                                                PD-0217-15, PD-0218-15 & PD-0219-15
                                                        COURT OF CRIMINAL APPEALS
       PD-0217&0218&0219-15                                              AUSTIN, TEXAS
                                                     Transmitted 2/24/2015 10:39:35 AM
                                                        Accepted 2/26/2015 3:56:21 PM
                                                                          ABEL ACOSTA
                      IN THE COURT OF APPEALS FOR THE                             CLERK
                    EIGHTH APPELLATE DISTRICT OF TEXAS



 PATRICK SHAUGHNESSY HATT, JR.

                          COA NUMBERS TRIAL COURT NUMBERS
 V.                       08-13-00056-CR  1299763R
                          08-13-00057-CR  1299765R
                          08-13-00058-CR  1299766R

 THE STATE OF TEXAS,
     APPELLEE


      APPEALED FROM CAUSE NUMBERS 1299763R, 1299765R, AND
 1299766R, IN THE CRIMINAL DISTRICT COURT NUMBER TWO,
 TARRANT COUNTY, TEXAS; THE HONORABLE WAYNE SALVANT,
 JUDGE PRESIDING.

      APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

                          WILLIAM H. "BILL" RAY
                          TEXAS BAR CARD NO. 16608700
                          ATTORNEY FOR APPELLANT

February 26, 2015         LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C.
                          512 MAIN STREET, STE. 308
                          FORT WORTH, TEXAS 76102
                          (817) 698-9090
                          (817) 698-9092, FAX
                          bill@billraylawyer.com

 *ORAL ARGUMENT IS NOT REQUESTED*




 PETITION FOR DISCRETIONARY REVIEW, PAGE 1
                  IDENTITY OF PARTIES AND COUNSEL

PATRICK SHAUGHNESSY HATT JR.                APPELLANT
     c\o Texas Dept. of Criminal
     Justice, Institutional
     Division, Huntsville, Texas

HONORABLE GILBERT MEDINA JR.                ATTORNEY FOR APPELLANT
    2730 N. Stemmons Freeway                AT TRIAL
    Dallas, Texas 75207

HONORABLE WILLIAM H. RAY                    ATTORNEY FOR APPELLANT
    512 Main Street, Ste. 308               AT TRIAL AND ON APPEAL
    Ft. Worth, Texas 76102

HONORABLE SHAREN WILSON                     CRIMINAL DISTRICT ATTORNEY
    401 W. Belknap St.                      TARRANT COUNTY, TEXAS
    Ft. Worth, Tx. 76196-0201

HONORABLE MOLLY DAVIS                       ASSISTANT CRIMINAL DISTRICT
    401 W. Belknap St.                      ATTORNEY, TARRANT COUNTY,
    Ft. Worth, Tx. 76196-0201               TEXAS

HONORABLE ARTHUR CLAYTON                    ASSISTANT CRIMINAL DISTRICT
    401 W. Belknap St.                      ATTORNEY, TARRANT COUNTY
    Ft. Worth, Tx. 76196-0201               TEXAS

HONORABLE WAYNE SALVANT                     PRESIDING JUDGE, CRIMINAL
    401 W. Belknap St.                      DISTRICT COURT NUMBER TWO
    Ft. Worth, TX 76196                     TARRANT COUNTY, TEXAS

HONORABLE LISA McMINN                       STATE PROSECUTING
    P.O. Box 13046                          ATTORNEY
    Austin, Texas 78711




PETITION FOR DISCRETIONARY REVIEW, PAGE 2
                            TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                                           2


INDEX OF AUTHORITIES                                                      5


STATEMENT CONCERNING ORAL ARGUMENT                                        6


STATEMENT OF THE CASE                                                     6


STATEMENT OF THE PROCEDURAL HISTORY                                       8


GROUNDS FOR REVIEW


GROUND FOR REVIEW NUMBER ONE                                              9

      THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
      OBJECTION TO THE STATE’S ARGUMENT IN THE
      GUILT INNOCENCE PHASE OF THE TRIAL


PRAYER                                                                    11


CERTIFICATE OF SERVICE                                                    12


CERTIFICATE OF COMPLIANCE                                                 13

APPENDIX           The Appendix contains the Opinion of the Court of Appeals.



