Case Information
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FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 3/20/2015 12:31:12 PM CHRISTOPHER A. PRINE Clerk FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 3/20/2015 12:31:12 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-13-00900-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 3/20/2015 12:31:12 PM CHRISTOPHER PRINE CLERK
NO. 01-13-00900-CR I N THE C OURT OF A PPEALS
F IRST S UPREME J UDICIAL D ISTRICT H OUSTON , T EXAS
RAYMOND LEE CAVITT, Appellant
V.
THE STATE OF TEXAS,
Appellee On Appeal from the 174 th District Court of Harris County, Texas Cause No. 1342490
BRIEF FOR APPELLANT O RAL A RGUMENT R EQUESTED N ICOLE D E B ORDE
TBA No. 00787344 712 Main, Suite 2400 Houston, Texas 77002 Telephone: (713) 228-8500 Facsimile: (713) 228-0034 Email: Nicole@BSDLawFirm.com C OUNSEL FOR A PPELLANT i
I DENTITY OF P ARTIES AND C OUNSEL A PPELLANT : Raymond Lee Cavitt, TDCJ 01897462
Michael Unit
2664 FM 2054
Tennessee Colony, Texas 75886 P RESIDING J UDGE AT P RETRIAL AND
V OIR D IRE P ROCEEDINGS : Hon. Leslie Brock Yates
174th District Court 1201 Franklin
Houston, Texas 77002 P RESIDING J UDGE : Hon. Ruben Guerrero
174th District Court 1201 Franklin
Houston, Texas 77002 T RIAL P ROSECUTORS : Stephen Driver
Gretchen Flader
Paul Fortenberry
Assistant District Attorneys 1201 Franklin
Houston, Texas 77002 D EFENSE C OUNSEL AT T RIAL : William R. Gifford
Attorney at Law
1302 Waugh Drive Houston, Texas 77019 S TATE ’ S C OUNSEL ON APPEAL : Hon. Devon Anderson
Harris County District Attorney 1201 Franklin
Houston, Texas 77002 D EFENSE C OUNSEL ON A PPEAL : Nicole DeBorde
Attorney at Law
712 Main Street, Suite 2400 Houston, Texas 77002 ii
T ABLE OF C ONTENTS
Identity of Parties and Counsel ................................................................................. ii
Table of Contents ..................................................................................................... iii
Index of Authorities .................................................................................................. iv
Statement of the Case ................................................................................................. 1
Issues Presented ......................................................................................................... 2
Statement of Facts ...................................................................................................... 3
Argument.................................................................................................................... 9
Prayer ....................................................................................................................... 39
Certificate of Compliance ........................................................................................ 41
Certificate of Service ............................................................................................... 42
iii
I NDEX OF A UTHORITIES
Cases
Alexander v. State , 740 S.W.2d 749 (Tex. Crim. App. 1987) ................................. 25
Barker v. Wingo , 407 U.S. 515 (1970) .............................................................. 34-35
Delrio v. State , 820 S.W.2d 29 (Tex. App. – Houston [14 th Dist.] 1991) ............... 15
Eddlemon v. State , 591 S.W.2d 847 (Tex. Crim. App. 1979)(Panel No. 3) ............ 38
Ephram v. State , 471 S.W.2d 798 (Tex. Crim. App. 1971) ..................................... 10
Estelle v. Williams , 425 U.S. 501 (1976) ................................................................. 11
Harris v. State, 827 S.W.2d 949 (Tex. Crim. App. 1992)(en banc) ........................ 35
Jabari v. State , 273 S.W.3d 745 (Tex. App. – Houston [1 st Dist. 2008, no pet.)32,33
Lagrone v. State , 942 S.W.2d 602 (Tex. Crim. App), cert. denied (1997) ............. 24
Lape v. State, 893 S.W.2d 949 (Tex. App. – Houston [14 th Dist.], pet ref’d.) ........ 32
Martin v. State , 265 S.W.3d 435 (Tex. App. – Houston [1 st Dist.] 2007, no pet.)24,29
Reyes v. State , 849 S.W.2d 812 (Tex. Crim. App. 1993) ........................................ 37
Robinson v. State , 240 S.W.3d 919 (Tex. Crim. App. 2007) ................................. .34
Rodriguez v. State, 129 S.W.3d 551 (Tex. App. – Houston [1 st Dist.] 2003, pet.
ref’d)………………………………………………………………………………24
Shelton v. State , 841, S.W.2d 526 (Tex. App. – Fort Worth 1992, no pet.) ........... .15
Simpson v. State , 886 S.W.2d 449 (Tex. App. – Houston [1 st Dist.] 1994, pet. ref’d)27
Sinegal v. State , 789 S.W.2d 383 (Tex. App. – Houston [1 st Dist.] 1990, pet. ref’d)25
iv
Sorrell v. State , 169 S.W. 299 (Tex. Crim. App. 1914) .......................................... 14
Strickland v. Washington , 466 U.S. 668 (1984) .................................................. 9, 13
Theus v. State , 845 S.W.2d 874 (Tex. Crim. App. 1992) .................................. 27, 28
Thomas v. State , 312 S.W.3d at 732 (Tex. App. – Houston [1 st Dist.] 2009, pet.
ref’d) ......................................................................................................................... 28
Thompson v. State , 514 S.W.2d 275 (Tex. Crim. App. 1974) ................................. 38
Zamaro v. State , 84 S.W.3d 643 (Tex. Crim. App. 2002)(en banc) ........................ 35
Constitutions, Statutes and Other Authorities
Tex. Code Crim. Proc. 35.16(9) ............................................................................... 14
Tex. R. App. Proc. 25.2(a) ......................................................................................... 1
Tex. R. App. Proc. 9................................................................................................. 41
Tex. R. Evid. 403 ..................................................................................................... 24
Tex. R. Evid. 609 ......................................................................................... 25, 27, 28
v
S TATEMENT OF THE C ASE On June 14, 2012, Appellant was charged by indictment with Sexual Assault of a Child in Cause No. 1342490. (C.R. at 35.) Appellant was brought to trial on
September 26, 2013. (III R.R. at 1). Appellant entered a plea of not guilty to the
charges. (IV R.R. at 11.) The jury found Appellant guilty on October 3, 2013. (VII
R.R. at 3.) The jury found the allegation in the enhancement paragraph true and
sentenced Appellant to life in the Texas Department of Criminal Justice. (VII R.R.
at 4-5.) Appellant filed a Motion for New Trial and Request for Evidentiary
Hearing on November 4, 2013 (MNT [1] ) The trial court signed an order of
presentment on the motion for new trial on November 8, 2013. The trial court
denied Appellant’s Motion for New Trial and Request for Evidentiary Hearing on
December 16, 2013. (IX R.R. at 24.) Appellant gave timely notice of appeal and
the trial court’s certification of defendant’s right of appeal ensures Appellant has
the legal right to appeal. (C.R. 207, 209.) Tex. R. App. Proc. 25.2(a).
*7 I SSUES P RESENTED
Issue One: Appellant received ineffective assistance of counsel.
