                                                                             PD-0143-15
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
    July 6, 2015                                           Transmitted 7/6/2015 12:00:23 PM
                                                              Accepted 7/6/2015 1:30:43 PM
                                                                             ABEL ACOSTA
                               No. PD-0143-15                                        CLERK


                                  IN THE
   TEXAS COURT OF CRIMINAL APPEALS
                          AUSTIN, TEXAS
__________________________________________________________________

                   STATE OF TEXAS, APPELLANT/RESPONDENT

                                     V.

                   CYNTHIA AMBROSE, APPELLEE/PETITIONER.


ON PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS
                       CAUSE NO. 04-13-00788-CR

    TRIED IN THE 226TH JUDICIAL DISTRICT COURT, BEXAR COUNTY, TEXAS
                     TRIAL CAUSE NO. 2012-CR-10002
__________________________________________________________________

                    PETITIONER’S BRIEF ON
             PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________


                                   DAYNA L. JONES
                                   Bar No. 24049450
                                   LAW OFFICE OF DAYNA L. JONES
                                   1800 McCullough Avenue
                                   San Antonio, Texas 78212
                                   (210) 255-8525
                                   (210) 223-3248 – FAX
                                   DAYNAJ33@GMAIL.COM




                                     i
                  IDENTITY OF PARTIES AND COUNSEL

TRIAL JUDGE:
Honorable Sid Harle, 226th District Court

FOR THE STATE OF TEXAS:
S. Patrick Ballantyne – Counsel at trial and on appeal
Bar No. 24053759
Zachary Edwards – Counsel at trial
Bar No. 24049524
Assistant District Attorneys
101 W. Neuva, 7th floor
San Antonio, Texas 78205
Phone: 210-335-2311

APPELLEE/PETITIONER’S COUNSEL:
Scott Sullivan – Counsel at trial
Bar No. 19483350
4 Dominion Drive, Suite 250
San Antonio, TX 78257

Dayna L. Jones – Counsel on appeal
Bar No. 24049450
LAW OFFICE OF DAYNA L. JONES
206 E. Locust Street
San Antonio, Texas 78212
Phone: 210-255-8525
Daynaj33@gmail.com

FOURTH COURT OF APPEALS PANEL:
Justice Luz Elena D. Chapa – Authored the opinion
Justice Marialyn Barnard – Concurring Opinion
Chief Justice Sandee Bryan Marion




                                         i
                                         TABLE OF CONTENTS


Parties to the Case .......................................................................................................i

Table of Authorities ................................................................................................. iii

Statement of the Case................................................................................................. 1

Statement of Procedural History ................................................................................ 2

Statement of Facts ...................................................................................................... 2

Grounds for Review ................................................................................................... 8

Argument and Authorities.......................................................................................... 9

Prayer for Relief ....................................................................................................... 20

Certificate of Service ............................................................................................... 21

Certificate of Compliance ........................................................................................ 21




                                                             ii
                                       TABLE OF AUTHORITIES
Cases:
Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App., 1984) ....... 8,10,12,13,15-16,20
Amadeo v. Zant, 486 U.S. 214, 223 (1988) .............................................................. 9
Archie v. State, 340 S.W.3d 734 (Tex. Crim. App. 2011) ...................................... 19
Blake v. State, 971 S.W.2d 451 (Tex.Crim.App.,1998) ....................................18,20
Casanova v. State, 383 S.W.3d 530 (Tex.Crim.App.,2012) ................................... 14
Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004) ........................... 9,13
Ex parte Wheeler, 203 S.W.3d 317 (Tex.Crim.App.,2006) ..................... 8-10,13,15
Garcia v. State, 2013 WL 4033890, 5 (Tex.App.-Corpus Christi, 2013) .............. 17
Herron v. State, 86 S.W.3d 621 (Tex.Crim.App., 2002) ............................. 14,16-17
Igo v. State, 210 S.W.3d 645 (Tex.Crim.App.,2006) ....................................... 10-11
Manzi v. State, 88 S.W.3d 240, 244 (Tex.Crim.App.2002) ................................... 10
Oregon v. Kennedy, 456 U.S. 667 (1982) ........................................................ 8-9,13
State v. Ambrose, --S.W.3d--, 2015 WL 102194 (Tex.App.-San Antonio,2015)
............................................................................................................... 2,13,14,16-19
State v. McKnight, 213 S.W.3d 915 (Tex.Crim.App.,2007) ............................. 10-11




