                                                                                PD-0044-15
                                                               COURT OF CRIMINAL APPEALS

                            PD-0044-15
                                                                                AUSTIN, TEXAS
                                                              Transmitted 1/9/2015 2:14:30 PM
JANUARY 16, 2015                                               Accepted 1/16/2015 2:44:36 PM
                               ______________                                    ABEL ACOSTA
                                                                                         CLERK


                             IN THE
                   COURT OF CRIMINAL APPEALS
                           OF TEXAS

                           ________________

             On Appeal from the 186 th Judicial District Court
                          San Antonio, Texas

                                   ***

                             04-13-00346-CR
                               2011-CR-9420


                                   ***

                            JASSEN BARNES
                                     Petitioner
                                  v.

                              State of Texas,
                                        Respondent

             PETITION FOR DISCRETIONARY REVIEW


                                                SUZANNE KRAMER
                                                325 S. Main Street
                                                San Antonio, Texas 78204
                                                Telephone No.: (210) 573-0201
                                                Telefax No.: (210) 299-1139
                                                COUNSEL FOR PETITIONER
                   IDENTITY OF PARTIES AND COUNSEL
Honorable Maria Teresa Herr - Presiding

Trial Counsel
Defense:
Ina Minjares
2414 S. Hackberry
San Antonio, Texas 78205

Stephanie Boyd
115 E. Travis
San Antonio, Texas 78205

Veronica Legarreta
613 E Ashby Pl., Suite 2
San Antonio, Texas 78201

State:
Tanner Niedhardt
Tom Nisbet
101 West Nueva
San Antonio, Texas 78205

Appellee Counsel
Susan Reed
101 West Nueva
San Antonio, Texas 78205

Petitioner Counsel:
Suzanne Kramer
325 S. Main
San Antonio, Texas 78204

Respondent Counsel:

Nicholas Lahood
101 West Nueva
San Antonio, Texas 78205                  ii
                                TABLE OF CONTENTS                PAGE


Identity of the Parties                                                 ii

Index of Authorities                                                    iv-v

Statement Regarding Oral Argument                                       vi

Statement of the Facts of the Case                                      vi-viii

Statement of the Procedural History                                     viii-ix


Ground for Review Number One                                            1
Ground for Review Number Two                                            4-6

Reasons for Review Number One                                           1-4
Reasons for Review Number Two                                           6-13

Prayer for Relief                                                       13

Certificates of Service                                                 14
Certificate of Compliance                                               14

Appendix
     Barnes v. State, 04-13-00345-CR (Tex.App.- - San Antonio)          15-37



                                         iii
                             INDEX OF AUTHORITIES

CASE NAME                                                                      PAGE

Addy v. State, 849 S.W. 2 nd 245 (Tex.App. –Houston [1 st Dist.] 1993)         10

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2 nd 215 (1963)        6

Burks v. State, 876 S.W. 2 nd 877 (Tx.Cr.App.1994), cert. denied               4
      513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed. 2 nd 791 (1995)

Cameron v. State, 415 S.W. 3 rd 404 (Tex. App. –San Antonio, 2013              11

Chambers v. State, 805 S.W. 2 nd 459 (Tx.Cr.App. 1991)                         1

Edwards v. State, 427 S.W. 2 nd 629 (Tx.Cr.App.1968)                           4

Fernandez v. State, 989 S.W. 2nd 781 (Tex.App. –San Antonio, 1998)             2-4

Flanagan v. State, 675 S.W. 2 nd 734 (Tx.Cr.App.1984) (op. on reh'g)           3

Guillory v. State, 877 S.W. 2 nd 71 (Tex. App.--Houston [1 st Dist.] 1994      1
      pet. ref'd)

Hardesty v. State, 656 S.W. 2 nd 73 (Tx.Cr.App.1983)                           2

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2 nd 560 (1979)   1

Johnson v. State, 673 S.W. 2 nd 190 (Tx.Cr.App. 1984)                          1

King v. State, 895 S.W. 2 nd 701 (Tx.Cr.App.1995)                              2

Lacour v. State, 8 S.W. 3 rd 670 (Tx.Cr.App. 2000)                             1

Lilly v. State, 365 S.W. 3 rd 321 (Tx.Cr.App.2012)                             9-10

                                          iv
Presley v. Georgia, 130 S.Ct. 721 (2010)                                         9-10

Reese v. State, 653 S.W. 2 nd 550 (Tex.App.--Beaumont 1983, no pet.)             1

Steadman v. State, 360 S.W. 3 rd 499(Tx.Cr.App.2012)                             9-10

United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392,49 L.Ed. 2 nd 342             6
      & n. 17 (1976)

United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375 (1985)                     6, 7

Villalon v. State, 791 S.W. 2 nd 130 (Tx.Cr.App.1990)                            2

Waller v. Georgia, 467 U .S. 39 (1984)                                           9


               STATEMENT REGARDING ORAL ARGUMENT

      Although the law that applies to Barnes’ set of facts is well established, the

Fourth Court’s analysis of the facts and the law completely ignored established

precedent from this Court as well as the other Texas appellate courts, glossing over any

actual application of the law to the facts, blatantly ignoring evidence in the record.

Therefore, Petitioner strongly requests this Court allow for the oral argument of this

case, so as to not allow this erroneous opinion to stand.




                                           v
                   STATEMENT OF THE FACTS OF THE CASE

     The State informed the jury that Jassen Barnes made quick his escape with his

“getaway” driver, Brittney Smiley, after shooting Justin Thomas. (R.R. v. 2, p.25)

Brittney will become of primary importance to the State’s case, and this appeal, as she

was eventually granted full immunity in exchange for her testimony. The State’s first

witness was Lejoi Hayes. (R.R. v. 2, p. 30) She observed Justin speak with his cousin,

Chastity Walker, and then he walked into the breeze way. (R.R. v. 2, p. 40) Lejoi saw

Justin turn around like he heard someone call out his name. Lejoi was using her cell

phone when she heard two gunshots. When she looked up, she saw two men standing

together and one was Justin. Lejoi did not know Justin had been shot nor did she see

the shooting or the shooter. (R.R. v. 2, p. 42) Lejoi identified Jassen Barnes only as the

person she presumed was the shooter because she saw him earlier speaking to Justin.

The State next called Officer Anthony Shane Pena who said the scene was chaotic with

people running around everywhere. (R.R. v. 2, p. 73) Next to testify was Kesha Hall.

(R.R. v. 2, p. 99), who testified that she saw Justin kind of shove “some other dude,”

but it did not look problematic. (R.R. v. 2, p.107)          Kesha testified that she observed

Brittney sitting on the stairs with a gun tied to her leg underneath her skirt.1

                                                vi



1Laketa Nation will later testify that she also observed Brittney with a weapon tied to her leg.
(R.R. v. 2, p. 159)
(R.R. v. 2, p. 116) Keisha admitted that she had been drinking alcohol on that day.

Kesha was provided with a photographic lineup and was unable to recognize Jassen

Barnes. (R.R. v. 2, p.121) On re-direct testimony, the State asked Kesha if she was

not identifying the “shooter” in court because she was hesitant. Kesha insisted she was

not. Brittney Smiley was eventually granted full immunity in exchange for her

testimony.2 (R.R. v. 3, p. 81) Brittney testified that her weapon was a .22 and Jassen’s

weapon was more like a “cop gun.” No weapons were found.3 Brittney saw Jassen start

talking to his “homeboys” and she started to talking with her “homegirl Melkay.” (R.R.

v.3, p. 124) A few minutes later, we heard gunshots and “everybody got up and ran for

cover.” (R.R. v. 3, p. 125) When Brittney ran into Jassen, he said “they’re shooting

out there. Let’s go.” Brittney said they got in the car and drove off. Brittney said that

she was so high at the time of the statement, she did not remember what she said to the

police officer. After reading her statement, Brittney said that it did not help refresh her

memory. (R.R. v. 3, p. 129; SX 48) In her videotaped statement, Brittney said that

Jassen told her he shot Justin. On cross-examination, Brittney admitted that at the time,

she was addicted to embalming fluid and that it makes her brain “be not there.” The

                                               vii



2In the charge, Brittney Smiley was identified as an accomplice witness as a matter of law.