PETITION FOR DISCRETIONARY REVIEW, PAGE 3
                          INDEX OF AUTHORITIES


Cases                                                                   Page

Alejandro v. State, 493 S.W.2d 230, 231-232 (Tex.Crim.App. 1973)        8

Dubose v. State, 531 S.W.2d 330, case 2, at 331 (Tex.Crim.App. 1975)    9

Hernandez v. State, 931 S.W.2d 49, 50 (Tex.App.--Fort Worth,            8
     1996, no pet.)

Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991)                 8

McFarland v. State, 845 S.W.2d 824, 840 (Tex.Crim.App. 1992),           8
    cert.denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993)

Robillard v. State, 641 S.W.2d 910 (Tex.Crim.App. 1978)                 9

Robinson v. State, 764 S.W.2d 367, 374 (Tex.App.--Dallas                8
     1989, pet. ref’d)

Salazar v. State, 716 S.W.2d 733 (Tex.App – Corpus Christi,             9
      1986, pet.ref’d)

Vasquez v. State, 819 S.W.2d 932 (Tex.App.--Corpus Christi              8
     1991, pet ref’d)

Wyatt v. State, 566 S.W.2d 597, 604 (Tex.Crim.App.1978)                 9




PETITION FOR DISCRETIONARY REVIEW, PAGE 4
            STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is not necessary in this case.


                         STATEMENT OF THE CASE

      This is an appeal from a felony conviction and sentence for three offenses of

Engaging in Organized Crime. Appellant was charged by indictment with the

offenses of Engaging in Organized Crime [Count One - each case], and

Aggravated Robbery [Count Two - each case]. A deadly weapon allegation

enhancement was alleged in each case. CR, Pages 6-7 (1299763R); CR, Pages 5-6

(1299765R); CR, Pages 5-6 (1299766R).

      The jury found Appellant guilty in all counts as charged in the indictment,

and made an affirmative finding of a deadly weapon in each case. RR-7, Pgs 4-7.

      Appellant elected for the court to set his punishment. The court set

Appellant’s punishment at 30 years in the Institutional Division of the Texas

Department of Criminal Justice in Count One of each case and Count Three of

Cause Number 1299765R, which had a second victim in the indictment. CR,

Pages 97-99 (1299763R); CR, Pages 125-130 (1299765R); CR, Pages 79-81

(1299766R); RR-7, Pages 14-17. The trial court did not sentence Appellant on the

Aggravated Robbery Counts, as they were lesser included offenses of the Engaging

in Organized Crime charges.

PETITION FOR DISCRETIONARY REVIEW, PAGE 5
      On direct appeal, the Court of Appeals for the Eighth Appellate District

affirmed Appellant’s conviction. The opinion was not designated for publication.




PETITION FOR DISCRETIONARY REVIEW, PAGE 6
     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      Appellant was sentenced on November 30, 2012. Notice of Appeal was

timely filed. A Motion for New Trial was filed on December 13, 2012, which was

overruled by operation of law. Appellant timely filed his brief in the Court of

Appeals on May 24, 2013. The State timely filed its brief on July 25, 2013.

      The case was submitted to the Court of Appeals, without oral argument, on

May 29, 2014. The Court of Appeals affirmed Appellant’s conviction in each case

on January 30, 2015. That opinion is not designated for publication.

      This Petition for Discretionary Review is timely filed.




PETITION FOR DISCRETIONARY REVIEW, PAGE 7
                     GROUND FOR REVIEW NUMBER ONE

           THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
               OBJECTION TO THE STATE’S ARGUMENT IN THE
                  GUILT INNOCENCE PHASE OF THE TRIAL

       Proper jury argument is in one of four areas. They are summations of the

evidence, reasonable deductions from the evidence, a plea for law enforcement, and a

response to opposing counsel. Alejandro v. State, 493 S.W.2d 230, 231-232

(Tex.Crim.App. 1973). The jury argument must be extreme or manifestly improper, or

inject new and harmful facts into evidence to constitute reversible error. McFarland v.

State, 845 S.W.2d 824, 840 (Tex.Crim.App. 1992), cert.denied, 508 U.S. 963, 113 S.Ct.

2937, 124 L.Ed.2d 686 (1993), Hernandez v. State, 931 S.W.2d 49, 50 (Tex.App.--Fort

Worth, 1996, no pet.); Robinson v. State, 764 S.W.2d 367, 374 (Tex.App.--Dallas 1989,

pet. ref’d). The law provides for, and presumes, a fair trial free form improper argument

by the State. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991).