                                                             iii
                          STATEMENT OF THE CASE

      Petitioner (hereinafter Ambrose) was a kindergarten teacher who was tried

and convicted of the misdemeanor offense of official oppression in the 226 th Judicial

District Court in Bexar County, Texas. At trial, the state alleged that Ambrose

directed and allowed other kindergarten students in her classroom to strike another

student who had been brought to her class by his teacher, Barbara Ramirez, for

discipline.

      Ambrose filed a motion for new trial alleging, amongst other things, that she

suffered egregious harm because the jury instruction did not contain an accomplice

witness instruction. After hearing testimony, argument, and reviewing additional

briefing by both parties, the trial judge granted Ambrose a new trial on the ground

that the jury charge failed to contain an accomplice witness instruction. Because no

objection to the jury charge was raised at trial, the trial court applied the correct

egregious harm standard and issued findings of facts and conclusions of law to

support his ruling.

      The State appealed arguing (1) the witness was not an accomplice and (2)

Ambrose did not suffer egregious harm. The Fourth Court reversed the trial court’s

ruling on the egregious harm issue and affirmed the conviction, but did not address

whether Ramirez was an accomplice or not.




                                          1
       This petition challenges the appellate courts authority to substitute a trial

courts factual findings and harm analysis with its own view of the evidence.

                   STATEMENT OF PROCEDURAL HISTORY

       After the trial judge granted Ambrose’s motion for a new trial and issued

written findings of facts and conclusions of law, the state appealed. On January 7,

2015 the court of appeals reversed the trial court’s ruling and affirmed the

conviction. State v. Ambrose, --- S.W.3d ----, 2015 WL 102194 (Tex.App.-San

Antonio, 2015). The appellate court found that Ambrose did not suffer egregious

harm. Justice Barnard issued a concurring opinion expressing “concern about the

effect of the [egregious harm] standard on the trial court’s authority to grant a new

trial in a case such as this.” Id. at *6. No request for rehearing was filed.

       Ambrose’s Petition for Discretionary Review was granted by this Court on

May 20, 2015 and oral argument will be permitted.

                               STATEMENT OF FACTS1

       Ambrose taught kindergarten for Salinas Elementary School.                      Barbara

Ramirez, another kindergarten teacher, testified that on May 2, 2012 her student

named A.N. was bullying and hitting other students. 3RR17. Ramirez used the

school’s “buddy pass” system which allowed her to take A.N. to another teacher’s


1
 The facts in the record, and the trial courts factual findings that are supported by the record,
are essential to issues before this Court. Thus, a discussion of the facts is presented.



                                               2
classroom. 3RR18. This “buddy pass” system was a tool teachers relied on to

address a student’s behavioral problems and was meant to discipline a child without

sending them to the principal’s office. 3RR16. Ramirez walked A.N. to Ambrose’s

classroom and explained that A.N. had been bullying other students. 3RR19.

According to Ramirez, Ambrose instructed A.N. to sit next to her and then instructed

the students to line up and hit A.N. Ramirez testified that she watched as the students

lined up and stood by as seven students struck A.N. 3RR20-21. Ramirez also did

nothing when, according to her, she heard Ambrose tell the students to hit him

harder. 3RR20-21. Ramirez testified that she knew she had witnessed an assault,

but left A.N. in the classroom, and returned to her own class. 3RR21-22. She later

sent another student to retrieve A.N so that he could return to her class. 3RR22.

      Testimony at trial revealed that Ramirez took at least two weeks to report the

incident to the administration. 3RR93. Record evidence presented in the motion for

new trial also established that the Judson I.S.D. police had investigated the

allegations and filed at large charges against Ramirez for official oppression. 1CR7.2

The report also found that Ramirez failed to timely report the incident.

      A.N., who was 7 years old at the time of trial, testified he did not know the

difference between a truth and a lie. 3RR55. He did not know his own birthday.


