Case Information
*0 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 7/31/2017 10:31:33 AM PAM ESTES Clerk *1 ACCEPTED 12-16-00225-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 7/31/2017 10:31 AM Pam Estes CLERK
CAUSE NO. 12-16-00225-CR IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
GREGORY DEWAYNE TENNYSON, APPELLANT V.
THE STATE OF TEXAS,
APPELLEE STATE’S REPLY TO APPELLANT’S BRIEF O RAL A RGUMENT N OT R EQUESTED D. Matt Bingham Criminal District Attorney Smith County, Texas Sarah K. Bales Mikkelsen Assistant Criminal District Attorney Bar I.D. No. 24087139 Smith County Courthouse 100 N. Broadway Tyler, Texas 75702 ph: (903) 590-1720 fax: (903) 590-1719 *2 T ABLE OF C ONTENTS
I NDEX OF A UTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
S TATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
S TATEMENT OF F ACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
R EPLY TO A PPELLANT ’ S P OINTS OF E RROR . . . . . . . . . . . . . . . . . . . . . . . . . 3
S UMMARY OF A RGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C OUNTERPOINT O NE : T HE RECORD SUPPORTS THE TRIAL COURT ’ S
B ATSON RULING BECAUSE T ENNYSON FAILED TO REBUT THE S TATE ’ S
RACE - NEUTRAL EXPLANATIONS FOR ITS PEREMPTORY STRIKES . . . . . . . . . . . . 7
S TANDARD OF R EVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A PPLICABLE L AW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A RGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
C OUNTERPOINT T WO : A T TRIAL , THE S TATE PRESENTED SUFFICIENT
EVIDENCE TO CONVINCE THE JURY BEYOND A REASONABLE DOUBT
THAT T ENNYSON USED HIS VEHICLE AS A DEADLY WEAPON . . . . . . . . . . . . . . 16
S TANDARD OF R EVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
A PPLICABLE L AW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A RGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
C OUNTERPOINT T HREE : I N THIS CASE , THERE WAS NO EVIDENCE
THAT T ENNYSON REASONABLY BELIEVED THAT HIS ACTIONS WERE
IMMEDIATELY NECESSARY TO AVOID IMMINENT HARM . T HEREFORE ,
THE TRIAL COURT PROPERLY DENIED HIS REQUEST FOR A NECESSITY
INSTRUCTION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
S TANDARD OF R EVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
A PPLICABLE L AW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
A RGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ii *3 T ABLE OF C ONTENTS , CONTINUED C OUNTERPOINT F OUR : E VEN IF THERE WAS A FACT QUESTION
REGARDING THE LEGALITY OF T ENNYSON ’ S TRAFFIC STOP , HE WAS
NOT ENTITLED TO AN A RTICLE 38.23 INSTRUCTION BECAUSE THE
AGGRAVATED ASSAULT EVIDENCE WAS NOT “ OBTAINED IN VIOLATION
OF THE LAW .”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
S TANDARD OF R EVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
A PPLICABLE L AW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
A RGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
C OUNTERPOINT F IVE : S ALINAS V . S TATE WAS DECIDED EIGHT
MONTHS AFTER T ENNYSON ’ S TRIAL ENDED . B ECAUSE ITS HOLDING
APPLIES PROSPECTIVELY , T ENNYSON IS NOT ENTITLED TO A
CONSOLIDATED COURT COST FEE MODIFICATION . . . . . . . . . . . . . . . . . . . . . 37
S TANDARD OF R EVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
A PPLICABLE L AW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
A RGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
C ONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
P RAYER FOR R ELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
C ERTIFICATE OF C OMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
C ERTIFICATE OF S ERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
iii
I NDEX OF A UTHORITIES
S TATUTE /R ULES P AGE
Tex. Local Gov’t Code (West 2015)
§ 133.102 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 41
Tex. Penal Code Ann. (West 2015)
art. 22.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
art. 35.261. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
art. 38.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
§ 1.07(a)(17)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19
§ 9.22 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31
Tex. R. App. P.
9.4 (i)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
F EDERAL C ASES P AGE
Batson v. Kentucky , 476 U.S. 79
(1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Griffith v. Kentucky , 479 U.S. 314
(1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Jackson v. Virginia , 443 U.S. 307
(1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Stovall v. Denno , 388 U.S. 293
(1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
iv *5 I NDEX OF A UTHORITIES , CONTINUED S TATE C ASES P AGE
Adanandus v. State , 866 S.W.2d 210
(Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Bowen v. State , 162 S.W.3d 226
(Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Camacho v. State , 864 S.W.2d 524
(Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Cates v. State , 102 S.W.3d 735
(Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Cooper v. State , 956 S.W.2d 95
(Tex. App.—Tyler 1997, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36
Davis v. State , 2003 Tex. App. LEXIS 1636
(Tex. App.—Dallas Feb. 21, 2003, no pet.)(not designated for
publication). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Dewberry v. State , 4 S.W.3d 735
(Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dorsey v. State , 940 S.W.2d 169
(Tex. App.—Dallas, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Drichas v. State , 152 S.W.3d 630
(Tex. App.—Texarkana 2004), rev’d , 175 S.W.3d 795 (Tex. Crim.
App. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
Drichas v. State , 175 S.W.3d 795
(Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 22
v *6 I NDEX OF A UTHORITIES , CONTINUED S TATE C ASES P AGE
Ex parte Jones , 957 S.W.2d 849
(Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Ford v. State , 112 S.W.3d 788
(Tex. App.—Houston [14th Dist.] 2003, no pet.). . . . . . . . . . . . . . . 31
Gardner v. State , 306 S.W.3d 274
(Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Gibson v. State , 144 S.W.3d 530
(Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Graham v. State , 566 S.W.2d 941
(Tex. Crim. App. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Granger v. State , 3 S.W.3d 36
(Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 32
Grant v. State , 325 S.W.3d 655
(Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Guzman v. State , 85 S.W.3d 242
(Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Harris v. State , 827 S.W.2d 949
(Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Hayes v. State , 728 S.W.2d 804
(Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
vi *7 I NDEX OF A UTHORITIES , CONTINUED S TATE C ASES P AGE
Hooper v. State , 214 S.W.3d 9
(Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Howell v. State , 175 S.W.3d 786
(Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Ivatury v. State , 792 S.W.2d 845
(Tex. App.—Dallas 1990, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . 13
Jasper v. State , 61 S.W.3d 413
(Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Johnson v. State , 405 S.W.3d 350
(Tex. App.—Tyler 2013, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Juarez v. State , 308 S.W.3d 398
(Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Kunkle v. State , 771 S.W.2d 435
(Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Madden v. State , 242 S.W.3d 504
(Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 37
Martinez v. State , 91 S.W.3d 331
(Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Middleton v. State , 187 S.W.3d 134
(Tex. App.—Texarkana 2006, no pet.). . . . . . . . . . . . . . . . . . . . . . .
vii *8 I NDEX OF A UTHORITIES , CONTINUED S TATE C ASES P AGE
Miller v. State , 815 S.W.2d 582
(Tex. Crim. App. 1991) (op. on reh’g) . . . . . . . . . . . . . . . . . . . . . . . . 25
Moreno v. State , 755 S.W.2d 866
(Tex. Crim. App. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Neal v. State , 2016 Tex. App. LEXIS 3793
(Tex. App.—Tyler Apr. 13, 2016) (mem. op., not designated for
publication) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Ngo v. State , 175 S.W.3d 738
(Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Salinas v. State , 2017 Tex. Crim. App. LEXIS 284
(Tex. Crim. App. Mar. 8, 2017) (designated for publication). . . . . . passim
Sanders v. State , 707 S.W.2d 78
(Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Sierra v. State , 280 S.W.3d 250
(Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Victor v. State , 995 S.W.2d 216
(Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) .. . . . . . . . . . . . . 11
Whitsey v. State , 796 S.W.2d 707
(Tex. Crim. App. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Williams v. State , 332 S.W.3d 694
(Tex. App.—Amarillo 2011, pet. denied) . . . . . . . . . . . . . . . . . . . . .
viii *9 CAUSE NO. 12-16-00225-CR IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
GREGORY DEWAYNE TENNYSON, APPELLANT V.