3 .22 caliber bullets were located in Brittney’s car, however, it was only her testimony that
attributed those bullets to her weapon. (R.R. v.3, p. 20)
State called Chastity Walker. (R.R. v. 3, p.150) Chastity only identified Jassen as

speaking with Justin prior to the shooting. (R.R. v. 3, p. 159) On cross-examination,

Chastity admitted that she did not see any weapon and cannot say that she saw the

person in the blue shirt pull a weapon. (R.R. v. 3, p. 166) Chastity could not identify

Jassen Barnes in the photo lineup provided to her. (R.R. v. 3, p. 169) On July 15,

2013, the trial court allowed a motion for new trial hearing on affidavits only. The

motion asserted that the State had engaged in prosecutorial misconduct when they

failed to inform the defense of certain Brady material concerning the testimony of

Brittney Smiley, the State’s star witness. In addition, it was asserted that Jassen

Barnes’ stepfather, Eddie Taylor, had been denied access to the courtroom through a

series of communications from his supervisor and an investigator from the District

Attorney’s Office. Finally, the amended motion for new trial asserted that the trial court

is required, under the specific circumstances, to allow live testimony at hearings on

motions for new trials.

                 STATEMENT OF THE PROCEDURAL HISTORY

      On November 1, 2011, the Grand Jury returned an indictment charging Murder

against Jassen Barnes for an offense alleged to have occurred on July 22, 2011. (C.R.

pgs. 25-26) Trial commenced on March 19, 2013. The jury convicted Jassen Barnes

of Murder on March 21, 2013. (R.R. v. 4, p. 41) Sentencing by the Court took place

                                           viii
on May 1, 2013 where Jassen Barnes was sentenced to Life in the Texas Department

of Criminal Justice, Institutional Division. On May 21, 2013, trial counsel filed Notice

of Appeal, Motion to Withdraw and Motion for New Trial. (C.R. pgs. 189-190; 187-

188; 184-186) The Trial Court did not appoint appellate counsel until May 28, 2013,

almost 30 days from the date of sentencing. (C.R. p. 195) On May 31, 2013, current

appellate counsel filed Notice of Appearance. (C.R. pgs. 196-197) Amended Motion

for New Trial was also filed with attached affidavits and a request for a hearing. (C.R.

pgs. 199-213) On July 15, 2013, appellate counsel filed a motion objection to the Trial

Court conducting the motion for new trial hearing on affidavits only. (C.R. pgs. 245-

247) The Trial Court overruled the appellant’s objection and denied the Motion for

New Trial. (C.R. p. 248). On December 10, 2014, the Fourth Court of Appeals issues

its opinion affirming the conviction. (See attached)




                                           ix
                       GROUND FOR REVIEW NUMBER ONE

       The Petitioner asserts that the Opinion of the Fourth Court, affirming the

conviction of murder, must be reversed and rendered for acquittal because the State’s

case completely failed to corroborate the accomplice witness testimony of their star

witness, testifying under full immunity, in violation of Article 38.14 of the Texas Code

of Criminal Procedure, 6 th and 14 th Amendments to the United States Constitution and

Article 1, Section 10 of the Texas Constitution.

                                REASONS FOR REVIEW

       A legal sufficiency challenge is reviewed by considering the evidence in the light

most favorable to the verdict, and whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Lacour v. State, 8 S.W.

3 rd 670, 671 (Tx.Cr.App. 2000) citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.

Ct. 2781, 2789, 61 L. Ed. 2 nd 560 (1979). The fact finder is entitled to evaluate the

credibility of witnesses and is entitled to believe all, some or none of the evidence

presented. Chambers v. State, 805 S.W. 2 nd 459, 461 (Tx.Cr.App. 1991). While it is

true that the jury is considered the ultimate trier of fact, and that it is allowed to make

reasonable inferences, the jury cannot resort to mere speculation. See Reese v. State,

653 S.W. 2 nd 550, 553 (Tex.App.--Beaumont 1983, no pet.); Johnson v. State, 673

S.W. 2 nd 190, 196 (Tx.Cr.App. 1984); see also Guillory v. State, 877 S.W. 2 nd 71, 74

                                             1
(Tex. App.--Houston [1 st Dist.] 1994, pet. ref'd). In the case at bar, with the State’s

evidence relying solely on Brittney Smiley to prove that Jassen Barnes was the shooter

of Justin Thomas, while all the other witnesses admitted to only hearing gunshots but

not seeing a weapon nor the shooting, it became clear that the jury did not understand

the court’s charge as to their duty regarding their review of evidence pursuant to the

accomplice witness instruction. It is the duty of the reviewing court to consider all the

evidence admitted at trial before deciding whether there was sufficient evidence to

prove the element of the offense in dispute. Villalon v. State, 791 S.W. 2 nd 130, 132

(Tx.Cr.App.1990). The same standard of review applies to cases involving both direct

and circumstantial evidence. King v. State, 895 S.W. 2 nd 701, 703 (Tx.Cr.App.1995).

The Petitioner contends that the evidence was legally insufficient to prove that he was

guilty of murder, because of the failure of the State’s witnesses to even remotely

corroborate the testimony of Brittney Smiley. The Fourth Court’s Opinion relied on the

speculative testimony of the other “witnesses” to opine that the accomplice witness

testimony had been corroborated. (04-13-00346-CR, pgs. 5, 6, 7) A true review of the

record of this trial belies this opinion.   Speculation and inference of guilt is not

conclusive and the sufficiency of the evidence must be examined according to the

applicable evidentiary standards of appellate review. Hardesty v. State, 656 S.W. 2 nd

73, 77 (Tx.Cr.App.1983); Fernandez v. State, 989 S.W. 2nd 781 (Tex.App. –San

                                            2
Antonio, 1998); Flanagan v. State, 675 S.W. 2 nd 734, 746 (Tx.Cr.App.1984) (op. on

reh'g). Under the facts represented in the Petitioner’s record, all of the State’s witnesses

were speculating that the man in the blue shirt must be the shooter because he was seen

in the presence of Justin Thomas before the shooting and he was seen driving away in

a white car. Only the accomplice witness, Brittney Smiley, could cast guilt on Jassen

Barnes as the shooter.

       When faced with a record that fails to sufficiently corroborate the accomplice

witness testimony, the law requires that the case be reversed and a judgment of

acquittal be entered. Fernandez, 989 S.W. 2nd 781. In the case at bar, there can be no

doubt that the State’s witnesses were unable to observe the shooting and their

testimony was based on speculation and nothing more. The circumstantial evidence of

observing a man in a blue shirt talking to the complainant prior to the shooting serves

only to show the “mere presence” of the Petitioner in the vicinity of the shooting. A

conviction cannot stand if the corroborative evidence does no more than point the

finger of suspicion toward an accused. 24 Tex.Jur. 2 nd Evidence, Sec. 694, p. 326,

note 18. Although an accomplice witness may state any number of facts that are

corroborated by evidence of non-accomplice witnesses, such as placing the Petitioner

with Brittney Smiley at the Dietrich Apartment complex on July 22, 2011, still, if the

facts thus corroborated do not tend to sufficiently connect the accused with the crime,

                                             3
then corroboration on that basis would not meet the requirements of article 38.14. Id.

If there are non-accomplice witnesses and their evidence fails to connect the accused

to the offense, other than mere presence, the evidence is insufficient to support the

conviction. Munoz, 853 S.W. 2 nd 560; See also Fernandez, 989 S.W. 2 nd 781 citing

Edwards v. State, 427 S.W. 2 nd 629, 632 (Tx.Cr.App.1968), where that Court wrote:

The test as to the sufficiency of the corroboration is to eliminate from consideration the
evidence of the accomplice witness and then to examine the other witnesses with the
view to ascertain if there be inculpatory evidence, that is evidence of incriminating
character which tends to connect the defendant with the commission of the offense.
If there is such evidence, the corroboration is sufficient; otherwise it is not.

