                                                                                 PD-1184-15
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                               Transmitted 10/9/2015 4:44:18 PM
                                                                 Accepted 10/9/2015 4:55:13 PM
                                                                                 ABEL ACOSTA
                         NO. PD-1184-15                                                  CLERK

                        IN THE
             COURT OF CRIMINAL APPEALS
                       OF TEXAS
                      AT AUSTIN
               _________________________

                      ROBERT GARRETT,
                          Petitioner/Appellant

                                v.

                     THE STATE OF TEXAS,
                           Respondent/Appellee
                    _________________________

              On Appeal in Cause No. F10-52395-R
              from the 265th Judicial District Court
                     Of Dallas County, Texas
            And on Petition for Discretionary Review
            from the Fifth District of Texas at Dallas
                 In Cause No. 05-13-00883-CR
                 _________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
             _________________________

                                 Counsel of Record:

  Lynn Richardson                    Kathleen A. Walsh
  Chief Public Defender              Assistant Public Defender
                                     State Bar Number: 20802200
  Katherine A. Drew                  133 N. Riverfront Blvd., LB 2
  Chief, Appellate Division          Dallas, Texas 75207-399
                                     (214) 653-3550 (telephone)
                                     (214) 653-3539 (fax)
                                     kwalsh@dallascounty.org

  October 9, 2015
                              LIST OF PARTIES

TRIAL COURT JUDGE
Mark C. Stoltz, Presiding Judge

APPELLANT
Robert Garrett

APPELLANT’S ATTORNEYS
AT TRIAL
Matthew Arnold, State Bar No. 00789129
3500 Maple Avenue, Suite 400
Dallas, TX 75219

ON APPEAL
Kathleen A. Walsh, State Bar No. 20802200
Assistant Public Defender
Dallas County Public Defender’s Office
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-4399

STATE’S ATTORNEYS
AT TRIAL
Jason Fine, State Bar No. 24055477
Patrice Williams, State Bar No. 24047116

ON APPEAL
G. Brian Garrison, State Bar No. 24065276

Assistant District Attorneys
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399




                                           ii
                                         TABLE OF CONTENTS

INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 1
QUESTION FOR REVIEW ..................................................................................... 2
               Whether the court of appeals erred in determining that the
          prosecutor’s “reprehensible” action in presenting false information
            to the jury as to the content of an exhibit and what it stated as to
           Appellant’s criminal history did not affect the jury’s assessment of
                                       punishment.
ARGUMENT ............................................................................................................. 2
         Pertinent facts. ................................................................................................. 3
             A. The testimony ........................................................................................ 3
             B. State's Exhibit 2...................................................................................... 6
             A. The prosecutor's closing argument ........................................................ 8
         The court of appeals’ conclusion that the jury would not have assessed
         a different sentence had State’s Exhibit 2 been excluded is premised
         on false assumptions ........................................................................................ 9
         Conclusion ..................................................................................................... 11
PRAYER FOR RELIEF .......................................................................................... 12
CERTIFICATE OF SERVICE ................................................................................ 13
CERTIFICATE OF COMPLIANCE ....................................................................... 13
APPENDIX




                                                            iii
                                      INDEX OF AUTHORITIES

Cases
Garrett v. State,
 No. 05-13-00833-CR, 2015 Tex. App. LEXIS 8439 (Tex. App.—Dallas
 August 12, 2015) (not designated for publication) .......................................passim
Rules
TEX. R. APP. P. 66.3 (f) ............................................................................................ 12




                                                          iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       COMES NOW Robert Garrett, Petitioner herein and Appellant before the

court of appeals, and respectfully submits this Petition for Discretionary Review.

                STATEMENT REGARDING ORAL ARGUMENT

       Appellant believes that the facts of the case and the issues raised are such

that oral argument will not significantly aid this Court’s consideration and

disposition of this Petition.

                             STATEMENT OF THE CASE

       A jury convicted Appellant of the offense of indecency with a child and

assessed punishment at 9 years’ imprisonment and a $4,000 fine. (RR4: 100, 140-

41; CR: 110, 117).

     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

       On August 12, 2015, in a memorandum opinion, the Court of Appeals for

the Fifth District of Texas affirmed Appellant’s conviction. Garrett v. State, No.

05-13-00833-CR, 2015 Tex. App. LEXIS 8439 (Tex. App.—Dallas August 12,

2015) (not designated for publication). (See Appendix). No motion for rehearing

was filed. This Petition is timely if filed on or before October 12, 2015.1




1
 Appellant’s motion for extension of time in which to file the Petition for Discretionary Review
was granted by this Court on September 14, 2015.
                           QUESTION FOR REVIEW

            Whether the court of appeals erred in determining that the
       prosecutor’s “reprehensible” action in presenting false information
         to the jury as to the content of an exhibit and what it stated as to
        Appellant’s criminal history did not affect the jury’s assessment of
                                    punishment.

                                   ARGUMENT

      In his appeal, Appellant raised five points of error pertaining to the

admission of State’s Exhibit 2 and the prosecutor’s representations to the jury as to

the content of the exhibit and what it stated as to Appellant’s criminal history. As

stated in the court of appeals’ opinion, in his first issue, Appellant argued the

prosecutor’s misrepresentation of the content of the exhibit violated his right to due

process and due course of law. In his second and third issues, Appellant asserted

that his trial counsel’s representation was inadequate as counsel failed to object to

the prosecutor’s misrepresentation of the content of the exhibit, examine the

exhibit when offered as evidence, and investigate Appellant’s criminal history. In

his fourth and fifth issues, Appellant argued that the exhibit should have been

excluded because it was not authenticated or linked to him. Garrett, 2015 Tex.