THE STATE OF TEXAS,
APPELLEE STATE’S REPLY TO APPELLANT’S BRIEF The State of Texas respectfully urges this Court to overrule appellant Gregory Tennyson’s alleged errors and affirm the judgment of the trial court.
S TATEMENT OF THE C ASE On January 14, 2016, Gregory Dewayne Tennyson was indicted for aggravated assault on a peace officer in Cause No. 241-0030-16, filed in the
241st District Court, Smith County, Texas. Tex. Penal Code Ann. art. 22.02
(West 2015); (C.R. at 1). Tennyson, who was represented by appointed
counsel, Clifton Roberson, pleaded not guilty. (C.R. at 44.) On June 29, 2016,
Tennyson’s jury convicted and sentenced him to confinement for life in the
Texas Department of Criminal Justice – Institutional Division, no fine.
(C.R. at 44.)
On February 23, 2017, James Huggler, Jr. was appointed to represent Tennyson on appeal. He filed a brief on July 7, 2017, and the State’s response
is due by August 7, 2017.
S TATEMENT OF F ACTS On October 25, 2015, Deputy Clayton Taylor pulled over Gregory Tennyson for an unreadable license plate. (3 R.R. at 29.) After
running his driver’s license information, Deputy Taylor learned that Tennyson
had an outstanding warrant and asked him to step out of the vehicle.
(3 R.R. at 35.) Instead, he fled, with the patrol car following closely behind.
(3 R.R. at 35-36.) While both vehicles were stopped at a red light, Tennyson
shifted into reverse and rammed Deputy Taylor’s patrol car, then speeded away
on wet roads for several miles. (3 R.R. at 36, 59.) Ultimately, he was arrested
in Mineola after his SUV finally came to a stop when it plowed into multiple
law enforcement vehicles. (3 R.R. at 48.)
During voir dire before Tennyson’s jury trial, he accused the State of improperly striking three potential jurors because they were black.
(2 R.R. at 223-24.) After the trial court found that Tennyson made a
prima facie showing of racial discrimination, the State provided multiple
explanations for each of the challenged strikes. (2 R.R. at 224-33.) The trial
court found the State’s reasons to be race-neutral and overruled the
Batson motion. (2 R.R. at 236.)
Following Tennyson’s conviction, the trial court ordered Tennyson to pay $229 in court costs, including a $133 consolidated court cost fee.
(1 C.R. at 80.) Because he was unable to pay, the court ordered monthly
withdrawals from Tennyson’s Inmate Trust Account (1 C.R. at 83.)
R EPLY TO A PPELLANT ’ S P OINTS OF E RROR C OUNTERPOINT O NE : T HE RECORD SUPPORTS THE TRIAL COURT ’ S B ATSON RULING
BECAUSE T ENNYSON FAILED TO REBUT THE S TATE ’ S RACE - NEUTRAL EXPLANATIONS FOR ITS PEREMPTORY STRIKES . C OUNTERPOINT T WO : A T TRIAL , THE S TATE PRESENTED SUFFICIENT EVIDENCE TO
CONVINCE A RATIONAL JURY BEYOND A REASONABLE DOUBT THAT T ENNYSON USED HIS VEHICLE AS A DEADLY WEAPON . *12 C OUNTERPOINT T HREE : I N THIS CASE , THERE WAS NO EVIDENCE THAT T ENNYSON
REASONABLY BELIEVED THAT HIS ACTIONS WERE IMMEDIATELY NECESSARY TO AVOID IMMINENT HARM . T HEREFORE , THE TRIAL COURT PROPERLY DENIED HIS REQUEST FOR A NECESSITY INSTRUCTION .
C OUNTERPOINT F OUR : E VEN IF THERE WAS A FACT QUESTION REGARDING THE
LEGALITY OF T ENNYSON ’ S TRAFFIC STOP , HE WAS NOT ENTITLED TO AN A RTICLE 38.23 INSTRUCTION BECAUSE THE AGGRAVATED ASSAULT EVIDENCE WAS NOT “ OBTAINED IN VIOLATION OF THE LAW .”
C OUNTERPOINT F IVE : S ALINAS V . S TATE WAS DECIDED EIGHT MONTHS AFTER
T ENNYSON ’ S TRIAL ENDED . B ECAUSE ITS HOLDING APPLIES PROSPECTIVELY , T ENNYSON IS NOT ENTITLED TO A CONSOLIDATED COURT COST FEE MODIFICATION .
S UMMARY OF A RGUMENT On appeal, Tennyson claims in his first issue that the State improperly struck three venirepersons on the basis of race. After Tennyson lodged a
Batson challenge during jury selection, the prosecutor’s stated reasons for
the challenged strikes included the prospective jurors’ (1) occupations and
education; (2) preference for rehabilitation over punishment; (3) previous
performance on criminal juries; and (4) family criminal history. Tennyson
claims that the prosecutor’s failure to delve deeper into these concerns
proves that the State’s explanations were pretextual. However, this
argument implies that the State is responsible for proving non-discrimination
in a Batson challenge, when the burden of persuasion actually remains with
the defendant to establish purposeful discrimination. Further, appellate
courts in other cases have found each of the State’s explanations to be
valid, race-neutral reasons to exercise peremptory strikes.
In his second issue, Tennyson argues that there was insufficient evidence to support the jury’s deadly weapon finding. In fact, a rational jury could have
easily found that the way Tennyson drove his SUV was capable of causing
serious injury or death, because he slammed into an occupied vehicle while the
driver’s seatbelt was not fastened. And during the ensuing chase, Tennyson
drove at dangerously high speeds on wet roads for several miles, only stopping
when he collided with law enforcement vehicles. As a result, the jury was
convinced beyond a reasonable doubt that Tennyson’s vehicle, in the manner
that it was driven, was a deadly weapon.
In his third issue, Tennyson complains about the trial court’s refusal to include his requested necessity instruction in the jury charge. To be entitled to
a necessity instruction, he must have satisfied the confession and avoidance
doctrine by admitting to both the act and requisite mental state. But at trial,
Tennyson testified that his collision with the deputy’s car was accidental.
Consequently, the confession and avoidance doctrine was not satisfied, and the
trial court properly denied Tennyson’s requested instruction. Because there was
no charge error, there is no need for a harm analysis.
In his fourth issue, Tennyson complains again about charge error.
Specifically, he contends that he was entitled to an art. 38.23 probable cause
instruction because his traffic stop was illegal. But even if the Court assumes
that the stop was illegal, evidence of the aggravated assault on Deputy Taylor
would still be admissible because a problematic stop cannot taint evidence
not yet in existence. Therefore, Tennyson was not entitled to a probable cause
instruction, and the trial court did not err in denying the request. Again,
without charge error, a harm analysis is unnecessary.