Issue Two: The trial court erred in denying Appellant’s motion for a speedy trial.
Issue Three: The trial court erred by failing to grant an evidentiary hearing on the Motion for New Trial.
Issue Four: The trial court erred by bringing a material defense witness, D.R. into the courtroom, handcuffed, and in a jail uniform. Issue Five: A new trial should have been granted based on newly discovered evidence.
2
S TATEMENT OF F ACTS R.R. was fifteen years old at the time of the trial. (IV R.R. at 41.) Prior to the date of the alleged incident, R.R. had not been home for two weeks. (IV R.R. at
32.) Instead of going home, R.R. would go to Appellant’s house with her best
friend, D.R., who had a room at Appellant’s house. (IV R.R. at 33, 47.) R.R. went
to Appellant’s house almost every day after school and stayed the night there once
in a while. (IV R.R. at 49.)
On January 2, 2012, R.R. claims that she was over at Raymond’s house with D.R. in Appellant’s room smoking. (IV R.R. at 52, 53.) Appellant left for a few
hours and returned while R.R. was asleep according to R.R. ( Id .) R.R. had also
taken “handlebars”, a type of drug, that day. ( Id .) She claims that Appellant gave
her and D.R. one of the handlebars each in their hand and placed some in a drink
that they consumed. (IV R.R. at 53-54.) R.R . claims that while they were
consuming these drinks, Appellant left, and R.R. stayed in Appellant’s room. (IV
R.R. at 55-56.) R.R. claims that Appellant would give marijuana and handlebars to
D.R. (IV R.R. at 50.) Appellant denies giving them any bars or marijuana. ( Id .)
Gabriale Cavitt testified that she never saw Cavitt use any drugs other than taking
his medicine. (V R.R. at 77.)
As R.R. was sitting in Appellant’s bed talking to D.R., D.R. fell asleep. (IV R.R. at 57.) R.R. stated that she stayed awake for a while and then went to sleep
3
next to D.R. ( Id .) According to R.R., Appellant was not there when R.R. went to
sleep, but when she woke up, she was laying on her stomach, and Appellant was
on top of her. (IV R.R. at 58.) R.R., who weighs about 200 pounds (IV R.R. at
106), never felt anyone pulling her pants down, but she felt pain in her vagina.
R.R. claims Appellant was trying to force his penis into her vagina, but that it did
not penetrate her vagina even though it seemed like Appellant was trying to
penetrate her with his penis and his arms were “all over her body”. (IV R.R. at 58-
60, 85.) She testified that when she awoke, she was wearing a pajama jacket and
her long pajama pants, which were down by her ankles, and he was not wearing
any pants, but she did not see his penis. (IV R.R. at 58-59.) The lights were out in
the ceiling of the bedroom and/or the hall, so the only light in the room would have
been from the television or computer. (IV R.R. at 84.) R.R. testified that she knew
it was Appellant because of his voice and she recognized his figure. (IV R.R. at
105.) According to R.R., when she woke up she said, “What are you doing? He
said: I’m just playing with you.” (IV R.R. at 59.) She claims Appellant then
jumped up over the front of the bed. (IV R.R. at 108.) She tried to wake up D.R.,
but she would not wake up. (IV R.R. at 59.)
Raven then went up to Appellant’s granddaughter and niece’s apartment. (IV R.R. at 59.) Appellant’s niece is Deanna [2] Hoedzoade, and his granddaughter is
*10 named Gabriale. (IV R.R. at 63-64; V R.R. at 61.) They went down and carried
D.R. upstairs. (IV R.R. at 64.)D.R. did not wake up until the next morning. ( Id .)
R.R. left and went to Juanita Robicheaux’s house and told a story of what she
claimed occurred. Juanita Robicheaux is Appellant’s hospice provider, and
Appellant would go to her house every day. (V R.R. at 59, 123.) They did not
believe R.R.. (IV R.R. at 90.) While R.R. does not remember talking to Shayshay
Miller at Juanita Robicheaux’s house and telling her that she was not sure what
happened, R.R. does remember speaking to Makayla Wilborn at Juanita
Robicheaux’s house. (IV R.R. at 115, 116.) She denies telling Makayla Wilborn
that she was not sure or nothing happened. ( Id .) R.R. claims that Wilborn asked
her what happened and she did not tell her anything. ( Id .) They did not call the
police. (IV R.R. at 90.) She did not tell her mother the story until she eventually
went home two days after the alleged incident, and still no one called the police.
(IV R.R. at 66, 67.) R.R. claims she did not originally tell her mother because she
did not want her mother to know she was doing drugs. (IV R.R. at 67.) R.R.’s
mother told the school principal and they called the police. ( Id .) R.R. was not
medically examined until 22 days after the alleged incident. (IV R.R. at 145.) The
exam showed no abnormalities. (IV R.R. at 20.)
Gabriale Cavitt testified that she and Dee Hoedzoade went to Appellant’s apartment on the day this incident is alleged to have occurred. (V R.R. at 66.)
5
When they arrived, Appellant was fully dressed and washing dishes. (V R.R. at 66-
67.) They talked to Appellant for five or ten minutes and then went back upstairs to
their apartment. (V R.R. at 67.) Gabriale testified that it only takes four to five
seconds to walk to her apartment. ( Id .) Not even five minutes later, R.R. came to
her apartment banging on the door and alleged that Appellant tried to rape her. (V
R.R. at 69.) R.R. did not want to call the police. (V R.R. at 72.) Gabriale stated that
she went back down to Appellant’s apartment and called D.R. five times telling her
to get up but did not want to get up. (V R.R. at 73.) Gabriale testified that she
picked D.R. up and carried her back up to their apartment and called Juanita
Robicheaux. ( Id .) The next morning, while it was still dark outside, Juanita
Robicheaux’s boyfriend, Tremane, picked up R.R. and D.R.. ( Id .)
After Dee told Appellant that a girl was claiming somebody touched her, he picked up the phone and called 911. (V R.R. at 143.) The police would not file a
complaint because Appellant did not know what girl said someone touched her;
therefore, they lacked a complaining witness. (V R.R. at 145.)
Appellant testified that the day after this alleged incident, R.R. and D.R.
were at his house when he arrived home after leaving Juanita Robicheaux’s house.
(V R.R. at 136.) They stayed at his house all night. (V R.R. at 136-37; VI R.R. at
21.) The next day R.R. wore Appellant’s clothes. (V R.R. at 142; VI R.R. at 24.)
Gabriale saw R.R. with D.R. at Appellant’s house after school let out and R.R. was
6
wearing the clothes Appellant gave her. (V R.R. at 80-81.) R.R. denies going back
to Appellant’s house the next day after she got out of school, and denied going to
Appellant’s house and wearing his clothes to school the next day. (IV R.R. at 76 -
77.) R.R. was reluctant to talk to the police and was uncooperative. (IV R.R. at 26-
31.)