See also Burks v. State, 876 S.W. 2 ND 877, 887 (Tx.Cr.App.1994), cert. denied, 513

U.S. 1114, 115 S.Ct. 909, 130 L.Ed. 2 nd 791 (1995). Because no State witness

observed the shooting nor saw the Petitioner with a weapon, and no weapon was

found, there was no evidence to sufficiently corroborate the testimony of Brittney

Smiley, short of mere presence and sheer speculation.

                         GROUND FOR REVIEW NUMBER TWO

The Fourth Court’s Opinion should be reversed for failing to recognize the abuse of

discretion committed by the trial court for failing to grant the Petitioner a new trial, in that:

1) State failed to disclose Brady material; 2) Courtroom was closed to the Petitioner’s

stepfather; 3) Denied defense the ability to call for testimony subpoenaed witnesses

who refused to supply an affidavit; in violation of the 6 th and 14 th Amendments to the

                                               4
United States Constitution and Article 1, Sections 10 and 19 of the Texas Constitution.

       The trial court allowed the hearing on the motion for new trial to be supported

by affidavits only, attached to the Amended Motion for New Trial. (C.R. pgs. 199-213)

Trial testimony lasted from March 19 th to March 21 st, 2013. Brittany Smiley was a

witness for the State. Prior to testifying, Ms. Smiley was given full immunity in

exchange for her testimony. (R.R. v. 3, p. 120) Ms. Smiley was on probation out of

the 186 th District Court. (2011-CR-6819) On April 4, 2013, the State filed a motion

to enter an adjudication of guilt alleging that Ms. Smiley violated her conditions of

probation in that “On or About March 23, 2013" she used various drugs. (MNT, DX

4) On April 8, 2013, Tanner Niedhart saw Amy Owen, an attorney, in the hallway of

the courthouse. (MNT, p. 9) Mr. Niedhart informed Ms. Owen that he had filed a

motion to enter an adjudication of guilt on Ms. Smiley because he believed she was

“high” during her testimony at trial. (MNT, DX B - affidavit of Ms. Owen; C.R., pgs.

199-213) On April 5, 2013, when the motion to enter adjudication of guilt was filed,

Ina Minjarez was still Mr. Barnes’ attorney of record. Ms. Minjarez received no

information from Mr. Niedhart as to his lack of confidence in Ms. Smiley’s testimony

and his belief that she was so incompetent to testify that, notwithstanding the Full

Immunity agreement, he believed it warranted the filing of a motion to enter an

adjudication of guilt revoking Ms. Smiley’s deferred adjudication. (MNT, p. 10)

                                           5
Sentencing of Mr. Barnes did not occur until May 1, 2013. Mr. Niedhart did not

inform Ms. Minjarez of this vital piece of information that could have an effect on the

confidence in the outcome of this trial. Ms. Owen was not Mr. Barnes’ attorney so the

communication of this fact did not constitute disclosure. Further, there would be no

reason for Ms. Minjarez to do any further investigation of Ms. Smiley’s status without

disclosure from the State. Ms. Minjarez remained Mr. Barnes’ attorney until May 28,

2013, when Larry Bloomquist was appointed as the appellate attorney, almost a full 30

days from the date of sentencing. (MNT, DX A - affidavit of Ms. Minjarez)

REASONS FOR REVIEW - Failure to Disclose

         In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2 nd 215 (1963),

the Supreme Court recognized the underlying principle is avoidance of an unfair trial

to the accused. Society wins not only when the guilty are convicted but when criminal

trials are fair; our system of the administration of justice suffers when any accused is

treated unfairly. Brady, 373 U.S. at 87, 83 S.Ct. at 1197; United States v. Agurs, 427

U.S. 97, 110, 96 S.Ct. 2392, 2400, 49 L.Ed. 2 nd 342 & n. 17 (1976) In Agurs, 427

U.S. 97, 96 S.Ct. 2392, the Supreme Court was called upon to determine whether the

prosecutor has a duty, in the absence of a specific request, to disclose exculpatory

evidence to the defense, and if so, what standard of materiality gives rise to that duty.

Agurs, 427 U.S. at 107, 96 S.Ct. at 2399. In United States v. Bagley, 473 U.S. 667,

                                            6
105 S.Ct. 3375, 87 L.Ed. 2 nd 481 (1985), the Supreme Court expanded the definition

of favorable evidence to include both exculpatory evidence and impeachment

evidence, because "[s]uch evidence is 'favorable to the accused' [citation omitted], so

that, if disclosed and used effectively, it may make the difference between conviction

and acquittal." Bagley, 473 U.S. at 676, 105 S.Ct. at 3380.

        In the trial of Jassen Barnes, the State considered the testimony of Ms. Smiley

to be of such importance that she was granted full immunity. Brittney Smiley was the

only witness presented in the State’s case that could identify Jassen Barnes as the

shooter based on an admission. The non-accomplice witnesses failed to corroborate

her testimony. Should Ms. Smiley’s testimony be tainted, the State’s entire case fails.

If the State believed that Smiley’s testimony was so tainted by their belief that she was

under the influence of various narcotic drugs at the time of her testimony, to such an

extent that a motion to enter an adjudication of guilt was filed based on this belief, it

became the duty of the prosecutor to inform trial counsel of this information. Failure

to do so undermines the confidence in the outcome of the trial and requires the granting

a new trial.

       The Fourth Court’s opinion glossed over this point of error, denying all appellate

review. Relying solely upon Tanner Niedhardt’s affidavit, without considering or even

mentioning the affidavit of Amy Owen, (04-13-00346-CR, pg. 17), which completely

                                            7
conflicted with Niedhardt’s, the Fourth Court decided that Mr. Niedhardt’s affidavit

alone, never was sufficient to refute the allegations contained within the amended

Motion for New Trial. (C.R.pgs, 199-213) Because the two affidavits completely

conflicted, the Petitioner was entitled to have live testimony and cross examination on

this issue.

Closure of the Courtroom: On May 27, 2013, counsel received a phone from Mr.

Eddie Taylor, referencing information he possessed pursuant to the trial of Jassen

Barnes, his stepson. With permission of Ina Minjarez, attorney of record, and the

Petitioner, counsel began to investigate the information received from Mr. Taylor.

Counsel was informed that, during the trial of Mr. Barnes, Eddie Taylor had been

prevented from entering the courtroom. Counsel began asking those who would have

personal knowledge of such an event and could not find specific information that there

was an official Judicial Order to this effect. Counsel did inquire of Mr. Niedhart who

informed counsel that Mr. Taylor, a maintenance man for Bexar County, had been

located in the holdover cells changing light bulbs during the trial. Mr. Niedhart

informed counsel that he called Mr. Ben Ramirez, Mr. Taylor’s supervisor, and

requested that Mr. Taylor be instructed not to enter those locations during the trial.

(MNT, p.11) Counsel placed a call to Mr. Ramirez who informed her that he did not

receive a call from Mr. Niedhart but he did receive a phone call from Sergeant Castillo

                                           8
who informed him that Mr. Taylor was to be instructed not to enter the courtroom.

Further, counsel spoke with Mike Beers, an investigator with the District Attorney’s

office, who informed counsel that he did tell Mr. Taylor that it would be a good idea

if he just stayed out of the courtroom. Counsel was not able to obtain an affidavit from

Mr. Beers although he was under subpoena for the hearing on the Motion for New

Trial. In arguments, counsel put forth Mr. Beers’ statements to Mr. Taylor. Mr. Taylor

informed counsel that he believed that should he enter the courtroom at all, his

employment would be terminated. (MNT, DX C - affidavit from Mr. Taylor)

         In a criminal prosecution, the defendant has a right to a public trial. See U.S.