Finally, Tennyson argues in his fifth issue that his court costs should be reduced by $13.07, based on the Court of Criminal Appeals’ recent holding in
Salinas v. State that two portions of the Consolidated Court Cost Fee are
unconstitutional. But as he admits in his brief, Tennyson is not entitled to a fee
reduction because Salinas does not apply retroactively.
C OUNTERPOINT O NE : T HE RECORD SUPPORTS THE TRIAL COURT ’ S B ATSON RULING
BECAUSE T ENNYSON FAILED TO REBUT THE S TATE ’ S RACE - NEUTRAL EXPLANATIONS FOR ITS PEREMPTORY STRIKES . First, Tennyson complains that the trial court erred when it overruled his Batson motion. (Appellant Br. at 3.) However, the State offered multiple
race-neutral explanations for each of the challenged strikes, and Tennyson
failed to prove that the reasons were mere pretext for purposeful racial
discrimination. Therefore, the trial court’s ruling was not clearly erroneous.
A. S TANDARD OF R EVIEW
1. Appellate courts view a trial court’s ruling on a Batson motion in the light most favorable to the ruling, and it will not be reversed unless it is clearly erroneous.
We have held that appellate review of a Batson claim shall be conducted by an examination of the record in the light most favorable to the ruling of the trial court. The standard of review is whether the ruling of the trial court was or was not “clearly erroneous.” If supported by the record, including the voir dire, the prosecutor’s explanation of his use of a peremptory challenge, the rebuttal by appellant and impeaching evidence, the decision of the trial court will not be clearly erroneous.
Camacho v. State , 864 S.W.2d 524, 528 (Tex. Crim. App. 1993). To determine whether a trial court’s Batson ruling is ‘clearly erroneous,’ appellate courts examine the record to see whether the ruling leaves them
with the ‘definite and firm conviction that a mistake has been
committed.’ Guzman v. State , 85 S.W.3d 242, 254 (Tex. Crim. App. 2002).
Whether the prosecutor’s facially race-neutral reasons are pretext for
purposeful racial discrimination is solely a question of fact; there is no issue of
law. Gibson v. State , 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). Because the
trial court is in the best position to make that credibility determination, the
ruling is accorded great deference. Jasper v. State , 61 S.W.3d 413, 421-422
(Tex. Crim. App. 2001).
When the State excludes even one venireperson from the jury panel for racial reasons, it violates due process and invalidates the entire jury selection
process. Whitsey v. State , 796 S.W.2d 707, 716 (Tex. Crim. App. 1989).
Therefore, an appellant is entitled to a new trial when an appellate court finds
that the trial court’s ruling on his Batson challenge was clearly erroneous. Ibid .
B. A PPLICABLE L AW
1. A prosecutor violates the Equal Protection Clause of the Eighth Amendment when he discriminates against potential jurors based on race.
While a prosecutor may ordinarily exercise peremptory strikes for any reason related to his view concerning the outcome of the case, the Equal
Protection Clause forbids him from challenging potential jurors “solely on
account of their race or on the assumption that black jurors as a group will be
unable impartially to consider the State’s case against a black defendant.”
Batson v. Kentucky , 476 U.S. 79, 89 (1986).
2. During a Batson challenge, the defendant has the burden to establish purposeful discrimination.
Peremptory Challenges Based on Race Prohibited.
(a) After the parties have delivered their lists to the clerk under art. 35.26
of this code and before the court has impaneled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral *18 explanation for the challenges. The burden of persuasion remains with the defendant to establish purposeful discrimination.
(b) If the court determines that the attorney representing the state
challenged prospective jurors on the basis of race, the court shall call a new array in the case.
Tex. Code Crim. Proc. Ann. art. 35.261 (West 2015).
C. A RGUMENT
1. A prospective juror’s belief that rehabilitation is the primary goal of punishment is a race-neutral reason to use a peremptory strike.
During voir dire, after both parties exercised their strikes, but before the jury was sworn, Tennyson objected to the prosecution striking panel
members Sandra Pettigrew (No. 14), Arthur Franklin (No. 15), and
Gerneshia Benton (No. 30) pursuant to Batson. (2 R.R. at 223.) Specifically,
Tennyson claimed that the State used peremptory strikes on Pettigrew,
Franklin, and Benton because, like him, they were black. (2 R.R. at 223-24.)
After finding that Tennyson had established a prima facie showing of racial
discrimination, the trial court directed the State to explain its peremptory
strikes. (2 R.R. at 224-25.)
The prosecutor explained that one of the reasons that he struck Pettigrew, Franklin, and Benton was that they did not consider punishment to
be a higher priority than rehabilitation with regards to sentencing
considerations. (2 R.R. at 226-31.) Previously, appellate courts have held that
a prospective juror’s belief that rehabilitation is a less important goal
than punishment is a race-neutral reason to use a peremptory strike.
Victor v. State , 995 S.W.2d 216, 222 (Tex. App.—Houston [14th Dist.] 1999,
pet. ref’d); see also Adanandus v. State , 866 S.W.2d 210, 224-25 (Tex.
Crim. App. 1993).
Additionally, the State was consistent in its strikes, because the prosecutor exercised almost every strike on prospective jurors who answered
likewise. (2 R.R. at 78.) In fact, the State used only one out of its ten
peremptory strikes on a venireperson who agreed with the premise that
punishment is more important than rehabilitation. (2 R.R. at 78.) And that
venireperson, No. 17, previously served on a jury in a case that ended in a
mistrial. (2 R.R. at 158.) Presumably, the State struck him out of fear that he
held out for an acquittal in that other case. Whatever the State’s reason was for
striking No. 17, Tennyson has not met his burden to prove that the
rehabilitation-over-punishment reason was merely a pretext for racial
discrimination.
2. A prospective juror’s educational background and employment are race-neutral reasons to use a peremptory strike.
Courts have previously held that when the State strikes a prospective juror based on that person’s type of employment and that the State has been
unsuccessful with that type of worker, the reason is a race-neutral
explanation for exercising the peremptory challenge. Middleton v. State ,
187 S.W.3d 134, 142 (Tex. App.—Texarkana 2006, no pet.). During
Tennyson’s Batson challenge, the prosecutor also explained that he struck
Pettigrew, Franklin, and Benton because they worked in unskilled labor and
had limited education. (2 R.R. at 225-32.) In his experience, venirepersons
who fell in these categories tended to make defendant-sympathetic jurors.
(2 R.R. at 225.)
Specifically, Gerneshia Benton (No. 30) worked as a unit technician at Trinity Mother Frances Hospital, which the State believed involved direct
patient care. (Defense Ex. 3; 2 R.R. at 232.) In conjunction with her
preference for rehabilitation over punishment, the prosecutor had specific
concerns that Benton would be unusually sympathetic to people in dire
circumstances, like criminal defendants. (2 R.R. at 232.) In response, Tennyson
did not offer any proof that the State’s explanation was a pretext for racial
discrimination. Consequently, this Court has no basis for finding that the trial
court’s ruling was clearly erroneous, and Tennyson’s first ground should be
overruled as to Benton.
