

 






IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0675-13


TIMOTHY GARRETT LINNEY, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS

HARRIS  COUNTY



 Cochran, J., filed a statement concurring in the refusal of appellant's
petition.


	I agree with the Court's decision to refuse appellant's petition for discretionary
review. I write separately to clarify the application of Rule 38.1 (1)
 to briefs raising the issue
of cumulative error.
A jury convicted appellant of indecency with a child (2) and assessed punishment at eight
years' confinement, probated for eight years.  On appeal, appellant raised several points of
error, including claims that the trial court erroneously (1) limited the cross-examination of
certain witnesses, and (2) admitted hearsay testimony.  Appellant also raised a claim of
cumulative error.  After citing legal authority on cumulative error, appellant argued as
follows:
It is respectfully submitted that the errors herein demonstrate that the trial court
abused its discretion in the rulings that it made, and as a result, when viewed
separately or cumulatively, the substantial rights of the appellant were
adversely affected. Tex. R. App. P. 44.2(b). In addition, it cannot be said
beyond a reasonable doubt that the errors set forth in Points of Error One and
Two did not contribute to the conviction or punishment herein.
The court of appeals declined to reach the merits of the cumulative-error argument,
concluding that appellant had failed to adequately brief the issue for review. (3)
  Appellant then
filed a petition for discretionary review with this Court. (4)




I.

	An appealing party's brief must contain a "clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record." (5)
 Failure to
provide substantive legal analysis--"to apply the law to the facts" (6)
--waives the point of error
on appeal. (7)
  If the appealing party fails to meet its burden of adequately discussing its points
of error, (8)
 this Court will not do so on its behalf. (9)

	We have long recognized that "a number of errors may be found harmful in their
cumulative effect," even if each error, considered separately, would be harmless. (10)
  However,
cumulative error is an independent ground for relief, separate from the underlying instances
of error. (11)
  A string of harmless errors does not arithmetically create reversible, cumulative
error. (12)
  Instead, we look for "multiple errors [that] synergistically achieve 'the critical mass
necessary to cast a shadow upon the integrity of the verdict.'" (13)
II.
We cannot grant appellant's petition for discretionary review because he failed to
adequately brief the issue of cumulative error on direct appeal.  Appellant merely claimed
that there was cumulative error and that this cumulative error adversely affected his
substantial rights.  Appellant neither specified which underlying errors cumulatively affected
his rights (14)
 nor described how those underlying errors acted synergistically to deprive him of
his rights.  Further, appellant did not identify the substantial rights impaired by the claimed
cumulative error.  One can imagine, for example, an argument that the improper limitation
of cross-examination of certain witnesses, coupled with the improper admission of hearsay
testimony (perhaps testimony that could have been rebutted by the allowance of cross-examination), might have worked together to prevent appellant from fully presenting a
defense under the Sixth Amendment.  But this argument was not made or logically
developed.  Appellant merely made a conclusory argument that recited the elements of his
stated grounds for relief. (15)
  This falls far short of satisfying his obligation to adequately
discuss his cumulative-error claim. (16)

Appellant's PDR stated that a more detailed argument would only "regurgitat[e] and
restat[e] . . . previously asserted arguments as to why the errors were not harmless."
Appellant notes that he has no desire to "elongat[e] an already lengthy brief"; likewise, we
have no desire to see litigants' briefs become as long as Homer's epics. (17)
  But the key
question here is not the length of the argument, but whether the law was applied to the
facts. (18)
  Cumulative error is an independent legal claim (19)
 that requires the law of cumulative
error to be separately applied to the specific facts. (20)
  Appellant need not repeat the same facts
ad nauseam under each point of error, (21)
 but his arguments on an issue must refer to the facts
with enough specificity to "direct the attention of the appellate court to the error about which
complaint is made." (22)
  Without measurably adding to his brief's length, appellant could have
specified the underlying errors, described their synergistic effect, named the adversely
affected right and how the combination of errors adversely affected that right. (23)
 Instead,
appellant effectively delegated to the court of appeals the responsibility of applying the
general "cumulative error" law to the record without any guidance on why the combined
effect of these particular errors in this particular case combined to deprive him of some
unspecified but substantial right.  Under these circumstances, the court of appeals properly
refused to address the merits of appellant's argument. (24)

