter.
Furthermore, throughout his defense, Appellant asserted that the encounter with Ms. Walter was consensual. Appellant characterized his
relationship with Ms. Walter as a casual acquaintance just as the
relationship between Appellant and Mullins was characterized. IV RR
105. With both Mullins and Walter, Appellant testified that he traveled
to their location to see if they were interested in an intimate affair.
Appellant traveled to Walter’s house to “see what the wink was all
about.” IV RR 107. With both women, Appellant made sexual advances
towards the women. Likewise, both women rebuked his advances. And
likewise, Appellant forced himself on the women. This pattern of
behavior shows Appellants intent and absence of mistake. Both times
his intent was to engage in a sexual encounter. On both occasions, he
was denied consent. On both occasions, he proceeded to assault the
women by force followed by an apology.
Therefore, the trial court did not err by allowing the 404(b) testimony of Gene Mullins as it was relevant, is rebutted the defense of
consent, it showed a lack or absence of mistake, and it aided in the
identity of the Appellant as both assaults fit a highly similar pattern or
modis operandi of Appellant. Finally, the testimony was far more
probative than prejudicial.
ISSUE NUMBER THREE: The trial court acted properly by excluding
the irrelevant and improper testimony of Martha Wetherholt and did
not deny his right to present a defense.
During the trial on the merits, Appellant called Martha Wetherholt to testify as part of his defense. RRV4 172. After Appellant
elicited some testimony from Mrs. Wetherholt, counsel for the State
objected to her testimony under rules 401, 602, and 412 of the Texas
Rules of Evidence. A hearing was had outside the presence of the jury
to determine the validity of the State’s objections. After the witness
was examined and cross-examined, the State re-urged its objections
under Texas Rules of Evidence 401, 602, and 412 to which objections
the trial court sustained and excluded Mrs. Wetherholt’s testimony.
Appellant offered the testimony in its entirety as his offer of proof.
RRV4 172-194.
Generally, “[A] trial court's refusal to admit evidence is reviewed for abuse of discretion, which means an appellate court reviews for
whether the court's ruling was within the zone of reasonable
disagreement.” Alonzo v. State, 67 S.W.3d 346, 350, 2001 Tex. App.
LEXIS 8489, *1 (Tex. App. Waco 2001). However, in this case, the
Appellant claims constitutional error in that the suppressed testimony
of Martha Wetherholt prevented him from presenting a defense.
Therefore, because the question arises out of the application of a constitutional right, the basis for review is for constitutional error and
must be reversed for a constitutional error unless it is determined
beyond a reasonable doubt that the error did not contribute to the
conviction. Id. at 361-362 (internal citations omitted from quote).
The testimony of Martha Wetherholt was offered in its entirety in Appellant’s bill of exceptions and offer of proof. IV RR 172. As is
obvious in the record, Wetherholt had no relevant information that
would aid the trier of fact to determine the ultimate question of the
Appellant’s guilt as charged. Wetherholt testified that she had neither
personal knowledge concerning the allegations against Appellant nor
had she spoken to Appellant or Ms. Walter about the incident. IV RR
187. Her testimony was improper character testimony of Walter and
her behavior well prior to the assault on April 23, 2011. Further, read
in its entirety, Wetherholt could only testify that Ms. Walter had a
boyfriend of two after her divorce and that she stayed out late one night
during a business trip Wetherholt and Walter took together. Although
not direct, this testimony was calculated to introduce testimony
contrary to Tex. R. Evid. § 412. Furthermore, Wetherholt had no
personal knowledge as to the nature of any relationship Walter’s had
nor did she have any information pertaining to Walter’s relationship or
lack thereof with Appellant. Therefore, the testimony was inadmissible
under the Texas Rules of Evidence and wholly irrelevant.
Finally, Appellant claims that the exclusion of the irrelevant and improper testimony of Wetherholt violated his constitutional right to
present a defense. This argument fails. The undersigned can think of
no matter testified to by Wetherholt would have affected the jury in
their deliberations.