3. A prospective juror’s previous performance on a criminal jury is a race-neutral reason to use a peremptory strike.
A bad record during prior jury service “would logically induce any prosecutor to exercise a peremptory challenge regardless of the
ethnic background of the named panel members.” Ivatury v. State ,
792 S.W.2d 845, 848 (Tex. App.—Dallas 1990, pet. ref’d). During
jury selection, the prosecutor learned that Arthur Franklin (No. 15)
(1) preferred rehabilitation to punishment; (2) worked in unskilled labor;
and (3) previously served on a Smith County jury where the defendant
was convicted for possession of a controlled substance. (2 R.R. at 229-31.)
Although the defendant in that other case had prior felony convictions,
Franklin and his fellow jurors assessed a lenient sentence. (2 R.R. at 229-31.)
Combined with his employment status and preference for rehabilitation over punishment, the prosecutor understandably believed that Franklin
was unlikely to assess a stiff punishment against Tennyson and struck him from
the venire. After the State provided three race-neutral explanations for striking
Franklin, Tennyson failed to rebut the explanations or provide any other
evidence of racial discrimination. As a result, the trial court properly overruled
Tennyson’s Batson challenge, and his first ground should be overruled with
respect to Franklin.
4. Family history with the criminal justice system is a race-neutral reason to use a peremptory strike.
In other cases, appellate courts have found that using peremptory strikes on prospective jurors whose relatives who have been convicted or
charged with a criminal offense is legitimate, logical, and race-neutral.
Harris v. State , 827 S.W.2d 949, 955 (Tex. Crim. App. 1992); see also
Dorsey v. State , 940 S.W.2d 169, 175 (Tex. App.—Dallas, pet. ref’d). In this
case, the prosecutor was already aware of Sandra Pettigrew’s (No. 14)
employment status and preference for probation over punishment when he
learned that his office had prosecuted at least three of her relatives.
(2 R.R. at 175.) In fact, one of Pettigrew’s relatives was found guilty of murder,
and two others were convicted of felonies in the very same courtroom where
Tennyson’s trial would take place. (2 R.R. at 175, 226.) Naturally, the
prosecutor suspected that she was biased against the State and decided to
strike her from the pool. (2 R.R. at 225.) Because the trial court’s finding that
the State’s explanations for this strike were race-neutral was not clearly
erroneous, Tennyson’s first ground should be overruled with respect to
Pettigrew.
5. The record supports the trial court’s ruling, and Tennyson has not demonstrated that the State purposefully discriminated against Pettigrew, Franklin, or Benton.
On appeal, Tennyson implies that the State failed to meet its burden to prove non-discrimination because the prosecutor did not
individually question Pettigrew, Franklin, or Benton about his concerns.
(Appellant Br. at 13.) But in a Batson challenge, the State is actually only
required to provide a race-neutral explanation for its strikes, while
the burden of persuasion remains with the defendant to establish
purposeful discrimination. Tex. Code Crim. Proc. Ann. art. 35.261 (West
2015). Here, Tennyson failed to (1) present any other evidence of racial
discrimination; (2) demonstrate that the State failed to strike white
venirepersons who were similarly situated to those that were struck; or
(3) otherwise rebut the prosecutor’s race-neutral reasons for striking the
prospective jurors. (2 R.R. at 227-36.)
When there is a “foundation in the record for the trial court’s ruling that the explanation was not a pretext for discrimination,” a trial court’s ruling is
not clearly erroneous. Grant v. State , 325 S.W.3d 655, 660 (Tex. Crim. App.
2010). Consequently, even if there was some evidence at the Batson hearing
that supports an inference of pretext, in viewing the record in the light most
favorable to the trial court’s ruling, the evidence firmly supports the trial
court’s decision. See id . at 659; Tex. Code Crim. Proc. Ann. art. 35.261 (West
2015). Consequently, Tennyson’s claim, that the State improperly struck
Sandra Pettigrew, Arthur Franklin, and Gerneshia Benton on the basis of race,
should be overruled.
C OUNTERPOINT T WO : A T TRIAL , THE S TATE PRESENTED SUFFICIENT EVIDENCE TO
CONVINCE A RATIONAL JURY BEYOND A REASONABLE DOUBT THAT T ENNYSON USED HIS VEHICLE AS A DEADLY WEAPON . In his second issue, Tennyson argues that the evidence is legally insufficient to support the deadly weapon element of the charged offense. But
the jury heard evidence that after Tennyson slammed his SUV into an
occupied vehicle, he speeded away on wet roads and crashed into multiple
vehicles. Consequently, there is legally sufficient evidence to support the jury’s
deadly weapon finding.
A. S TANDARD OF R EVIEW
1. The standard of review is whether, after viewing the evidence in the light most favorable to the guilty verdict, any rational trier of fact could have found that the defendant used a deadly weapon beyond a reasonable doubt.
The Supreme Court articulated the standard of review for legal sufficiency in Jackson v. Virginia , 443 U.S. 307, 319 (1979): “The relevant
question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” The legal sufficiency
standard in Texas is the same as in Jackson . Moreno v. State , 755 S.W.2d 866,
867 (Tex. Crim. App. 1988). When examining the evidence for legal
sufficiency, a reviewing court’s role is not to become a thirteenth juror, and it
may not reevaluate the weight and credibility of the record evidence or
substitute its judgment for that of the jury. Dewberry v. State , 4 S.W.3d 735,
740 (Tex. Crim. App. 1999).
*26 On appeal, a reviewing court must defer to the fact-finder’s responsibility to (1) fairly resolve conflicts in testimony; (2) weigh the evidence; and
(3) draw reasonable inferences. Hooper v. State , 214 S.W.3d 9, 13
(Tex. Crim. App. 2007). Even without an eyewitness, the State may prove its
case by either direct or circumstantial evidence, coupled with all reasonable
inferences from that evidence. Gardner v. State , 306 S.W.3d 274, 285
(Tex. Crim. App. 2009).
2. For a deadly weapon finding, the State must prove that Tennyson’s vehicle (1) satisfies the statutory definition; (2) was used during the crime; and (3) actually endangered someone.
In a case involving a deadly weapon finding, the evidence is legally sufficient if three requirements are met. First, the object must satisfy the
statutory definition of a dangerous weapon. Tex. Penal Code § 1.07(a)(17)(B)
(West 2015). Second, the deadly weapon must have been used or exhibited
“during the transaction from which” the felony conviction was obtained.
Ex parte Jones , 957 S.W.2d 849, 851 (Tex. Crim. App. 1997). Finally, other
people must have been put in actual danger. Cates v. State , 102 S.W.3d 735,
738 (Tex. Crim. App. 2003).
B. A PPLICABLE L AW
1. A jury may find that a defendant’s vehicle was used as a deadly weapon even without (1) actual injury; or (2) the defendant’s specific intent. A deadly weapon is “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code Ann.
§ 1.07(a)(17)(B) (West 2015). For example, an automobile may be a deadly
weapon if the manner of its use is capable of causing death or serious bodily
injury. Drichas v. State , 175 S.W.3d 795, 798 (Tex. Crim. App. 2005).
Additionally, a deadly weapon finding does not require that the defendant
specifically intended to use his motor vehicle as a deadly weapon. Ibid . Further,
§ 1.07(a)(17)(B) does not require other motorists to be “in a zone of danger,
take evasive action, or require the defendant to intentionally strike another
vehicle in order to justify a deadly weapon finding.” Id . at 799.
To determine whether a motor vehicle was used as a deadly weapon, a reviewing court first evaluates “the manner in which the defendant used the
motor vehicle during the felony,” taking into consideration whether appellant’s
driving was reckless or dangerous. Sierra v. State , 280 S.W.3d 250, 255 (Tex.