A letter was written in R.R.’s handwriting apologizing for making up this allegation and stating that she was intoxicated and on drugs when she did. (Def.’s
Ex. 1) According to Gabriale Cavitt, the letter was prepared at her house and dated
January 28, 2013. (V R.R. at 84.) Gabriale denies helping R.R. write the letter and
testified that she only proofread it. (V R.R. at 85.) R.R. claims that D.R. wrote a
statement and then asked her to copy it in her own handwriting and sign it, and that
she was pressured to write it. (IV R.R. at 70, 76.) D.R. was also present at Gabriale
Cavitt’s when R.R. wrote the letter. (VI R.R. at 25.) D.R. denies writing the letter
or telling her what to put in the letter, and she testified that R.R. gave her the letter.
(VI R.R. at 25-26.)
Appellant acquired statements from Makayla and Shayshay Miller and he brought those statements when he talked to Sergeant Colburn. (V R.R. at 152.)
Furthermore, Appellant testified that he could not become erect as a result of his
medications. (V R.R. at 154.) Appellant denies trying to molest R.R. (V R.R. at
155.) Appellant did not know if R.R. was in his apartment the day of the incident
7
because he did not see her there. (V R.R. at 165.) Appellant did not remember
Gabriale picking up D.R. and carrying her from his apartment or trying to wake her
up. (V R.R. at 167.) Appellant was sleeping at the time this would have occurred,
and Dee was the one that woke him up. (V R.R. at 167, 195.)
D.R. was brought into the courtroom in front of the jury in handcuffs and a brown inmate jumpsuit. (VI R.R. at 3, 11-12.) Defense counsel requested that the
handcuffs be removed. (VI R.R. at 3.) According to D.R., her mother, Juanita
Robicheaux was out of town at the time of the trial. (VI R.R. at 6.) She testified
that on the day of the incident, she and R.R. smoked marijuana when Appellant
was not there. (VI R.R. at 8-9.) D.R. was the one that got the handlebars off of the
headboard of Appellant’s bed, R.R. asked her for the handlebars, and D.R. gave
her one. (VI R.R. at 10, 56.) According to D.R., Appellant did not have anything to
do with them smoking or doing handlebars. (VI R.R. at 11.) D.R. testified that she
put handlebars inside of a drink and put it in the freezer and gave herself one and
half and she gave R.R. one and half handlebars. (VI R.R. at 56.) She also testified
that she was just asleep not passed out when she was carried. (VI R.R. at 61.)
8
A RGUMENT Issue One: Appellant received ineffective assistance of counsel. Appellant hereby incorporates by reference the Statement of Facts portion of this brief as set forth at 3-8, supra.
A. Standard of Review
There are two components to a claim of ineffective assistance of counsel.
Strickland v. Washington , 466 U.S. 668, 687 (1984). The appellant must establish
that his trial counsel performed deficiently and that the deficiency operated to
prejudice him. Id . To show prejudice, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id . at 694. In evaluating the
first component, reviewing courts must not second-guess legitimate strategic or
tactical decisions made by trial counsel in the midst of trial, but instead “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id . at 689.
9 *15 B. Trial Counsel improperly informed the jury that Appellant had already been incarcerated based on this case for the past 542 Days.
During voir dire, defense counsel informed the jury that Appellant had been in jail on this case for five hundred and forty two days, infringing on his
fundamental right to the presumption of innocence. In Ephram v. State , the Texas
Court of Criminal Appeals held that “trying a defendant in prison clothing
infringed upon his right to presumption of innocence and required reversal.” 471
S.W.2d 798 (Tex. Crim. App. 1971).
Defense counsel started voir dire but stating “It’s my high honor and privilege to represent Mr. Cavitt. I’ve known him for 542 days now.” (III RR. At
121.) Defense was asking the venirepanel whether the fact that he has been
indicted makes him guilty, and a venireperson responded:
[Venireperson]: How many days did you say he’s been locked up? [Defense counsel]: Five-forty-two
[Venireperson]: I don’t know.
[Defense counsel]: That has nothing to do with it. We’re getting to trial. I’m asking about this paper.
[Venireperson]: He’s been in there that long?
[Defense counsel]: Right.
[Venireperson]: So, something must be wrong.
[Defense counsel]: Right. What must be wrong?
[Venireperson]: He’s guilty.
[Defense counsel]: Because he’s been here 542 days he must be guilty?
[Venireperson]: Yeah. Why is taking him so long to get the evidence or whatever and get it lined out and get him out of here?
[Defense Counsel]: I’ve been ready for trial after 90 days. (III RR. At 128-29.)
Defense counsel also elicited testimony from Appellant that he had a lengthy pretrial incarceration.
[Defense Counsel]: And you’ve been in jail now how long? [Appellant]: Almost two years.
[Defense Counsel]: 550 days, 48 days, something like that? [Appellant]: Yes, sir. (V R.R. at 113.) Defense counsel’s comments regarding Appellant’s lengthy pretrial incarceration violated his constitutional protections and the requisite presumption
of innocence. His comments violated Appellant’s presumption of innocence under
the Fourteenth Amendment to the United States Constitution. These comments are
analogous to cases in which an accused is brought in front of the jury in prison
clothes, and infringe on Appellants right to be presumed innocent until proven
guilty. To implement the presumption the presumption [of innocence], courts must
be alert to factors that may undermine the fairness of the fact-finding process. In
the administration of criminal justice, courts must carefully guard against dilution
of the principle that guilt is to be established by probative evidence and beyond a
reasonable doubt. Estelle v. Williams , 425 U.S. 501 (1976). Similar to wearing
prison garb, pretrial incarceration “operates usually against only those who cannot
post bail prior to trial. Persons who can secure release are not subjected to this
condition.” Id . at 505. There can be no valid strategically reason to comment on
Appellant’s lengthy pretrial incarceration.
C. Failing to adequately inform Appellant about advantages and disadvantages of testifying.
During voir dire, defense counsel informed the jury that he decides whether or not Mr. Cavitt will testify. (III RR. At 129.) He later reiterated this again to the
jury by stating, “Now, if Mr. Cavitt doesn’t testify – and again, it would be up to
me – would you hold that against him on the first row?” (III R.R. at 129.) “I’m
having my client testify and my client has a checkered [past], he’s been to prison
before, can you set all that aside, can you set all that aside and not think about that
at all, and just on the facts of this case and the testimony you hear [and] render a
verdict.” (III R.R. at 139.) Before Appellant testified, defense counsel went on the
record and made Appellant confirm that he understands that he has the right to
testify or not and that if he testifies he would be subject to rigorous cross-
examination. (V R.R. At 111.)
Nevertheless, trial counsel failed to adequately discuss with Appellant whether or not he should testify during the guilt-innocence phase of the trial.
(MNT, Def.’s Ex. 4.) Appellant has a criminal history including a previous sexual
assault conviction among other serious convictions. Counsel failed to discuss with
Appellant that his prior criminal history could be revealed to the jury if he decided
to testify. (MNT, Def.’s Ex. 4.) If he had been informed of this information,
Appellant would have chosen not to testify at the guilt-innocence phase of the trial.