Const. amends. VI, XIV; Presley v. Georgia, 130 S.Ct. 721, 723 (2010) (per curiam)

(reiterating that the Sixth Amendment right to a public trial applies to the states via the

Due Process Clause of the Fourteenth Amendment); Steadman v. State, 360 S.W. 3 rd

499, 504 (Tx.Cr.App.2012). To close a courtroom, an overriding interest must be

advanced to show that the closure is necessary and must be no broader than that needed

to protect that interest, Further, the court must consider reasonable alternatives to

closing the proceeding, and it must make findings adequate to support the closure.” See

Waller v. Georgia, 467 U .S. 39, 48 (1984); accord Lilly v. State, 365 S.W. 3 rd 321,

328–29 (Tx.Cr.App.2012). In considering reasonable alternatives, “trial courts are

required to consider alternatives to closure even when they are not offered by the

                                             9
parties.” Presley, 130 S.Ct. at 724; accord Lilly, 365 S.W. 3 rd 329; Steadman, 360

S.W. 3rd 509. (emphasis added) A closure is not justified if there are reasonable

alternatives to closure that the trial court cannot “sensibly reject.” See Steadman, 360

S.W. 3 rd 509; see also Presley, 130 S.Ct. at 724–25; Lilly, 365 S.W. 3 rd 333.

State Action Versus Judicial Order - In Addy v. State, 849 S.W. 2 nd 245 (Tex.App.

–Houston [1 st Dist.] 1993), it was held that the defendant was entitled to a new trial

based on the actions of the prosecutor. In that case, the prosecutor claimed that certain

people were subject to the rule, preventing their entrance to the courtroom. It was later

determined that these people were not potential witnesses and the closure of the

courtroom deprived the defendant of his right to a public trial and required reversal.

Addy is being relied upon for the proposition that appellate courts are willing to reverse

a case based on the closure of a courtroom that stemmed from the actions of someone

in authority other than the Judge. In the case at bar, it was argued by counsel at the

motion for new trial hearing that at the very least, a prosecutor and an investigator from

the District Attorney’s office were involved in keeping Mr. Taylor from the courtroom.

(MNT, pgs. 9-12) Mr. Taylor believed that the admonishment he received from Mike

Beers was of such a nature that should he enter the courtroom, his employment would

be terminated. Therefore, although the prosecutor might not have specifically intended

the full result, it was certainly within the realm of reasonable probability that this

                                           10
would be the result. Certainly, the District Attorney investigator knew the result of his

admonishment to Mr. Taylor would be that he would not be in the courtroom at the

trial of his stepson. It has been deemed that when a complete closure of a courtroom

occurs, where no specific necessity for said closure can be articulated, then the error

is fundamental and reversal is required. See Cameron v. State, 415 S.W. 3 rd 404 (Tex.

App. –San Antonio, 2013, pet’ denied, State rehearing filed, 11-7-14, PD-1427-13)

Cameron is similar to the facts in this case in that the trial court was not made aware

of the issue during trial although Cameron deals with exclusion from voir dire and the

case at bar deals with exclusion during testimony.

Denial of Live Testimony: Counsel for Petitioner did not come on the case until the

day before the final day of filing an Amended Motion for New Trial. Although phone

calls were placed to witnesses, many of the witnesses failed to return the phone calls

until well after the filing of the amended motion for new trial. Several witnesses were

unwilling to provide an affidavit. These witnesses were subpoenaed for the hearing

on the motion for new trial. Prior to the hearing on the motion for new trial, the trial

court indicated that she would only allow arguments on filed affidavits. Defense filed

an objection with an accompanying memorandum of law to the trial court’s limitation

of testimony, (C.R. pgs.245-247), and informed the Court that there were certain

witnesses who would not provide an affidavit, however these witnesses were

                                           11
subpoenaed. (MNT, pgs. 7,8)

      The Fourth Court’s opinion indicated that because the record contained no

evidence of who the other subpoenaed witnesses were who would not be testifying,

that the record was not adequately supplemented. (04-13-00346-CR, pg. 19) Justice

Marion’s opinion failed to appreciate the many documents filed by the Petitioner’s

attorney, prior to the hearing on the motion for new trial, fully delineating all the

witnesses who had not been willing to provide an affidavit but who were subpoenaed

before the motion for new trial hearing. (C.R., pgs. 245-247) In addition, the record

indicates that at the argument on the Motion for New Trial, counsel for Petitioner

discussed the conversation held with District Attorney Investigator as to his friendly

admonishment to Mr. Taylor to stay away from the courtroom. (MNT)

     An appellant has a right to hearing on a motion for new trial when the motion

raises matters that are not determinable from the record. Vera v. State, 868 S.W. 2 nd

433, 435 (Tex.App.--San Antonio 1994, no pet.). Eddie Taylor provided an affidavit

wherein the issue of the closure of the courtroom was presented. His affidavit

conflicted with Niedhardt’s affidavit. Further, Amy Owen’s affidavit conflicted with

Niedhardt’s. Not only did the trial court make a determination of the truthfulness and

veracity of the different affidavits with no confrontation, but the Fourth Court did as

well. There were several witnesses who would not supply affidavits but who were

                                          12
subpoenaed to the hearing on the Motion for New Trial. The live testimony of these

witnesses was constitutionally required to help the Petitioner fairly pursue the issues

on appeal. One of the purposes of a hearing on a motion for new trial is to properly

preserve issues for appellate review. To limit the testimony effectively prevented the

Petitioner from preserving issues for the appeal and violated his constitutional rights

to due process pursuant to the 6 th and 14 th Amendments to the United States

Constitution and Article 1, Sections 10 and 19 of the Texas Constitution.

      Therefore, the Petitioner requests that this Honorable Court provide appellate

review on the points asserted in the original direct appeal dealing with the denial of the

motion for new trial based on a Brady violations, denial of live testimony at the hearing

on the motion for new trial, and the closure of the courtroom to Eddie Taylor at the

trial. The opinion of the Fourth Court is of little import for determining the merits of

the points asserted in the original appeal as the Opinion reflects a true lack of

knowledge of the events as they transpired with reference to the motion for new trial.

                                PRAYER FOR RELIEF

      The Petitioner respectfully prays that this Court actually consider granting

review of this case. After review of all the facts, the Petitioner prays that this Court

reverse and render the opinion of the 4 th Court, and grant any and all other relief.




                                           13
Respectfully submitted,




/S____________________________
Suzanne Kramer
325 S. Main
San Antonio, Texas 78204
210-573-0201
                          CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Brief of Petitioner was

hand-delivered to the Office of the District Attorney, Paul Elizondo Tower, on January 12, 2015.

Further, I hereby certify that an original was electronically filed on January 9, 2015, with ten

hardcopy briefs being mailed to the Court of Criminal Appeals, Supreme Court Building, P.O. Box

12308, Austin, TX 78711, on January 9, 2015.

/S__________________________
Suzanne Kramer
                           CERTIFICATE OF SERVICE

      I, Suzanne Kramer, hereby certify that a copy of the foregoing Petition for Discretionary

Review was mailed to the State's Attorney, Box 12405, Capitol Station, Austin, Texas, 78711, on

January 12, 2015.

/S____________________________
Suzanne Kramer
                         CERTIFICATE OF COMPLIANCE

   I, Suzanne Kramer, do hereby certify that the total word count of the foregoing PDR, exclusive

of the Table of Contents, Index of Authorities, Procedural Statement of the Case, and the attached

Opinion, is 4102.

/S_____________________________
Suzanne Kramer

                                                14
             APPENDIX
MEMORANDUM OPINION

No. 04-13-00346-CR

Jassen BARNES,

Appellant

v.

