                                                                         PD-0143-15
                                                        COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                      Transmitted 3/9/2015 12:12:23 PM
                                                        Accepted 3/10/2015 9:36:05 AM
                                                                          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 APPELLEE’S 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
__________________________________________________________________

 APPELLEE’S 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
      March 10, 2015           (210) 223-3248 – FAX
                               DAYNAJ33@GMAIL.COM


                               ORAL ARGUMENT REQUESTED




                                  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

Request for Oral Argument ........................................................................................ 1

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

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

Grounds for Review ................................................................................................... 2

Argument and Authorities.......................................................................................... 3

Prayer for Relief ....................................................................................................... 14

Certificate of Service ............................................................................................... 15

Certificate of Compliance ........................................................................................ 15

Appendix ..................................................................................................................16




                                                             ii
                                  TABLE OF AUTHORITIES
Cases:
Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App., 1984) ....................... 2-3, 5-7, 9
Archie v. State, 340 S.W.3d 734 (Tex. Crim. App. 2011) ...................................... 12
Blake v. State, 971 S.W.2d 451 (Tex.Crim.App.,1998) ...................................11, 14
Casanova v. State, 383 S.W.3d 530 (Tex.Crim.App.,2012) ..................................... 8
Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004) ............................ 4, 7
Ex parte Wheeler, 203 S.W.3d 317 (Tex.Crim.App.,2006) ............................. 2-4, 7
Garcia v. State, 2013 WL 4033890, 5 (Tex.App.-Corpus Christi, 2013) .............. 11
Herron v. State, 86 S.W.3d 621 (Tex.Crim.App., 2002) .................................... 9-11
Igo v. State, 210 S.W.3d 645 (Tex.Crim.App.,2006) ............................................... 8
Oregon v. Kennedy, 456 U.S. 667 (1982) ......................................................... 2-3, 7
State v. Ambrose, --S.W.3d--, 2015 WL 102194 (Tex.App.-San Antonio,2015) ... 2,
6, 8-13
State v. McKnight, 213 S.W.3d 915 (Tex.Crim.App.,2007) ..................................... 8


Rules:
Texas Rule of Appellate Procedure 9.3 ................................................................... 15
Texas Rules of Appellate Procedure 68.4(d) ............................................................. 1




                                                     iii
              STATEMENT REGARDING ORAL ARGUMENT

      Because the issue raised in this brief presents a novel issue that, under the

facts and procedural history of this case, has not been decided by this court under

the facts of this case, oral argument will be helpful and is requested pursuant to Rule

68.4(d) of the Texas Rules of Appellate Procedure.

                          STATEMENT OF THE CASE

      Petitioner, who was a kindergarten teacher, was tried and convicted of the

misdemeanor offense of official oppression in the 226th Judicial District Court in

Bexar County, Texas. At trial, the state alleged that Petitioner directed and allowed

other kindergarten students in her classroom to strike another student who had been

brought to her class by his teacher, Mrs. Ramirez, for discipline.

      Petitioner 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 Petitioner 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.




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

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

ruling on the egregious harm issue and affirmed the conviction.

      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 Petitioner’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 Petitioner 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.

                            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
      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)?

                       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, 102 S.Ct. 2083, 2090 (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




                                          3
had been sitting as a trial judge.”] 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 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.” Id. “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.



                                           4
        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 Id.

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

        After laying out his factual findings and correctly citing the egregious harm

standard, the trial court found that Petitioner suffered egregious harm. Specifically,

the trial court concluded: “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 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.” 1CR6-101.

        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



1
 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,


                                                      5
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 Petitioner 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

appellate 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



                                           6
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.

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).

       Where 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. Here, Judge Harle

made express findings of fact and also concluded that he was present for the

testimony and presided over trial and in his assessment of the evidence Petitioner

suffered egregious harm. 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



                                             7
fact to ultimate fact that a jury might readily reject.” Casanova v. State, 383 S.W.3d

530, 539 (Tex.Crim.App.2012).

       The Fourth Court of Appeals’ decision substitutes its own view of the

evidence for the trial Court’s and does not defer to his express and implicit factual

findings. 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.2

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

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

own view of the evidence, the appellate court violated established precedent and

failed to defer to the trial court’s factual findings and credibility determinations.