Crim. App. 2009). Second, the court considers whether, during the felony, the
motor vehicle was capable of causing death or serious bodily injury.” Ibid .
C. A RGUMENT
1. Tennyson’s vehicle was a deadly weapon when it rammed into Deputy Taylor’s patrol car.
In 2003, the 5th Court of Appeals affirmed a deadly weapon finding in another case where the defendant, Charles Davis, rammed ram a patrol car
while driving in reverse. Davis v. State , 2003 Tex. App. LEXIS 1636, *2-3 (Tex.
App.—Dallas Feb. 21, 2003, no pet.) (not designated for publication). While
unpublished cases do not have precedential value, they may still be persuasive,
and the collisions in these two cases are nearly identical.
In Davis , Officers Valentine and O’Brien activated their patrol car’s lights and sirens and followed the defendant as he turned onto a side street and
stopped. Id . at *2. Before the officers exited the vehicle, Davis put his Chevrolet
Monte Carlo into reverse, violently ramming its rear bumper into the front
of the squad car. Id . at *3. Although neither officer was injured,
the court nevertheless found the evidence sufficient for a rational jury
to conclude that Officers Valentine and O’Brien were in danger of serious
bodily injury. Id . at *12. Further, the evidence was also sufficient for the jury
to have concluded that Davis intended to cause the officers serious bodily
injury. Ibid .
Likewise, in this case, it does not matter that Deputy Taylor did not require medical treatment following Tennyson’s aggravated assault.
(3 R.R. at 88.) The jury watched video footage and heard testimony from
Deputy Taylor that when Tennyson rammed into his patrol car, he had
already removed his seatbelt and was physically jarred by the hard
collision. (3 R.R. at 56, 88.) What’s more, after the initial impact, Tennyson
hit the gas in an effort to push the patrol car, so the jury likely concluded
not only that Officer Taylor could have been seriously hurt, but also that it was
Tennyson’s goal to seriously injure him. (3 R.R. at 57.)
2. Tennyson used his vehicle as a deadly weapon in his immediate flight following the aggravated assault, because his dangerous driving could have killed or seriously injured someone.
Following the aggravated assault, Tennyson led the deputy on a dangerous high-speed chase. The circumstances of Tennyson’s chase are similar
to another case, in which David Drichas was convicted of evading detention
and using his truck as a deadly vehicle. Drichas v. State , 152 S.W.3d 630, 633
(Tex. App.—Texarkana 2004), rev’d , 175 S.W.3d 795 (Tex. Crim. App. 2005).
There, Drichas drove on the wrong side of the road, ran red lights, and
fishtailed as he led officers on a high-speed chase. Ibid . The chase ended when
he turned into a mobile home park, jumped out of his still-moving truck, and
fled. Ibid . The truck hit a van, sending the van crashing into a mobile home.
Ibid . Although no one was injured, the jury nevertheless determined that
Drichas had used his truck as a deadly weapon. Ibid .
On appeal, Drichas raised an evidentiary sufficiency claim, and the 6th Court of Appeals deleted the deadly weapon finding. Id . at 640.
However, the Court of Criminal Appeals disagreed, finding that Drichas
endangered the officers who chased him in a way that was “more than
simply hypothetical; the danger was real, and the manner in which
appellant drove his truck made it capable of causing death or serious
bodily injury.” Drichas , 175 S.W.3d at 798.
Here, it does not matter that Tennyson did not kill or seriously injure anyone. On wet roads, Tennyson drove at dangerously high speeds for several
miles in a chase that only ended when he rammed into law enforcement
vehicles, totaling one. (3 R.R. at 48, 59, 95.) Further, the jury saw video
footage of Tennyson illegally passing another motorist using an interior turn
lane. (3 R.R. at 60.) As with Drichas , the danger here was more than
hypothetical because Tennyson’s car, as operated, was capable of causing death
or serious bodily injury.
Through video footage and officer testimony, the State presented sufficient evidence for the jury to find that Tennyson’s vehicle was used as a
deadly weapon both in his aggravated assault against Deputy Taylor and
during the immediate flight following the collision. Therefore, Tennyson’s
second point of error should be overruled.
C OUNTERPOINT T HREE : I N THIS CASE , THERE WAS NO EVIDENCE THAT T ENNYSON
REASONABLY BELIEVED THAT HIS ACTIONS WERE IMMEDIATELY NECESSARY TO AVOID IMMINENT HARM . T HEREFORE , THE TRIAL COURT PROPERLY DENIED HIS REQUEST FOR A NECESSITY INSTRUCTION .
Although Tennyson testified at trial that his collision with Deputy Taylor was accidental, he nevertheless argues in his third issue that he was entitled to
a necessity instruction. But a defendant who admits to committing the act but
denies having the requisite culpable mental state is not entitled to a necessity
instruction, so the trial court properly denied Tennyson’s request.
A. S TANDARD OF R EVIEW
1. When a trial court improperly denies a requested instruction, reversal is required unless the denial was harmless error.
On appeal, the court reviews alleged charge error by considering (1) whether error existed in the charge; and (2) whether sufficient harm
resulted from the error to compel reversal. Ngo v. State , 175 S.W.3d 738, 744
(Tex. Crim. App. 2005) . In cases where the evidence fails to raise a defensive
issue, the trial court commits no error in refusing a requested instruction.
Kunkle v. State , 771 S.W.2d 435, 444 (Tex. Crim. App. 1986).
When the trial court improperly refuses a requested instruction, the degree of harm necessary for reversal depends on whether the appellant
preserved the error by objection. Ngo , 175 S.W.3d at 743. Under Almanza , jury
charge error requires reversal when the defendant has properly objected to the
charge and the reviewing court finds “some harm” to his rights. Ibid . However,
when the defendant either fails to object or affirmatively states that he has no
objection to the charge, reversal is not required unless the error caused the
defendant “egregious harm.” Id . at 743-44.
B. A PPLICABLE L AW
1. A defendant is entitled to a jury instruction on every defensive issue raised by the evidence.
A defendant has the right to an instruction on any defensive issue raised by the evidence, “whether that evidence is weak or strong, unimpeached or
contradicted, and regardless of what the trial court may or may not think about
the credibility of the evidence.” Granger v. State , 3 S.W.3d 36, 38 (Tex. Crim.
App. 1999). This rule is designed to ensure that the jury, not the judge, will
decide the relative credibility of the evidence. Miller v. State , 815 S.W.2d 582,
585 (Tex. Crim. App. 1991) (op. on reh’g). Further, a defendant’s testimony
alone is sufficient to raise a defensive issue requiring an instruction.
Hayes v. State , 728 S.W.2d 804, 807 (Tex. Crim. App. 1987).
C. A RGUMENT
1. The defendant must admit to both the act and the applicable culpable mental state to be entitled to a necessity instruction.
In his brief, Tennyson summarizes a case in which the defendant, Lydia Bowen, was entitled to a necessity instruction based on her testimony
that she resisted arrest because she was in pain and unable to breathe.
Bowen v. State , 162 S.W.3d 226 (Tex. Crim. App. 2005); (Appellant Br. at 16).
However, there is another case that provides better insight as to whether the
trial court erred in refusing Tennyson’s request for a necessity instruction.
In that other case, Jaime Juarez, Jr. was charged with aggravated assault on a peace officer after he bit the finger of the officer who was attempting to
place him in handcuffs. Juarez v. State , 308 S.W.3d 398, 400 (Tex. Crim. App.