2
 This portion of the clerk’s record was erroneously filed in cause number 04-13-00576-CR on
November 4, 2013 and contains 22 pages. The documents filed in cause number 04-13-00576-CR
were consolidated with this case by order of the Fourth Court on June 23, 2014.


                                            3
3RR56. He also did not know Ms. Ambrose and he did not remember a day when

his teacher took him to her class. 3RR57. Only after the prosecutor reminded A.N.

of what they had talked about earlier did he change his story. Id. He was then asked

again whether he remembered being taken to another classroom and this time he said

“Yes.” But when asked if he remembered what happened while in the classroom

and he said “No.” 3RR57-58. He did not know if a lady in the classroom where he

was taken had asked him if he was being a bully. Id. He did not remember being

called a bully in someone else’s classroom. Id. He did remember a day when other

kids hit him, but could not say what happened. 3RR58-59. A.N. finally said “Yes”

when asked if he remembered “when a teacher put you – had you sit in the classroom

and then had other students go hit you on the back?” 3RR58. But A.N. could not

tell the court what happened. 3RR58-59. He denied that Ramirez took him to the

other classroom and told the teacher that he was misbehaving. 3RR59. He did not

remember anyone asking “what do we do with bullies?” 3RR58. He finally agreed

that he remembered other kids hitting him and when asked how many students hit

him, A.N. testified “I think like 21.” 3RR59. This is three times the number that

Ramirez alleged.

      When asked if this testimony was a lie, A.N. stated “Um” and then prosecutor

interjected “Because we can’t lie” and A.N. said “No.” 3RR61. He was asked “So

did anything that you said today not happen?” and he responded “I don’t know.”



                                         4
3RR61. The prosecutor then asked again “…did everything you told us today

happen?” and A.N. stated “Yes.” 3RR61. A.N. testified that he told his brothers

about the incident but that they did not believe him. 3RR63. He did not tell his

parents about it. 3RR62.

      W.N., one of A.N.’s older brother, testified that his brother told him he was

hit by other students. W.N. never told his parents because he did not believe his

brother. 3RR81-82. B.N, another one of A.N.’s older brothers, testified similar to

W.N. 3RR85.

      Gerrie Spellman, who was the Assistant Principal, testified that she became

aware of the allegations against Ambrose when Ramirez reported them to her and

Principal Large. 3RR91. Spellman began an investigation which included talking to

Ambrose. 3RR91. Spellman claimed Ambrose told her and Large “that she had

instructed her students to hit the student on the arm, but not too hard so that the

student would know how it felt to be bullied.” 3RR92. According to Spellman,

Ambrose also said only two or three students hit him and when the next student hit

him too hard she stopped them. 3RR93.

      Spellman testified that Ramirez did not report the incident for two weeks.

3RR93. Spellman agreed that it is unbelievable that Ramirez waited two weeks to

report this incident. 3RR96. After Spellman and Large spoke with Ambrose they

sent her back to her classroom to teach her students. 3RR98. Spellman agreed that



                                         5
by sending Ambrose back to the classroom after the meeting it represented that

Spellman believed Ambrose was capable of teaching students. 3RR99.

      Principal Large testified that his initial reaction to Ramirez’s claim was

surprised that Ambrose would be involved in anything like that. 3RR102. He was

also overall surprised because he had never heard of anything like this in his tenure

as an educator. 3RR102. He testified similar to Spellman’s account of the events,

but added that Ambrose had a good disciplinarian record prior to these allegations.

3RR112. The State rested its case.

      Ambrose testified as the sole witness for the defense. She denied ever telling

the principal or vice principal that she instructed the students to hit another student.