The

The STATE of Texas,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 2011CR9420

Honorable Maria Teresa Herr, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice

Marialyn Barnard, Justice



                                               15
Luz Elena D. Chapa, Justice

Delivered and Filed: December 10, 2014

AFFIRMED

A jury found appellant, Jassen Barnes, guilty of murder and sentenced him to life

imprisonment. In five issues on appeal, appellant asserts (1) the evidence is insufficient to

corroborate the accomplice witness testimony and sustain his conviction, (2) the trial court erred

by admitting prejudicial evidence, (3) the State improperly commented on appellant’s failure to

testify, (4) the trial court erred by denying his motion for new trial, and (5) his spouse’s testimony

should have been excluded. We affirm.04-13-00346-CR

BACKGROUND

On July 22, 2011, Justin Thomas and his girlfriend went to the Dietrich Road Apartments

where Thomas lived with his mother. The couple waited in their vehicle for Thomas’s cousin to

arrive. Upon his cousin’s arrival, Thomas exited the vehicle while his girlfriend waited for Thomas

to return. Thomas greeted his cousin and the two conversed briefly. A short time later, Thomas

was seen in a breezeway speaking with a man later identified as appellant. Witnesses then heard

gunshots and saw Thomas running out of the breezeway towards his mother’s apartment. Thomas

was heard yelling, “Call 9-1-1. He shot me.” Thomas collapsed a short distance from where he

was shot and died in his mother’s arms shortly thereafter. Witnesses reported seeing appellant

running from the location where Thomas was shot and driving off in a white Kia with damage on

the rear bumper. Brittney Smiley was later identified as the vehicle’s owner. Appellant was

identified as a suspect, but the police were initially unable to arrest him because he left town. He

was arrested several weeks later after the police learned of his return.


                                                 16
At trial, the evidence included testimony from a number of witnesses, Smiley’s accomplice

testimony, and forensic evidence. The first witness to testify was Thomas’s girlfriend, Lejoi

Haynes. Haynes testified she was waiting in her car for Thomas to return when Thomas was shot.

Haynes said that immediately prior to hearing gunshots, she saw Thomas speaking with appellant,

who was wearing a blue shirt and had hair she described as a “short afro.” Haynes also testified

she did not actually see the shooting occur or a gun in appellant’s hands; however, she was able to

get a good look at appellant because he stood there a few seconds after the shooting before running

away. She confirmed appellant was the only other person in the immediate vicinity where the

shooting took place and identified appellant as the shooter in a police lineup as well as in court.

Kesha Hall testified she was at the Dietrich Road Apartments prior to and during the

shooting. Hall stated she saw Smiley sitting with her cousin, Laketa Nation, on the steps of the

- 2 -04-13-00346-CR

apartment complex before the shooting occurred. Hall testified Smiley was wearing a dress that

day and she was able to see a gun strapped to Smiley’s leg. She also stated she saw appellant two

or three times earlier that day, and described him as having dark skin with a “medium-sized afro,”

approximately two inches in length. Hall identified appellant as the person who shot and killed

Thomas, although she acknowledged appellant looked different in court because he no longer had

hair. After the shooting, Hall saw appellant flee the scene in a white car with damage on the rear

bumper, and she identified Smiley as the vehicle’s owner.

Laketa Nation testified next. Nation testified she lived at the Dietrich Road Apartments

and was sitting on the steps of the apartment complex when she heard gunshots. Nation identified

appellant as Smiley’s boyfriend. She confirmed appellant was wearing a blue shirt the day of the


                                                17
shooting and described his hair as “a little afro thing.” Hall testified appellant looked different at

trial because he no longer had hair, but confirmed that she still recognized appellant as the person

wearing the blue shirt the day of the shooting. She also confirmed Smiley had a gun the day of

the shooting, and stated that she did not actually see the shooting occur. Shortly after the shooting,

she saw a white car drive away from the apartments.

The final non-accomplice witness to testify was Thomas’s cousin, Chastity Walker.

Walker testified she arrived at the Dietrich Road Apartments and was greeted by Thomas in the

parking lot. After a brief conversation, she walked upstairs and left her belongings in her aunt’s

apartment. She then walked outside and stood on the balcony where she heard Thomas speaking

with appellant. Her description of appellant matched the description given by the other

witnesses—dark skin, blue shirt with a small afro. A few seconds later she heard gunshots, then

heard Thomas yell, “Call 9-1-1. He shot me.” Walker testified she did not see a gun nor the actual

shooting take place. However, she identified appellant as the person who shot Thomas.

- 3 -04-13-00346-CR

After receiving immunity from prosecution, the jury also heard testimony from Brittney

Smiley. Smiley testified she and appellant were at the Dietrich Road Apartments on the day of the

shooting and confirmed they were both carrying guns. Smiley testified she was carrying a .22

caliber gun while appellant was carrying a gun she described as similar to one that a police officer

carries. When they arrived, Smiley said she ran into her friend, Laketa Nation, and “smoked a

blunt with her” on the apartment complex steps.1

Smiley testified she was sitting on the stairs with

Nation when she heard gunshots and ran off. While running, Smiley ran into Thomas, who asked


                                                 18
her for help. Smiley testified she ran away without helping Thomas and felt bad for doing so.

When she met up with appellant, she was in shock because she had just ran into someone who had

been shot. When Smiley mentioned she saw Thomas, appellant asked her whether Thomas had

died. Smiley told appellant she did not know because she did not stay long enough to find out. At

that point, Smiley testified appellant told her he was the person who shot Thomas.

In addition to the witnesses’ testimony, the State also introduced forensic and physical

evidence. Crime scene investigators who processed Smiley’s car found two .22 caliber bullets,

and were also able to match appellant’s fingerprints with fingerprints located on Smiley’s car. The

medical examiner testified Thomas’s death was caused by a gunshot wound to the chest.

Additionally, investigators recovered a .40 caliber shell cashing and bullet fragments near the area

where Thomas was shot. Ballistic analysis on the shell casing and bullet fragments revealed the

bullet that killed Thomas was fired from either a Glock or Smith & Wesson .40 caliber handgun—

similar to the type of gun San Antonio police officers carry. The analysis also established that the

murder weapon would have been unable to fire a .22 caliber bullet.

1 A blunt is a hollowed out cigar filled with marijuana instead of tobacco. See Tasby v. State, No.

05-99-02108-CR,

2000 WL 1598930, at *2 (Tex. App.—Dallas Oct. 27, 2000, no pet.).

-4-

04-13-00346-CR

CORROBOTATION OF ACCOMPLICE TESTIMONY

In his first issue, appellant challenges the sufficiency of the evidence to corroborate

Smiley’s accomplice witness testimony and argues the State relied solely on Smiley’s testimony


                                                 19
to prove he committed the offense. Therefore, he asserts the evidence was insufficient to support

the jury’s guilty verdict. We first address corroboration of the accomplice testimony.

1. Standard of Review

To determine whether there is sufficient evidence to corroborate an accomplice’s

testimony, we exclude all accomplice witness testimony from consideration and then examine the

remaining portions of the record to see if there is any evidence that tends to connect the accused

in some way to the commission of the offense alleged in the indictment. Castillo v. State, 221

S.W.3d 689, 691 (Tex. Crim. App. 2007); Johnson v. State, 354 S.W.3d 491, 495 (Tex. App.—

San Antonio 2011, pet. ref’d). The non-accomplice evidence may be direct or circumstantial, and

must simply link the accused in some way to the commission of the crime, such that rational jurors

could conclude this evidence sufficiently tended to connect appellant to the offense. Smith v. State,

332 S.W.3d 425, 442 (Tex. Crim. App. 2011). The “tends-to-connect” standard does not present

a high threshold. Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.—Austin 2002, no pet.). Even

insignificant circumstances may satisfy this standard. Id. No precise rule can be formulated

regarding the amount of evidence that is required to corroborate the testimony of an accomplice

witness; each case must be judged on its own facts. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim.

App. 1994). We view the evidence in the light most favorable to the jury’s verdict when reviewing

corroboration under the accomplice witness rule. Id.

2. Analysis

Excluding Smiley’s testimony, the evidence at trial included testimony from the medical

examiner, who testified Thomas’s death was the result of a gunshot wound to the chest. Three

- 5 -04-13-00346-CR


                                                 20
witnesses—Haynes, Hall, and Walker—identified appellant as the person who shot Thomas.

Nation also placed appellant at the Dietrich Road Apartments at the time the murder occurred, and

her description of appellant matched the other witnesses’ description of the shooter. Several

witnesses also reported the shooter fled the scene in Smiley’s car and appellant’s fingerprints

matched those found on Smiley’s car.

