                                                        June 17, 2015

                   NO. PD-0551-15

     IN THE COURT OF CRIMINAL APPEALS OF TEXAS


                      AT AUSTIN



                  NO. 14-13-00921-CR

          IN THE COURT OF APPEALS FOR THE


           FOURTEENTH DISTRICT OF TEXAS


                    AT HOUSTON



MARQUE JAMAL COLEMAN,                APPELLANT

V.


THE STATE OF TEXAS,                  APPELLEE




 APPELLANT'S PETITION FOR DISCRETIONARY REVIEW



                        Danny K. Easterling
                        Easterling & Easterling, P.C.
                        Texas Bar No. 06362100
                         1018 Preston, 6,h Floor
                        Houston, TX 77002
                        (713)228-4441
                        E-mail:eaepc@swbell.net
                        Counsel for Appellant,
                        Court-appointed on appeal.


            ORAL ARGUMENT REQUESTED.
                STATEMENT REGARDING ORAL ARGUMENT


      The appellant requests oral argument because of the novelty and importance

of the issues presented.

                           LIST OF INTERESTED PARTIES


Marque Jamal Coleman                      Appellant, Defendant in trial court

Cheryl Irvin                              Appellant's Counsel at trial
917 Franklin, Fourth Floor
Houston, TX 77002

Equator L. Turner
440 Louisiana, Suite 900
Houston, TX 77002

Danny K. Easterling                       Appellant's counsel on appeal
1018 Preston, 6th Floor
Houston, TX 77002

Devon Anderson                            Harris County District Attorney
1201 Franklin, Suite 600
Houston, TX 77002

Stuart Ladner                              Assistant District Attorneys
Gretchen Flader
Melissa Hervey

Hon. Leslie Brock Yates                    Visiting Judge, 174th District Court
                                           Harris County, Texas
                               TABLE OF CONTENTS


Statement Regarding Oral Argument                                                  i

List of Authorities                                                            iv


Statement of the Case                                                          1


Statement of Procedural History                                                2

Questions Presented                                                            2

      1. Did the Court of Appeals err in holding that the appellant was not
      entitled to the submission of a jury instruction on Theft from Person
      as a lesser included offense because evidence did not directly
      address the appellant's state of mind?

      2. Did the Court of Appeals' err in holding that an instruction to
      disregard evidence sufficiently cured guilt-stage testimony indicating
      that Coleman had some connection with a gang?

Argument                                                                       3

      Reasons for Review of Question One                                       3

             A.       The Applicable Law                                       3

             B.       The Scintilla - or More - of Evidence                    5


             C.       The Court of Appeals'Narrow View of the Standard         5

      Reasons for Review of Question Two                                       9

             A.       The Applicable Law                                       9

             B.       The Improper Revelation                                  11

             C.       The Inadequacy of an Instruction                         12
Prayer for Relief                                             15

Certificate of Compliance                                     15

Certi ficate of Service                                       16

Appendix: Court of Appeals' Memorandum Opinion and Judgment




                                    in
                           LIST OF AUTHORITIES


Cases                                                                      Page

Allen v. State, 513S.W.2d 556 (Tex. Crim. App. 1974)                          14

Anderson v. State, 901 S.W.2d 946 (Tex. Crim. App. 1995)                      11

Barclay v. Florida, 463 U.S. 939,103 S.Ct. 3418,77 L.Ed.2d 1134 (1983)       10

Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992)      10

Earls v. State, 707 S.W.2d 82 (Tex. Crim. App. 1986)                           4

Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992)                     10-11

Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007)                     3-4, 10

McKay v. State, 707 S.W.2d 23 (Tex. Crim. App. 1985)                       11-12

Nguyen v. State, No. 14-11-00706-CR, 2012 WL 3043063, at *3
     (Tex. App.-Houston [14th Dist.] July 26, 2012, pet.ref d)                 9