       The prosecutor’s comment implied that the jury and the DA were part of a team.

The implication was to tell the jury that the community demanded a verdict. RR, Vol. 6,

Pages 194-196. This comment was not a response to anything that Appellant’s counsel

said during argument. The fact that the prosecutor immediately replied after Appellant

objected that “For your plea for law enforcement, I’m asking you to stand up”, does not

save this erroneous comment.

       In Vasquez v. State, 819 S.W.2d 932 (Tex.App.--Corpus Christi 1991, pet ref’d),

it was held reversible error for the prosecution to argue, over objection, that he believed

PETITION FOR DISCRETIONARY REVIEW, PAGE 8
the child victim after meeting with her five times. The victim’s credibility was a critical

issue, and she had a motive to lie. Therefore, the error was therefore not harmless. In

Dubose v. State, 531 S.W.2d 330, case 2, at 331 (Tex.Crim.App. 1975), this Court

reversed the conviction when the prosecutor argued that there was no evidence presented

to challenge the credibility of the victim.

       Additionally, personal beliefs of the prosecutor are not proper comments.

Robillard v. State, 641 S.W.2d 910 (Tex.Crim.App. 1978); Salazar v. State, 716 S.W.2d

733 (Tex.App -- Corpus Christi, 1986, pet.ref’d).

       As a general rule, it is improper for a prosecutor to interject his personal opinion

into a statement made to the jury. The rationale behind this prohibition is that such a

statement may convey to the jury the idea that the prosecutor has a basis for such an

opinion in addition to the evidence presented at trial. See Wyatt v. State, 566 S.W.2d 597,

604 (Tex.Crim.App.1978).

       The Court of Appeals held that the objection at trial initially was not specific, and

Appellant’s subsequent objection was not the same objection made on appeal. Opinion,

at pages 4-5 in each case. Appellant submits that trial counsel made a proper objection,

that is that the burden of proof was shifted. On appeal, telling the jury that the

community demands a verdict would tend to change the burden of proof. Appellant

submits that the objection is the same as on appeal, and the Court of Appeals should have

considered his complaint on appeal on the merits.

       In conclusion, Appellant submits that the prosecutor’s statement was not in

PETITION FOR DISCRETIONARY REVIEW, PAGE 9
response to Appellant’s argument, was outside the facts of the case, and interjected new

facts and opinions into the case. The trial court erroneously overruled Appellant’s

objection. It was therefore harmful.

                               PRAYER FOR RELIEF

      Appellant Prays that this Honorable Court reverse his conviction and remand

the case to the Court of Appeals with instructions to consider Appellant’s point of

error on appeal, or alternatively, remand the case for a new trial.



                           RESPECTFULLY SUBMITTED,

                           /S/ WILLIAM H. “BILL” RAY
                           WILLIAM H. "BILL" RAY
                           TEXAS BAR CARD NO. 16608700
                           ATTORNEY FOR APPELLANT

                           LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C.
                           512 MAIN STREET, STE. 308
                           FORT WORTH, TEXAS 76102
                           (817) 698-9090
                           (817) 698-9092, FAX




PETITION FOR DISCRETIONARY REVIEW, PAGE 10
                          CERTIFICATE OF SERVICE

       I certify that a true copy of Appellant's Brief was delivered via the electronic
filing system to the office of Sharen Wilson, Criminal District Attorney, Criminal
District Attorney of Tarrant County, Texas, 401 W. Belknap St. Ft. Worth, Tx.
76196-0201 on the date of this document’s filing.

      I certify that a true copy of Appellant's Petition for Discretionary Review
was delivered via the electronic filing system to the State’s Prosecuting Attorney,
at P.O. Box 13046, on the date of this document’s filing.


                                 /S/ WILLIAM H. “BILL” RAY
                                 WILLIAM H. “BILL” RAY



                        CERTIFICATE OF COMPLIANCE

       Pursuant to Rule 9.4 i3, of the Texas Rules of Appellate Procedure, I certify
that the Brief on Direct Appeal filed in this case, has 1578 words contained therein.
This count was obtained via the WordPerfect computer program.

                                 /S/ WILLIAM H. "BILL" RAY
                                 WILLIAM H. “BILL” RAY




PETITION FOR DISCRETIONARY REVIEW, PAGE 11