       The issue presented by Petitioner is 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, 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. In cases such as this, where the trial court does apply


2
 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.


                                               8
the correct egregious harm standard and makes factual findings and conclusions of

law that are supported by the record, 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.

      II. Ground Three

       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 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

Petitioner’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



                                           9
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

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 Petitioner’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 mentioned the “state of the jury charge”, which included a

general instruction that the witnesses were the sole judges of the witnesses credulity,

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

                                          10
emphasizing that Petitioner needed to be connected to the crime charged with non-

accomplice evidence, therefore this issue weighs in favor of Petitioner. 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

(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 of Petitioner suffering egregious harm as well.

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

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



                                         11
evaluating Petitioner’s own testimony, the appellate court erroneously found that

Petitioner’s 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 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 the intent of Petitioner 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 Petitioner or being mistreated

in her classroom, was clearly inconsistent with any other witness’ version of the



                                          12
events.3 3RR55-58. Specifically, A.N.’s testimony, which was not even considered

by the reviewing court. He testified that he did not know the difference between a

truth and a lie. 3RR55. He did not know his own birthday. 3RR56. He testified

that he did not know Petitioner. 3RR57. He did not remember a day when his

teacher took him to Petitioner’s class. Id. 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.” He was then 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 testified that 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.



3
  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.


                                             13
He finally agreed that he remembered other kids hitting him and when asked how

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

Ramirez testified to.

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

Petitioner’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’s testimony 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.

                     PRAYER FOR RELIEF
      WHEREFORE, PREMISES CONSIDERED, the Petitioner prays this Court

grant this Petition for Discretionary Review, reverse the Fourth Court of Appeals’

opinion affirming the conviction and remand Petitioner’s case for a new trial.

                                        Respectfully submitted:

                                        __/s/Dayna L. Jones_______

                                          14
                                       Dayna L. Jones
                                       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

                         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 March 8, 2015.

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

                     CERTIFICATE OF COMPLIANCE
      Pursuant to Texas Rule of Appellate Procedure 9.3(i)(1) and (3), I certify

that, according to Microsoft Word’s word count, this document contains 3,387

words.

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




                                         15
APPENDIX




   16
                               Fourth Court of Appeals
                                     San Antonio, Texas
                                             OPINION
                                         No. 04-13-00788-CR

                                        The STATE of Texas

                                                  v.

                                         Cynthia AMBROSE,
                                              Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012CR10002
                              Honorable Sid L. Harle, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice
Concurring Opinion by: Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: January 7, 2015

REVERSED AND REMANDED

           The State appeals the trial court’s order granting Cynthia Ambrose a new trial. The trial

court granted Ambrose’s motion on the basis that the trial court failed to sua sponte submit an

accomplice-witness instruction to the jury and that its failure egregiously harmed Ambrose. The

State challenges both components of the trial court’s basis for granting the motion. Because we

agree that the absence of an accomplice-witness instruction did not egregiously harm Ambrose,

we reverse and remand the case to the trial court.
                                                                                     04-13-00788-CR


                                          BACKGROUND

       In December 2012, Ambrose, a kindergarten teacher, was charged with Official Oppression

by subjecting A.N., a child at her school, to mistreatment by directing and allowing other children

to strike him. Ambrose pled not guilty.

The State’s Case

       Barbara Ramirez, a kindergarten teacher at Salinas Elementary in the Judson Independent

School District, testified that she and Ambrose each taught a separate kindergarten class at the

school. Salinas Elementary had a “buddy system,” which Ramirez explained was used by teachers

to correct a child’s behavioral problem before sending the child to the principal’s office and to

minimize the loss of a child’s instructional time. Ramirez also testified that Judson ISD prohibited

the use of corporal punishment to discipline students.

       Ramirez further testified that in early May 2012, A.N. (a student in her class) had

aggressively hit another child’s back and “couldn’t keep his hands to himself.” She decided to use

the buddy system and walked A.N. to Ambrose’s classroom. Ramirez told Ambrose about A.N.

bullying and hitting other students. Ambrose instructed A.N. to sit in a chair beside her desk and

asked him why he was bullying other students. According to Ramirez, when A.N. did not respond,

Ambrose said to the students in her class, “Come on, boys and girls, let’s line up and let’s bully

[A.N.].” Ramirez stated that several students stood up and Ambrose again said, “Come on, let’s

hit him.” The first few students rubbed or patted A.N. on the back, and according to Ramirez,

Ambrose said, “Well, let’s hit him harder.” Ramirez testified that about seven students lined up

and struck A.N. Ramirez stated that she left A.N. in Ambrose’s classroom and later sent another

student to bring A.N. back to her classroom.

