                            PD-0523-15                                        PD-0523-15
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                            Transmitted 5/5/2015 12:18:39 PM
                                                              Accepted 5/6/2015 11:28:49 AM
                                                                              ABEL ACOSTA
                   CAUSE NO. _______________                                          CLERK

                                In the
                   Texas Court of Criminal Appeals
                   __________________________
                     COLEMAN W. NICHOLS
                            Petitioner

                                 vs.

                        THE STATE OF TEXAS
                              Respondent
                       _______________________

               From the Second District Court of Appeals,
                            Cause No. 02-13-00566,
                         th
             And the 367 District Court for Denton County, Texas
       Trial Court Cause Nos. F-2011-1562-E and F-2011-1563-E,
             Honorable Vicki Isaacks, Sitting by Assignment.

               __________________________________

            PETITION FOR DISCRETIONARY REVIEW
              _________________________________



                                       HENRY C. PAINE, JR.
                                       EDWARD J. NOLTER
        May 11, 2015
                                       Marsh & PAINE, P.C.
                                       101 S. Woodrow
                                       Denton, TX 76205
                                       Tel: (940) 536-377
                                       Fax: (940) 382-4288
                                       HCP@MARSHPAINELAW.COM
                                       EJN@MARSHPAINELAW.COM

ORAL ARGUMENT IS NOT REQUESTED
                           IDENTITY OF THE PARTIES

TRIAL COURT:

HON. VICKI ISAACKS, Sitting by Assignment

PETITIONER: COLEMAN W. NICHOLS

Petitioner’s Trial and Appellate Counsel:

HENRY C. PAINE, JR.                               EDWARD J. NOLTER
Marsh& Paine, P.C.                                SBOT#24081073
101 S. Woodrow                                    101 S. Woodrow
Denton, TX 76205                                  Denton, TX 76205
Tel: (940) 382-4200                               Tel: (940) 382-4200
Fax: (940) 382-4288                               Fax: (940) 382-4288
HCP@MARSHPAINELAW.COM                             EJN@MARSHPAINELAW.COM

RESPONDENT: THE STATE OF TEXAS

State’s Trial Counsel:                                   State’s Appellate Counsel:
Assistant District Attorney                                    Assistant District
Attorney
MICHAEL GRAVES                                           CATHERINE LUFT
DUSTIN I. GOSSAGE                                        Denton County CourtsBuilding
Denton County Courts Building                            1450 E. McKinney, Suite 3100
1450 E. McKinney, Suite 3100                             Denton, Texas 76209
Denton, Texas 76209                                      Tel: (940) 349-260
Tel: (940) 349-2600                                      Fax: (940) 349-2601
Fax: (940) 349-2601




2 – Coleman Nichols Petition for Discretionary Review.
                            TABLE OF CONTENTS            PAGE

 IDENTITY OF THE PARTIES                                    2


 TABLE OF CONTENTS                                          3


 INDEX OF AUTHORITIES                                       4


 STATEMENT REGARDING ORAL ARGUMENT                          5


 STATEMENT OF THE CASE                                      5

 STATEMENT OF PROCEDURAL HISTORY                            6

 ISSUES PRESENTED                                           7
 ARGUMENT                                                   9

 ISSUE NO. 1                                                9

 ISSUE NO. 2                                               16

 ISSUE NO. 3                                               18

 ISSUE NO. 4                                               19

 ISSUE NO. 5                                               22

 ISSUE NO. 6                                               24
 CONCLUSION AND PRAYER                                     25

 CERTIFICATE OF COMPLIANCE                                 26

 CERTIFICATE OF SERVICE                                    26
3 – Coleman Nichols Petition for Discretionary Review.
                             INDEX OF AUTHORITIES

CASE                                                         PAGE

Brady v. Maryland, 373 U.S. 83 (1963)                          19

Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007)          18

Giglio v. United States, 405 U.S. 150 (1972)                   19

Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010)       12

Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995)     23

Holden v. State, 201 S.W.3d 761 (Tex. Cr. App. 2006)           24

Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007)          25

In re Oliver, 233 U.S. 257 (1948)                              19

Janecka v. State, 937 S.W.2d 456 (Tex. Crim. App. 1996)        12

Miller v. State, 36 SW3d 503, 506 (Tex. Crim. App. 2001)       10



CONSTITUTIONS AND STATUTES                                   PAGE

Texas Rules of Appellate Procedure 47.1                      passim

Texas Rules of Appellate Procedure 21.9(c)                     25




4 – Coleman Nichols Petition for Discretionary Review.
                STATEMENT REGARDING ORAL ARGUMENT

       Petitioner waives oral argument.