2010). At trial, Juarez testified that he bit the officer because he felt like he
was suffocating and needed the officer to get off of him. Ibid . Nevertheless,
Juarez denied that the bite was intentional, knowing, or reckless. Id . at 400-01.
As a result of this denial, the court refused Juarez’s request for a necessity
instruction. Id . at 401. But on review, the 12th Court of Appeals reversed
Juarez’s conviction and remanded the case for a new trial, holding that he was
entitled to a necessity instruction because he admitted to biting the officer.
Ibid .
Later, the Court of Criminal Appeals granted review to consider whether a defendant must admit every element of the charged offense, including the
applicable culpable mental state, to be entitled to a necessity instruction. Ibid .
Ultimately, the Court of Criminal Appeals disagreed with the 12th Court’s
conclusion that Juarez’s admission to the act was enough to warrant a necessity
instruction. Id . at 404. For a necessity instruction, the Court emphasized that
the confession and avoidance doctrine requires admitting to both the act and
the requisite mental state. Ibid .
Although Juarez denied that the bite was intentional, knowing, or reckless, the Court of Criminal Appeals determined that his mental state could
have reasonably been inferred from his testimony that he bit the arresting
officer because the officer was causing him to suffocate. Id . at 405. Therefore,
the confession and avoidance doctrine was satisfied, and the trial court should
have granted Juarez’s request for a necessity instruction. Ibid .
3. In this case, Tennyson flatly denied intentionally or knowingly colliding with Deputy Taylor’s patrol car, so he was not entitled to a necessity instruction.
As it relates to Tennyson, the important takeaway from Juarez is that a defendant cannot flatly deny the applicable culpable mental state and still be
entitled to a necessity instruction. Juarez , 308 S.W.3d at 406. At trial,
Tennyson’s lawyer argued that his client rammed into the patrol car because
he was afraid that he would be beaten by Deputy Taylor. (4 R.R. at 177-78.)
Likewise, Tennyson’s appellate counsel claims that in colliding with the patrol
car, his client “undertook the least violent means available” to avoid potentially
being “shot and killed.” (Appellant Br. at 18.) However, Tennyson’s testimony
at trial clearly precludes these arguments. (4 R.R. at 54, 117-118.) In fact,
Tennyson’s trial counsel asked Tennyson directly why he hit Deputy Taylor:
[DEFENSE COUNSEL]: Now, why did you back into him? [TENNYSON]: It wasn’t – I really didn’t know how far he was behind me, but I stopped. I panicked, because I thought I was in the middle of Martin Luther King. It’s hard to kind of – the Suburbans have tint on the back of them, and so with him having the lights real bright, all you can see is the lights hitting you in the face off the rearview mirrors. And I thought I was in the middle of Martin Luther King, and the first thing I was thinking was I’m fixing to get hit by oncoming traffic, because at that time of night there’s a lot of drunk people that don’t really pay attention to stop signs and lights, period. And so that’s why I stopped and waited. And then I put it in reverse to back up, and as soon as I felt that I hit him I took off because I didn’t realize he was that close.
(4 R.R. at 54.) Later, on redirect, Tennyson’s lawyer made another effort to establish a necessity defense, but his client again failed to take the bait:
[DEFENSE COUNSEL]: Now, you said you took off because you was in fear, and you rammed this car because of what happened in the incident at your house on November of 2014 where an officer came down and drew down guns on you and your girls in the backyard?
[TENNYSON]: Yes, sir. That’s why I took off.
[DEFENSE COUNSEL]: And you were trying to get to some relative’s house or somebody so they could witness whatever happened when you turned yourself in?
[TENNYSON]: Yes, sir. And like I said, when I put it in reverse, my intention was – I thought I was in the street. But I mean, there’s no denying that I did hit him, you know, but it wasn’t like I smashed the gas and kept it in reverse trying to run him off the road or anything. It wasn’t like that. As soon as I felt contact with him, I shot off in the other direction.
(4 R.R. at 117-18.) Although Tennyson admitted to hitting Deputy Taylor’s patrol car, he never wavered from his explanation that he drove in reverse because his Yukon
jutted out into the intersection and he feared being hit by cross traffic.
(4 R.R. at 54, 117-18.) In other words, Tennyson twice denied causing the
collision intentionally or knowingly, and neither of the requisite culpable
mental states can be inferred from his testimony. Since the court’s charge
already included definitions for “intentionally” and “knowingly,” the jury was
properly equipped to render a verdict in this case. (C.R. at 55.)
Tennyson flatly denied the applicable culpable mental state when he claimed to have hit the patrol car by mistake, and his defense counsel’s
argument to the contrary is not evidence. (4 R.R. at 54.) Therefore, the
necessity defense would only apply to evading arrest, and not to the
aggravated assault charge for which Tennyson was actually on trial. Simply
put, Tennyson was not entitled to a necessity instruction because he was not
on trial for evading arrest. As a result, it was not error for the trial court to
refuse the requested charge instruction.
4. Even if this Court finds that Tennyson satisfied the confession and avoidance doctrine, he was still not entitled to a necessity instruction. For that defense, conduct can only be justified when the circumstances demand a split-second decision.
For necessity defenses, the Texas Penal Code finds that a defendant’s conduct is not justified unless he reasonably believes the conduct is
immediately necessary to avoid imminent harm. Tex. Penal Code Ann. § 9.22
(West 2015). In most cases, the jury determines whether the defendant’s belief
was reasonable. Sanders v. State , 707 S.W.2d 78, 79-80 (Tex. Crim. App.
1986). However, the defendant’s belief may be deemed unreasonable as a
matter of law when undisputed facts demonstrate a complete absence of
evidence of immediate necessity or imminent harm. Graham v. State ,
566 S.W.2d 941, 952 n.3 (Tex. Crim. App. 1978).
In another case, Edward Ford requested a necessity instruction, claiming that he evaded arrest because he believed the officer wanted to kill him.
Ford v. State , 112 S.W.3d 788, 793 (Tex. App.—Houston [14th Dist.] 2003, no
pet.). On appeal, the issue was whether Ford “reasonably believed his conduct
was necessary to avoid imminent harm.” Id . at 793. After reviewing the record,
the 14th Court of Appeals found that the officer did not pull his weapon until
after Ford reached under the seat of his car, started his vehicle, and fled. Ibid .
Therefore, the appellate court found that there was no evidence of imminent
harm, so the necessity instruction was properly omitted. Id . at 793-94.
Here, Tennyson claims that he fled due to a generalized fear of police violence based on past encounters with law enforcement. (4 R.R. at 48-49.)
However, he also admitted that on the night in question, Deputy Taylor spoke
calmly and did not pull his weapon or grab him at any point during the stop.
(4 R.R. at 99-100.) As in Graham , the undisputed facts of Tennyson’s traffic
stop demonstrate a complete absence of immediate necessity or imminent
harm, so his belief was unreasonable as a matter of law. See Graham ,
566 S.W.2d at 952 n.3.
5. The trial court properly denied Tennyson’s request for a necessity instruction.
Although a defendant is entitled to a charge instruction on any defensive issue raised by the evidence, certain conditions must be met. Granger ,
3 S.W.3d at 38. First, a necessity instruction requires satisfying the confession
and avoidance doctrine, so the defendant must admit not only to the act, but
also to the requisite mental state. Juarez , 308 S.W.3d at 406. Here, Tennyson
admitted to ramming the patrol car, but he maintained that the collision was
unintentional. (4 R.R. at 54, 117-18.) As a result, the confession and avoidance
doctrine was not satisfied.