App. LEXIS 8439 at *6-7. The court of appeals disposed of all of these issues by

conducting a harm analysis and concluding that given the nature of the evidence

before the jury, including the evidence support the verdict, and the punishment




                                          2
assessed, the jury would not have assessed a different sentence had State’s Exhibit

2 been excluded. Id. at *11-12.

Pertinent facts.

      A. The testimony.

      During the punishment hearing, the defense presented testimony from

Appellant’s daughter, Prentice Garrett, who testified Appellant’s sexual contact

with H.A. was behavior that was totally inconsistent with what she knew about her

father and that she had a hard time believing that he did something like this. (RR4:

122-23). She also testified that Appellant never did anything like this to anyone

else and has always been protective with her, her sister, nieces and grandchildren.

(RR4: 122-24). During the State’s cross-examination of Ms. Garrett, the following

occurred:

      BY MR. FINE:

      Q. Ms. Garrett, what’s your mom’s name?

      A. Sharyl, Sharyl Williams.

      Q. Sharyl Williams?

      A. Yes, sir.

      Q. Were -- was your dad and your -- yeah, were your dad and mom living
      together back in 1998? You would have been I guess seven years old?

      A. Yes.

      Q. Back in Georgia?
                                         3
A. Yes.

Q. Do you remember when he was convicted of simple battery of your
mom?

A. I’m not going to say that I would remember anything like that. My
parents back when I was little, they would keep a lot of things from me. But
I’ve never heard that what you just told me.

Q. You guys lived back in ‘98 in DeKalb County, Georgia, right?

A. Huh?

Q. You guys would have lived in DeKalb –

A. Yes, DeKalb.

Q. What city is that?

A. Stone Mountain-Lithonia area is metro Atlanta, right outside.

MR. FINE: Your Honor, may I approach?

THE COURT: You may.

Q. (By Mr. Fine) Ms. Garrett, I’m going to have you look at what I’ve
marked as State’s Exhibit 2. I don’t want you to read it out loud, I just want
you to kind of look at that. Does that appear to be your dad’s signature?

A. I wouldn’t be able to identify but.

Q. Is that his name, Robert Garrett?

A. It says Robert Garrett.

Q. And Sharyl Williams, is that how your mother spells her name, S-H-A R-
Y-L.

A. Yes, sir.
                                   4
Q. Okay. And back in March -- well, March 12th, 1999, you guys would
have been living in Georgia, your mom and dad were together then?

A. Yes.

Q. Is that your dad’s date of birth, 10-20-67?

A. Yes, sir.

Q. Does this appear to be a conviction for your dad against your mom from
what you could tell based on that information?

A. I’m guessing so.

MR. FINE: State offers State’s 2 at this time, Your Honor.

MR. ARNOLD: Your Honor, I’m going to object it’s not been authenticated.

THE COURT: Let me see it. Overrule the objection. It’s admitted.

MR. FINE: Permission to publish, Your Honor?

THE COURT: You may.

MR. FINE: This is a conviction, case 98-CR 5451-5 out of DeKalb County,
Georgia Superior Court for simple battery. It states: On the 26th day of
May 1998, the defendant, Robert Garrett, did intentionally make physical
contact with an assaultive provoking nature of the person Sharyl Williams.
There’s also a probation revocation order filed on May 14th, 2002 in the
same cause number.

Q. (By Mr. Fine) And so, Ms. Garrett, how long were your mom and dad
together, how many years?

A. Let’s see. I was born in ‘91, and they separated -- I was about 12 years
old. So around about 12 years, maybe more.

Q. And like you said, I mean, they would kind of keep things behind closed
doors, keep things from you from seeing certain things; is that fair to say?
                                   5
      A. Yeah, my parents -- like I say, my parents protect, like, they’re still kind
      of like that. Something is wrong with my mom, she’s not going to tell me; if
      something is wrong with my dad, he’s not going to say anything. It’s not to
      lie to me. I know it’s because they want me to focus on what I’m doing, and
      I stress easy. They’re parents, you know.

      Q. Right. For instance, like, that would have been back when you were
      seven or eight years old, that conviction for battery. You didn’t know about
      that till today, right?

      A. Right, right. I probably wouldn’t even have understood what it meant.

      Q. Right. Because as a 7-year-old, you’re not expected to understand things
      like your parents beating up each other, right?

      A. Correct.

      Q. Or being touched by someone inappropriately; is that fair to say?

      A. No. That’s one thing I would know if someone touched me
      inappropriately.

      Q. I don’t mean it like that. I mean, you know, a normal 7-year-old girl
      shouldn’t have to experience things like domestic violence and sexual
      abuse; is that fair to say?

      A. That’s fair.

(emphasis added) (RR4: 125-29).

      B. State’s Exhibit 2.

      State’s Exhibit 2 consists of 11 pages:

      First page. The first page appears to be a summary of the proceedings in

Case No. 98-CR5451-5 and sets forth a plea of guilty to Count One only of a True



                                         6
Bill alleging interference with government property and simple battery against a

defendant named Robert Garrett. (State’s Exhibit 2, p. 1).

      Second and Third pages. The second and third pages of the exhibit is a two

count Bill of Indictment; Count One alleges the offense of interference with

government property against Robert Garrett; Count Two alleges the offense of

simple battery against Robert Garrett. (State’s Exhibit 2, pp. 2-3).

