Chamberlain, Anthony ( 2015 )


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  •                       NO. PD-0760-15
    IN THE
    COURT OF CRIMINAL APPEALS
    OF TEXAS
    AT AUSTIN
    _________________________
    ANTHONY CHAMBERLAIN,
    Appellant
    v.
    July 28, 2015
    THE STATE OF TEXAS,
    Appellee
    _________________________
    On appeal in Cause No. F12-63564-M
    from the 194TH Judicial District Court
    Of Dallas County, Texas
    And on Petition for Discretionary Review from
    the Fifth District of Texas at Dallas
    In Cause No. 05-13-01213-CR
    _________________________
    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
    _________________________
    Counsel of Record:
    Lynn Richardson                    Nanette Hendrickson
    Chief Public Defender              Assistant Public Defender
    Dallas County Public Defender’s Office
    Katherine A. Drew                  State Bar Number: 24081423
    Chief, Appellate Division          133 N. Riverfront Blvd., LB 2
    Dallas, Texas 75207-399
    (214) 653-3550 (telephone)
    (214) 653-3539 (fax)
    ATTORNEYS FOR PETITIONER/APPELLANT
    TABLE OF CONTENTS
    INDEX OF AUTHORITIES ................................................................................... iii
    STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
    STATEMENT OF THE CASE ................................................................................. 1
    STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 2
    STATEMENT OF FACTS ........................................................................................ 2
    GROUND FOR REVIEW ......................................................................................... 2
    Whether the Court of Appeals erred in holding the trial court did
    not abuse its discretion by admitting Amy Shuemaker’s prior
    inconsistent statement.
    ARGUMENT ............................................................................................................. 3
    FACTS ............................................................................................................. 3
    APPLICABLE LAW ....................................................................................... 5
    THE COURT OF APPEALS’ HOLDING IS INCORRECT ......................... 5
    CONCLUSION ............................................................................................... 8
    PRAYER FOR RELIEF ............................................................................................ 9
    CERTIFICATE OF SERVICE .................................................................................. 9
    CERTIFICATE OF COMPLIANCE ......................................................................... 9
    ii
    INDEX OF AUTHORITIES
    Cases
    Chamberlain v. State,
    No. 05-13-01213-CR, 
    2015 Tex. App. LEXIS 5310
     (Tex. App.—Dallas May
    27, 2015) ............................................................................................... 2, 6, 7, 8
    Hughes v. State,
    
    4 S.W.3d 1
     (Tex. Crim. App. 1999) ......................................................... 3, 5, 6
    Kelly v. State,
    