       Ramirez testified that about two weeks later she decided to report the incident when she

heard Ambrose instruct a child to pinch another student. Ramirez reported both incidents to the
                                                -2-
                                                                                      04-13-00788-CR


school’s administration, specifically to Principal Jeffrey Large and Vice Principal Gerrie

Spellmann.

       During cross-examination, Ramirez admitted that she was given immunity to testify

truthfully, and that her failure to timely report the incident was a criminal offense. She also

admitted that she heard Ambrose tell the last student who struck A.N., “Okay, that’s too hard, not

that hard.”

       Large testified that Ramirez came to his office and described what had happened. He

conferred with Spellmann, and they decided to investigate Ramirez’s allegations. He testified that

he spoke with Ambrose the next morning. According to Large’s testimony, Ambrose told him that

Ramirez had brought a student over to her classroom because the student was bullying others. He

further testified that Ambrose “told us that she instructed the students to hit the other student but

not hard. She said that I believe two or three students hit the student and then a fourth student hit

too hard and then she stopped it immediately after that.” He also said that he informed Ambrose

that this conduct violated Judson ISD’s policy against mistreatment of students.

       On cross-examination, Large stated that it was probably true that there was reason to doubt

Ramirez’s report because two weeks had passed from the incident in Ambrose’s classroom to the

day when Ramirez reported it. He also said that because of Ambrose’s reputation as a good teacher

and disciplinarian, he had no reason to believe that Ambrose would do something like this. Large

stated that he sent Ambrose back to her classroom after he met with her.

       Spellmann provided additional testimony about Judson ISD’s policy against corporal

punishment. She also described the buddy system: “The buddy system is if a teacher has a child in

their classroom and they feel like they need a break away, a time away then they buddy up with

another classroom.” The system could be used if a child is misbehaving or as a reward for a student.

She explained that the buddy system is not used to have a teacher discipline a child. She also
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testified to being present during Large’s meeting with Ambrose. When Spellmann was asked what

Ambrose had said, Spellmann reviewed a prior statement to refresh her memory about what exactly

Ambrose had told her. Spellmann then testified, “[Ambrose] let us know 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.” She testified that after her interviews with the students, it seemed to her that the

students were told to strike A.N. On cross-examination, Spellmann stated that it was quite

unbelievable that a person would wait two weeks to report this incident.

        The State called two other teachers at Salinas Elementary to testify about what Ambrose

told them in the teacher’s lounge after her meeting with Large and Spellmann. Christine Wienstel

testified that Ambrose had said “someone told on her about something.” On cross-examination,

Wienstel admitted that she was not sure if Ambrose had used those exact words. Sharon Hons

testified that when she asked Ambrose why she seemed upset, Ambrose “just said someone had

tattletaled on her.” On cross-examination, Hons admitted that Ambrose did not say more about

what had upset her.

        The State also called A.N., who was seven years old at the time of trial, and A.N.’s two

older brothers to testify. A.N. initially testified that he did not know the difference between a truth

and a lie; he did not know when his birthday was; he did not know who Ambrose was; and he did

not remember when Ramirez took him to see Ambrose or an incident when a teacher told other

students to hit him. When A.N. was asked if he remembered his earlier talk with a prosecutor, A.N.

said “wait,” and then indicated that he was confused. He testified that he remembered when

Ramirez took him “on the buddy system” to another teacher’s class because he would not be quiet

one day. He said he did not remember what happened in that classroom, but indicated that he

remembered other kids hitting his back. When asked if he remembered how many kids hit him, he

responded, “I think like 21.” On cross-examination, A.N. said he did not tell his parents what had
                                                  -4-
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happened. A.N.’s two older brothers each testified that A.N. had told them on a bus ride home one

day that a teacher told other students to hit him. A.N.’s older brothers did not tell their parents

because, as both testified, they did not believe A.N.

Defense’s Case

       Ambrose was the sole witness who testified in her defense at the guilt-innocence phase of

trial. She denied instructing other students to hit another student. Ambrose testified that Ramirez

had walked into her classroom, complaining that A.N. was kicking and punching other students.