(MNT, Def.’s Ex. 4.) Appellant even filed a letter with the trial court asking that he
order the district attorney not to bring up any other case that is not involved with
his current charge. (MNT, Def.’s Ex. 12.)(C.R. at 123-27.) The Defendant’s
criminal history came out during the guilt-innocence phase of the trial after the
Defendant testified.
Counsel’s failure to advise Appellant of the disadvantages of testifying, including the admissibility of his prior sexual assault conviction, was outside the
wide range of professionally competent advice and did not constitute the exercise
of reasonable professional judgment. Strickland v. Washington , 466 U.S. 668
(1984). The prejudicial effect of the admission of a prior sexual assault conviction
during a sexual assault of a child trial is apparent, and Appellant was denied a fair
trial by counsel’s failure to inform him of the effect of his decision to testify.
D. Failing to challenge or strike venireperson.
In response to questioning regarding Appellant’s criminal history and being able to render a fair verdict, venireperson number 39 stated,
[Venireperson]: Like the previous two are saying, if the person has a history of the similar crime and their testimony is not credible in my eyes.
[Defense counsel]: And you couldn’t render a fair and impartial verdict. Is that right?
[Venireperson]: That’s hard to say that. (III R.R. at 145.) Defense failed to challenge venireperson 39 for cause, or move to strike him.
(III R.R. at 149-59) (C.R. at 169.) Venireperson 39 was placed on the jury
presiding over the trial. (III R.R. at 160.)
In this case Appellant’s prior conviction for sexual assault was revealed during the guilt-innocence state of the trial. Appellant was entitled to a fair and
impartial jury under the Sixth Amendment to the United States Constitution and
Art. 1 § 10 of the Texas Constitution. Under the Texas Code of Criminal
Procedure, Article 35.16(9), venireperson 39 was challengeable for cause because
he had a bias against the defendant. “One improper juror destroys the integrity of
the verdict.” Sorrell v. State , 169 S.W. 299, 303 (Tex. Crim. App. 1914). There
can be “no reasonable defense strategy that would justify allowing such an
individual to sit on a jury to determine the legal fate of one’s client in a criminal
trial. Permitting such an occurrence undermines in advance the perceived essence
of a jury’s purpose to render a fair and impartial verdict. Delrio v. State , 820
S.W.2d 29, 32 (Tex. App. – Houston [14 th Dist.] 1991).
E. Failing to secure the presence of material witnesses to testify at the trial.
Counsel was ineffective for failing to subpoena material witnesses in support of the Appellant’s assertion that the complainant’s allegation was fabricated. See
Shelton v. State , 841, S.W.2d 526 (Tex. App. – Fort Worth 1992, no pet.)
Appellant had informed his attorney that he was set up because he had people
removed from his apartment. (MNT, Def.’s Ex. 4.) He also sent a letter to the court
informing the court of this information. (MNT, Def.’s Ex. 5.) Appellant had
informed his attorney that Gabriale Cavitt, R.R., and Deanna Hoedzoade made up
this allegation after the Defendant had the Houston Police Department come and
remove Gabriale Cavitt and Deanna Hoedzoade from his residence and he had
asked R.R. to go home. (MNT, Def.’s Ex. 4.) Appellant’s theory of motive
regarding the complainant’s story was also reflected in his statement provided to
the police and noted in the offense report. (MNT at 3.)
Dorothy Cavitt Lewis had informed Appellant’s attorney, William Gifford, before the trial that Deanna Hoedzoade had personally told her that they lied to the
police, she was on drugs, and they made all of this up. (MNT, Def.’s Ex. 6.)
Deanna told Dorothy that she wanted to go to the police station to change her
statement, but she was scared of getting in trouble. (MNT, Def.’s Ex. 6.) Dorothy
Cavitt Lewis was never subpoenaed or requested to attend the trial. Dorothy Cavitt
Lewis would have attended the trial if she was subpoenaed or requested to do so.
(MNT, Def.’s Ex. 6.)
Additionally, Ja’Shone Collins wrote an affidavit for the defense on June 21, 2012. (MNT, Def.’s Ex. 7.) This affidavit was provided to defense counsel and was
also in the State’s file available under the Harris County District Attorney’s open
file policy. (MNT at 4.) In her affidavit she stated that her and some friends were at
the Appellant’s house. Raven was upset because Appellant would not take her
home so she paired up with “Mr. Raymond’s other enemies” and made R.R. say
that when she woke up Appellant was on top of her. Later on in the week, R.R. told
Ms. Collins that they made her say that because they were upset with Appellant.
(MNT, Def.’s Ex. 7.) Counsel failed to subpoena Ja’Shone Collins to testify at the
trial. (MNT at 4.)
In his affidavit, defense counsel stated that Ja’Shone Collins told his investigator that she was present and in bed with R.R., D.R., and Appellant. (MNT,
State’s Ex. 1.) Since defense counsel believed it to be untruthful, he did not use her
testimony.
Moreover, Jacquette Miller also wrote a statement for the defense. (MNT, Def.’s Ex. 8.) In her statement, she stated that when R.R. told her about what
happened, Ms. Miller said she was going to call the police and told R.R. to call her
mother. R.R. begged Ms. Miller not to call the police because R.R. was not really
sure and her mother would not let her come around anymore. Ms. Miller also wrote
that after this happened R.R. went to school the next day and then went back to
Appellant’s apartment and spent the night again. R.R. also kept changing her story
about what happened. She told Ms. Miller she really did not know. This statement
was written on January 13, 2012, and provided to defense counsel. The statement
was also in the State’s file that was available through the District Attorney’s open
file policy. (MNT at 5.) Jacquette Miller also provided a statement to the police. In
her statement, which was also reflected in the offense report available to the
defense under the District Attorney’s open file policy, stated that on the night of
the incident R.R. told her she did not know if Appellant had his clothes on. ( Id .)
R.R. told her she did not know who it was that did this to her. ( Id .) Ms. Miller told
R.R. she was going to call the police, but R.R. told her not to call the police
because she would get in trouble with her mother. ( Id .) R.R. then told her she did
not know what happened. ( Id .) She told R.R. to go home after school, but instead
R.R. went back to the Defendant’s apartment. ( Id .) R.R. spent the night at
Appellant’s and wore Appellant’s clothes to school the next day. ( Id .) Counsel
failed to subpoena Jaquette Miller to testify at the trial. ( Id .)
In his affidavit for the motion for new trial, defense counsel stated that Juanita Robicheaux told him that Jacquette Miller was a heavy drug user and could
generally be found on a particular street corner and that no one had an actual
address at which Jacquette Miller could be located. (MNT, State’s Ex. 1.) He stated
that based on his inability to locate her, and her credibility issues, he decided to
proceed without her. ( Id .) Although defense counsel stated that his investigator
went to places that he was informed she could be found, he did not state how many
times he went to these places and what places he went to.
Likewise, Clydell Adams would testify that R.R. was high on weed and she told people around the apartment that it was not the Defendant who did this to her.