What’s more, none of the evidence in the record, including Tennyson’s testimony, supports a finding that he reasonably believed that ramming into
a patrol car was immediately necessary to avoid any kind of imminent harm.
See Neal v. State , 2016 Tex. App. LEXIS 3793, *41 (Tex. App.—Tyler Apr. 13,
2016) (mem. op., not designated for publication). Therefore, Tennyson was
not entitled to a necessity instruction because his belief was unreasonable as
a matter of law. (4 R.R. at 99-100); Graham , 566 S.W.2d at 952, n.3.
Following his third and fourth points of error, Tennyson complains that he was harmed by the trial court’s refusal to submit his requested necessity
instruction. But in Ngo , the Court of Criminal Appeals explained that it
conducts a harm analysis only if it has already concluded that the trial court
committed charge error. Ngo , 175 S.W.3d at 743. Here, the trial court did not
commit charge error, because Tennyson was not entitled to a necessity
instruction. Therefore, there is no need for a harm analysis, and Tennyson’s
third point of error should be overruled. See Kunkle , 771 S.W.2d at 444.
C OUNTERPOINT F OUR : E VEN WITH A FACT QUESTION REGARDING THE LEGALITY OF
T ENNYSON ’ S TRAFFIC STOP , HE WAS NOT ENTITLED TO AN A RTICLE 38.23 INSTRUCTION BECAUSE EVIDENCE OF THE AGGRAVATED ASSAULT WAS NOT “ OBTAINED IN VIOLATION OF THE LAW .”
In his fourth point of error, Tennyson claims that there was a fact question regarding the legality of his traffic stop, so the trial court should
have granted his request for an art. 38.23 probable cause instruction.
(Appellant Br. at 20-21.) But evidence of Tennyson’s aggravated assault
could not possibly have been obtained in violation of the law, because it did
not even exist when Deputy Taylor initiated the allegedly questionable stop.
Therefore, the constitutionality of Tennyson’s stop did not materially affect
whether evidence of the aggravated assault was lawfully obtained, and the trial
court properly refused to include a probable cause instruction in the jury
charge.
A. S TANDARD OF R EVIEW
1. When a trial court improperly denies a requested instruction, reversal is required unless the denial was harmless error.
When the trial court improperly denies a requested instruction, the degree of harm necessary for reversal depends on whether the appellant
preserved the error by objection. Ngo , 175 S.W.3d at 743. If the defendant
objected, charge error requires reversal when there is “some harm” to the
defendant’s rights. Ibid . However, if the defendant fails to object, reversal is
only required for “egregious harm.” Id . at 743-44.
B. A PPLICABLE L AW
1. For a defendant to be entitled to an Article 38.23 instruction, there must be a disputed fact that materially affects whether evidence was lawfully obtained.
A defendant’s right to an art. 38.23 jury instruction is “limited to disputed issues of fact that are material to his claim of a constitutional or
statutory violation that would render evidence inadmissible.” Madden v. State ,
242 S.W.3d 504, 509-510 (Tex. Crim. App. 2007). Additionally, three
requirements must be satisfied: (1) the evidence heard by the jury must raise
an issue of fact; (2) the evidence on that fact must be affirmatively contested;
and (3) the contested factual issue must be material to the lawfulness of the
challenged conduct in obtaining the evidence. Id . at 510.
C. A RGUMENT
1. The legality of an initial detention or arrest is irrelevant to the question of whether a defendant resists arrest or commits aggravated assault on a peace officer.
In another case, Raymond Cooper, Jr. argued that the trial court abused its discretion by refusing to suppress evidence resulting from what he claimed
was an illegal arrest. Cooper v. State , 956 S.W.2d 95, 96 (Tex. App.—Tyler
1997, pet. ref’d). In that case, an officer approached Cooper about suspicious
behavior that he observed in a parking lot, but Cooper refused to provide his
name and tried to leave. Ibid . Next, the officer grabbed Cooper’s arm, and the
two men struggled. Ibid . During the fight, Cooper attempted to choke the
officer, and was later convicted for aggravated assault on a peace officer. Ibid .
On appeal, Cooper argued that the trial court should have granted his motion to suppress because the officer had no reason to detain him initially.
Id . at 97. However, the 12th Court of Appeals noted that the evidence of
Cooper’s aggravated assault on the officer did not exist at the time of the
attempted detention, but instead came into existence only after the officer
attempted to detain and question Cooper. Id . at 98. Therefore, even if the
arrest was illegal, evidence of the aggravated assault was admissible because
it was not “obtained in violation of the law.”
2. Evidence of Tennyson’s assault was admissible because it was not obtained in violation of the law. Therefore, he was not entitled to a probable cause instruction, and there is no need for a harm analysis.
Like Cooper , evidence that Tennyson committed aggravated assault came into existence only after Deputy Taylor initiated the allegedly illegal
traffic stop. As far as Tennyson’s requested probable cause instruction is
concerned, art. 38.23 deals with exclusion of illegally obtained evidence of a
prior crime, but does not provide any protection to commit new crimes. See
Martinez v. State , 91 S.W.3d 331, 331 (Tex. Crim. App. 2002). Even if
Tennyson’s traffic stop was questionable, there is no disputed fact in this case
that materially affects whether evidence of the aggravated assault was lawfully
obtained. See Madden , 242 S.W.3d at 510.
Additionally, Tennyson complains that he was harmed by the trial court’s refusal to submit his requested probable cause instruction. But as previously
discussed, an appellate court conducts a harm analysis only after concluding
that the trial court committed charge error. Ngo , 175 S.W.3d at 743. In this
case, the trial court did not commit charge error, because Tennyson was not
entitled to a probable cause instruction. Therefore, there is no need for a harm
analysis, and Tennyson’s fourth point of error should be overruled. See Kunkle ,
771 S.W.2d at 444.
C OUNTERPOINT F IVE : S ALINAS V . S TATE WAS DECIDED EIGHT MONTHS AFTER
T ENNYSON ’ S TRIAL ENDED . B ECAUSE ITS HOLDING APPLIES PROSPECTIVELY , T ENNYSON IS NOT ENTITLED TO A CONSOLIDATED COURT COST FEE MODIFICATION .
After the Court of Criminal Appeals decided Salinas v. State , both Salinas and the State filed motions for rehearing. The Court recently denied both
motions, and its holding in Salinas still applies prospectively. Because
Tennyson was convicted before the effective date in Salinas , he is not entitled
to relief under his fifth and final point of error.
A. S TANDARD OF R EVIEW
1. The standard of review is abuse of discretion. A challenge to a withdrawal of funds notification is reviewed for an abuse of discretion. Williams v. State , 332 S.W.3d 694, 698 (Tex.
App.—Amarillo 2011, pet. denied). A trial court abuses its discretion when it
acts “without reference to any guiding rules and principles. Howell v. State ,
175 S.W.3d 786, 792 (Tex. Crim. App. 2005). The reviewing court may modify
a withdrawal order on direct appeal if the evidence is insufficient to support
the assessment of court costs. Johnson v. State , 405 S.W.3d 350, 355 (Tex.
App.—Tyler 2013, no pet.).