      Fourth page.      The fourth page is a document entitled “First Offender

Information” signed by a defendant and his attorney. This document also contains

a certificate signed by the presiding judge which states that a defendant named

Robert Garrett pled guilty in open court to the charges in the Bill of Indictment and

sets forth various declarations acknowledging the voluntariness of the defendant’s

plea. (State’s Exhibit 2, pp. 4).

      Fifth page. The fifth page contains admonishments to the defendant and his

written responses in Case No. 98-CR5451-5. (State’s Exhibit 2, p. 5).

      Sixth and Seventh pages. The sixth page appears to be a judgment and

sentence for Count One of the Indictment in Case No. 98-CR5451-5. The seventh

page appears to be a mirror-image of the sixth page. (State’s Exhibit 2, pp. 6-7).

      Eighth and Ninth pages. The eighth page is an Order from the court that

Count Two of Case No. 98-CR-5451-5 be “Nolle Prossed.” The ninth page appears

to be blank. (State’s Exhibit 2, pp. 8-9).

                                             7
       Tenth and Eleventh pages. The tenth page is a Probation Revocation Order

in Case No. 98-CR5451-5. The eleventh page is blank. (State’s Exhibit 2, pp. 10-

11).

       C. The prosecutor’s closing argument.

                So when you look at a two to 20 year offense and the
         offense is indecency with a 7-year-old girl, with your stepdaughter,
         you start at 20. And you then start factoring in things along the
         lines, well, what can we give the defendant credit for, what do we
         hold as aggravating factors against him? And that’s where you
         come up with your verdict. That’s where you’re going to find the
         correct number.

         ....

               You have seen that from the testimony of Gabby, you’ve
         seen that from the testimony of Gisela about how this man
         basically just controlled her life. . . . This man is the one that beat
         her and this is the man that beat Sharyl Williams, his first wife.
         You can go back and look at State’s 2 and look at that, what he
         was placed on probation and revoked on that probation.
         So he’s a wife beater, he’s a child molester, he’s controlling, he’s
         manipulative. . . .

                . . . Because what this guy does behind closed doors, you
         don't get any credit for that. What happens behind closed doors as
         y’all have found out today, this man, Robert Garrett is a different
         man behind closed doors and that’s what manipulative, conniving
         evil human beings do. On the outside you look at them and they
         don't wear a sign that says I’m a wife beater and I’m a child
         molester. You only find that out when skeletons come out of the
         closet.

         ....

              And then the defense attorney gets up here and says show
         some mercy, let’s have some mercy. . . . Mercy is something that’s
                                          8
          earned. You can’t just beg for mercy and expect to get it when you
          molest your step-daughter, when you beat the women you’re
          supposed to love, when you control them. You don’t just get up
          here and say, oh please have mercy on me. You earn mercy. . . .

(emphasis added) (RR4: 136-40).

The court of appeals’ conclusion that the jury would not have assessed a
different sentence had State’s Exhibit 2 been excluded is premised on false
assumptions.

       In reaching the conclusion that the jury would not have assessed a different

sentence had State’s Exhibit 2 been excluded, the court of appeals stated:

       While the jury heard from the prosecutor that Garrett was a "wife
       beater" and had been convicted of assaulting his first wife, the jury
       also heard (I) the complainant's testimony that Garrett molested her at
       least four times, she was fearful of Garrett, and she knew Garrett had
       hit her mother and brother; (2) the complainant's mother's testimony
       that Garrett physically assaulted her several times during their four-
       year relationship; and (3) Garrett's daughter's testimony that the father
       she knew was not violent. Further, State's Exhibit 2 was admitted into
       evidence and available for the jury to review.

Garrett, 2015 Tex. App. LEXIS 8439 at *11-12. The court also discussed the

closing arguments by both defense counsel and the prosecutor, noting that “[t]he

jury followed neither defense counsel’s plea for the minimum two-year sentence

nor the prosecutor’s implied plea for the maximum twenty-year sentence.” Id. at

*11.

       Although the court of appeals is correct in its characterization of the

testimony from the complainant and her mother, its reliance on the testimony from

Appellant’s daughter that the father she knew was not violent and the fact that
                                          9
State’s Exhibit 2 was admitted into evidence and available for the jury to review is

clearly misguided. Any alleged mitigating effect from this evidence cannot be

taken seriously by either this Court or the court of appeals. It was during the

daughter’s testimony that the State introduced Exhibit 2 into evidence and used the

documents contained in the exhibit to create the false impression with the jury that

Appellant had been previously convicted of assaulting his first wife in an attempt

to impeach the daughter’s credibility regarding her testimony that she knew her

father to be a nonviolent person.

      Furthermore, the court’s implication that the jury could dispel any false

impression regarding Appellant’s previous criminal record because “State’s

Exhibit 2 was admitted into evidence and available for the jury to review” is

simply ludicrous. Besides the fact that there is absolutely no evidence in the record

that the jury asked that Exhibit 2 be given to them for review during their

deliberations, even if they had asked for the exhibit and took the opportunity to

review it, it is hard to imagine that any of the jurors would understand what an

order stating that the charge of simple battery was “Nolle Prossed” would mean

without an attorney explaining it to them. Indeed, Appellant’s own trial attorney

either did not examine the documents contained in the exhibit when it was tendered

for admission, or if he did, clearly did not understand what the order meant.