According to Ambrose, she asked Ramirez, “Do you want to scare [A.N.]? [Ramirez] said, Yes.”

Ambrose then testified that her class had heard the conversation and Ambrose asked them what

they thought should happen. Ambrose stated, “[S]ome were saying time out, one of them did say

he should get hit by the kids that he hit. So then I did say, Does anybody want to show him what

it feels like?” According to Ambrose, before she knew it one of her students got up and hit A.N.

Ambrose testified that there were a few more students who got up around A.N. and she told them

to get away from A.N. “And it really did happen fast like Ms. Ramirez said,” Ambrose explained.

She concluded her direct examination with a denial that she intended for any student to hit A.N.

       Ambrose also testified that she met with Large and Spellmann after the incident, and they

told her to go back to her class and continue teaching. She also admitted to being present in the

teacher’s lounge, but denied saying someone had “tattletaled” on her. She explained at trial that

she was mad that day because a friend of hers had been murdered by the friend’s spouse, and

Ambrose had learned that he would be attending the rosary.

       On cross-examination, Ambrose was questioned about whether she thought the other

witnesses had lied or perjured themselves. Her position was that Ramirez perjured herself about

what was discussed and what had occurred in the classroom; Large and Spellmann perjured



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themselves when they testified that she told them she instructed the students to hit A.N.; and that

Wienstel had lied to the jury when testifying that Ambrose said someone tattled on her.

       Ambrose admitted that she was a public servant, acting under color of state law in the

classroom when Ramirez brought A.N. to her. She conceded that if a teacher subjected a student

to discipline by corporal punishment, then it would constitute mistreating the student as well as an

assault. Ambrose testified that she was aware of other teachers at Salinas Elementary and other

schools having students hit other students, but denied that she did so.

Other Proceedings

       At the charge conference, there was no objection to the absence of an accomplice-witness

instruction. Following closing arguments, the court recessed for forty-two minutes before the jury

reached a verdict. The jury found Ambrose guilty. Ambrose elected to be sentenced by the court,

which sentenced her to one year’s confinement but suspended the sentence and placed her on

community supervision. Ambrose hired new counsel to file a motion for new trial, arguing that

she suffered egregious harm because the trial court failed to sua sponte instruct the jury on the

accomplice-witness rule.

       The trial court granted Ambrose’s motion solely on the ground of charge error and denied

the motion on the other grounds. In the trial court’s findings of fact and conclusions of law, it

concluded that Ramirez was an accomplice as a matter of law (and alternatively there was at least

a fact issue regarding her status as an accomplice) and that the omission of an accomplice-witness

instruction egregiously harmed Ambrose. The State appealed the trial court’s order.

                           STANDARD OF REVIEW & APPLICABLE LAW

       A trial court must instruct the jury on the law applicable to the case. Zamora v. State, 411

S.W.3d 504, 513 (Tex. Crim. App. 2013). Article 38.14 of the Code of Criminal Procedure

provides, “A conviction cannot be had upon the testimony of an accomplice unless corroborated
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by other evidence tending to connect the defendant with the offense committed.” TEX. CODE CRIM.

PROC. ANN. art. 38.14 (West 2005). The rule “does not require the non-accomplice evidence to be

sufficient in itself to establish the accused’s guilt beyond a reasonable doubt.” Perez v. State, 437

S.W.3d 610, 616 (Tex. App.—San Antonio 2014, no pet.). When an accomplice witness’s

testimony implicates the defendant in the charged offense, the accomplice-witness instruction is

law applicable to the case, and the trial court must instruct the jury on the rule even without a

request. Zamora, 411 S.W.3d at 513-14.

       In State v. McKnight, 213 S.W.3d 915, 916 (Tex. Crim. App. 2007) (per curiam), the Court

of Criminal Appeals required courts of appeal to review a trial court’s order granting a new trial

for charge error under the harm standards of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.

1984). We no longer review a trial court’s order granting a new trial under the traditional abuse-

of-discretion standard. State v. Sanchez, 393 S.W.3d 798, 802 (Tex. App.—El Paso 2012, pet.

ref’d) (citing McKnight, 213 S.W.3d at 915-16). In effect, McKnight’s holding requires a trial court

to apply Almanza’s harm standards when ordering a new trial based on the trial court’s failure to

instruct the jury on the law applicable to the case. See id.