B. A PPLICABLE L AW
1. Tennyson’s court costs include a $133 fee, mandated by Local Government Code § 133.102. The relevant portions are provided below. Consolidated Fees on Conviction.
(a) A person convicted of an offense shall pay as a court cost, in addition to
all other costs:
(1) $133 on conviction of a felony;
(e) The comptroller shall allocate the court costs received under this section
to the following accounts and funds so that each receives to the extent practicable, utilizing historical data as applicable, the same amount of money the account or fund would have received if the court costs for the accounts and funds had been collected and reported separately, except that the account or fund may not receive less than the following percentages:
(1) abused children’s counseling 0.0088 percent; (6) comprehensive rehabilitation 9.8218 percent.
Tex. Local Gov’t Code § 133.102 (West 2015).
C. A RGUMENT
1. The State concedes that subsections (e)(1) and (e)(6) of Texas Local Government Code § 133.102 are unconstitutional.
On March 8, 2017, the Court of Criminal Appeals announced that two subsections of Texas Local Government Code § 133.102 were
unconstitutional. Salinas v. State , 2017 Tex. Crim. App. LEXIS 284, *11-16
*48 (Tex. Crim. App. Mar. 8, 2017) (designated for publication). Specifically,
the subsections ordering payment for “abused children’s counseling” and
“comprehensive rehabilitation” were a legislative overreach that did not serve
any legitimate criminal justice purposes. Id . at 8, 10. Later, the Court clarified
that directing court costs to these funds is unconstitutional solely because
it violates a right of the courts under the separation of powers doctrine; there
is no constitutional issue with the fee that relates to a defendant’s
personal rights. Id . at 14. In fact, the $133 total could remain untouched,
so long as the legislature redirects the funds to a legitimate criminal justice
purpose. Id . at n. 54.
2. The Salinas holding applies prospectively.
Previously, the United States Supreme Court held that when a new rule is created to address federal constitutional errors in criminal cases, the rule
applies retroactively to all cases, state or federal, pending on direct review or
not yet final, without exception. Griffith v. Kentucky , 479 U.S. 314, 328 (1987).
However, the statute challenged in Salinas is a state law, so Griffith does not
apply. Salinas , 2017 Tex. Crim. App. LEXIS 284 at *13. Therefore, the Court
of Criminal Appeals was free to devise its own retroactivity rules. Ibid .
In its opinion, the Court concluded that declaring a statute unconstitutional on its face creates a “new” rule that warrants a retroactivity
analysis. Id. at *12. Because § 133.102 (e)(1) and (e)(6) do not violate a
defendant’s personal rights, the Court used a balancing test to determine
whether the new rule should apply retroactively. Id . at 13. In doing so,
the Court considered (1) the purpose of the new rule; (2) the extent to
which law enforcement relied on the old rule; and (3) how retroactively
applying the new rule would impact the administration of justice. Id . at 13;
Stovall v. Denno , 388 U.S. 293, 297 (1967). Because each of the three factors
weighed against retroactivity, the Court determined that the new rule
would only apply prospectively, to trials ending after March 8, 2017. Salinas ,
2017 Tex. Crim. App. LEXIS 284 at *14-15.
3. Tennyson admits that he is not entitled to a fee reduction because Salinas applies prospectively.
In this case, Tennyson’s trial ended on June 29, 2016, more than eight months before the Court of Criminal Appeals decided Salinas . (1 C.R. at 44.)
In fact, he concedes that Salinas does not apply to his case.
(Appellant Br. at 43.) Nevertheless, he raises the issue to preserve error
should the Court of Criminal Appeals reconsider its retroactivity
holding. (Appellant Br. at 40.) But even before Tennyson filed his brief, the
Court of Criminal Appeals denied both the State’s and Salinas’s motions for
rehearing, and its holding in Salinas still applies prospectively. Consequently,
Tennyson is not entitled to a fee reduction, and his fifth point of error should
be overruled.
C ONCLUSION First, Tennyson argues that the trial court erred in overruling his Batson challenges. But Tennyson failed to rebut any of the State’s race-neutral
explanations for each of the challenged strikes, nor did he present any other
evidence of racial discrimination. Therefore, this Court has no basis to conclude
that the trial court’s ruling was clearly erroneous. Because the State did not
discriminate against prospective jurors on the basis of race, Tennyson is not
entitled to a new trial; his first ground should be overruled.
Next, Tennyson argues in his second issue that the evidence is legally insufficient to support the deadly weapon element of the charged offense.
However, a deadly weapon can be anything that in the manner of its use or
intended use is capable of causing death or serious bodily injury. Here,
*51 Tennyson intentionally rammed an occupied patrol car. And during the flight
immediately following the assault, he drove at dangerous speeds on wet roads
until he finally crashed into law enforcement vehicles. Clearly, the State
presented sufficient evidence for a rational jury to conclude that Tennyson’s
driving presented a real danger that was capable of causing death or serious
bodily injury, and his second issue should be overruled.
In his third issue, Tennyson complains that the trial court should have granted his request for a necessity instruction in the jury charge. However,
defensive instructions are not submitted without supporting evidence, and
Tennyson testified that he never intended to collide with Deputy Taylor’s patrol
car. Therefore, the confession and avoidance doctrine was not satisfied, and he
was not entitled to a necessity instruction. Additionally, there is no evidence
that Tennyson’s actions were immediately necessity to avoid imminent harm,
so the trial court properly denied the requested instruction. Therefore,
Tennyson’s third point of error should be overruled.
In his fourth issue, Tennyson claims that there was a fact question regarding the legality of his traffic stop, so the trial court should have granted
his request for a probable cause instruction. But the constitutionality of
Tennyson’s stop did not materially affect whether evidence of the aggravated
assault was lawfully obtained, so the trial court properly denied Tennyson’s
request. Consequently, his fourth point of error is without merit and should be
overruled.
Lastly, Tennyson seeks to have a portion of his court costs deleted based on case law that he readily admits does not apply to him. Because Tennyson’s
trial ended before Salinas was decided, he is not entitled to a fee reduction;
his fifth and final ground should be overruled.
P RAYER The State asks the Court to overrule Gregory Tennyson’s five points of error and affirm the judgment of the 241st District Court, Smith County, Texas.
Respectfully submitted, D. Matt Bingham Smith County Criminal District Attorney Sarah K. Bales Mikkelsen Asst. Criminal District Attorney Bar No. 24087139 100 N. Broadway, 4th Fl.
Tyler, Texas 75702 (903) 590-1720 (903) 590-1719 (fax) smikkelsen@smith-county.com C ERTIFICATE OF C OMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4 (i)(3), this document contains 9,366 words.
Sarah K. Bales Mikkelsen *54 C ERTIFICATE OF S ERVICE
On July 31, 2017, the following have been completed: (1) The original legible copy of the State’s Response to Appellant’s Brief in
the above numbered cause has been sent via electronic filing to the Clerk of the Court of Twelfth Court of Appeals.
(2) A legible copy of the State’s Response to Appellant’s Brief in the above
numbered cause has been sent has been sent via electronic filing to: James W. Huggler, Jr.
Attorney at Law
100 E. Ferguson, Suite 805
Tyler, Texas 75702 Sarah K. Bales Mikkelsen Asst. Criminal District Attorney Bar No. 24087139 100 N. Broadway, 4th Fl.
Tyler, Texas 75702 (903) 590-1720
(903) 590-1719 (fax) smikkelsen@smith-county.com