Arsenio Carlos Clarke v. State ( 2007 )

Affirmed and Majority and Dissenting Opinions filed August 30, 2007

Affirmed and Majority and Dissenting Opinions filed August 30, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00390-CR

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ARSENIO CARLOS CLARKE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 1021640

D I S S E N T I N G   O P I N I O N

I respectfully dissent. 

The majority holds that appellant failed to preserve error for appellate review.  I disagree.  In my opinion, appellant=s complaint has been preserved for review, and accordingly, we should reach the merits of appellant=s complaint.

I.        Appellant=s Motion for New Trial and Request for Hearing

Appellant timely filed a motion for new trial seeking a new punishment hearing.  The motion states in part:

The punishment verdict is contrary to the law and the evidence.  See Tex. R. App. P. 21.3(h). Specifically, the presentence investigation report in this case contained totally unfounded allegations from the Complainant=s mother, M.M., that the Defendant had molested his own sister.  M.M. is  quoted in the report as stating that Ashe had an intuition that perhaps the defendant=s sister had a similar experience with her brother the defendant, but was afraid to relate the experience to anyone.@

Attached to this motion is the affidavit of the Defendant=s sister, C.C., in which she: (1) flatly denies any such improper conduct by her brother, and (2) points out that in any case, M.M. barely knows her and was therefore in no position to form any Aintuition@ about her, or to impute any fear to her.

As is typically the case, the presentence investigation report was only made available to the defense shortly before the sentencing hearing on March 22nd.  This provided inadequate time for (the sister) to travel from her home in New York to Houston to refute the erroneous and harmful suggestions made by the Complainant=s mother. Simply, the defense was blindsided by allegations of an extraneous offense that the supposed victim of such offense would have been anxious to refute.  This denied the defendant the effective assistance of his counsel, in violation of the Sixth Amendment to the United States Constitution. Defense counsel found himself in the unenviable and unfair position of being faced at the last minute with an allegation of an extraneous offense with no time to bring witnesses to refute such allegation, or even to fully investigate the claim.  Although M. M. did testify at the hearing, counsel was faced with the choice of either questioning her about the supposed extraneous offense without having had any time to investigate such claim, and not knowing what details might emerge surrounding the claim, or leaving the matter alone.  Either way, counsel was left unable to render effective assistance to his client due to the harmful allegations included in the presentence report through the hearsay testimony and speculation of M.M.

Appellant=s motion for new trial complains that the circumstances of the PSI report that contained harmful and untruthful allegations, which was presented without adequate time for defense counsel to investigate and prepare a rebuttal, resulted in the denial of a fair hearing with effective assistance of counsel.

II.       Hearing on Motion for New Trial

At the hearing on appellant=s motion for new trial, conducted pursuant to an Order of this Court, appellant submitted newly-learned additional evidence in support of his position that he was entitled to a new trial on punishment because he was denied a fair punishment hearing:

Your Honor, just in the way of making sure that our objection and our grounds here at this level are also grounds that are argued on appeal, so that there=s no misunderstanding.  We have raised in our motion the matter of there being an extraneous offense that was attributed to Mr. Clark who was the defendant in the PSI report that both - - that essentially he may have molested his sister in New York, C.C.  She has provided an affidavit that that never happened.  And the mother of the complainant to whom the remark was attributed in the PSI has also now provided an affidavit saying that she never told anyone that she had been told that by the sister.

The mother of the complainant goes on to say in her affidavit that she was asked prior to the sentencing hearing - - prior to the PSI hearing by the prosecutor whether the defendant - - whether she knew of the defendant=s having molested his sister.  The mother of the complaint said no, she knew nothing about that.  So, the prosecutor had that information prior to the sentencing hearing.

And we are arguing as part of what is in the motion for new trial that the prosecutor had a duty at that point to inform defense counsel that this matter that=s in the sentencing report is false.  This extraneous offense didn=t happen according to the sister as evidenced by the affidavit.  But at the time the prosecutor knew that because the mother of the complainant was telling her I don=t know anything about that sort of thing.  And it was imputed to her in the sentencing report.  So, there=s an extraneous offense in the PSI that clearly didn=t happen much less being proven beyond a reasonable doubt.