Schweinle v. State, 915 S.W.2d 17 (Tex. Crim. App. 1996)                       4

UnitedStates v. Lemon, 723 F.2d 922 (D.C. Cir. 1983)                          11

Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000)                       12

Constitutional Provisions. Statutes, and Rules


TEX. CODE CRIM. PROC. Art. 37.09                                               3


TEX. CONST. Art. I, § 10                                                     8-9

TEX. PENAL CODE §6.03©                                                         7

TEX. PENAL CODE §6.03(d)                                                       7


                                        iv
TEX. PENAL CODE §29.02(a)( 1)       5

TEX. PENAL CODE §31.03(e)(4)(B)    4

TEX. R. APP. PROC. 66.3(b)        6-7

U.S. CONST. Amend. V              8-9
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:


     COMES NOW the appellant, Marque Jamal Coleman (hereinafter "Coleman"),

through the undersigned court-appointed counsel on appeal, and respectfully

requests that this Court grant discretionary review of the decision in this cause by

the Court of Appeals for the Fourteenth District of Texas, for reasons set forth as

follows.


                                  STATEMENT OF THE CASE


      Coleman was indicted for Robbery in Cause Number 1347307 in the 174th

District Court of Harris County, Texas (CR-9).l A jury found Coleman guilty as

charged (CR-607). At the punishment stage Coleman stated that two enhancement

allegations relating to prior felony convictions were true (RR V-5). Coleman also

stipulated that he had other prior convictions for diverse offenses (RR VIII, Exh.

1). The visiting trial judge, Hon. Leslie Brock Yates, assessed punishment at

confinement for thirty years in the Texas Department of Criminal Justice,

Correctional Institutions Division (CR-609). Coleman gave timely notice of appeal

(CR-614).

        On appeal Coleman presented two points of error. First he argued that the

trial court judge should have instructed the jury on Theft from Person as a lesser

included offense for the charged offense of Robbery. Coleman also argued that a

1 The clerk's record containing court documents is designated by "CR" herein. The reporter's record is designated
by "RR." with Roman numerals for volume numbers. The Court of Appeals' memorandum opinion is designated by
"Mem. Opin."
detective interjected error into the proceedings when she revealed that a photo of

Coleman was taken from a "gang tracker database." The Court of Appeals

overruled both points of error and affirmed the judgment and sentence in a

memorandum opinion.

                 STATEMENT OF PROCEDURAL HISTORY


     The Court of Appeals rendered its decision and delivered its memorandum

opinion on April 16, 2015.       No motion for rehearing was filed. This Court

extended the time for filing a petition for discretionary review until June 17, 2015.

                           QUESTIONS PRESENTED


   This petition presents two questions for review:

      1. Did the Court of Appeals err in holding that the appellant was not

      entitled to the submission of a jury instruction on Theft from Person

      as a lesser included offense because evidence did not directly

      address the appellant's state of mind?

      2. Did the Court of Appeals' err in holding that an instruction to

      disregard evidence sufficiently cured guilt-stage testimony indicating

      that Coleman had some connection with a gang?
                                    ARGUMENT


                REASONS FOR REVIEW OF QUESTION ONE

      Did the Court of Appeals err in holding that the appellant was not
      entitled to the submission of a jury instruction on Theft from
      Person as a lesser included offense because evidence did not
      directly address the appellant's state of mind?

                               A. The Applicable Law

      Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), observed that TEX.

CODE CRIM. PROC. Art. 37.09 sets forth the ways in which an offense may

constitute a lesser included offense of the offense charged in the indictment. An

offense is a lesser included offense if:

      (1) It is established by proof of the same or less than all the facts
      required to establish the commission of the offense charged;

      (2) It differs from the offense charged only in the respect that a less
      serious injury or risk of injury to the same person, property, or public
       interest suffices to establish its commission;

      (3) It differs from the offense charged only in the respect that a less
      culpable mental state suffices to establish its commission; or

      (4) It consists of an attempt to commit the offense charged or an
      otherwise included offense.