                                         10
      The court of appeals also found it significant that the jury assessed a

sentence somewhere in the middle of the range and did not assess the maximum

punishment as requested by the State and cites to cases in which harm was found

from the erroneous admission of evidence in which a sentence was assessed at

either the maximum or close to the maximum. Id. at *11-12. The problem with this

analysis is the fact that the jury in this case assessed a punishment somewhere in

the mid-range falsely believing that Appellant did in fact have a prior conviction

for assault. There is no doubt that the jury did in fact consider this conviction in

assessing punishment. During deliberations the jury sent out a note asking if

Appellant had served time for any other crimes. (CR: 101). The trial court’s

response was that “you have all the law and evidence you are to consider in this

case.” (CR: 101). The record shows that this was the only other crime the jury

learned about.

Conclusion.

      Had the jury been aware of the fact that Appellant did not have a conviction

for assaulting his first wife, the factual circumstances of his background would

have appeared in a dramatically different light at the punishment hearing. The

record makes it clear that the jury considered this false evidence during its

deliberations in assessing punishment, thus, it cannot be said that the erroneous




                                        11
admission of this evidence did not influence the punishment assessed. Because the

court of appeals held otherwise, this Court should exercise its supervisory powers.

TEX. R. APP. P. 66.3(f).

                             PRAYER FOR RELIEF

      For the reasons herein alleged, Appellant prays this Court grant this petition

and, upon review, reverse the decision of the court of appeals.

                                       Respectfully submitted,

                                       /s/ Kathleen A. Walsh
                                       Kathleen A. Walsh
Lynn Richardson                        Assistant Public Defender
Chief Public Defender                  State Bar No. 20802200
Dallas County                          Dallas County Public Defender’s Office
                                       Frank Crowley Courts Building
                                       133 N. Riverfront Blvd., LB-2
                                       Dallas, TX. 75207-4399
                                       (214) 653-3550 (telephone)
                                       (214) 653-3539 (fax)




                                         12
                            CERTIFICATE OF SERVICE

       I hereby certify that on the 9th day of October, 2015, a true copy of the

foregoing petition for discretionary review was served by electronic delivery to

the Appellate Division2 of the Dallas County Criminal District Attorney’s Office

at DCDAAppeals@dallascounty.org.; and was also served by electronic delivery to

Lisa C. McMinn, State Prosecuting Attorney, at Lisa.McMinn@spa.texas.gov.



                                            /s/ Kathleen A. Walsh
                                            Kathleen A. Walsh


                         CERTIFICATE OF COMPLIANCE


       I hereby certify that the word count in this document, which is prepared in

Microsoft Word 2010, is 3,168.

                                            /s/ Kathleen A. Walsh
                                            Kathleen A. Walsh




2
 G. Brian Garrison, the original State’s attorney on appeal, is no longer employed by the Dallas
County District Attorney’s Office.
                                              13
APPENDIX
fi·LexisNexis·
No Shepard's Signa)TM
As of: October 7, 2015 3:53 PM EDT


                                                  Garrett v. State
                                     Court of Appeals of Texas, Fifth District, Dallas
                                             August 12, 20 15, Opinion Filed

                                                   No. 05-13-00883-CR

Reporter
2015 Tex. App. LEXJS 8439

ROBERT GARRETT, Appellant v. THE STATE OF TEXAS,                Judgment affirmed.
Appellee
                                                                LexisNexis® Headnotes
Notice: PLEASE CONSULT THE TEXAS RULES OF
APPELLATE PROCEDURE FOR C ITATION OF
UNPUBLISHED OPINIONS.                                              Evidence > Admissibility > Character Evidence
                                                                   Evidence > Admissibility > Conduct Evidence > Prior Acts,
Prior History: [*I ] On Appeal from the 265th Judicial             Crimes & Wrongs
District Court, Dallas County, Texas. Trial Court Cause No.
F-1052395-R.                                                    HNI Because a defendant is entitled to be tried for the
                                                                charged offense only and not his criminal propensities,
                                                                evidence of extraneous acts or crimes committed by the
Core Terms
                                                                defendant is generally inadmissible at the guilt-innocence
                                                                stage of trial. Tex. R. Evid. 404(b )(] ). However, such
issues, complainant's, simple battery, assault, extraneous,     evidence may be admissible for purposes other tha111 character
molested, sentence, admissible, violent, a uthenticated,
                                                                conformity. Tex. R. Evid. 404(b)(2) .
convicted, hit
                                                                   Evidence > Admissibility > Conduct Evidence > Prior Acts,
Case Summary                                                       Crimes & Wrongs
                                                                   Criminal Law & Procedure > ... > Sexual Assault > Abuse of
Overview                                                           Children > General Overview
HOLDINGS: [ l]-Where defendant was convicted of
                                                                HN2 Under Tex. Code Crim. Proc. Ann. art. 38.37, evidence
indecency with a child, the trial court did not abuse its
                                                                of other crimes or acts committed by the defendant against
discretion in allowing the complainant to testify under Tex.
                                                                the chi ld who is the victim of the alleged offense is
R. Evid. 404(b) that defendant had been violent towards her
                                                                admissible to show, among other matters, the defendant's
fami ly because it showed why the complainant delayed in
                                                                and child's state of mind and any prior or subsequent
telling her mother that he had molested her; [2]-Defendant
                                                                relationship between them. Under Tex. R. Evid. 404(b),
was not harmed by the erroneous admission of the State's
                                                                evidence of extraneous offenses or acts may be admissible
exhibit at the punishment phase which mislead the j ury as to
                                                                to prove motive, identity, and the reason a sexual assau lt
defendant's criminal history; [3]-Given the nature of the
                                                                victim failed to report the assault promptly.
testimony, the evidence supporting the verdict, and the
nine-year punishment assessed, the appellate court could
                                                                   Evidence > Admissibility > Procedural Matters > Rulings on
not find that the jury would ha ve assessed a different
                                                                   Evidence
sentence had the State's exhibit been excluded; [4]-Defense
counsel's performance as to the State's exhibit did not            Criminal Law & Procedure> ... > Standards of Review> Abuse
prejudice defendant.                                               of Discretion > Evidence
                                                                   Criminal Law & Procedure > Appeals > Reversible Error >
Outcome                                                             Evidence
                                                2015 Tex. App. LEX IS 8439, *I