    60 S.W.3d 299
     (Tex. App.—Dallas 2001, no pet.) ..........................................6
    Rules
    TEX. R. APP. P. 68.4 (i) .........................................................................................2
    Tex. R. Evid. 403 ..............................................................................................5, 6
    Tex. R. Evid. 607 ..................................................................................................5
    iii
    TO THE HONORABLE COURT OF CRIMINAL APPEALS:
    Anthony Chamberlain, Appellant, respectfully presents to this
    Honorable Court his Petition for Discretionary Review of the Fifth District
    Court of Appeals’ Opinion affirming the trial court’s judgment.
    STATEMENT REGARDING ORAL ARGUMENT
    Appellant requests oral argument because this case presents a question
    of law on issues having statewide impact and possible reoccurrence. Oral
    argument may be helpful to the members of this Court in the resolution of
    the issues presented.
    STATEMENT OF THE CASE
    Appellant was charged by indictment with the offense of possession
    of a controlled substance between four and two hundred grams with the
    intent to deliver. (CR: 8).The indictment also included two enhancement
    paragraphs alleging prior convictions for possession of a controlled
    substance over four grams with intent to deliver and possession of a
    controlled substance over one gram. (CR: 8). Appellant pled not guilty to the
    primary charge in the indictment. (RR3: 8). A jury trial was held, and the
    jury found Appellant guilty of the offense. (RR4: 85). After a hearing on
    punishment, the court assessed punishment at thirty years. (RR5: 46).
    1
    Judgment was entered by the trial court on August 16, 2013. (CR: 48). A
    notice of appeal was timely filed. (CR: 46).
    STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
    On May 27, 2015, in an unpublished opinion authored by Justice
    Schenk, the Court of Appeals for the Fifth District of Texas affirmed the
    trial court’s judgment. Chamberlain v. State, No. 05-13-01213-CR, 
    2015 Tex. App. LEXIS 5310
    , * 26 (Tex. App.—Dallas May 27, 2015). This Court
    granted an extension of time to file a Petition for Discretionary Review,
    which is timely if filed on or before July 27, 2015.
    STATEMENT OF FACTS
    The facts of this case, which are extensive, are adequately recited in
    the Court of Appeal’s opinion, which is attached to this Petition as required
    by TEX. R. APP. P. 68.4 (i).
    Suffice it to say that Appellant was charged with and convicted of
    possession of a controlled substance between four and two hundred grams
    with the intent to deliver. (CR: 48; RR4: 85).
    GROUND FOR REVIEW
    Whether the Court of Appeals erred in holding the trial court did not
    abuse its discretion by admitting Amy Shuemaker’s prior inconsistent
    statement.
    2
    ARGUMENT
    The Court of Appeals incorrectly applied the rule in determining
    whether a prior inconsistent statement is admitted “under the guise of
    impeachment to introduce inadmissible evidence.” Hughes v. State, 
    4 S.W.3d 1
    , 3-4 (Tex. Crim. App. 1999).
    FACTS
    Amie Shuemaker (Shuemaker) was called to testify by the State.
    (RR3: 195). Shuemaker testified she was sitting in the back seat of the
    minivan when they were pulled over by the police. (RR3: 196). Shuemaker
    also stated that she was not there testifying because she wanted to. (RR3:
    195). Shuemaker was asked to tell the jury about what happened in the van
    when they were pulled over to which she repeatedly replied she did not
    know or did not remember. (RR3: 196, 197, 198, 200, 201, 203, 204).
    Eventually, Shuemaker refused to answer the prosecutor’s questions and
    said she “d[idn’t] have anything else to say to [her].” (RR3: 202).
    The prosecutor asked Shuemaker if she remembered writing a
    statement for the police. (RR3: 198). Shuemaker said she did not. (RR3:
    198). When asked if she recognized a copy of a statement the prosecutor
    showed her, Shuemaker replied “I recognize that you said that’s the one I
    wrote the day this happened.” (RR3: 198). She acknowledged that the
    3
    handwriting on the statement “could be” hers. (RR3: 199). However, she did
    not remember writing it. (RR3: 199).
    The prosecutor’s main goal was to establish Appellant as the owner of
    the drugs found in the vehicle underneath Shuemaker’s seat. (RR3: 200).
    The prosecutor told Shuemaker “the main thing I need to know is whether or
    not the brown—the black satchel that contained the methamphetamine came
    from Mr. Chamberlain.” (RR3: 200). Shuemaker responded that she did not
    know. (RR3: 200).
    Eventually, the State called Detective Conway to the stand to offer
    Shuemaker’s prior written statement into evidence. (RR4: 6). Appellant
    objected to the admission of Shuemaker’s prior inconsistent statement based
    on the lack of foundation presented by the prosecutor, hearsay, relevance,
    and if admitted, that the statement’s prejudicial effect outweighed the
    probative value. (RR4: 5-6). The trial court overruled the objection. (RR4:
    8). Shuemaker’s statement was admitted which stated that the “dope that