3RR115. After the meeting with Large and Spellman, she was instructed to go back

to her classroom to teach. Id. She agreed that some of the things she said in the

teacher’s lounge were true, but they were in reference to her friend who was recently

murdered. Apparently, the husband had killed her friend but was planning on going

to the rosary and Ambrose was upset. She denied saying someone had tattled on

her. 3RR115-116. Ambrose testified that she never instructed the students to hit

another student.    3RR116. However, when Ramirez brought A.N. to her and

explained to Ambrose in front of the other students that A.N. was being a bully,

Ambrose did ask Ramirez if she wanted to scare him. Ramirez said yes. Ambrose

asked the students what his consequence should be and one student said that the kids



                                           6
he hit should get to hit him back. Ambrose testified that she asked the students if

they wanted to show him what it felt like. She was only expecting the students to

say yes and then Ambrose would tell A.N. “You see, would you like for us to hit

you?” 3RR117-118. But, before she turned around she heard one of her students hit

A.N. 3RR118. She immediately told the students to get away from him and she

never intended for any student to hit A.N. 3RR118. Ramirez did leave A.N. in the

classroom with Ambrose after the incident. Id. The defense then rested its case.

           The jury found Ambrose guilty of the offense of official oppression and

Ambrose filed a Motion for New Trial. Ultimately, the Motion for New Trial was

granted because the trial court failed to instruct the jury on the accomplice-witness

rule with regards to Ramirez. After the State filed a Notice of Appeal, Judge Harle

issued written findings of facts and conclusions of law. Relevant to this appeal, he

found: “Based on the evidence presented at trial through Ms. Ramirez's own

testimony, and supported by other evidence presented to this court, the Court finds

that Ms. Ramirez was an accomplice as a matter of law to the offense of official

oppression. At the very least, the evidence supports that she is an accomplice as a

matter of fact.” 1CR7.3 Judge Harle also made the ultimate conclusion: “This Court

was present for all the testimony in this case, has reviewed the legal arguments

presented by the State and Defense, and has reviewed the law on this issue. This


3
    This citation is from the supplemental clerk’s record that was filed on November 4, 2013 and contains 22 pages.


                                                           7
Court concludes that the failure to include the jury instruction on the accomplice

witness rule caused Ms. Ambrose egregious harm, thus requiring a new trial.”

1CR10.4

                                       GROUNDS FOR REVIEW

           1.       When a trial judge issues findings of fact and conclusions of law that
                    find a defendant suffered egregious harm from unobjected to jury
                    charge error, does applying the Almanza egregious harm standard on
                    appellate review violate and conflict with Texas (Ex parte Wheeler, 203
                    S.W.3d 317 (Tex.Crim.App.,2006)) and United States Supreme Court
                    (Oregon v. Kennedy, 456 U.S. 667 (1982)) precedent that a reviewing
                    court must defer to a lower court’s factual findings?

           2.       Under the egregious harm standard, does an appellate court violate
                    Texas (Ex parte Wheeler, 203 S.W.3d 317 (Tex.Crim.App.,2006)) and
                    United States Supreme Court (Oregon v. Kennedy, 456 U.S. 667 (1982)
                    precedent when it ignores a trial court’s factual findings and substitutes
                    its own view of the evidence for that of the trial?

           3.       If the egregious harm standard does apply on direct review in this case,
                    did the appellate court correctly apply the egregious harm standard
                    when it only considered the testimony that supported the state’s case
                    and not “the entire jury charge, the state of the evidence, including the
                    contested issues and weight of probative evidence, the argument of
                    counsel and any other relevant information revealed by the record of
                    the trial as a whole” as required by Almanza v. State, 686 S.W.2d 157
                    (Tex.Crim.App., 1984)?




4
    This citation is from the supplemental clerk’s record that was filed on November 4, 2013 and contains 22 pages.


                                                           8
                       ARGUMENT AND AUTHORITIES

I.    Ground One and Ground Two

                   (Grounds One and Two are briefed together)

A.    Precedent Requires a Reviewing Court to Defer to a Lower Court’s
      Factual Findings and Credibility Determinations

      The Supreme Court has long held that a reviewing court must defer to a trial

court’s factual findings that are supported by the record. Oregon v. Kennedy, 456

U.S. 667, 677 fn. 7 (1982) [“It seems entirely reasonable to expect, therefore, that

appellate judges will continue to defer to the judgment of trial judges who are ‘on

the scene’ in this area, and that they will not inexorably reach the same conclusion

on a cold record at the appellate stage that they might if any one of them had been

sitting as a trial judge.”]; See also Amadeo v. Zant, 486 U.S. 214, 223 (1988) [“‘[i]f

the district court's account of the evidence is plausible in light of the record viewed

in its entirety, the court of appeals may not reverse it even though convinced that

had it been sitting as the trier of fact, it would have weighed the evidence differently.’