He also saw R.R. come back to the Defendant’s apartment after this incident and
stay at his apartment for the next two nights. (MNT, Exhibit 10.) This statement
was provided to defense counsel prior to trial. The statement was also in the State’s
file that was available through the District Attorney’s open file policy. Counsel
failed to subpoena Clydell Adams to testify at the trial. (MNT at 5.)
Defense counsel stated that the reason he did not subpoena him to testify was because he was in jail, he had a criminal history, he did not want this imputed
on Appellant, and he believed he could elicit the same testimony from Gabriale
Cavitt and D.R.. (MNT, State’s Ex. 1.)
Makayla Wilburn also wrote a statement that R.R. changed her story. She also said that R.R. went back to stay at the Defendant’s apartment and asked to
wear his clothes. (MNT, Exhibit 9.) This statement was provided to defense
counsel. The statement was also in the State’s file that was available through the
District Attorney’s open file policy. Counsel failed to subpoena Makayla Wilburn
to testify at the trial.
Defense counsel stated that he was aware of the statement given by Wilburn but he believed it was duplicative of other witness testimony and neither himself
nor his investigator was able to locate her. Defense counsel fails to state what
efforts either himself or his investigator took to locate her. Furthermore, testimony
that R.R. would change her story was material to Appellant’s defense.
Additionally, Juanita Robicheaux was sworn to return and was not present during the trial. (IV R.R. at 3-4.) At the beginning of the trial, defense counsel
noted on the record that Juanita Robicheaux was a “critical, important witness”
who left town for a month for work. Defense counsel had informed her that she
needed to be present when he spoke to her the Friday before trial; however, she left
town. (IV R.R. at 5.)
Defense counsel moved for a continuance in the interest of justice. (IV R.R.
at 5.) Defense counsel stated that her testimony was “extremely important when it
comes to the testimony of what the child did, what happened at that exact time, and
who was present. And without that testimony, I can’t get anyone else to say: I
brought him to the house, let him off, he goes in the kitchen.” (IV R.R. at 6.) The
court denied Appellant’s motion for continuance. (IV R.R. at 6.) The court later
granted a short continuance during the trial until the following day. (V R.R. at
201.)
After the defense rested, defense counsel withdrew his motion for a continuance based on the fact that the witness was not present to testify. (VI R.R.
at 74.) He withdrew his request for a continuance based on his opinion that other
witnesses have covered what he believed Juanita Robicheaux would testify to. (VI
R.R. at 74.) Defense counsel stated that all he believed Juanita Robicheaux would
be able to testify to that was not already introduced at the trial was that “she was
with Raymond all day and she’s his caregiver. That’s about it.” (VI R.R. at 74.)
According to defense counsel’s affidavit, he considered Juanita Robicheaux to be an important witness in the case. (MNT, State’s Ex. 1.) He stated that he was
concerned that the jury would blame Appellant if he were to ask for the case to be
further delayed to get her into court and he was unable to give any kind of timeline
as to when she might appear. (MNT, State’s Ex. 1.)
Juanita Robicheaux was the Appellant’s healthcare provider and is the mother of D.R. (MNT at 6.) Juanita Robicheaux provided a statement to the police
that was also reflected in the offense report available under the District Attorney’s
open file policy. ( Id. ) According to Juanita Robicheaux’s statement to the police,
D.R. told her mother, Juanita Robicheaux, that R.R. was lying. ( Id. ) Juanita
Robicheaux told R.R. to call the police the night of the incident and R.R. said she
did not want to the call the police. ( Id. ) R.R. was mad because D.R. and R.R. got
into an argument and that was when the police became involved. ( Id. ) According to
the offense report, Juanita Robicheaux also signed a statement saying that R.R.
kept changing her story. ( Id. )
F. Failing to elicit testimony to demonstrate a motive for R.R. to make up this allegation.
Gabriale and Dee Hoedzoade had a fight with Appellant and he made them move out of the house before this incident. (IV R.R. at 135; V R.R. at 52, 61-62.)
Counsel failed to elicit testimony from Gabriale Cavitt that R.R., the complainant,
told Gabriale Cavitt about three or four weeks after this alleged incident that she
made this up because she was upset. Gabriale Cavitt had informed trial counsel of
this information. Gabriale Cavitt testified during the trial, and would have testified
to this information if the Defendant’s attorney elicited it during her testimony.
(MNT, Def.’s Ex. 6.)
Moreover, D.R. also wrote a statement for the defense. See (MNT, Def.’s
Ex. 14.) In her statement she said R.R. was mad because the Appellant kept telling
her that she needed to call her mother or he will take her home. D.R. also stated in
an affidavit that Gabriale Cavitt and Deanna Jackson (also known as Deanna
Hoedzoade) were mad at Appellant and told R.R. to get Appellant in trouble with
this accusation. R.R. did not report it until she “got into it” with D.R. and that is
when she reported this incident. (MNT, Def.’s Ex. 15.) Both her statement and her
affidavit were provided to defense counsel and were in the State’s file available for
review under the Harris County District Attorney’s open file policy. (MNT at 8.)
D.R. testified at the trial. Counsel failed to elicit this information through her
testimony at trial.
G. Failing to object to inadmissible expert testimony regarding Appellant’s likelihood of reoffending during the guilt-innocence stage of the trial.
Dr. Lawrence Thompson Jr. (“Thompson”) testified for the defense. (IV R.R. at 173.) Thompson is employed with the Harris County Children’s
Assessment Center as the director of therapy and psychological services. (IV R.R.
at 174.) During redirect examination, the State asked to approach the bench and
informed the court at the bench that he wanted to “ask the witness about patterns of
behavior with regard to people who reoffend in sexual abuse cases,” and asked if
there was any objection to it. (IV R.R. at 201.) Defense counsel’s only concern, as
stated at the bench, was that he “couches it abuse as to what, an adult or a child
whatever. Because if we have no report of any prior children, this is a child clinical
psychologist.” (IV R.R. at 201.) The State elicited testimony that some sex
offenders have specific adults or children that they target, and that “hypothetically,
an individual who targeted a 14-year-old and an 18-year-old female, would be
within the type of general category that somebody might select?” (IV R.R. at 202-
03.) To which, Thompson responded that essentially “it’s not just the age that they
may be attracted to, but what they look like.” (IV R.R. at 204.) The prosecutor then
went further and asked, “In your experience dealing with sex offenders or
perpetrators of sexual abuse, is it common or uncommon for them to be a one-shot
deal? Is it just usually one time they commit sexual abuse or is it typically a
behavior issue?” (IV R.R. at 206.) Thompson responded, “I can say as to the extent
that there is an inappropriate sexual attraction to children, that inappropriate sexual
attraction is there and is an issue in an ongoing way. There’s no cure for that
inappropriate sexual attraction.” (IV R.R. at 204.)