    was found was not [hers] it was Anthony Chamberlains.” (State’s Exhibit 9).
    The statement goes on to say, “Please do not let anyone know I have said
    these things or I will deny all of this I have kids & I do not want anything to
    happen to them.” (State’s Exhibit 9).
    4
    APPLICABLE LAW
    Any party may use a witness’ prior inconsistent statement to impeach
    her credibility. See Tex. R. Evid. 607; Hughes v. State, 
    4 S.W.3d 1
    , 5 (Tex.
    Crim. App. 1999). A party may not use a prior inconsistent statement as a
    subterfuge for admitting evidence that would otherwise be inadmissible. 
    Id.
    A party’s knowledge that a witness will testify unfavorably is one factor a
    trial court must consider when determining admissibility under Rule 403.
    Id.; Tex. R. Evid. 403.
    Rule 403 states that even when evidence is relevant, it may still be
    excluded if its probative value is outweighed by “unfair prejudice, confusion
    of the issues, or misleading the jury, or by considerations of undue delay, or
    needless presentation of cumulative evidence.” Tex. R. Evid. 403. Evidence
    must be excluded “under Rule 403’s balancing test because the State profits
    from the witness’ testimony only if the jury misuses the evidence by
    considering it for its truth. Consequently, any probative value the
    impeachment testimony may have is substantially outweighed by its
    prejudicial effect.” Id
    THE COURT OF APPEALS’ HOLDING IS INCORRECT
    The Court of Appeals’ decision is in conflict with the holding of this
    Court.
    5
    In applying the Rule 403 balancing test, the Court of Appeals failed to
    correctly determine if the State deliberately put Shuemaker on the stand to
    elicit previously inadmissible testimony in the form of her written statement.
    The Court of Appeals relied heavily on the prosecutor’s self-serving
    statement to the trial court that it felt its witness would “reluctantly testify
    consistent with the statement.” Chamberlain, Tex. App. LEXIS at *15-16. In
    support of this reliance, the Court of Appeals cited its reasoning in Kelly v.
    State. 
    Id.
     (citing Kelly v. State, 
    60 S.W.3d 299
    , 302 (Tex. App.—Dallas
    2001, no pet.)).    Kelly interpreted Hughes v. State wherein this Court
    reasoned that the State’s knowledge is key to the analysis and to merely
    suspect the witness might turn is not enough. Kelly, 
    60 S.W.3d at 302
    (explaining Hughes, 
    4 S.W.3d at 5
    ). However, contrary to the Court of
    Appeals opinion in the case at bar, the State had much more than mere
    suspicion that Shuemaker would not testify according to her written
    statement. On Shuemaker’s written statement, she stated unequivocally that
    she would lie if later asked about the contents of the statement. The Court of
    Appeals did not analyze the State’s knowledge of Shuemaker’s testimony by
    considering all of the facts surrounding it, but merely accepted as fact the
    State’s self-serving assertion of its knowledge.
    6
    The purpose of the analysis is to prevent the State from receiving the
    benefit of otherwise inadmissible evidence under the pretense of an
    uncooperative witness. Therefore, the reviewing court should analyze the
    facts known to the State at the time the witness testifies. In the present case,
    the State knew Shuemaker would lie when she testified because she
    specifically said so in her written statement. This was born out when
    Shuemaker testified. When the State broached the subject of where in the
    front seat the drugs came from Shuemaker immediately “refused to answer
    questions, became argumentative, and stated she did not want to answer
    questions.” Chamberlain, Tex. App. LEXIS at *16. The Court of Appeals
    did not consider Shuemaker’s assertion in her written statement when
    determining the State’s knowledge regarding her testimony. Therefore, the
    Court of Appeals misapplied this Court’s standard regarding whether the
    State had knowledge of the witnesses’ recantation.
    The Court of Appeals also found that the State elicited some favorable
    testimony from Shuemaker, which weighed in favor of using her prior
    statement. According to the Court of Appeals, “Shuemaker testified that she
    was in the back seat of the van when it was pulled over by the police. She
    also testified that the black case started in the front seat, was handed to her,
    and she threw it in the back.” 
    Id.
    7
    The Court of Appeals reasoned that this one statement was
    “favorable” to the State, “thus supporting a finding by the trial court that the
    State did not call Shuemaker for the primary purpose of eliciting otherwise
    inadmissible testimony.” 
    Id.
     However, the purpose of Shuemaker’s
    testimony was to prove that the drugs found under her seat in the vehicle
    originated, specifically, with Appellant. Indeed, the prosecutor told
    Shuemaker during questioning “the main thing I need to know is whether or
    not the brown—the black satchel that contained the methamphetamine came
    from Mr. Chamberlain.” (RR3: 200). Therefore, the testimony was only
    favorable, or probative, for the State if it proved Appellant’s knowledge, or