Under Hall, supra at 531, "when the greater offense may be committed in more

than one manner, the manner alleged will determine the availability of lesser-

included offenses. In this cause, for example, the indictment alleged that Coleman
caused bodily injury, rather than threatening it, so the analysis must focus on what

lesser offenses might apply to that form of Robbery.

       Hall specifically held that the determination as to whether a charged offense

includes another particular offense as a lesser included offense, under the first

alternative in Article 37.09, "should be made by comparing the elements of the

greater offense, as the State pled it in the indictment, with the elements in the

statute that defines the lesser offense." Id., at 525. The controlling test is whether

"the elements of the lesser offense are established by proof of the same or less than

all the facts required to establish the commission of the charged offense." Id., at

536.   In this cause the State conceded - and the Court of Appeals held (Mem.

Opin., p. 4) - that the offense of Theft from Person, under TEX. PENAL CODE

§31.03(e)(4)(B), can be a lesser included offense of Robbery. This Court had so

held in Earls v. State, 707 S.W.2d 82 (Tex. Crim. App. 1986).

       That statute-based determination is the first step in a two-step analysis. The

second step is to determine whether or not a lesser included offense has been raised

in a particular case. The test for this second step is whether there is "some evidence

which would permit a rational jury to find that if guilty, the defendant is guilty

only ofthe lesser offense." Schweinle v. State, 915 S.W.2d 17 (Tex. Crim. App.

1996). "Anything more than a scintilla ofevidence from any source is sufficient to
entitle a defendant to submission of the issue." Id. The Court of Appeals held that

this prong of the test was not met and therefore overruled the point of error.

                     B. The Scintilla - or More - of Evidence


      Hortensia Garza testified that she was returning home from work at around 2

a.m. on April 28 2012 (RR III- 13-14). Garza had parked her car at her apartment

complex and was walking toward her apartment. As she got close to her apartment

a man appeared, about only two feet from her (RR 111-23). She thought he was a

resident and smiled at him but did not say anything (RR 111-23). As the man

walked past, he tried to grab a backpack that Garza was carrying over her left

shoulder (RR 111-26). Garza "fought" to keep the backpack for about 30 seconds

until the man "shoved" Garza in the face with the palm of his hand (RR 111-28).

That knocked Garza down, and the man ran off with the backpack. As a result of

falling to the ground, Garza hit her head, but she did not claim any injury from that

(RR 111-29). Garza broke a finger as she landed on the ground (RR 111-29-30).

Garza identified the appellant in court as the man who assaulted her (RR 111-30).

            C. The Court of Appeals' Narrow View of the Standard

    Coleman argued in the Court of Appeals that there was some evidence that he

shoved Garza without having the mens rea required for Robbery under TEX.

PENAL CODE §29.02(a)(l), i.e./'intentionally, knowingly, or recklessly" causing
bodily injury. Coleman argued that his goal was to steal, not to hurt Garza. There

was at least some indication that Garza fell, and thereby broke her finger, because

of her size and weight. Garza said "I am short, but I got some weight on me. In

order to knock me down, you have to push me hard."

      Another indication that Coleman only intended to make a quick grab and run

off to the escape vehicle with his plunder was his method of walking past and

catching Garza off guard. Coleman pushed Garza instead of using the kind of

fighting blows like punching, kicking, etc., which would be more consistent with

an intent to actually injure someone. The act of pushing may indicate a mere desire

to create distance between the assailant and the victim, thus preventing hand-to-

hand resistance and giving the assailant a head start in any ensuing chase.

      The Court of Appeals nevertheless declined to consider testimony about the

physical contact and how it led to a broken finger as evidence which might go to

the question of mens rea, stating:

      Garza's testimony only speaks to causation, not Coleman's mental
      state as to whether he intended to cause Garza bodily injury.

(Mem. Opin., pp. 6-7). But did the testimony only have relevance to causation?