Under Texas Rule of Evidence 702, the trial court must find that the following three conditions are satisfied before admitting expert testimony: (1) the
witness qualifies as an expert by reason of her knowledge, skill, experience,
training, or education; (2) the subject matter of the testimony is an appropriate one
for expert testimony; and (3) admitting the expert testimony will actually assist the
trier of fact in deciding the case. Tex. R. Evid. 702. The trial court’s determination
regarding experts’ qualifications and the admissibility of expert testimony is
subject to an abuse of discretion standard. Lagrone v. State , 942 S.W.2d 602, 616
(Tex. Crim. App), cert. denied (1997).
Under Texas Rules of Evidence, Rule 403, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice . . . ” Tex. R. Evid. 403. Defense counsel was also ineffective for
failing to object to this line of under Rule 403 since any probative value was
substantially outweighed by the danger of unfair prejudice.
H. Introducing testimony regarding Appellant’s prior remote convictions and failing to obtain a ruling regarding the admissibility of Appellant’s prior convictions.
Eliciting testimony from the defendant as to his own prior convictions can be a matter of sound trial strategy, if the prior convictions are admissible. Martin v.
State , 265 S.W.3d 435, 443 (Tex. App. – Houston [1 st Dist.] 2007, no pet.);
Rodriguez v. State , 129 S.W.3d 551, 558-59 (Tex. App. – Houston [1 st Dist.] 2003,
pet. ref’d). However, if prior convictions are inadmissible, there can be no
reasonable trial strategy for introducing them before the jury. Robertson v. State ,
187 S.W.3d 475, 485-86 (Tex. Crim. App. 2006). “The fact that a witness,
including the accused, has been charged with an offense, is inadmissible for
impeaching the witness’s credibility unless the charge has resulted in a final
conviction for a felony or an offense involving moral turpitude, and even then it
must not be too remote .” Sinegal v. State, 789 S.W.2d 383 (Tex. App. – Houston
[1 st Dist.] 1990, pet. ref’d) (citing Alexander v. State , 740 S.W.2d 749, 763 (Tex.
Crim. App. 1987).
Rule 609 provides that evidence of a witness’s prior convictions is admissible for purposes of impeachment if the crime was a felony or a crime of
moral turpitude and if the trial court determines its probative value outweighs its
prejudicial effect. Tex. R. Evid. 609(a). However, a prior conviction is
presumptively inadmissible for impeachment purposes if more than ten years have
elapsed since the date of conviction or of the witnesses’ release date from the
confinement imposed for the prior conviction, whichever is later. The date of trial
is the controlling time for computation because the purpose of admitting prior
convictions at the guilt stage of the trial is to allow impeachment. Sinegal , 789
S.W.2d at 387.
The testimony elicited at trial is that Appellant was convicted of Accessory to Robbery in the early 1970s, Sexual Assault in 1989, and Forgery in 1986. (CR.
At 35.) (V R.R. at 114.) These convictions were approximately 40, 24, and 27
years old respectively. Additionally, Appellant testified that he served eighteen to
nineteen years on the accessory to robbery charge that he was convicted of in the
early 1970s. (V R.R. at 114.) It is reasonable to assume that Appellant was
released before 1986, because that is when he was convicted of Forgery. Therefore,
Appellant was released from confinement on his conviction of accessory to
robbery approximately 27 years ago. Therefore his conviction was presumptively
too remote to be admissible.
Furthermore, the State failed to list Appellant’s prior conviction for Accessory to Robbery from the early 1970s in its notice of prior convictions and
extraneous offenses that was filed on January 15, 2013. (C.R. at 67.) Therefore,
counsel elicited harmful testimony that the State never sought to introduce, nor
gave notice that it intended to introduce at trial.
Appellant testified that he was released after approximately serving six months on his conviction of Forgery in 1986. (V RR. At 116-17.) Therefore, it has
been approximately 27 years since he was released from confinement on his charge
of Forgery. Therefore his conviction was presumptively too remote to be
admissible.
Moreover, Appellant testified that he was released after serving 16-and-half years or 17-and-a-half years on his conviction of sexual assault in 1989. Therefore,
it has been approximately eight years since Appellant was released from
confinement on his charge of sexual assault.
The Court of Criminal Appeals has set out a nonexclusive list of factors courts should use to weight the probative value of a conviction against its
prejudicial effect. Theus v. State , 845 S.W.2d 874 (Tex. Crim. App. 1992). These
include: (1) the impeachment value of the prior crime; (2) the temporal proximity
of the past crime relative to the charged offense and the witness’s subsequent
history; (3) the similarity between the past crime and charged offense; (4) the
importance of the witness’s testimony; and (5) the importance of the witness’s
credibility. Id . at 880. The proponent seeking to introduce Rule 609 evidence has
the burden of showing that the probative value of a conviction outweighs its
prejudicial effect. Id .
With respect to the first factor, the Court of Criminal Appeals has stated that crimes involving deception or moral turpitude have a higher impeachment value
than crimes involving violence. Id . at 811. The impeachment value of his sexual
assault conviction or his accessory to robbery conviction is low because the crimes
do not necessarily involve deception. However, the charge of forgery could be
found to involve deception.
The second Theus factor favors admission “if the past crime was recently committed and if the witness has demonstrated a propensity for breaking the law.”
Simpson v. State , 886 S.W.2d 449, 452 (Tex. App. – Houston [1 st Dist.] 1994, pet.
ref’d). Appellant was convicted of Accessory to Robbery in the 1970s, Sexual
Assault in 1989, Forgery in 1986. (CR. At 35.) These convictions were
approximately 40, 24 and 27 years old respectively. These convictions were too
remote to be admissible.
Under the third Theus factor, similarity between a prior offense and the current offense weights against admissibility under Rule 609, whereas dissimilarity
between the prior offense and the current offense favors admissibility. Theus , 845
S.W.2d at 881. “This is so because the admission for impeachment purposes of a
crime similar to that charged presents a situation in which the jury could convict
based on the perception of the past conduct rather than the facts of the present case.
Thomas v. State , 312 S.W.3d at 732, 739-40 (Tex. App. – Houston [1 st Dist.] 2009,
pet. ref’d).
With respect to Appellant’s prior conviction for forgery and accessory to robbery, the dissimilarity in the two offenses would weigh in favor of
admissibility. However, Appellant’s previous conviction for sexual assault and the
present charge of sexual assault of a child include the same sexual assault elements
and this similarity would weigh in favor of exclusion. Therefore, the third Theus
factor favors admissibility of Appellant’s prior conviction for forgery and
accessory to robbery, but disfavors admissibility of Appellant’s prior conviction
for sexual assault.
Finally, under the fourth and fifth factors, the court is to consider the importance of appellant’s testimony and his credibility. Martin v. State , 265
S.W.3d 435, 445 (Tex. App. – Houston [1 st Dist.] 2007, no pet.). According to
R.R.’s testimony, the only person awake at Appellant’s apartment when this
incident is alleged to have occurred was Appellant when she woke up during the
alleged incident. Therefore, the jury’s verdict on guilt or innocence depended
almost entirely on its assessment of R.R.’s and Appellant’s credibility.
There could be no reasonable basis for failing to have the court weigh these factors and make a ruling before admitting evidence of these convictions before the
jury.