Anderson v. Bessemer City, supra, 470 U.S., at 573–574, 105 S.Ct., at 1511.”]

      Texas also follows this rule as well. See Ex parte Wheeler, 203 S.W.3d 317,

325 -326 (Tex.Crim.App.,2006). In Wheeler, this Court held that it is “a matter of

law” that “reviewing courts defer to the trial court’s implied factual findings that are

supported by the record, even when no witnesses testify and all of the evidence is



                                            9
submitted in written affidavits.” Wheeler at 325-326 [“See, e.g., Charles v. State, 146

S.W.3d 204, 208 (Tex.Crim.App.2004) (reviewing courts “must view the evidence

in the light most favorable to the trial court’s ruling and presume that all reasonable

factual findings that could have been made against the losing party were made

against that losing party” even when all evidence is submitted by affidavit); Manzi

v. State, 88 S.W.3d 240, 244 (Tex.Crim.App.2002) ( “Trial courts are the traditional

finders of fact, and their determinations of historical fact are entitled to deference”

even when the facts are in the form of an affidavit).”]

          This Court also emphasized in Wheeler that trial judges who make factual

determinations and who personally presided over the trial are “well-positioned to

make credibility decisions.” Wheeler at 326. “In Peterson, we stressed the

importance of deferring to the trial court’s assessment of the facts, including the

prosecutor’s state of mind. Here, as in other contexts, ‘appellate courts review the

facts in the light most favorable to the trial judge’s ruling and should uphold it absent

an abuse of discretion.’” Wheeler at 324.

B.        In applying the Almanza Harm Standard, the Appellate Court Violated
          Prior Precedent and Substituted the Trial Court’s Factual Findings with
          its View of the Facts

          In Igo v. State, 210 S.W.3d 645 (Tex.Crim.App.,2006) this Court concluded

that the Almanza5 egregious harm standard, as opposed to abuse of discretion


5
    Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.,1984).


                                                10
standard, applied to unobjected to jury instruction error that is presented in a motion

for new trial. State v. McKnight, 213 S.W.3d 915 (Tex.Crim.App.,2007). Following

McKnight and Almanza, the Fourth Court of Appeals, found that Appellant did not

suffer egregious harm from the trial court’s failure to instruct the jury on the

accomplice witness instruction.

      However, the issues presented in this case are distinguishable from this

Court’s holdings in Igo v. State, 210 S.W.3d 645 (Tex.Crim.App.,2006) and State v.

McKnight, 213 S.W.3d 915 (Tex.Crim.App.,2007). In those cases the trial court

denied the motion for a new trial on the issue of unobjected to jury charge error.

Thus, even if the judge did make factual findings in those cases, they were not in

favor of the appellant and the appellant would be asking the reviewing court to

disagree with the trial judge’s findings of facts and conclusions of law. Furthermore,

in Igo this Court held that a defendant is not entitled to have ubobjected to “jury

charge error reviewed under a different harmd standard than would have applied to

that error absent a motion for new trial.” Igo at 645.

       The trial court in this case correctly stated the egregious harm standard in its

findings of fact and conclusions of law and applied it to the facts of the case to

conclude that she suffered egregious harm. Specifically, the trial court found: “This

Court was present for all the testimony in this case, has reviewed the legal arguments

presented by the State and Defense, and has reviewed the law on this issue. This



                                          11
Court concludes that the failure to include the jury instruction on the accomplice

witness rule caused Ms. Ambrose egregious harm, thus requiring a new trial.” 1CR6-

106.

       Judge Harle also found: “Based on the presentation of the evidence at trial and

this Court’s view of the evidence at the time of trial, this Court asked his court

administration attorney to prepare jury instructions on accomplice as a matter of law

and as a matter of fact to be submitted to the jury.” 1CR6-10. Thus, at the time of

trial and before the law was submitted to jury, the trial judge was of the opinion that

the evidence required that the jury be given an accomplice witness instruction; when

neither party requested it, he failed to sua sponte give the instruction.