      This Court is presented with an important but unsettled legal question: May

the "scintilla" of evidence to show a lesser culpable mental state, and thus justify a

jury instruction, consist of indirect or circumstantial evidence regarding actions
and consequences? By effectively holding that it may not, the Court of Appeals is

giving too narrow a reading to the second prong of the test for entitlement to an

instruction. This is an issue worthy of this Court's examination under TEX. R.

APP. PROC. 66.3(b).

      Consider the difference between "recklessness" (which is the lowest of the

three levels of mens rea for Robbery under the "causes injury" prong of the statute)

and "criminal negligence." TEX. PENAL CODE §6.03(c) provides:

      A person acts recklessly, or is reckless, with respect to circumstances
      surrounding his conduct or the result of his conduct when he is aware
      of but consciously disregards a substantial and unjustifiable risk that
      the circumstances exist or the result will occur. The risk must be of
      such a nature and degree that its disregard constitutes a gross
      deviation from the standard of care that an ordinary person would
      exercise under all the circumstances as viewed from the actor's
      standpoint.

In the context of a Robbery prosecution based on "causing" injury, the recklessness

would apply to the result of conduct, i.e. causing the particular injury suffered by

the complainant. Criminal negligence, under TEX. PENAL CODE §6.03(d), is

distinguishable in that the actor need not actually be "aware" of the risk. It is

applicable when a reasonable person ought to be aware of the risk.

      An actor's state of mind often is suggested by his specific actions and/or by

the circumstances of an encounter. The State has advanced that proposition in

thousands ofjury arguments over the years, and that logic is well embedded in case
law too. Should not the same principle apply when the issue is whether another

offense may be indicated? In this cause Coleman's actions do not indicate that he

actually was aware that his "push and grab" theft technique was designed to cause

injury. Nor does the evidence indicate that the risk that Garza could break her

finger by falling was a "substantial" one in a "push and grab" theft.

      Thus some of the evidence pointed more towards criminal negligence than it

pointed towards recklessness with respect to physical injury. That should be

enough to justify a lesser included offense instruction, for the only way to raise the

question of a lesser mens rea and actually rule out a greater mens rea would be for

the defendant to testify. Surely the second prong of the test should not be pushed to

the point where it virtually requires a defendant to testify, since that would

undermine constitutional rights under U.S. CONST. Amend. V and TEX. CONST.

Art. I, §10.

       Coleman realizes that it could be argued that, if the mens rea of recklessness

is doubtful, the trial court should simply instruct that reasonable doubt on the mens

rea requires acquittal. In practice, however, it is likely that a jury will not

completely acquit a defendant who is shown to have committed at least a state jail

felony offense. Furthermore, for defense counsel to have to argue for a complete

acquittal, based on a lack of clarity as to whether a defendant was reckless or only
criminally negligent, would itself be perilous to the Fifth Amendment privilege

(and the similar privilege under Article I, Section 10), for the jury would know that

only one person could give testimony making such a fine distinction.

      In fact, a case cited by the Court of Appeals suggests that even abandoning

constitutional protections might be to no avail in obtaining an instruction on the

theory of a lesser offense. A memorandum opinion, Nguyen v. State, No. 14-11-

00706-CR, 2012 WL 3043063, at *3 (Tex. App.-Houston [14th Dist.] July 26,

2012, pet.refd) was cited as "holding that [the] defendant was not entitled to a

lesser included offense instruction because the evidence showed that he acted

intentionally, despite claiming that 'he never intended to harm the complainant.'"

      Finally, there is room here even for a more fundamental consideration of

whether the "guilty only" element of the standard needs to be reconsidered, or at

least not applied to charge requests centered on mens rea. In the long run that

would simplify the law, aid jury deliberations, and avoid some appellate litigation,

all at the relatively small cost of adding a page to some jury charges. Whatever the

right solution is, the first step is to grant discretionary review.
                 REASONS FOR REVIEW OF QUESTION TWO

      Did the Court of Appeals err in holding that an instruction to
      disregard evidence sufficiently cured guilt-stage testimony
      indicating that Coleman had some connection with a gang?