I. Eliciting inadmissible facts regarding Appellant’s prior convictions. During the trial, defense counsel elicited potentially inadmissible facts regarding Appellant’s prior convictions and his status as a registered sex offender.
[Defense Counsel]: Now, you went to the database and know that he was a sex offender?
[John Colburn]: Yes, sir. (IV R.R. at 165.) and
[Defense Counsel]: Did you know Mr. Cavitt was in the penitentiary for about 34 years?
[Gabriale Cavitt]: Yes, sir. (V R.R. at 110.) Defense counsel elicited further facts regarding Appellant’s criminal history and the length of time Appellant spent incarcerated on his prior convictions, which
would be inadmissible at the guilt-innocence stage of the trial.
[Defense Counsel]: The first time you went to prison was when, if you recall?
[Appellant]: In the early, early ‘70s.
[Defense Counsel]: What was that for?
[Appellant]: Accessory to robbery.
[Defense Counsel]: Accessory to robbery. All right. How long did you stay in prison that time.
[Appellant]: Twenty—eighteen, nineteen years, something like that. A long time.
[Defense Counsel]: Okay. Eighteen to nineteen years?
[Appellant]: Yes, sir. (V R.R. at 114.) [Defense Counsel]: Sure. Okay. And then you messed up again and went to prison; is that correct[?] [Appellant]: Yes, sir.
[Defense Counsel]: When was that?
[Appellant]: I think it was ’86.
[Defense Counsel]: 1986. What was that for?
[Appellant]: I had got a forgery by passing check case. [Defense Counsel]: So, you had a forgery in there. How long were you in prison that time.
[Appellant]: I was in there – I think like maybe six months or seven months because it got reversed.
[Defense Counsel]: Okay. So, you don’t have a conviction for that as far as you know?
[Appellant]: No, not as far as I know.
[Defense Counsel]: Now, did you then go to prison again? [Appellant]: Yes, sir.
[Defense Counsel]: When was that?
[Appellant]: I don’t remember what year it was.
[Defense Counsel]: Okay. And what was that for?
[Appellant]: Sexual assault.
[Defense Counsel]: Sexual assault?
[Appellant]: Right.
[Defense Counsel]: How long were in prison that time?
[Appellant]: I would say it was 16-and-a-half-years or 17-and- a-half years.
[Defense Counsel]: All right. So how many total years have you been in prison.
[Appellant]: Thirty-five and one-half years. (V RR. At 116-17.) Generally, even though prior conviction may be admissible, details of that conviction are not. Lape v. State , 893 S.W.2d 949 (Tex. App. – Houston [14 th
Dist.], pet ref’d.); Jabari v. State , 273 S.W.3d 745 (Tex. App. – Houston [1 st Dist.
2008, no pet.). The information elicited by defense counsel would have been
inadmissible, and this information impacted his right to a fair trial and his
presumption of innocence.
J. Failing to object to the State’s questioning of Appellant regarding details of his previous sexual assault conviction.
Trial counsel failed to object to inadmissible details regarding Appellant’s prior conviction for sexual assault.
[Prosecutor]: The case that you plead guilty to back in 1988 involved a complaining witness who was a female, right?
[Appellant]: 1988, yes, sir.
[Prosecutor]: The prior sexual assault. She was 18 years old, right?
[Appellant]: Yes, sir.
[Prosecutor]: And you said you pled to that and got 18 years and you finished that up around 2005, 2006?
[Appellant]: Yes, sir. (V R.R. at 187.) As stated above, supra , Generally, even though prior conviction may be admissible, details of that conviction are not. Lape v. State , 893 S.W.2d 949 (Tex.
App. – Houston [14 th Dist.], pet ref’d.); Jabari v. State , 273 S.W.3d 745 (Tex. App.
– Houston [1 st Dist. 2008, no pet.). The harmful effect of this testimony was
exacerbated by Dr. Lawrence Thompson Jr.’s testimony regarding attraction to
children of a certain age. (IV R.R. at 202-03.) There could not be a valid
strategically reason for failing to object to the prosecutor’s question eliciting
inadmissible and harmful information.
K. Harm
Appellant was harmed based on the attorney’s ineffective assistance since he was denied the presumption of innocence by trial counsel commenting on his
lengthy pretrial incarceration, his lengthy criminal history and venireperson 39 was
placed on the jury who stated that he would have trouble finding appellant credible
when he has a prior similar crime. Moreover, he was denied a fair trial by
counsel’s failure to secure the presence of material witnesses to testify at trial in
his defense, his counsel’s failure to elicit testimony regarding R.R.’s motive to
make up this allegation from the witnesses who did testify, his counsel’s failure to
object to inadmissible expert testimony regarding appellant’s likelihood of
reoffending during the guilt-innocence stage of trial, his trial counsel’s introduction
of his prior convictions without a ruling as to their admissibility, his trial counsel
eliciting facts regarding Appellant’s prior convictions and failing to object to the
State’s introduction of facts regarding his prior convictions. Additionally,
Appellant was harmed as a result of counsel’s failure to advise him of the
disadvantages of testifying since his prior criminal history was revealed.
Issue Two: The trial court erred in denying Appellant’s motion for a speedy trial.
Appellant hereby incorporates by reference the Statement of Facts portion of this brief as set forth at 3-8, supra.
A defendant does not have the right to hybrid representation. Robinson v.
State , 240 S.W.3d 919 (Tex. Crim. App. 2007). A trial court is free to disregard
any pro se motions presented by a defendant who is represented by counsel. Id .
However, once a trial court actually rules on a pro se motion, that ruling is subject
to appellate review. Id . at 922. Additionally, defense counsel adopted all of the
pros se motions filed by Appellant. (V R.R. at 184.)
The defendant’s assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether the defendant is being deprived of that
right. Appellant filed a pro se motion for a speedy trial on August 19, 2013. (MNT,
Def.’s Ex. 20.) The Defendant was incarcerated on this charge on April 3, 2012. At
that point the Defendant had already been incarcerated for over one year and four
months. The trial court denied this motion on August 21, 2013. (MNT, Def.’s Ex.
20.)
The court is to analyze a speedy trial decision by looking at four specific factors laid out by Barker v. Wingo : (1) whether the delay before trial was
uncommonly long; (2) whether the government or the criminal defendant is more
to blame for that delay; (3) whether, in due course, the defendant asserted his right
to a speedy trial; and (4) whether he suffered prejudice as the delay’s result.
Zamaro v. State , 84 S.W.3d 643 (Tex. Crim. App. 2002)(en banc)(citing citing
Barker v. Wingo , 407 U.S. 515 (1970)). The courts “must analyze federal
constitutional claims by first weighing the strength of the above factors and then
balancing their relative weights in light of ‘the conduct of both the prosecution and
the defendant.’” Id . at 648 ( Barker v. Wingo , 407 U.S. at 530).