H N3 An appellate court reviews a trial court's decision to        H N7 In the context of the erroneous admission of evidence
admit evid ence for abuse of discretion and will uphold the        at punishment, harm is established if the record as a whole
decision so long as it falls within the zone of reasonable         reflects a reasonable probability that the evidence might
disagreement and is correct under any theory of Jaw that           have affected the punishment assessed.
finds support in the record. A decision that is erroneous will
result in reversal of the trial court's judgment only if, upon        Criminal Law & Procedure > ... > Standards of Review >
a review of the entire record, the defendant was harmed, that          Harmless & Invited Error > General Overview
is, only if the appellate court has grave doubt that the              Criminal Law & Procedure > Appeals > Reversible Error >
outcome was free from the substantial effect of the error.             General Overview

   Criminal Law & Procedure> ... > Reviewability >Preservation        Criminal Law & Procedure > ... > Counsel > Effective
   for Revi.ew > Constitutional Issues                                Assistance of Counsel > Sentencing

   Criminal Law & Procedure > Trials > Defendant's Rights >        H N8 To obtain a reversal based on harm from counsel's
   Right to Due Process                                            deficient performance at punishment, an appellant must
   ConstitUJtional Law > State Constitutional Operation            show that a reasonable probability exists that, but for
                                                                   counsel's unprofessional errors, the result of the punishment
   ConstitUJtional Law > ... > Fundamental Rights > Procedural
   Due Process > General Overview                                  hearing wou ld have been different.

H N4 A defendant forfeits a claim on appeal that the state            Criminal Law & Procedure > Appeals > Prosecutorial
due course of law clause provides more protection than the            Misconduct > General Overview
federa l due process clause by fai ling to raise claim at trial.
                                                                   H N9 A prosecutor's action in misleading the jury as to the
   Criminal Law & Procedure > ... > Standards of Rev iew >         evidence is indefensible.
    Harmless & Invited Error > Evidence
                                                                      Criminal Law & Procedure> Criminal Offenses> Classification
   Criminal Law & Procedure > ... > Standards of Rev iew >
                                                                      of Offenses > Felonies
    Harmless & Invited Error > Prosecutorial Misconduct
                                                                      Criminal Law & Procedure> Sentencing> Ranges
   Criminal Law & Procedure > Sentencing > Imposition of
   Sentence > Evidence                                                Criminal Law & Procedure> Sentencing> Fines
   Criminal Law & Procedure > Trials > Defendant's Rights >           Criminal Law & Procedure > ... > Sexual Assault > Abuse of
   Right to Due Process                                               Children > Penalties
   Crimina l Law & Procedure > Appeals > Prosecutorial
   Misconduct > Use of False Testimony
                                                                   H NJO Engaging in sexual contact with a chi ld is a second
                                                                   degree felony punishable by imprisonment for any term of
H NS In the context of a due process violation stemming            not more than twenty years or Jess than two years and an
from the prosecutor's use of false or misleading evidence at       optional fine not to exceed $10,000. Tex. Penal Code Ann.
the punishment phase of trial, harm is established upon            §§ 12.33, 21.1/(a)(/), {sfl (2011).
proof beyond a reasonable doubt that the error complained
of contributed to the verdict obtained.                               Criminal Law & Procedure > ... > Counsel > Effective
                                                                      Assistance of Counsel > Sentencing
   Criminal Law & Procedure > Trials > Defendant's Rights >
                                                                      Criminal Law & Procedure > Juries & Jurors > Province of
   Right to Due Process
                                                                      Court & Jury > Sentencing Issues
   Criminal Law & Procedure> ... > Reviewability >Preservation
   for Revi.ew > Constitutional Issues                             HNll     In   determining    whether    counsel's   deficient
                                                                   performance prejudiced the appellant at punishment, the
H N6 A due process claim is not preserved for review on            inquiry is whether there is a reasonable probabi lity that the
appeal unless it was raised at trial. Tex. R. App. P. 33. /(a) .   jury's assessment of punishment would have been Jess
                                                                   severe in the absence of defense counsel's deficient
   Criminal Law & Procedure > ... > Standards of Rev iew >         performance.
    Harmless & Invited Error > Evidence
   Criminal Law & Procedure > Sentencing > Imposition of           Counsel: For Appellants: Kathleen Walsh, Katherine Drew,
   Sentence > Evidence                                             Lynn Richardson, Dallas, TX.