                                A. Applicable Law

      It is a cardinal principle of criminal law that a felony defendant should be

tried for the offense charged in the indictment. Hall, supra at 532 called this

principle an "ancient doctrine of both the common law and of our Constitution."

One way in which this doctrine can be breached is through evidence which

improperly reveals other criminal conduct or suggests the bad character of the

defendant at the guilt stage of trial. One type of such evidence is testimony which

links a defendant to organized criminal activity or to a group identified as a "gang"

by the police.

      In Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309

(1992), the Supreme Court held that evidence showing that Dawson was a member

of a prison gang affiliated with the Aryan Brotherhood was not relevant to

sentencing, Dawson distinguished cases such as Barclay v. Florida, 463 U.S.

939,103 S.Ct.3418,77 L.Ed.2d 1134 (1983), where the crime was a racially-

motivated murder. In the wake of Dawson, this Court has approved of introducing

gang-affiliation evidence in some cases. In Fuller v. State, 829 S.W.2d 191 (Tex.



                                         10
Crim. App. 1992), the Court appeared to approve a three-part relevancy test for

admission of such evidence, derived from United States v. Lemon, 723 F.2d

922,941 (D.C. Cir. 1983), although Fuller is a little murky in that respect because

the issue in Fuller ultimately was decided on the basis of procedural default.

Under the Lemon test, evidence of group affiliation is not to be admitted at the

punishment stage unless it establishes that (1) the defendant is a member of the

group, (2) the group's aims are illegal, and (3) the defendant intended to further

those illegal aims. Fuller, supra; Lemon, supra. See also Anderson v. State, 901

S.W.2d 946 (Tex. Crim. App. 1995). It has never been suggested by this Court that

proof of the Lemon factors would be sufficient to justify admission of gang

affiliation evidence at the guilt stage of trial.

       As with other evidence, a witness could step over the line and introduce the

fact of gang affiliation. As with other improper, an objection is required, and if it

is sustained, then the trial court judge should be requested to give an instruction

that the jury must disregard the improper testimony. Once that is done, the question

becomes whether a requested mistrial also should be granted. That issue is the basis for

this point of error.

       The Court of Appeals accurately summarized the general rule in this area, stating:

       Generally, any error resulting from improper testimony is cured by an
       instruction to disregard the same except in extreme cases where it
       appears that the evidence is clearly calculated to inflame the minds of

                                             11
      the jury and is of such a character as to suggest the impossibility of
      withdrawing the impression produced on their minds. McKay v. State,
      707 S.W.2d 23, 36 (Tex. Crim. App. 1985). In most instances, an
      instruction to disregard the remark will cure the error. Wesbrook v.
      State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). "Only offensive or
      flagrant error warrants reversal when there has been an instruction to
      disregard ... ." Id. at 116.

The question is whether that general rule should apply.

                             B. The Improper Revelation

       Coleman was tracked down through information about a vehicle which was used in

his escape. Houston Police Detective S. Spivey testified that a photo of Coleman's

picture was in a "gang tracker" database used by the Houston Police (RR IV-31-32).

Spivey mentioned discovering "all the evidence"in that review, but, as the Court of

Appeals observed, without explaining what that meant (Mem. Opin., p. 8).

       Defense counsel promptly objected. The objection was sustained, and a

perfunctory instruction to ignore the evidence was given, but the request by

Coleman's counsel for a mistrial was denied (RR IV- 34-35).

                       C. The Inadequacy of an Instruction

       It is useful to begin by recognizing the obvious: Anyone on the jury would infer

that Coleman's picture was in that police database because the police had some reason

to think that Coleman was a member of a criminal gang or otherwise was affiliated

with a gang.     Spivey's vagueness about the "evidence" derived from the "gang

tracker" hardly mattered.