With these comments, I join in the Court's refusal of appellant's petition for
discretionary review. 
Filed: November 27, 2013
Publish
1.  Tex. R. App. P. 38.1. 
2. 2 See Tex. Penal Code § 21.11(a).
3. 3 Linney v. State, 401 S.W.3d 764, 782-83 (Tex. App.--Houston [14th Dist.] 2013).
4. 4 Appellant's relevant ground for review is as follows:
(4) 	Does an appellant fail to preserve the issue of "cumulative error" in a case wherein the
Court of Appeals has found either constitutional or non-constitutional error in at least
three of the four points of error presented on appeal, the issue of "cumulative error" was
raised as an independent or separate point of error, case law addressing "cumulative
error" as well as citations to the Texas Rules of Appellate Procedure were provided in
that point of error, but the appellant although specifically referencing "points of error
number one through four" did not repeat the arguments previously asserted in his brief?
5. 5 Tex. R. App. P. 38.1(I).
6.  Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003).
7. 7 Id.
8. 8 Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex. App.--El Paso 2007, pet. struck).
9. 9 See, e.g., Swearingen, 101 S.W.3d at 100; Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim.
App. 1992).
10. 10 Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999).
11. 11 Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996).
12. 12 Grant v. Trammell, 727 F.3d 1006, 1025-26 (10th Cir. 2013) ("The task is undoubtedly more
subtle than simply counting up the number of errors discovered."); see also Cargle v. Mullin, 317
F.3d 1196, 1221 (10th Cir. 2003) ("We emphasize, however, that these were not isolated, insular
errors scattered randomly throughout the proceedings."); People v. Hill, 952 P.2d 673, 699 (Cal.
1998) ("Considered together, we conclude [the errors] created a negative synergistic effect,
rendering the degree of overall unfairness to defendant more than that flowing from the sum of
the individual errors.").
13. 13 Williams v. Drake, 146 F.3d 44, 49 (1st Cir. 1998) (quoting United States v. Sepulveda, 15
F.3d 1161, 1196 (1st Cir. 1993)); Cargle, 317 F.3d at 1221.
14. 
14 See, e.g., Johnson v. United States, No. 07-20096-CM, 2011 WL 890718, at *9 (D. Kan. Mar.
11, 2011). (not designated for publication).
15. 15 See, e.g., United States v. Celio, 463 F. App'x 755, 758 n.2 (10th Cir. 2012), cert. denied, 133
S. Ct. 836 (2013); Nicholas v. People, 56 V.I. 718, 750 n.24 (2012).
16. 16 See Martinez, 218 S.W.3d at 844.
17. 17 Like the Texas Supreme Court, we seek "to construe the Rules of Appellate Procedure
reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not
absolutely necessary to effect the purpose of a rule." Few v. State, 230 S.W.3d 184, 189 (Tex.
Crim. App. 2007) (internal quotation marks and citations omitted).
18. 18 Swearingen, 101 S.W.3d at 100.
19. 19 See, e.g., Elery v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012).
20. 20 See Fletcher v. Edwards, 26 S.W.3d 66, 81 n.1 (Tex. App.--Waco 2000, pet. denied) ("Each
issue or related group of issues presented in a brief should be separately briefed.").
21. 21 See, e.g.¸ Weaver v. Southwest Nat'l Bank, 813 S.W.2d 481, 482 (Tex. 1991).
22. 22 Texas Mexican Ry. v. Bouchet, 963 S.W.2d 52, 54 (Tex. 1998) (internal quotation marks and
citations omitted).
23. 23 Our reading of Rule 38.1 has never encouraged length for length's sake. This Court has
previously ruled on the merits of a cumulative error claim that was supported by only a single
paragraph in the appellant's brief. See, e.g., Feldman v. State, 71 S.W.3d 738, 757 (Tex. Crim.
App. 2002).  The defendant's brief in Feldman, however, stated that multiple mistakes during
voir dire combined to deprive him of due process.
24. 24 See, e.g., Maranatha Temple v. Enter. Prods. Co., 893 S.W.2d 92, 106 (Tex. App.--Houston
[1st Dist.] 1994, writ denied); Most Worshipful Prince Hall Grand Lodge v. Jackson, 732
S.W.2d 407, 412 (Tex. App.--Dallas 1987, writ ref'd n.r.e.); see also Lentino v. Cullen Ctr.
Bank & Trust, No. 14-00-00692-CV, 2002 Tex. App. LEXIS 1155, at *17 (Tex. App. Houston
[14th Dist.] Feb. 14, 2002, pet. denied) ("It is not incumbent on an appellate court to perform the
advocate's job for a party.") (not designated for publication).