       The degree of harm Almanza requires depends on whether the defendant timely objected

to the absence of a proper jury instruction. Id. at 802. When the defendant preserves error at trial

by timely objection to the absence of an accomplice-witness instruction, the record must establish

only “some harm” to obtain reversal. Id. When, as here, there is no timely objection to the absence

of an accomplice-witness instruction, we may affirm a trial court’s order granting a new trial only

if the record shows the defendant suffered egregious harm, which is when the omission of the

instruction deprived the defendant of a fair and impartial trial. Almanza, 686 S.W.2d at 171. The

egregious harm standard “is a difficult standard to meet,” Nava v. State, 415 S.W.3d 289, 298

(Tex. Crim. App. 2013), and usually requires corroborating evidence to be weaker than the “some
                                                 -7-
                                                                                       04-13-00788-CR


harm” standard. See Herron v. State, 86 S.W.3d 621, 633 (Tex. Crim. App. 2002) (“Obviously, all

other things being equal, the non-accomplice evidence would have to be stronger than what is

required in the egregious harm context.”). Almanza’s higher, egregious harm standard is applied

to further “the policy of encouraging the timely correction of errors, which is embodied both in

Article 36.19 and in our own rules of appellate procedure.” Igo v. State, 210 S.W.3d 645, 647 (Tex.

Crim. App. 2006).

       Egregious harm “affects the very basis of the case, deprives the defendant of a valuable

right, or vitally affects a defensive theory.” Fulcher v. State, 274 S.W.3d 713, 716 (Tex. App.—

San Antonio 2008, pet. ref’d). In the context of failing to instruct the jury on the accomplice-

witness rule, there is egregious harm when the corroborating evidence is “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). We

must “inquire whether the jurors would have found the corroborating evidence so unconvincing in

fact as to render the State’s overall case for conviction clearly and significantly less persuasive.”

Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). In assessing the harm caused by

failing to properly instruct the jury, 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.

                                             ANALYSIS

       We assume without deciding that Ramirez was an accomplice, and consider whether the

corroborating evidence—viewed in light of the jury charge, state of the evidence, arguments of

counsel, and other considerations—was so exceedingly weak that Ambrose was deprived of a fair
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and impartial trial. See TEX. R. APP. P. 47.1 (requiring us to hand down an opinion as brief as

practicable while addressing issues necessary to our final disposition).

       Ambrose agreed during her testimony that she was a public servant acting under the color

of state law and that subjecting a child to corporal punishment through other students would

constitute mistreatment. Thus, the only contested element of the charged offense was whether

Ambrose intended to subject A.N. to being struck by other students. We therefore focus our

analysis on evidence “tending to connect” Ambrose’s intent to the intent alleged in the charge—

that Ambrose intended that other students strike A.N. Cf. Casanova, 383 S.W.3d at 532-40

(considering corroborative evidence pertaining to the disputed element of intent in a drug

possession case).

       The non-accomplice corroborative evidence in the record is relatively strong. Initially,

Ambrose admitted to saying something that prompted students in her classroom to get up and strike

A.N. According to Ambrose, after one of her students suggested other students hit A.N., she asked

her class, “Does anybody want to show him what it feels like?” Although Ambrose denied

explicitly directing her students to hit A.N., her own testimony 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’s own admissions tending to connect herself to the charged offense are not

“inherently unreliable, unbelievable, or dependent upon inferences from evidentiary fact to

ultimate fact.” See id.

       Large’s and Spellmann’s respective testimony also tended to connect Ambrose to the

charged offense. When Large and Spellmann met with Ambrose to ask her about Ramirez’s

allegations, Ambrose admitted to instructing her students to hit A.N. Ambrose argues their

testimony was “unbelievable” because each testified they thought what had happened in

Ambrose’s classroom was “unbelievable.” This is mere equivocation; neither Large nor Spellmann
                                                -9-
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testified they actually did not believe Ambrose when she admitted to instructing students to hit

A.N. Although Large and Spellmann sent Ambrose back to her classroom to teach, this does not

render their testimony inherently unreliable. Evidence supported Ambrose was unlikely to return

to her classroom and again subject her students to corporal punishment. Ambrose had a reputation

for being a good teacher and good disciplinarian up until Ramirez’s report, and Large admonished

Ambrose during their meeting that Ambrose’s admitted conduct violated Judson ISD policy.