                                                             Page 2 of 6
                                                2015 Tex. App. LEXIS 8439, *I



For Appellees: G. Brian Garrison, Susan Hawk, Dallas, TX.          work. He and her mother were married twelve years, and
                                                                   she did not recall any violence between them.
Judges: Before Justices Lang, Stoddart, and Schenck.
                                                                   On cross-examination, the prosecutor asked Prentice if she
Opinion by Justice Lang.
                                                                   remembered Garrett being convicted of"simple battery" for
                                                                   physically assaulting her mother. Prentice testified she did
Opinion by: DOUGLAS S. LANG
                                                                   not know of the conviction. [*3] Then, the prosecutor
                                                                   submitted to Prentice State's Exhibit 2. The prosecutor
Opinion                                                            asked Prentice if her parents lived together in 1998 in
                                                                   DeKalb County, Georgia and if the documents in the exhibit
M EM ORANDUM OPINION                                               had Garrett's and her mother's name on them and Garrett's
                                                                   date of birth. Based on her affirmative answers, the
Opinion by Justice Lang                                            prosecutor asked Prentice if State's Exhibit 2 "appeared to
                                                                   be a conviction for your dad against your mom." Prentice
A jury convicted Robert Garrett of indecency with a child          replied, 'Tm guessing so," at which point the prosecutor
and assessed punishment at nine years' confinement and a           offered the exhibit into evidence. Defense counsel objected
$4000 fine. Garrett raises six issues on appeal. His first five    that the exhibit had not been "authenticated." The trial court
issues arise from what he claims is the erroneous admission,       overruled that objection, and the exhibit was admitted into
at the punishment stage of trial, of State's Exhibit 2, records    evidence.
concerning Garrett's 1998 arrest in DeKalb County, Georgia
                                                                   The prosecutor published the exhibit to the jury, representing
for "simple battery" and "interference with government
                                                                   to the jury that it was the record of a conviction for "simple
property." In a sixth issue, Garrett complains of the
                                                                   battery" and probation. However, State's Exhibit 2 actually
admission, at the guilt-innocence stage of trial, of extraneous
                                                                   reflects that Garrett pied guilty to the "interference with
offense testimony that Garrett hit the complainant's mother        government property" charge and the charge for "simple
and brother. We affirm the trial court's judgment.
                                                                   battery" was dismissed. Then, Garrett was placed on deferred
                                                                   adjudication probation. The true content of State's Exhibit 2
I. BACK GROUND                                                     was not brought to the attention of the trial court or the jury.
                                                                   In closing argument, the prosecutor characterized [*4]
The compJainant is the daughter of Garrett's ex-gi rlfriend.
                                                                   Garrett as both a "child molester" and "wife beater,"
At the time Garrett and the complainant's mother began
                                                                   alluding to the "simple battery conviction" and testimony of
dating in 2006, the complainant was "like five [or] six"
                                                                   Garrett's violent behavior towards the complainant's mother.
years old. About a year later, while the complainant and her
family were living with Garrett, he molested the complainant.
                                                                   II. EXTRANEOUS OFFENSE TESTIMONY
The complainant [*2] did not tell anyone, and Garrett
molested her again. Garrett molested the complainant at            We address first Garrett's sixth issue which complains of the
least twice more before the complainant finally told her           admission, at the gui It-innocence stage, of the complainant's
mother in early 20 I 0.                                            testimony that Garrett was violent. The record reflects that,
                                                                   in response to defense counsel's objection to the complainant
At trial, the complainant testified she did not immediately        explaining why she was scared of Garrett, the prosecutor
disclose the abuse to her mother because she was scared of         stated the testimony was admissible under article 38.37 of
Garrett. Over objection by defense counsel, the complainant        the Texas Code of Criminal Procedure because it "went to
said Garrett had hit her mother in the face, breaking her          her state of mind and the relationship that she had with
glasses, arnd had hit her brother.                                 [Garrett]." See TEx. CooE CRIM. PRoc. A NN. art. 38.37 (West
                                                                   Supp. 2014). Garrett asserts article 38.37 applies only to
At punishment, complainant's mother corroborated                   extraneous acts committed by the defendant against the
complainant's testimony that Garrett was violent and testified     complainant and, because the extraneous acts of assault to
that he hit her several times during their relationship. Garrett   which the complainant testified were against her family
did not testify in his defense, but called his daughter from       members, the testimony was not admissible under article
his first marriage, Prentice. Prentice testified the               38.37. Garrett further asserts the testimony was inadmissible
complainant's mother's testimony was "shocking" and                under Texas Rule of Evidence 404(b) which generally
inconsistent with the father she knew. Prentice testified          prohibits the admission of extraneous offense evidence. See
Garrett worked hard and travelled often because of his             TEX. R. Evm. 404{b).

                                                             Page 3 of 6
                                                  2015 Tex. App. LEXIS 8439, *4



