                                                                                     ACCEPTED
                                                                                12-14-00044-CR
                                                                    TWELFTH COURT OF APPEALS
                                                                                 TYLER, TEXAS
                                                                            3/3/2015 4:10:47 PM
                                                                                   CATHY LUSK
                                                                                         CLERK

______________________________________________________________________

                      In The Twelfth Court Of Appeals
                                                             FILED IN
                               Tyler, Texas           12th COURT OF APPEALS
______________________________________________________________________
                                                           TYLER, TEXAS
                                                        3/3/2015 4:10:47 PM
                               No. 12-14-00044-CR           CATHY S. LUSK
                                                                Clerk
                     Shakeitha Cartwright, Appellant,
                                     v.
                       The State of Texas, Appellee.
______________________________________________________________________

          On Appeal from the 273rd District Court, Shelby County, Texas
                     Trial Court Cause No. 2013-CR-18695
______________________________________________________________________

   APPELLANT’S RESPONSE TO STATE’S OPPOSITION TO MOTION TO ABATE
                               APPEAL
______________________________________________________________________


Seth T. Johnson, Tex. Bar No. 24082212
222 North Mound St., Suite #1
Nacogdoches, Texas 75961
Telephone: (936) 205-6775
Fax: (936)715-3022
Email:johnsondefenselaw@gmail.com
Attorney for Appellant
       APPELLANT’S RESPONSE TO STATE’S OPPOSITION TO MOTION TO ABATE
                                  APPEAL

TO THE HONORABLE JUDGES OF THE TWELFTH COURT OF APPEALS:

          COMES NOW, the Appellant, Shakeitha Cartwright, by and through her attorney

of record, Seth T. Johnson, and respectfully files this response to four issues raised in

the State’s Motion in Opposition.

          1. Paragraph 1 of the State’s Response asserts that Appellant either failed to

preserve or waived error with respect to both issues raised in her motion. Identical

procedural default claims were addressed and rejected by the majority holdings in Urias

and Garcia (post-Marin cases), the two cases Appellant relied upon in her motion. With

respect to both issues raised by Appellant, the Court of Criminal Appeals has held the

obligations of the trial court are mandatory, and trial counsel does not have to take

action.

          2. Paragraph 2 of the State’s response argues that “new testimonial evidence”

was presented at the second suppression hearing, and cites in support “RR. Vol.5 p.

193-207 (Det. Nicole Faulkner testifying)”. The implied argument made by the State is

that any Garcia error was cured by this additional evidence because the second judge

did not have to rely on a “cold record” to issue his ruling. That argument is erroneous

because the modicum of additional evidence presented at the second hearing did

nothing to alleviate the core concern underpinning Garcia’s holding.

          Det. Faulkner’s “new testimony” consisted of a few sentences responding to a

question from Judge Mitchell, explaining how the video camera was set up in the

interrogation room and the persons present in the room. None of the evidence

presented during live testimony at the first hearing which addressed the myriad totality



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of circumstances relevant to a voluntariness challenge, was re-presented at the second

hearing. The fact remains that 99.9% of the live-witness testimony that required a

judicial credibility evaluation was offered only at the first hearing, and the Judge who is

obligated to make said evaluation did not issue the mandatory written findings of fact

and conclusions of law on which the second judge could have relied.

       3. Paragraph 3 of the State’s response asserts that “the [second] Judge did in

fact review the complained of video testimony” prior to ruling the interrogation

admissible in its totality. If that claim were accurate, one could potentially argue that the

second judge did in fact consider sufficient supplemental evidence (in addition to

reading the transcript of the first suppression hearing) to satisfy Garcia. However, the

State fails to cite to the appellate record or offer any evidence in their motion proving

this claim. To the contrary, the reporter’s record explicitly shows that Judge Mitchell did

not watch the tapes prior to ruling on voluntariness. RR. Vol. 5. P. 194. Judge Mitchell

(the second Judge) at most watched a few minutes of each video containing the

Miranda admonishments. RR. Vol. 5, P. 193-207. The segments Judge Mitchell

actually watched prior to ruling do not nearly comprehend the myriad issues raised by

Appellant at the first hearing concerning the voluntariness of her statements. Finally,

there is no evidence at all that Judge Dickerson (the first Judge) reviewed the videos

that were admitted and tendered to him for that purpose. This same issue was also

previously addressed with supporting record citations in Appellant’s original motion.

       4. The State’s Motion in Opposition attaches an Order Nunc Pro Tunc signed by

Judge Mitchell (the second judge) on March 2, 2015 and file-stamped the same. The

trial court does not have jurisdiction to issue orders in this case at this time. Also, the




	                                                                                            3	  
issue at bar is not properly the subject of a Nunc Pro Tunc order pursuant to Tex. R.

App. Proc. Rule 23. Lastly, such an order does not cure Garcia error for the reasons

stated supra. Appellant respectfully submits that the attempted order should be

disregarded and remand to the trial court is required.

                                        PRAYER

       In light of the arguments in her original motion and the foregoing supplement,

Appellant prays that her motion to abate the appeal and for a new voluntariness hearing

be granted.

                                                         Respectfully submitted,



                                                         __________________________
                                                         Seth T. Johnson, #24082212
                                                         ATTORNEY FOR DEFENDANT
                                                         222 North Mound St. #1
                                                         Nacogdoches, TX 75961
                                                         (P) 936-205-6775
                                                         (F) 936-715-3022
                                                         johnsondefenselaw@gmail.com



                               CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing Motion was hand-
faxed and E-served to the Shelby County District Attorney’s Office, Texas, on March 3,
2015.




                                                         __________________________
                                                         Seth T. Johnson, #24082212
	  




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