                                            12
      The Court of Appeals held that the instruction adequately cured the harm. The

Court of Appeals "presume[d] that the jury followed the trial court's instruction to

disregard." Should that presumption apply, however, when the concept of "guilt

by association" is implied? That concept is inimical to one of the most basic tenets

of the law, as discussed in Part A, supra. The Court of Appeals cited a pair of

intermediate appellate opinions finding no harm in a witness' allusion to a gang,

but no petitions for discretionary review were filed in those cases (Mem. Opin., pp.

9-10). The very fact that this problem continues to arise, in diverse courts around

the State, suggests that it is time for this Court to provide guidance. The mere

spectre of a mistrial or reversal does not seem to be an effective deterrent.

      The Court of Appeals noted that the officer's testimony "was immediately

cut off by the defense counsel" (Mem. Opin., p. 9). After that, it was not mentioned

again. Id. Thank goodness for that, but the sound of one firecracker can be loud

enough. The Court of Appeals also pointed out that "Officer Spivey did not

provide any detail as to which gang Coleman was affiliated with nor did she

expand on any information surrounding the gang tracker database" (Mem. Opin., p.

9). It is impossible to know, however, if the lack of clarification helped or hurt,

once the horse was out of the barn. Say "Gang" and most people will think of the

Cosa Nostra, the Crips or Bloods, MS-13, or the kind of motorcycle gangs which

were involved in the recent Waco incident. The only thing the jurors would know

                                           13
for sure was that this "gang," whatever its size, principles, or activities, was

involved in enough bad things to justify being monitored by the police. The Court

of Appeals said that Spivey's particular statement was not "flagrant" or

"offensive," but that misses the point: criminal gangs are inherently offensive to

jurors, and the risk of tainting the guilt-stage deliberations is genuine and

substantial.


      It is true that there have been many cases, spanning decades, which have relied

upon the adequacy of a curative instruction when extraneous misconduct is dredged

up by a witness. See Allen v. State, 513S.W.2d 556 (Tex. Crim. App. 1974) and cases

cited therein. In most of those cases, however, the evidence concerned a defendant's own

conduct or reputation, and the nature of the extraneous misconduct was clear enough that

a jury would not be invited to speculate about "what else" a defendant might have done.

Once evidence of gang affiliation appears, however, the jurors' imaginations can run

wild. It may well be futile, or even counterproductive, to tell jurors to "pay no attention

to that gang of men behind the curtain."




                                            14
                            PRAYER FOR RELIEF


      Wherefore Coleman prays that discretionary review be granted as to both

      questions.

                               Respectfully submitted,

                               /s/ Danny K. Easterling
                               Danny K. Easterling
                               Easterling & Easterling, PC
                               Texas Bar No. 06362100
                               1018 Preston, 6lh Floor
                               Houston, TX 77002
                               (713)228-4441
                               E-mail: eaepc@swbell.net

                               Counsel for Appellant,
                               Court-appointed on appeal.


                     CERTIFICATE OF COMPLIANCE


      I certify that this petition was prepared using Wordperfect with fourteen-

point font, and twelve-point font for footnotes, in Times New Roman typeface.

Omitting the portions not included for the word limit, this petition contains 3100

words.


                                     /s/ Danny K. Easterling
                                     Danny K. Easterling




                                        15
                          CERTIFICATE OF SERVICE


      I certify that a copy of this petition has been served on counsel for the State

at the following addresses on this the 17th day of June, 2015:

      Harris County District Attorney's Office       Lisa McMinn
      Appellate Division                             State Prosecuting Attorney
      Attention: Melissa Hervey                      P.O. Box 12405
      1201 Franklin, Suite 600                       Austin, TX 78711
      Houston, TX 77002



                                        /s/ Danny K. Easterling
                                        Danny K. Easterling




                                          16