A. Applicable law and Standard of Review                              Garrett had been violent towards her mother and brother.
                                                                      Although Garrett is correct that article 38.37, upon which
HNI Because a defendant is entitled to be tried for the               the State relied at trial, does not allow the testimony, the
charged offense [*5] only and not his criminal propensities,          testimony was admissible under rule ofevidence 404(b). See
evidence of extraneous acts or crimes committed by the                TEX. R. Evw. 404(b); Devoe. 354 S. W3d at 469. The
defendant is generally inadmissible at the guilt-innocence            testimony was offered not to show character conformity, but
stage of trial. See Moses v. State. 105 S. W.3d 622. 626 <Tex.        to show why the complainant delayed in telling !her mother
Crim. App. 2003); see also TEx. R. Evm. 404(b)(] ); Devoe v.          that Garrett had molested her. See Brown. 657 S. W.2d at
State. 354 S. W.3d 457. 469 (Tex. Crim. Ave. 201]). However,          119; Wilson. 90 S. W.3d at 394. The trial court's ruling wi ll
such evidence may be admissible for purposes other than               be upheld since it is correct under the Jaw despite being
character conformity. Moses. 105 S. W.3d at 626; see also             different than the specific objection of the State. See Devoe.
TEX. R. EVJo. 404(b)(2). For example, HN2 under article               354 S. W.3d at 469. We decide Garrett's sixth issue against
38.37 of the Texas Code of Criminal Procedure. evidence of            him.
other crimes or acts committed by the defendant against the
child who is the victim of the alleged offense is admissible          III. STATE'S EXHIBIT 2
to show, among other matters, the defendant's and child's
state of m ind and any prior or subsequent relationship               Now, we address issues one through five, which raise as
between them. TEX. Cooe CRIM. PRoc. ANN. art. 38.37.                  error the admission of State's Exhibit 2 in the punishment
Further, under Texas Rule of Evidence 404(b)(2) , evidence            phase. In his first issue, Garrett argues the prosecutor's
of extraneous offenses or acts may be admissible to prove             misrepresentation of the content of the exhibit violated his
motive, identity, and the reason a sexual assault victim              right to due process. [*7] 1 His second and third issues assert
failed to .report the assau lt promptly. See TEX. R. EVIo.            his trial counsel's representation was inadequate as counsel
404(b); Brown v. State. 657 S. W.2d 117. 119 (Tex. Crim.              failed to object to the prosecutor's misrepresentation of the
App. 1983); Wilson v. State. 90 S. W.3d 391. 394 (Tex.                content of the exhibit, examine the exhibit when offered as
App.- Dallas 2002, rw pet.).                                          evidence, and investigate Garrett's criminal history. In his
                                                                      fourth and fifth issues, Garrett argues the exhibit should
HN3 An appellate court reviews a trial court's decision to            have been excluded because it was not "authenticated" or
admit evidence for abuse of discretion and will uphold the
                                                                      "Jinked" to him. The focus of Garrett's argument in these
decision so long as it falls within the zone of reasonable
                                                                      issues is on harm; that is, the jury wou ld have assessed a
disagreement and is correct under any theory of law that
                                                                      different punishment had the prosecutor not misrepresented
finds support in the record. Devoe. 354 S. W.3d at 469. A             the record, trial counsel rendered effective assistance by
decision that is erroneous wi ll result in reversal of the trial
                                                                      properly objecting, and the exhibit been excluded.
court's judgment only if, upon a [*6] review of the entire
record, the defendant was harmed, that is, only if the
                                                                      A. Applicable law
appellate court has "grave doubt" that the outcome "was free
from the substantial effect of the error." See Barshaw v.
                                                                      I. Due Process
State. 342 S. W.3d 91. 93-94 (Tex. Crim. App. 201]);
Alexander v. State. 740 S. W.2d 749. 765 (Tex. Crim. App.             HNS ln the context of a due process violation stemming
1987).                                                                from the prosecutor's use of false or misleading evidence at
                                                                      the punishment phase of trial, harm is established upon
B. Application of law to Facts                                        "pro[of] beyond a reasonable doubt that the error complained
Applying the appropriate standard, we conclude no abuse of            of .. . contribute[d] to the verdict obtained." See Ex parte
discretion occurred in allowing the complainant to testify            Ghahremani. 332 S. W.3d 470. 477-78 (Tex. Crim. App.

    Garrett also argues the prosecutor's conduct violated his right to due course of law under the Texas Constitution. However, he fails
to argue the Texas due course of law provision provides greater protection than the federal due process clause, and the case upon wh ich
he relies, Ex parte Ghahremani. 332 S.W.3d 470 (Tex. Crim. ApD. 2011), involved a due process claim only. See Ghahremani. 332
S.W.3d at 477; see also Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (HN4 defendant forfeited claim on appeal that state
due course of law clause provided more protection than federal due process clause by failing to raise claim at trial); Manns v. State, 122
S.W.3d 171, 192 n.97 (Tex. Crim. App. 2003) (analyzing claim that appellant improperly impeached with [*8] illegal.ly obtained
recorded statement solely under Fourth Am endm ent jurisprudence; although appellant relied upon Texas Constitution at trial, on appeal
he did not cite to that provision or explain how its protections differ from the Fourth Amendment).

                                                                Page 4 of 6
                                                 2015 Tex. App. LEXIS 8439, *7