And that was never objected to by defense counsel. And I want to make a point about that.  This is not an ineffective assistance claim.  It never was.  If you look closely at the motion for new trial, I argue that the defendant was denied effective assistance of his counsel through no fault of counsel.  Counsel came in on the morning of the PSI hearing.  Saw the PSI for the first time.  It may have been the day before, it=s in his affidavit.  Saw this extraneous offense in there and was sort of caught between a rock and a hard place.  He didn=t know whether to - - he did object to it.  But did not go into it during questioning of the complainant=s mother, to whom the remark was made because he had not had time to investigate this.

He asked the defendant about it.  He said I=ve never done such a thing.  But he was left with really a dilemma, do I make a real issue out of this and bring up an extraneous that may have all sorts of damaging facts or not.  It turns out this is a completely false allegation that somehow made its way into the presentence report.  And what is particularly alarming is that the prosecutor apparently knew about it before the sentencing.  Took no steps to alert the Court or defense counsel that this exculpatory evidence - - that there was exculpatory evidence, namely the falsity of this extraneous offense.

So, these are our grounds that we=re presenting for the motion for new trial.

THE COURT: All right.  State, any rebuttal? Anything?

THE STATE: No, Your Honor.

(Emphasis added).

III. Analysis

At the hearing on appellant=s motion for new trial, consistent with the grounds asserted in the motion, the trial court was presented with unobjected-to evidence and argument that the circumstances of the PSI report which, with full knowledge of the prosecutor, contained harmful and untruthful allegations, and which was presented without adequate time for defense counsel to investigate and prepare a rebuttal, resulted in the denial of a fair hearing with effective assistance of counsel.

On appeal, appellant has chosen to focus on one part of his argument, i.e., that the prosecutor=s use of damaging evidence that the prosecutor knew was falseCthe prosecutor=s failure to inform the trial court or defense counsel that the false allegations should be removed from the PSI report and not consideredCresulted in an unfair punishment hearing, and therefore an unfair sentence.  This argument, with evidence, was presented to the trial court, and thus has been preserved for appeal.

It is not fatal to appellant=s case on appeal that he did not cite specific constitutional provisions to the trial court in support of his argument.  From the bolded portions of his argument above, it was clear that appellant was making a ABrady error@^[1] type argument. The constitutional principles requiring disclosure of evidence favorable to an accused and the prohibition on knowingly using false evidence to convict are basic to the due process of law mandated by the Fourteenth Amendment, and such rights are equally applicable to  the due course of law rights identified in Art. I, '19 of the Texas Constitution.  See Brady, 373 U.S. at 87, 83 S.Ct. At 1196; Ex Parte Adams, 768 S.W.2d 281, 293 (Tex. Crim. App. 1989).   Enforcing these rights Ais not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.@  Brady, 373 U.S. at 87, 83 S. Ct. at 1196; Adams, 768 S.W.2d at 293.  To the extent that an appellate record adequately shows that the trial court and opposing counsel are aware of the grounds for a defendant=s objection or position, a general statement or argument preserves the complaint for appellate review.  See Wyborny v. State, 209 S.W.3d 285, 291 (Tex. App.CHouston [1st Dist.] 2006, pet. ref=d) (citing Samuel v. State, 688 S.W.2d 492, 494 (Tex. Crim. App.  1985)).

Here, similar to Wyborny and Samuel, appellant=s statement of his position was clear enough to put the court on notice as to the nature of his complaint, i.e., Brady error, and

therefore, to preserve error on appeal. We should reach the merits of his complaint.

/s/      Margaret Garner Mirabal

Senior Justice

Judgment rendered and Majority and Dissenting Opinions filed August 30, 2007.

Panel consists of Justices Anderson and Frost and Senior Justice Mirabal.^[2] (Frost, J., majority).

Publish C Tex. R. App. P. 47.2(b).

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^[1]  Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

^[2]  Senior Justice Margaret G. Mirabal sitting by assignment.