    actual possession, of the methamphetamine. Otherwise, Shuemaker’s
    testimony that the drugs came from the front seat would have been all the
    testimony the State needed making admission of the prior statement
    unnecessary. As such, this one general statement from Shuemaker was not
    enough to show whether she would testify consistent with her prior
    statement.
    CONCLUSION
    The Court of Appeals’ decision to affirm the trial court’s ruling admitting
    Shuemaker’s prior consistent statement is in conflict with this Court’s ruling.
    8
    This Court should grant discretionary review to resolve this discrepancy
    between the Court of Appeal’s ruling and the ruling of this Court.
    PRAYER FOR RELIEF
    For the reasons herein alleged, Appellant prays this Court grant this
    petition and, upon reviewing the judgment entered below, remand the case
    for a new trial.
    Respectfully submitted,
    Lynn Richardson
    Chief Public Defender
    /s/ Nanette Hendrickson
    Nanette Hendrickson
    Assistant Public Defender
    State Bar No. 24081423
    CERTIFICATE OF SERVICE
    I hereby certify that on the 27th day of July, 2015, a true copy of the
    foregoing petition for discretionary review was served on Lori Ordiway,
    Assistant District Attorney, Dallas County Criminal District Attorney’s
    Office, 133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207,
    by electronic and hand delivery; and was also served on, Lisa C. McMinn,
    State Prosecuting Attorney, P.O. Box 13046, Austin, Texas, 78711 by
    electronic delivery and by depositing same in the United States Mail,
    Postage Prepaid.
    /s/ Nanette Hendrickson
    Nanette Hendrickson
    CERTIFICATE OF COMPLIANCE
    I certify that the foregoing Petition for Discretionary Review contains
    2,064 words.
    /s/ Nanette Hendrickson
    Nanette Hendrickson
    9
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    Case # PD-0760-15
    Case Information
    Location                               Court Of Criminal Appeals
    Date Filed                             07/27/2015 02:33:36 PM
    Case Number                            PD-0760-15
    Case Description
    Assigned to Judge
    Attorney                               Nanette Hendrickson
    Firm Name                              Dallas County Public Defender
    Filed By                               Nanette Hendrickson
    Filer Type                             Not Applicable
    Fees
    Convenience Fee                        $0.00
    Total Court Case Fees                  $0.00
    Total Court Filing Fees                $0.00
    Total Court Service Fees               $0.00
    Total Filing & Service Fees            $0.00
    Total Service Tax Fees                 $0.00
    Total Provider Service Fees            $0.00
    Total Provider Tax Fees                $0.00
    Grand Total                            $0.00
    Payment
    Account Name                           PD Office waiver account
    Transaction Amount                     $0.00
    Transaction Response
    Transaction ID
    Order #
    Petition for Discretionary Review
    Filing Type                                            EFileAndServe
    Filing Code                                            Petition for Discretionary Review
    Filing Description                                     Petition for Discretionary Review
    Reference Number                                       PD-0760-15
    Comments
    Status                                                 Rejected
    Fees
    Court Fee                                              $0.00
    Service Fee                                            $0.00
    Rejection Information
    Rejection Time       Rejection Comment
    Reason
    07/28/2015 The petition for discretionary review does not contain the identity of Judge, Parties
    Other     04:42:59 and Counsel [Rule 68.4(a)]. You have ten days to tender a corrected petition for
    https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=3732e589-07fb-4f69-be69-913a222248ec[7/28/2015 4:43:32 PM]
    Envelope Details
    PM                    discretionary review.
    Documents
    Lead Document                          Chamberlain.PDR.opinon.pdf                                                       [Original]
    eService Details
    Date/Time
    Name/Email                                  Firm                      Service Type            Status        Served
    Opened
    District Attorney Appellate                                                                                                 07/28/2015
    Division                                       EServe                                         Sent          Yes             08:11:38 AM
    DCDAAppeals@dallascounty.org
    Lisa C McMinn                State Prosecuting EServe                                                                       07/28/2015
    Sent          Yes
    Lisa.McMinn@spa.texas.gov    Attorney                                                                                       08:48:24 AM
    https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=3732e589-07fb-4f69-be69-913a222248ec[7/28/2015 4:43:32 PM]
    

Document Info

Docket Number: PD-0760-15

Filed Date: 7/28/2015

Precedential Status: Precedential

Modified Date: 9/29/2016