       The Fourth Court of Appeals applied the egregious harm standard in Almanza

v. State, 686 S.W.2d 157 (Tex.Crim.App.,1984) and conducted its own review of the

evidence, without deferring to the trial court’s findings of fact and credibility

determinations, to conclude that Ambrose did not suffer egregious harm. Thus, by

its opinion, the appellate court disagreed with the trial judge, who was present for

the trial testimony and was in the best position to gage the impact the testimony had

on the jury, and substituted the trial judge’s view of the evidence with its own. The




6
 This clerk’s record was erroneously filed in cause number 04-13-00576-CR on November 4, 2013
and contains 22 pages. The documents filed in 04-13-00576-CR were consolidated with this case
by order of the Fourth Court on June 23, 2014.


                                             12
appellate court did so without finding that the trial judge’s findings of facts were not

supported by the record.

      In a concurring opinion, Justice Barnard noted: “Based on the standard of

review regarding egregious harm, I must concur with the majority. However, I write

separately to express my concern about the effect of the standard on the trial court’s

authority to grant a new trial in a case such as this.” Ambrose at *6. She also

expressed concern that the “evidence in this case, even within a single witness’s

testimony, was contradictory.” Id. “The trial court heard this testimony, as well as

other contradictory testimony and was in a far better position to judge the impact on

the jury and the case as a whole.” Id. Ultimately, she concluded that she “fail[ed] to

see how the trial court could ever grant a motion for new trial and have that ruling

upheld on appeal…I believe this standard of review completely usurps the trial

court’s authority when that court was in the best position to determine the effect of

its decision not to sua sponte instruct the jury with regard to the accomplice-witness

rule.” Id. The appellate court also mistakenly believed that a defendant could never

meet the difficult standard.

      The egregious harm standard under Almanza as applied to a situation where a

trial court made factual findings and was in the best position to determine whether

the error caused egregious harm violates Texas and Supreme Court precedent.




                                          13
Oregon v. Kennedy, 456 U.S. 667, 677, 102 S.Ct. 2083, 2090 (1982); Wheeler at

325-326; Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004).

       Furthermore, when reviewing whether non-accomplice evidence was

sufficient to corroborate an accomplice witness, a court examines the evidence’s

“reliability   or   believability.”   Herron    v.   State,   86   S.W.3d    621,    632

(Tex.Crim.App.,2002). Thus, whether the non-accomplice evidence was sufficient

to establish that a defendant did not suffer egregious harm credibility of a witness is

critical. The factual findings of a trial judge, who was present at trial and in the best

position to make that determination, must be given great deference.

       When a trial court grants a motion for new trial and applies the correct

standard of harm to the jury charge error, its factual findings and credibility

determinations, even the implied findings that are not expressly found, should not

be substituted by the appellate court’s review of the evidence. By laying out the

correct egregious harm standard, the trial court implicitly found that the

corroborating evidence was “exceedingly weak—that is to say, evidence that, while

it is legally sufficient to tend to connect, is nevertheless inherently unreliable,

unbelievable, or dependent upon inferences from evidentiary fact to ultimate fact

that a jury might readily reject.” Casanova v. State, 383 S.W.3d 530, 539

(Tex.Crim.App.2012).




                                           14
       The Fourth Court’s analysis of the evidence presented by the state found that

the “non-accomplice corroborative evidence” was “relatively strong.” Ambrose at

*4. This clearly departs from the trial court’s express and implied factual findings.7

Even Justice Barnard’s concurring opinion found that “evidence in this case, even

within a single witness’s testimony, was contradictory.” Id. at *6.

       Because the state’s evidence in this case hinged entirely on testimony of its

witnesses, without supporting physical evidence, the trial court’s factual findings

and application of the law to those facts hold great weight since he was in the best

position to assess the demeanor of the witnesses and overall tone of the trial. See

Wheeler at 324.

       In cases such as this, a reviewing court should defer to the lower court’s

factual findings and only review for an abuse of discretion. This would allow a

reviewing court to comport with U.S. and Texas precedent that a reviewing court

must defer to a lower court’s factual findings, would allow a reviewing court to

determine whether the trial court applied the court standard of review, and would

prevent an appellate court from substituting its judgment of the credibility of the

evidence for that of a well-positioned trial court.