Viewed in the light most favorable to the jury’s verdict, we conclude the evidence

sufficiently tends-to-connect appellant to the charged offense. Accordingly, Smiley’s testimony

was sufficiently corroborated by other evidence tending to connect appellant to Thomas’s murder.

LEGAL SUFFICIENCY

1. Standard of Review

When reviewing the legal sufficiency of the evidence to support a criminal conviction, we

review the evidence in the light most favorable to the verdict to determine whether a rational juror

could have found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).

Under this standard, we are required to defer to the jury’s determination of the credibility of

witnesses “and the weight to be given their testimony.” Brooks, 323 S.W.3d at 899. An

eyewitness’s testimony alone, can be legally sufficient to support a guilty verdict. Aguilar v. State,

468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Castilla v. State, 374 S.W.3d 537, 539 (Tex. App.—

San Antonio 2012, pet. ref’d). Circumstantial evidence is as probative as direct evidence, and

alone, may be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). We do not ask whether we believe the evidence at trial established guilt beyond a

reasonable doubt, instead, we consider only whether the jury reached a rational decision. Brooks,


                                                 21
323 S.W.3d at 899.

- 6 -04-13-00346-CR

2. Analysis

Appellant asserts the State relied solely on Smiley’s uncorroborated testimony to support

his conviction. Therefore, because her testimony was uncorroborated, he contends the evidence is

legally insufficient to support his conviction. However, having concluded there is sufficient

nonaccomplice

evidence corroborating Smiley’s testimony, we will include her testimony in our

evaluation of the legal sufficiency of all the evidence to support appellant’s conviction.

A person commits the offense of murder if he intentionally or knowingly causes the death

of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to

human life that causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1), (2)

(West

2011).

The evidence in this case includes testimony from the eyewitnesses who identified

appellant as the individual who shot Thomas. This evidence alone is legally sufficient to support

the verdict. See Castilla, 374 S.W.3d 539. However, in addition to this evidence, Smiley testified

appellant admitted he was the person who shot Thomas. Smiley also described the gun appellant

had with him on the day of the shooting as similar to one that a police officer carries, and the

forensic evidence established that the gun used in the shooting is consistent with the type of

weapon carried by the San Antonio Police Department. Viewing the evidence in the light most

favorable to the verdict, we conclude the a jury could have found beyond a reasonable doubt that


                                                22
appellant intentionally or knowingly caused the death of Thomas, or intended to cause serious

bodily injury and committed an act clearly dangerous to human life that caused the death of

Thomas.

PREJUDICIAL EVIDENCE

In his second issue, appellant contends the trial court abused its discretion when it admitted

photographs of two .22 caliber bullets found in Smiley’s vehicle over his objection that the

- 7 -04-13-00346-CR

evidence was unduly prejudicial under Texas Rule of Evidence 403. The State responds that the

bullets were admissible to rebut the defense’s theory that Smiley was the shooter.

Rule 403 allows for the exclusion of evidence when the probative value of evidence is

substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403; State v.

Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A Rule 403 analysis involves a balance

of: “(1) the inherent probative force of the proffered evidence along with (2) the proponent’s need

for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis,

(4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any

tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate

the probative force of the evidence, and (6) the likelihood that presentation of the evidence will

consume an inordinate amount of time or merely repeat evidence already admitted.” Gigliobianco

v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006); Subirias v. State, 278 S.W.3d 406, 408

(Tex. App.—San Antonio 2008, pet. ref’d). We review a trial court’s ruling on a Rule 403

objection for an abuse of discretion. Pawlak v. State, 420 S.W.3d 807, 810 (Tex. Crim. App.

2013). As long as the trial court’s ruling falls within the zone of reasonable disagreement, we will


                                                23
affirm its decision. Id.

A. Probative Value

Under the first factor, we examine “how compellingly the evidence serves to make a fact

of consequence more or less probable.” Mechler, 153 S.W.3d at 440. In this case, appellant’s

defensive theory was that he was not the shooter. Appellant argued that because no witnesses

actually saw the shooting take place nor saw him with a gun, Thomas could have been shot by

another person with a gun that day, such as Smiley. To rebut that argument, the State introduced

pictures of the two .22 caliber bullets found in Smiley’s car, Smiley’s testimony that her gun was

a .22 caliber, and forensic evidence to establish that a .22 caliber gun could not have fired a .40

- 8 -04-13-00346-CR

caliber bullet and could not have been the murder weapon. Thus, because the photographs of the

.22 caliber bullets were introduced to rebut a defensive theory, the trial court could have reasonably

concluded that the State’s need for the evidence weighed in favor of admissibility.

B. Need for the Evidence

Under the second factor, a proponent’s need for a particular piece of evidence is reduced

when the proponent “has other compelling or undisputed evidence to establish the proposition or

fact.” Gigliobianco, 210 S.W.3d at 641. Here, the State introduced several witnesses who

identified appellant as the person who shot Thomas. Although these witnesses identified appellant

as the shooter, each witness acknowledged that they did not actually see the shooting occur nor

did they see appellant with a gun. Smiley was the only person that day seen with a gun. Therefore,

the trial court could have reasonably concluded that this factor weighed in favor of admissibility.

C. Potential to Impress the Jury


                                                 24
This factor asks whether the evidence has the potential to impress the jury in an irrational

way or suggest a decision on an improper basis. Id. Rule 403 does not exclude all prejudicial

evidence, only evidence that is unfairly prejudicial. Mechler, 153 S.W.3d at 440. All evidence

introduced against a defendant that is material to an issue in the case and tends to prove guilt is

prejudicial, but it is not necessarily unfairly prejudicial under Rule 403. Manning v. State, 114

S.W.3d 922, 927–28 (Tex. Crim. App. 2003). Evidence is unfairly prejudicial when it has a

“tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged.”

Mechler, 153 S.W.3d at 440. Here, appellant argues “[t]he only purpose for the admission of the

bullets was to enflame the minds of the jury against both [Smiley] and [appellant], allowing [the

jury] to speculate that [Smiley and appellant] must both be gun toting criminals deserving no

justice.” We disagree. The evidence regarding the .22 caliber bullets related directly to appellant’s

defensive theory. Therefore, the photographs of the bullets did not have a tendency to tempt the

- 9 -04-13-00346-CR

jury into finding guilt on grounds apart from proof of the offense charged. Thus, the trial court

could have reasonably concluded this factor weighed in favor of admissibility.

D. Confusion of Issues & Undue Delay

The fourth factor refers to a tendency to confuse or distract the jury from the main issues

in the case. Gigliobianco, 210 S.W.3d at 641. “Evidence that consumes an inordinate amount of

time to present or answer, for example, might tend to confuse or distract the jury from the main

issues.” Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007). “‘Undue delay’ and

‘needless presentation of cumulative evidence’ concern the efficiency of the trial proceeding rather

than the threat of an inaccurate decision.” Id. Here, appellant was charged with murder. The


                                                 25
photographs of the bullets were directly related to appellant’s defensive theory, and, in

combination with other evidence, were introduced in order to rebut appellant’s argument that

another person, such as Smiley, was the shooter. The photographs were introduced during the

testimony of one of the investigators and did not consume an inordinate amount of time. Nor was

there a concern with the efficiency of the trial or the photographs being needlessly cumulative.

Thus, we conclude the trial court could have reasonably concluded that these factors weighed in

favor of admissibility.

E. Misleading the Jury

“‘Misleading the jury,’ refers to a tendency of an item of evidence to be given undue weight

by the jury on other than emotional grounds.” Casey, 215 S.W.3d at 880. “For example,

‘scientific’ evidence might mislead a jury that is not properly equipped to judge the probative force

of the evidence.” Id. Here, the investigator testified that identifying the caliber of the bullets was

accomplished by reading it from the shell casing. Therefore, there was little risk of the jury being

misled or assigning undue weight to the presentation of the bullets. Thus, this factor should also

be considered as weighing in favor of admissibility.

- 10 -04-13-00346-CR

F. Conclusion

Considering all of the factors in the analysis, the trial court could have reasonably

concluded that the probative value of the photographs of the .22 caliber bullets was not

substantially outweighed by the danger of unfair prejudice. Accordingly, we conclude the trial

court did not abuse its discretion in allowing them into evidence.