       The jury charge and the State’s arguments emphasized the strength of the corroborating

evidence and the weakness of Ambrose’s contradictory testimony. The State’s opening statement

highlighted the expected inconsistency between Ambrose’s likely testimony at trial and her prior

statement to Large and Spellmann. No opening statement was given for the defense. After both

sides rested their respective cases, the jurors were instructed that they were the exclusive judges

of the witnesses’ credibility and of the weight to be given to their testimony and could return a

guilty verdict only if the State proved Ambrose committed the offense beyond a reasonable doubt.

       Both sides’ closing arguments focused on the credibility of the witnesses. The State argued

there was no evidence any of them had an incentive to lie for each other. The State’s closing

argument emphasized, “Literally all of our witnesses corroborate each other. There was no

corroboration on the defense’s part.” The defense focused on the inconsistent conduct of Ramirez,

Large, and Spellmann; Ramirez waited two weeks to report Ambrose and Large and Spellmann

sent Ambrose back to class after they met with her. The defense called Ramirez a “psychopathic

liar” and suggested Large and Spellmann had a motive to falsely inculpate Ambrose to hold

someone accountable. The jury returned a guilty verdict after only a forty-two minute recess. Thus,

the evidence and other parts of the record support that the State’s case would not have been

rendered clearly and significantly less persuasive had the jury been instructed on the accomplice-

witness rule.
                                               - 10 -
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       Although Ambrose contends the credibility of Ramirez’s testimony might have been

impacted by the State granting her immunity to testify, and the State believed her testimony was

“necessary” to a conviction, a proper harm analysis requires us to disregard Ramirez’s testimony

in determining whether Ambrose suffered egregious harm. See De La Rosa v. State, 919 S.W.2d

791, 796 (Tex. App.—San Antonio 1996, pet. ref’d) (noting that Almanza’s harm standard in

accomplice-witness cases requires a reviewing court to disregard the accomplice testimony and

consider only non-accomplice corroboration). These contentions do not show that the non-

accomplice corroboration by the State’s witnesses was inherently unreliable or unbelievable.

                                           CONCLUSION

       We conclude that the sum of the non-accomplice corroboration from Principal Large and

Vice Principal Spellmann, viewed together with Ambrose’s admissions that she wanted to teach

A.N. not to be a bully and had said something to her class that caused A.N. to be struck by other

students, was not exceedingly weak in tending to connect Ambrose’s actual intent to the requisite

intent of subjecting A.N. to mistreatment. The inclusion of an accomplice-witness instruction

would not have rendered the State’s case clearly and significantly less persuasive so as to deprive

Ambrose of a fair and impartial trial. Therefore, we conclude Ambrose did not suffer egregious

harm and hold the trial court erred in granting Ambrose’s motion for new trial. Accordingly, we

reverse the trial court’s order granting a new trial, and we remand this case for further proceedings.

                                                   Luz Elena D. Chapa, Justice

PUBLISH




                                                - 11 -
                               Fourth Court of Appeals
                                      San Antonio, Texas
                                   CONCURRING OPINION
                                         No. 04-13-00788-CR

                                         The STATE of Texas,
                                              Appellant

                                                   v.

                                         Cynthia AMBROSE,
                                              Appellee

                      From the 226th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2012CR10002
                               Honorable Sid L. Harle, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice
Concurring Opinion by: Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: January 7, 2015

           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.

           The evidence in this case, even within a single witness’s testimony, was contradictory. 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
Concurring Opinion                                                                     04-13-00788-CR


judge the impact on the jury and the case as a whole. Nevertheless, because the egregious standard

requires the evidence to be “exceedingly weak,” “inherently unreliable,” “unbelievable,” or “so

unconvincing” as to render the case for conviction “clearly and significantly less persuasive,”

before we can uphold the trial court’s decision to grant a new trial, I fail to see how the trial court

could ever grant a motion for new trial and have that ruling upheld on appeal. Casanova v. State,

383 S.W.3d 530, 539 (Tex. Crim. App. 2012); Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim.

App. 1992). 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. Accordingly, I concur.

                                                   Marialyn Barnard, Justice

Publish




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