       II. Ground Three


7
 This statement is also not aligned with Justice Barnard’s concurring opinion that found the
“evidence in this case, even within a single witness's testimony, was contradictory.” Ambrose at
*6.


                                              15
       In Almanza, this Court held that in order to assess the harm caused when the

jury was not properly instructed, we consider “the entire jury charge, the state of the

evidence, including the contested issues and weight of probative evidence, the

argument of counsel and any other relevant information revealed by the record of

the trial as a whole.” Almanza, 686 S.W.2d at 171. The appellate court did not review

the entire jury charge, state of all of the evidence, and all relevant information

contained in the trial record as a whole. The court limited its focus of corroborating

evidence to Large and Spellman’s testimonies from the state witnesses and one

sentence from Ambrose’s testimony. Ambrose at *4-5. Furthermore, there was an

articulable basis to disregard the non-accomplice evidence relied on to corroborate

the accomplice.

      In Herron v. State, 86 S.W.3d 621 (Tex.Crim.App.,2002), this Court

explained that when “determining the strength of a particular item of non-

accomplice evidence, we examine (1) its reliability or believability and (2) the

strength of its tendency to connect the defendant to the crime.” Id. at 632. “[T]he

reliability inquiry may be satisfied if: (1) there is non-accomplice evidence, and (2)

there is no rational and articulable basis for disregarding the non-accomplice

evidence or finding that it fails to connect the defendant to the offense.” Herron at

633. Here, there was a “rational and articulable basis for disregarding the non-

accomplice evidence” as evidenced by the trial court’s findings of fact as well as



                                          16
Justice Barnard’s concurring opinion that the “evidence in this case, even within a

single witness’s testimony, was contradictory.” Ambrose at *6.

      In its analysis, instead of reviewing the record as a whole, the court focused

on the testimony of two non-eyewitnesses, Principal Large and Assistant Principal

Spellman, and one sentence from Ambrose’s testimony when she asked her class:

“Does anybody want to show him what it feels like?” Ambrose at *4-5. The

testimony from Large was specifically called into question by Justice Barnard:

            “For example, the principal testified Ambrose admitted she told
            her students to strike A.N., and some students did, yet the
            principal later claimed there was reason to doubt Ramirez's
            report. He also admitted sending Ambrose back into the
            classroom without disciplinary action. The trial court heard this
            testimony, as well as other contradictory testimony and was in a
            far better position to judge the impact on the jury and the case as
            a whole.” Ambrose at *6, (J. Barnard concurring).

      The appellate court mentioned the “state of the jury charge”, which included

a general instruction that the witnesses were the sole judges of the witnesses

credibility, but never conducted any analysis of the jury charge before concluding

Petitioner did not suffer egregious harm. Ambrose at *5. The jury charge contained

no language emphasizing that Ambrose needed to be connected to the crime charged

with non-accomplice evidence, therefore this issue weighs in her favor. Garcia v.

State, 2013 WL 4033890, 5 (Tex.App.-Corpus Christi, 2013) [“[N]othing in

the jury charge emphasized to the jury the need to connect appellant to the crime

with some non-accomplice evidence. See Herron v. State, 86 S.W.3d 621, 632

                                         17
(Tex.Crim.App.2002) (en banc) (explaining that the purpose of the instruction is to

inform the jury that it cannot use accomplice testimony unless some non-accomplice

evidence connects the defendant to the crime). This factor weighs in favor of finding

egregious harm.”]

      The court did look to the arguments of counsel, but only to find that the

arguments focused on the credibility of the witnesses. Ambrose at *5. “The State

argued there was no evidence any of them had an incentive to lie for each other.” Id.

This argument from the state is precisely the reason the legislature created the

accomplice witness instruction – because accomplices often have reason to lie.

Blake v. State, 971 S.W.2d 451, 451 (Tex.Crim.App.1998). Without Ramirez’s

statements to Large and Spellman and her testimony at trial, the state had no case.