COMMENT ON APPELLANT’S REFUSAL TO TESTIFY


                                                 26
In his third issue, appellant complains the State improperly commented on his refusal to

testify. During the State’s opening remarks, the prosecutor laid out the State’s version of how it

believed Thomas was killed. The prosecutor then told the jury:

At the end, what you’re going to find out from these witnesses, these

witnesses that he didn’t count on, that this defendant committed murder. We’re

going to ask you to find him guilty of it. You’re going to find him guilty based on

the evidence.

Now, the defense will have the opportunity to tell you how it—whatever

defense it’s going to be. What I want you to keep in mind as you’re listening to the

evidence is whether what they’re telling you is actually in evidence.

The defense then objected on the grounds the statement was argumentative, which the trial court

sustained.

To preserve a complaint for appellate review, the complaining party must have made “a

timely request, objection, or motion” to the trial court that specifically stated the party’s complaint.

TEX. R. APP. P. 33.1(a)(1); Garza v. State, 126 S.W.3d 79, 81–82 (Tex. Crim. App. 2004).

Additionally, the complaint on appeal “must comport with the objection made at trial.” Yazdchi

v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). Here, the objection made at trial was that

the prosecutor’s statement was argumentative, not that the statement was a comment on appellant’s

refusal to testify. Accordingly, because appellant’s complaint on appeal does not comport with

the complaint made at trial, we conclude appellant has failed to preserve error.

- 11 -04-13-00346-CR

Additionally, assuming error had been preserved, we conclude the prosecutor’s remark was


                                                  27
not a comment on appellant’s refusal to testify. When addressing a complaint of an improper

comment on a defendant’s refusal to testify, we review the language from the standpoint of the

jury. Goff v. State, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996). The fact that the language might

be construed as an implied or indirect allusion to a defendant’s refusal to testify is not sufficient.

Id. Where the statement does not refer to evidence that can come only from the defendant, it is

not a comment on a defendant’s refusal to testify. Id. Here, the prosecutor’s remark did not refer

to evidence that could have only come from appellant and was not a comment on appellant’s

refusal to testify.

SPOUSAL PRIVILEGE

In his fifth issue, appellant asserts Smiley was entitled to assert the marital privilege not to

testify against him. Appellant and Smiley were never ceremonially married; therefore, appellant

contends the evidence was sufficient to establish that a common law or informal marriage existed

between them at the time of the events to which Smiley testified.

After she was granted immunity in exchange for her testimony, Smiley asserted she and

appellant were informally married and argued that she had a privilege not to be called as a witness

by the State. Outside the presence of the jury, Smiley’s counsel attempted to establish the existence

of an informal marriage. At the end of the hearing, the trial judge ruled Smiley failed to meet her

burden of establishing the existence of an informal marriage based on the amount of evidence

contrary to her assertion. Smiley was subsequently called to testify by the State.

1. Standard of Review

“Preliminary questions concerning the qualification of a person to be a witness, the

existence of a privilege, or the admissibility of evidence shall be determined by the court . . . .”


                                                  28
TEX. R. EVID. 104(a). “In reviewing the trial court’s ruling [on the existence of an informal

- 12 -04-13-00346-CR

marriage,] as with other questions concerning the admissibility of evidence, we apply an abuse of

discretion standard.” Colburn v. State, 966 S.W.2d 511, 514 (Tex. Crim. App. 1998); see Tienda

v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). A trial court does not abuse its discretion

unless its decision is outside the zone of reasonable disagreement. Colburn, 966 S.W.2d at 514.

The existence of an informal marriage is a question of fact, and the party seeking to establish the

existence of the marriage bears the burden of proving the validity of the marriage by a

preponderance of the evidence. Alonso v. Alvarez, 409 S.W.3d 754, 757 (Tex. App.—San Antonio

2013, pet. denied); Weaver v. State, 855 S.W.2d 116, 120 (Tex. App.—Houston [14th Dist.] 1993,

no pet.). Where, as here, the trial court’s decision turns on the credibility and demeanor of a

witness, we review its decision in a light most favorable to its ruling. Jasper v. State, 61 S.W.3d

413, 419 (Tex. Crim. App. 2001).

2. Analysis

“In a criminal case, the spouse of the accused has a privilege not to be called as a witness

for the state.” TEX. R. EVID. 504(b)(1). An informal marriage may be proven by showing that a

declaration of marriage has been signed. Jasper, 61 S.W.3d at 419. If there is no declaration,

there must be a showing of three elements: 1) the parties agreed to be married, (2) after the

agreement they lived together in Texas as husband and wife, and (3) they represented to others

that they were married. TEX. FAM. CODE ANN. § 2.401(a)(2) (West 2006); Alonso, 409 S.W.3d

at

757.


                                                29
Appellant was not called to testify at the hearing, and Smiley was the only witness to testify

about the alleged informal marriage. No declaration of marriage was offered. Smiley testified

that she considered herself married to appellant for three years prior to the day of the shooting.

Smiley said that she and appellant held themselves out as married to their friends and family, and

testified that she and appellant lived together prior to his arrest. Smiley also introduced letters she

- 13 -04-13-00346-CR

sent to appellant. In the letters, Smiley referred to herself as “Brittney Carter,” and Smiley

explained Carter is the last name of appellant’s mother. Smiley also sent a letter to appellant’s

attorney. In that letter, Smiley refers to appellant as her husband, writing, “I understand you’re

my husband’s attorney.”

However, upon cross-examination by the State, Smiley gave contradictory testimony.

During the hearing, Smiley testified she was living with appellant at a house on Castle Hunt Drive;

however, she listed her home address at a house on Dysart Drive when she was interviewed by the

police on July 22, 2012. Smiley stated the Dysart address was her mailing address, not her home

address. The police statement also shows Smiley responded that she was not married when she

was asked her marital status. When asked about the discrepancy, Smiley stated “that couldn’t have

been answered by me,” and that she could not remember speaking to the police because she was

high on Xanax and marijuana that day. The State then played a recorded portion of the interview.

After hearing the recording, Smiley confirmed responding that she was not married when asked

by the officer.

Appellant’s jail visitation records were also introduced during the hearing. The records

show that the mother of appellant’s son identified herself as appellant’s spouse when she visited.


                                                  30
The records also show Smiley identified herself as appellant’s girlfriend when she visited. Smiley

said the identifications were outdated and could not be updated once entered. A letter sent from

appellant to a woman named Brittney Smith was also introduced during the hearing. In the letter,

appellant asks Smith to be his wife. Smiley confirmed appellant was not writing to her and that

she did not live at the address listed on the letter. Finally, the State introduced Smiley’s

Supplemental Nutrition Assistance Program (food stamps) application where Smiley listed herself

as single.

- 14 -04-13-00346-CR

Viewing the evidence in the light most favorable to the trial court’s ruling, we conclude

there was sufficient evidence to support the trial court’s ruling. Although the evidence may have

been sufficient to raise a fact question as to the existence of an informal marriage, we cannot say

that the trial court abused its discretion.

Appellant further contends the trial court erred by failing to submit the issue of the

existence of an informal marriage to the jury. However, “[t]he right to have the issue [of the

existence of a common law marriage] presented to the jury may be waived if such an instruction

is not requested.” Aguilar v. State, 715 S.W.2d 645, 647 (Tex. Crim. App. 1986). Here, no jury

question was requested. Therefore, we conclude appellant waived this complaint on appeal.

MOTION FOR NEW TRIAL

In his final issue, appellant asserts the trial court erred when it denied his motion for new

trial. Appellant bases this argument on three grounds: (1) the State failed to disclose Brady

material; (2) his right to a public trial was violated; and (3) he was denied the ability to present

oral testimony.