The standard of review is to determine beyond a reasonable doubt that the exclusion of the testimony did not contribute to the verdict.
See id. Given that the majority if not all of Wetherholt’s testimony
failed to meet evidentiary muster and would have been excluded over
proper objection, it’s difficult to assume a constitutional stance when
deliberating this issue. However, assuming Wetherholt’s testimony was
allowed to be presented to the jury in its entirety, none of it would have
affected the deliberations one way or the other. A plain reading of the
record shows that Wetherholt’s testimony was as unnecessary for the
defense of Appellant as it was an improper attempt to back-handedly
assassinate the character of Walter.
ISSUE NUMBER FOUR: The State’s argument to the jury was proper,
did not ask jurors to place themselves in the shoes of the victim, and
was wholly misconstrued by Appellant.
Throughout the course of the trial on the merits, the defense strategy was to suggest consent and to attack the victim’s credibility by
suggesting that she failed to react to the sexual assault in a manner
that is consistent with a non-consenting sexual assault victim. See RR
as a whole. During closing argument, counsel for the State was
attempting to rebut this defense strategy through argument that called
upon the jurors to focus on the victim’s testimony. During closing
arguments, counsel for the State stated, with objection from the
Appellant, the following:
“How are you supposed to act when you’re being sexually assaulted? I don't know. I've never been sexually assaulted. Think in your minds how you’re supposed to act when you're sexually assaulted” and “How was she supposed to act? Was she supposed to fight him? Maybe.”
5 RR 27-28.
The purpose of closing argument is to facilitate the jury's proper analysis of the evidence presented at trial in *20 order to arrive at a just and reasonable conclusion based solely on the evidence. Proper jury argument generally falls within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. A prosecuting attorney is permitted in his argument to draw from the facts in evidence all inferences which are reasonable, fair, and legitimate, but he may not use the jury argument to get before the jury, either directly or indirectly, evidence which is outside the record. Comments which appear to cast aspersions on the character of defense counsel, and as a result, strike over counsel's shoulders at the defendant, are not within the zone of proper jury argument. When jury argument falls outside the approved areas, it will not constitute reversible error unless it is extreme or manifestly improper or injects new facts harmful to the accused into the trial proceeding.
Hinojosa v. State, 433 S.W.3d 742, 747, 2014 Tex. App. LEXIS 4884, *1,
2014 WL 1800317 (Tex. App. San Antonio 2014).
Here, the prosecutor's argument was a summation of the evidence, establishing an element of the offense, eg. “without the consent of Ms.
Walter.” Based on a plain reading of the record, juxtaposed and
considering the defense strategies, it is reasonable and logical to
conclude that these arguments were made for the purposes of calling on
the jurors to make reasonable deductions from the evidence and to
rebut the defensive theory of consent.
Further, the State’s argument was a reasonable deduction from *21 the evidence and merely asked the jury to rely on a general lack of
knowledge of the “appropriate” way to react to being sexually assaulted
and was attempting to point out that absent a similar experience, they
could not possibly substitute their assumption of how they would
behave for how Ms. Walter’s behaved. While in hindsight the State
might concede that the argument could have been more precisely
phrased, when viewed in context, it by no means rises to the level of
reversible error.
PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Appellee prays that
Appellant’s request for relief be in all things denied and that mandate
issue affirming the judgment and sentence rendered at trial.
Respectfully submitted, _/S// Richard A. Schmidt_________________ Richard A. Schmidt S.B.N. 24043907 First Assistant Criminal District Attorney Van Zandt County 400 S. Buffalo, Canton, TX 75103 903.567.4104/903.567.6258 fx *22 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was delivered upon the Attorney for Appellant on September 3, 2015.
_/s// Richard A. Schmidt________ Richard A. Schmidt CERTIFICATE OF COMPLIANCE I certify that this Brief complies with Tex. R. App. P. 9.4, specifically using 14 point Century font and contains 4,154 words in
total as counted by Microsoft Word.
____/s// Richard A. Schmidt______ Richard A. Schmidt
[1] RR refers to Reporter’s Record; EH refers to the record of the evidentiary hearing