By emphasizing that its witnesses, including Ramirez, had no reason to lie for each

other, this point weighs in favor egregious harm as well.

      Viewing the record as a whole, the non-accomplice evidence failed to connect

Ambrose to the offense charge, and this weighs in favor of egregious harm. In

evaluating Ambrose’s own testimony, the appellate court erroneously found that her

statement “Does anybody want to show him what it feels like?..tended to connect

her intent to the charged intent of subjecting A.N. to mistreatment by directing and

allowing her students to strike him.” Ambrose at *4. This testimony, even taken

alone, does not express her desire for her students to hit A.N. And when taken in



                                         18
context of her whole testimony, this statement shows that she intended to teach A.N.

a lesson and to show the child that bullying other students would cause the students

to want to bully you back. 3RR118. Her intent was to show A.N. that you should not

hit other students by showing him that others would think that it was okay to hit him

back. This does not connect her to the criminal intent of intentionally subjecting the

child to mistreatment.

       All of the other witnesses’ testimonies were contradictory, even in

themselves, and they were not eye witnesses. Furthermore, the other witnesses based

their testimony regarding Ambrose’s intent on information learned from Ramirez

and this information cannot be used to corroborate Ramirez. Archie v. State, 340

S.W.3d 734 (Tex. Crim. App. 2011) [“An accomplice’s out-of-court statement may

not be used to corroborate him for purposes of art. 38.14.”] A.N. was the only other

person present in the classroom who testified for the State and his testimony,

although he initially denied even knowing Ambrose or being mistreated in her

classroom, was clearly inconsistent with any other witness’ version of the events.8

3RR55-58. Furthermore, A.N.’s testimony, which was not even considered by the

reviewing court, did not corroborate Ramirez. See Statement of Facts supra.



8
  In fact the Fourth Court’s opinion did not even address A.N. or his brother’s testimony as
corroborating Ramirez. The appellate court only relied on the “non-accomplice corroboration
from Principal Large and Vice Principal Spellmann, viewed together with Ambrose's admissions”
to corroborate Ramirez. Ambrose at *5.


                                             19
         Ramirez was the only adult who was present when A.N. was taken to

Ambrose’s class. The appellate court’s analysis presupposes that the jury believed

every witnesses testimony, however, without the accomplice witness instruction, the

jury may have very easily only believed Ramirez and rested its decision solely on

her testimony. This is essentially why the accomplice witness instruction is

important – so that the jury will not base its decision on the words of an accomplice

who has reason to lie.          See Blake v. State, 971 S.W.2d 451, 451

(Tex.Crim.App.1998). [The importance of the accomplice-witness rule “reflects a

legislative determination that accomplice testimony implicating another person

should be viewed with a measure of caution, because accomplices often have

incentives to lie.”]   For these reasons, the court erred in its review of the

corroborating evidence in this case and in its application of Almanza’s egregious

harm standard.

                             PRAYER FOR RELIEF

         WHEREFORE, PREMISES CONSIDERED, the Ambrose prays this Court

affirm the trial’s court’s decision to grant Ambrose a new trial, reverse the Fourth

Court of Appeals’ opinion affirming the conviction, and remand this case for a new

trial.

                                       Respectfully submitted:

                                       __/s/Dayna L. Jones_______
                                       Dayna L. Jones

                                         20
                                       Bar No. 24049450
                                       LAW OFFICE OF DAYNA L. JONES
                                       1800 McCullough Avenue
                                       San Antonio, Texas 78212
                                       (210)-255-8525– office
                                       (210)-223-3248—fax
                                       Daynaj33@gmail.com

                                       Attorney for Cynthia Ambrose



                         CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing document was

electronically sent to S. Patrick Ballantyne at sballantyne@bexar.org and to the State

Prosecuting attorney via U.S. Mail at P. O. Box 13046 Austin, Texas 78711-3046

on July 6, 2015.

                                       __/s/Dayna L. Jones_____
                                       DAYNA L. JONES


                        CERTIFICATE OF COMPLIANCE

      I certify that, according to Microsoft Word’s word count, this document

contains 4,544 words.

                                       __/s/Dayna L. Jones_____
                                       DAYNA L. JONES




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