                                                 31
We review a trial court’s ruling on a motion for new trial under an abuse of discretion

standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). Under this standard, we

view the evidence in the light most favorable to the trial court’s ruling and uphold the trial court’s

ruling if it is within the zone of reasonable disagreement. Webb v. State, 232 S.W.3d 109, 110

(Tex. Crim. App. 2007). We do not substitute our judgment for that of the trial court, but instead

consider whether the trial court’s decision was arbitrary or unreasonable. Id.; Holden v. State, 201

S.W.3d 761, 763 (Tex. Crim. App. 2006). A trial court abuses its discretion in denying a motion

for new trial when no reasonable view of the record could support its ruling. Colyer, 428 S.W.3d

at 122.

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“The trial court, as factfinder, is the sole judge of witness credibility at a hearing on a

motion for new trial with respect to both live testimony and affidavits.” Okonkwo v. State, 398

S.W.3d 689, 694 (Tex. Crim. App. 2013). If there is conflicting evidence on an issue of fact, the

trial judge determines the issue and there is no abuse of discretion in overruling the motion for

new trial. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).

A. Brady Violation

The State has a duty to disclose evidence that is favorable to a defendant. See Brady v.

Maryland, 373 U.S. 83, 87 (1963); Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006).

This duty extends to impeachment evidence. See United States v. Bagley, 473 U.S. 667, 676

(1985). To establish a Brady violation claim, the defendant must show that (1) the State failed to

disclose evidence, regardless of the good faith of the prosecutor, (2) the withheld evidence is

favorable to the defendant, and (3) the withheld evidence is material, meaning there is a reasonable


                                                  32
probability that had the evidence been disclosed, the outcome of the trial would have been

different. See Harm, 183 S.W.3d at 407. However, Brady is not a general discovery motion.

Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Nor is the State required to seek out exculpatory

evidence independently on the defendant’s behalf or furnish the defendant with exculpatory or

mitigating evidence that is accessible from other sources. See Pena v. State, 353 S.W.3d 797, 811

(Tex. Crim. App. 2011); Harm, 183 S.W.3d at 407.

Appellant’s Brady argument is based on a motion to revoke Smiley’s probation and

adjudicate guilt filed by the State on April 5, 2013. The motion states that on or about March 25,

2013, approximately three days after the conclusion of appellant’s trial, Smiley violated condition

number two of her probation by failing to submit to a drug test and using marijuana, cocaine, and

“pills,” by admission. Appellant construes this motion as the State withholding impeachment

evidence that Smiley was under the influence of drugs at the time of her testimony during

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appellant’s trial. However, during the hearing on appellant’s motion for new trial, the State

submitted an affidavit from Tanner Neidhardt, the prosecutor in appellant’s trial. In his affidavit,

Neidhardt stated the motion to revoke and adjudicate guilt was based on a phone call made by

Smiley several days after the conclusion of appellant’s trial. Neidhardt stated the District Attorney

was monitoring Smiley’s phone calls and overheard Smiley tell appellant, “I’m dirty as fuck . . . .

I got pills in my system. I got lean in my system, cocaine in my system.” The conversation was

forwarded to Smiley’s probation officer, who initiated the motion to revoke based on the content

of that conversation.

Consequently, appellant has failed to demonstrate that the State possessed any


                                                 33
impeachment evidence at the time of Smiley’s testimony, and thus, has failed to show the State

withheld evidence favorable to appellant. Accordingly, viewing the evidence in the light most

favorable to the trial court’s ruling, we cannot conclude the trial court abused its discretion in

denying appellant’s motion for new trial on this ground.

B. Denial of a Public Trial

Under the Sixth Amendment to the United States Constitution, an accused has the right to

a public trial in all criminal prosecutions. U.S. CONST. amend. VI; Lilly v. State, 365 S.W.3d 321,

328 (Tex. Crim. App. 2012). A public trial benefits the accused by serving as “an effective

restraint on possible abuse of judicial power.” In re Oliver, 333 U.S. 257, 270 (1948); Lilly, 365

S.W.3d at 328. However, the right to a public trial is not absolute and must give way to other

competing interests or rights. Waller v. Georgia, 467 U.S. 39, 45 (1984); Lilly, 365 S.W.3d at 328.

“[T]he party seeking to close the hearing must advance an overriding interest that is likely to be

prejudiced, the closure must be no broader than necessary to protect that interest, the trial court

must consider reasonable alternatives to closing the proceeding, and it must make findings

adequate to support the closure.” Waller, 467 U.S. at 48.

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“[T]he first step for a reviewing court when analyzing whether a defendant’s right to a

public trial was violated is to determine if the trial was, in fact, closed to the public.” Lilly, 365

S.W.3d 329. “When determining whether a defendant has proved that his trial was closed to the

public, the focus is not on whether the defendant can show that someone was actually excluded.”

Id. at 331. “Rather, a reviewing court must look to the totality of the evidence and determine

whether the trial court fulfilled its obligation ‘to take every reasonable measure to accommodate


                                                  34
public attendance at criminal trials.’” Id. (quoting Presley v. Georgia, 558 U.S. 209, 215 (2010)).

“Once it is determined that the defendant’s trial was closed to the public, the reviewing court

decides whether that closure was proper.” Id.

Appellant contends his right to a public trial was violated because his stepfather, Eddie

Taylor, was prevented from entering the courtroom. Taylor is a Bexar County employee who

works in the maintenance department of the courthouse where appellant was tried. In his motion

for new trial, appellant alleged Neidhardt saw Taylor in the holding area where appellant was being

held before trial. Appellant further alleged Neidhardt called Taylor’s supervisor, Ben Ramirez,

and requested Ramirez instruct Taylor not to enter the holding area during trial. Additionally, the

motion stated Ramirez denied receiving a call from Neidhardt, but further alleged that Ramirez

received a call from another individual named Sergeant Castillo, who informed Ramirez that

Taylor was to be instructed not to enter the courtroom.

Neidhardt addressed these allegations in his affidavit attached to the State’s response to

appellant’s motion for new trial. Neidhardt confirmed Taylor was observed leaving the holding

area; however, Neidhardt denied appellant’s allegations that Taylor was prevented from attending

appellant’s courtroom proceedings. Neidhardt stated that he spoke to appellant’s counsel and

informed her the trial court did not have a hearing that Taylor was barred from attending.

Neidhardt denied calling Ramirez, denied that he knew Ramirez, and denied requesting Taylor be

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instructed not to enter the courtroom. He also denied calling or asking any other person to call

Castillo to instruct Taylor not enter the courtroom. Finally, Neidhardt denied there was ever a

hearing in the trial court regarding Taylor, nor was there any other discussion with the trial judge


                                                35
regarding Taylor.

Additionally, a review of the record shows the trial court did not take any affirmative action

to exclude the public or specific individuals from attending the proceedings. Cf. Lilly, 365 S.W.3d

at 332. Viewing the totality of the evidence, we conclude appellant has failed to demonstrate the

trial was closed to the public, or that the trial court failed to fulfil its obligation to take every

reasonable measure to accommodate public attendance. Accordingly, we cannot say that the trial

court abused its discretion in denying appellant’s motion for new trial on this ground.

C. Denial of Live Testimony

Appellant also argues the trial court erred by denying him the ability to present oral

testimony in support of his motion for new trial. On appeal, appellant contends “[t]here were

several witnesses who would not supply affidavits but who were subpoenaed to the hearing on the

Motion for New Trial.” However, he does not identify the witnesses or the substance of their

testimony.

“It has long been held that a trial court may decide a motion for new trial based on sworn

pleadings and affidavits admitted in evidence without hearing oral testimony.” Holden, 201

S.W.3d at 763 (citing Rivera v. State, 89 S.W.3d 55, 58–59 n.9 (Tex. Crim. App. 2002)). Oral

testimony is not required and a trial court may rule on a motion for new trial “based on sworn

pleadings and affidavits without oral testimony.” Id. Therefore, the trial court was entitled to

resolve the issues raised in appellant’s motion for new trial on the basis of the affidavits alone.

Accordingly, we conclude the trial court did not abuse its discretion by ruling on the motion for

new trial without hearing oral testimony.

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                                                   36
CONCLUSION



Based on the foregoing reasons, we affirm the trial court’s judgment.

Sandee Bryan Marion, Justice

Do not publish




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