The first factor is the length of the delay. Id. “The length of the delay
between an initial charge and trial (or the defendant’s demand for a speedy trial)
acts as a ‘triggering mechanism’” Id . In Harris v. State , the Texas Court of
Criminal Appeals recognized that a delay of eight months or longer is
presumptively unreasonable and triggers speedy trial analysis. 827 S.W.2d 949
(Tex. Crim. App. 1992)(en banc). Therefore, in the instant case, the delay of over
one year and four months before the Defendant filed the motion for speedy trial
triggered a speedy trial analysis and this factor weights against the State.
The second factor is the reason for the delay. Where the record is silent regarding the reason for the delay this factor weighs against the State. Zamaro v.
State , 84 S.W.3d at 650.
The third factor is assertion of the right. The defendant has no duty to bring
himself to trial; that is the State’s duty. Id . at 651. However, “the defendant’s
assertion of his speedy trial right is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the right.” Id . This factor
weights in the defendant’s favor.
The final factor is prejudice caused by the delay. “’Prejudice of course, should be assessed in light of the interests of defendants which the speedy trial
right was designed to protect.’ The Supreme Court has identified three such
interests: 1) to prevent oppressive pretrial incarceration; 2) to minimize anxiety and
concern of the accused; and 3) to limit the possibility that he defense will be
impaired. Although the last type of prejudice is the most serious, a defendant’s
claim of a speedy trial violation need not necessarily demonstrate prejudice to his
ability to present defensive matters.” Id . at 652.
In this case, Appellant informed the court in his motion for speedy trial that he has lost one or more witnesses because they moved and he no longer has an
address for them. Additionally, Appellant sent numerous letters to the court
informing the court that he was dying from his numerous ailments, which brought
anxiety and concern to Appellant since his access to medical care was limited and
he was spending his limited time remaining awaiting trial. These letters also show
Appellant’s anxiety and concern while incarcerated. Appellant also stated in a
couple of the letters to the trial court that he is not receiving the right treatment and
medication in jail. (MNT, Def.’s Ex. 5, 12, 17, 20.) These factors weight in favor
of Appellant.
Therefore, Appellant’s right to a speedy trial was violated, and the trial court erred in denying the Appellant’s motion for a speedy trial.
Issue Three: The trial court erred by failing to grant an evidentiary hearing on the Motion for New Trial.
Appellant hereby incorporates by reference the Statement of Facts portion of this brief as set forth at 3-8, supra.
Because Appellant’s motion for new trial was supported by affidavit, raised matters outside of the record, and was timely filed and presented to this Court,
Appellant was entitled to an evidentiary hearing. See Reyes v. State, 849 S.W.2d
812, 816 (Tex. Crim. App. 1993). Failure to conduct an evidentiary hearing was
an abuse of the trial court’s discretion. Id .
Appellant’s motion for new trial, supported by his affidavit, was filed in a timely manner. The motion raised matters not determinable from the record,
namely that counsel was ineffective regarding matters outside of the trial
transcript. Because appellant’s motion for new trial raised matters not determinable
from the record upon which he could be entitled to relief, the trial judge abused his
discretion in failing to hold a hearing. Id . Therefore, if the judgment is not reversed
and remanded for a new trial based on the sworn affidavits and information in the
Motion for New Trial, the cause should be remanded to the trial court for a hearing
on appellant’s Motion for New Trial. See id .
Issue Four: The trial court erred by bringing a material defense witness, D.R. into the courtroom, handcuffed, and in a jail uniform.
Appellant hereby incorporates by reference the Statement of Facts portion of this brief as set forth at 3-8, supra.
“[P]ossible prejudice to a defendant should be avoided unless there are sufficient reasons to have his witness appear handcuffed and in jail clothing.”
Thompson v. State , 514 S.W.2d 275 (Tex. Crim. App. 1974). The test on appeal is
whether the trial court abused its discretion in requiring the witness to appear in
jail uniform and handcuffed. Id . at 278. To enable the appellate court to review the
trial court’s action on appeal, “the record should contain the factual matters on
which the trial court’s discretion was based. It must appear in the record that in
exercise of its discretion the trial court had a fair knowledge and understanding of
all such factual matters.” Id . In this case, a material defense witness, D.R., was
brought into the courtroom in a jail uniform with handcuffs on her wrists and
shackles on her ankles. The handcuffs were removed from her wrists prior to her
testimony after the jury had already observed the handcuffs on the witness.
However, Ms. D.R. remained shackled at the ankles even during her testimony on
behalf of the defendant. This undoubtedly prejudiced her credibility with the jury
and thereby prejudiced the defendant’s trial. The trial court abused its discretion
and a new trial should be ordered.
Issue Five: A new trial should be granted based on newly discovered evidence.
Appellant hereby incorporates by reference the Statement of Facts portion of this brief as set forth at 3-8, supra.
In order to grant a new trial based on newly discovered evidence the record must reflect that: (1) the newly discovered evidence was unknown or unavailable
to the movant at the time of his trial; (2) the movant’s failure to discover or obtain
the evidence was not due to a lack of diligence; (3) the new evidence is admissible
and is not merely cumulative, corroborative, collateral or impeaching; and (4) the
new evidence is probably true and will probably bring about a different result on
another trial. Eddlemon v. State , 591 S.W.2d 847, 849 (Tex. Crim. App.
1979)(Panel No. 3).
In the instant case, Deanna Hoedzoade informed Laverne Cavitt White after the trial that she wanted to change her statement to the police. She wanted to give a
statement that they did not expect that it would go this far and that the allegation
was not true. (MNT at 14.) This evidence was not available prior to the trial, this
evidence would be admissible to impeach R.R.’s testimony if Deanna Hoedzoade
assisted R.R. in fabricating this story, and this evidence would probably bring
about a different result on another trial.
P RAYER F OR T HESE R EASONS , Appellant respectfully prays that this Honorable Court reverse the trial court’s judgment of conviction and remand the case for a new trial,
or in the alternative, remanded to the trial court for an evidentiary hearing on the
motion for new trial, and for any other appropriate remedy.
Respectfully submitted, /s/ Nicole DeBorde NICOLE DEBORDE TBA No. 00787344 Bires Schaffer & DeBorde JPMorgan Chase Bank Building 712 Main Street, Suite 2400 Houston, Texas 77002 Telephone: (713) 228-8500 Facsimile: (713) 228-0034 C OUNSEL FOR A PPELLANT *46 C ERTIFICATE OF C OMPLIANCE Pursuant to Rule 9 of the Texas Rules of Appellant Procedure, the undersigned counsel of record certifies that Appellant’s brief contains 8,937 words.
/s/ Nicole DeBorde NICOLE DEBORDE *47 C ERTIFICATE OF S ERVICE
I certify that a copy of this Brief for Appellant has been served upon the Harris County District Attorney’s Office – Appellate Section, on this 20 th day of
March by leaving a copy with the Clerk of the this Court pursuant to local practice.
/s/ Nicole DeBorde NICOLE DEBORDE
[1] Appellant’s Motion for New Trial and Request of Evidentiary Hearing will hereinafter be cited as “MNT.” 1
[2] Deanna is referred to as “Dee” during most of the trial testimony. 4