2011 ). HN6 A due process claim, like many others however,          Finally, in urging in closing argument a lengthy sentence,
is not preserved for review on appeal unless it was raised at       the prosecutor characterized Garrett as both a "child
trial. See TEX. R. APP. P 33. ](a); Broxton v. State, 909 S. W.2d   molester" and "wife beater," referring to the exhibit and the
912. 918 (Tex. Crim. App. 1985).                                    testimony of the complainant and her mother that Garrett
                                                                    had been violent towards the mother.
2. Authentication and Link of Records
                                                                    In its brief on appeal, the State refers to the prosecution's
H N7 In the context of the erroneous admission of evidence          statements that Garrett was convicted of "simple battery" as
at punishment, harm is established if the record as a whole         a "mischaracterization." No explanation for the prosecutor's
reflects a reasonable probability that the evidence might           action is attempted. HN9 Misleading the jury as to the
have affected the punishment assessed. See Alexander. 740           evidence is indefensible. See Ex parte Davis. 957 S. W.2d 9.
S. W.2d at 765.                                                     13 CTex. Crim. App. 1997) (characterizing as "reprehensible"
                                                                    prosecutor's actions in misleading the jury as to why certain
3. Ineffective Assistance of Counsel                                evidence was not tested and the quality of the investigation
                                                                    conducted by the police). While we cannot condone what
H N8 To obtain a reversal based on harm from counsel's              the State refers to as "mischaracterization" and find such
deficient performance at punishment, an appellant must              action reprehensible, in determining harm, we must review
show that "a reasonable probabi lity [exists] that, but for         the entire record and not only the action of the State as to the
counsel's unprofessional errors, the result of the punishment       exhibit.
hearing would have been different." [*9) See Andrews v.
State. 159 S. W.3d 98. 101. 103 (Tex. Crim. App. 2005).             Garrett was charged with HNJO engaging in sexual contact
                                                                      [* ll )  with the complainant, a second degree felony
B. Application of Law to Facts                                      punishable by imprisonment for any term of not more than
                                                                    twenty years or less than two years and an optional fine not
As to Garrett's due process claim raised in his first issue, we     to exceed $10,000. See Tex. PENAL Cove ANN. §§ 12.33,
conclude it was not preserved for our review as his sole            21.JJ(a)(]), f.J1l (West 2011). In closing argument, defense
objection to State's Exhibit 2 at trial was that the documents      counsel asked the jury to "show some mercy" to Garrett,
were not "authenticated." See Broxton. 909 S. W.2d at 918.          consider his steady employment and "his whole life," and
Accordingly, we decide his first issue against him.                 assess the minimum sentence. The prosecutor, characterizing
                                                                    "child molestation" as the "worst" of the second-degree
Issues four and five address the alleged erroneous admission        felonies, asked the jury to start at the top of the punishment
of State's Exhibit 2 because it was not properly authenticated.     range and "then start factoring in things . .. we [can] give
As stated above, State Exhibit 2 reflected Garrett was              [Garrett] credit for . . . [and things] we [can] hold as
charged with "simple battery" and "interference with                aggravating factors against him." The jury followed neither
government property," but the "simple battery" charge was           defense counsel's plea for the minimum two-yea r sentence
dismissed when Garrett pleaded gui lty to the "interference         nor the prosecutor's implied plea for the maximum
with government property" charge. However, the record is            twenty-year sentence. Instead, it assessed a nine year
clear that the jury was misled as to the content of the exhibit     sentence and $4000 fine.
and what it stated as to Garrett's criminal history. Garrett's
                                                                    While the jury heard from the prosecutor that Garrett was a
daughter was led to testify that the exhibit "appeared to
                                                                    "wife beater" and had been convicted of assaulting his first
reflect" Garrett was convicted of assau lting her mother.
                                                                    wife, the jury also heard (I) the complainant's testimony
Then, when admitted as evidence, the prosecutor published
                                                                    that Garrett molested her at least four times, she was fearful
the exhibit to the jury saying:
                                                                    of Garrett, and she knew Garrett had hit her mother [*12)
                                                                    and brother; (2) the complainant's mother's testimony that
    This is a conviction, case 98-CR-5451 -5 out of DeKalb
                                                                    Garrett physically assaulted her several times during their
    County, Georgia Superior Court for simple battery. It
                                                                    four-year relationship; and (3) Garrett's daughter's testimony
    states: On the 26th day of May 1998, the defendant,
                                                                    that the father she knew was not violent. Further, State's
     [* IO) Robert Garrett, did intentionally make physical
                                                                    Exhibit 2 was admitted into evidence and available for the
    contact with an assaultive provoking nature of the
                                                                    jury to review.
    person Sharyl Williams. There's also a probation
    revocation order fi led on May 14, 2002 in the same             Given the nature of the testimony before the jury, including
    cause number.                                                   the evidence supporting the verdict, and the punishment

                                                              Page 5 of 6
                                              2015 Tex. App. LEXIS 8439, *12



assessed, we cannot conclude the jury would have assessed        probabi lity that the jury's assessment of punishment . . .
a different sentence had State's Exhibit 2 been excluded.        would have been less severe in the absence of defense
Cf, e.g., Chapman v. State. 150 S.W.3d 809. 818-19 (Tex.         counsel's deficient performance."). Accordingly, his second
App.- Houston U4th Dist.12004. pet. refd) (in aggravated         and third issues are also decided against him.
sexual assault case, admission of outcry testimony of
extraneous offense was harmful where punishment ranged           IV. CONCLUSION
from five years to ninety-nine years or life and jury assessed
eighty-eight year sentence); Aleman v. State. 49 S. W.3d 92.     Having decided Garrett's six issues against him, we affirm
96 (Tex. App.- Beaumont 2001. no pet.) (in display of            the trial court's judgment.
harmful material to minor case, admission of three driving
while intoxicated judgments was harmful where prosecutor         /Douglas S. Lang/
relied on them to urge maximum sentence and jury assessed
                                                                 DOUGLASS. LANG
maximum punishment of one year confinement in jai l and
$4000 fine). We decide Garrett's fourth and fifth issues
                                                                 JUSTICE
against him.
                                                                 Do Not Publish
As to issues two and three, respecting Garrett's ineffective
assistance of counsel claim, because the issues [*13] arise      TEX. R. APP. P. 47
from the admission into evidence of State's Exhibit 2 and
we have concluded Garrett was not harmed by the admission        J UDGMENT
of the exhibit, we necessarily conclude defense counsel's
performance as to the exhibit did not prejudice Garrett. See     Based on the Court's opinion of this date, we AFFIRM the
Lair v. State, 265 S. W.3d 580. 595 (Tex. App.- Houston U st     trial court's judgment.
Dist. I 2008. pet. refd) (HNll in determining whether
counsel's deficient performance prejudiced appellant at          Judgment entered this 12th day of August, 2015.
punishment, inquiry is "whether there is a reasonable




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