                         STATEMENT OF THE CASE
       Petitioner was convicted by a jury for allegedly committing the offense of

 aggravated assault family violence against Diane Adame (the alleged complainant).

 Petitioner was sentenced to twenty-seven (27) years in the Texas Department of

 Criminal Justice/Institutional Division.

       Petitioner appealed his conviction to the Second Court of Appeals in Ft. Worth.

 The Court of Appeals affirmed Petitioner’s conviction and sentence.

       The record of the case consists of one (1) volume of the Clerk’s record. The

 Clerk’s record will be referred to as ( _v_CR _p_). The Court Reporter’s record

 consists of fifteen (15) volumes and will be referred to as (_v_RR_p_). Petitioner’s

 Brief is referred to as (AB _). State’s Brief is referred to as (SB _). Petitioner’s

 Motion for Rehearing will be referred to as (MRH _). The Second Court of Appeals

 opinion will be referred to as (COA at __).




5 – Coleman Nichols Petition for Discretionary Review.
                    STATEMENT OF PROCEDURAL HISTORY

   1. On February 5, 2015 the Second Court of Appeals issued its memorandum

       opinion and judgment affirming Petitioner’s conviction.

   2. On February 26, 2015 Petitioner timely filed his motion for rehearing.

   3. On April 2, 2015 the Second Court of Appeals denied Petitioner’s motion for

       rehearing.

   4. On Saturday, May 2, 2015 his Petition for Discretionary Review was due.




6 – Coleman Nichols Petition for Discretionary Review.
                                 ISSUES PRESENTED

                             ISSUE PRESENTED NO. 1

       DID THE COURT OF APPEALS FAIL TO FOLLOW RULE 47.1
       OF THE TEXAS RULES OF APPELLATE PROCEDURE BY
       FAILING TO ADDRESS THAT THE TRIAL COURT’S DENIAL
       OF PETITIONER’S MOTION FOR CONTINUANCE
       PREVENTED HIM FROM PRESENTING A COMPLETE
       DEFENSE?

                              ISSUE PRESENTED NO. 2

       IS PETITIONER’S REQUEST FOR A TWO (2) WEEK
       CONTINUANCE TO INVESTIGATE 236 PAGES OF CPS
       DOCUMENTS PRODUCED TO PETITIONER THE THURSDAY
       BEFORE TRIAL BEGINS UNREASONABLE?

                             ISSUE PRESENTED NO. 3

       DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
       FAILED TO GRANT PETITIONER A CONTINUANCE?

                              ISSUE PRESENTED NO. 4

       DID THE COURT OF APPEALS FAIL TO FOLLOW RULE 47.1
       OF THE TEXAS RULES OF APPELLATE PROCEDURE BY
       FAILING TO ADDRESS THE JURY’S NOTE DURING
       PUNISHMENT     THAT    UNEQUIVOCALLY      SHOWS
       PETITIONER WAS HARMED BY THE TRIAL COURT’S
       REFUSAL TO ALLOW ANY DISCOVERY OR TESTIMONY OF
       THE ALLEGED COMPLAINANT’S HISTORY AS A
       CONFIDENTIAL INFORMANT DURING PETITIONER’S
       TRIAL?




7 – Coleman Nichols Petition for Discretionary Review.
                             ISSUE PRESENTED NO. 5

       DID THE COURT OF APPEALS FAIL TO FOLLOW RULE 47.1
       OF THE TEXAS RULES OF APPELLATE PROCEDURE BY
       FAILING TO ADDRESS PETITIONER’S ISSUE ON APPEAL
       THAT THE TRIAL COURT ABUSED ITS DISCRETION WHEN
       IT DENIED HIS MOTION FOR NEW TRIAL?

                             ISSUE PRESENTED NO. 6

       DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
       FAILED TO GRANT PETITIONER’S MOTION FOR NEW
       TRIAL FOR PUNISHMENT?




8 – Coleman Nichols Petition for Discretionary Review.
                            CAUSE NO. _______________

                                         In the
                            Texas Court of Criminal Appeals
                            __________________________
                              COLEMAN W. NICHOLS
                                     Petitioner

                                            vs.

                              THE STATE OF TEXAS
                                    Respondent
                             _______________________

                     From the Second District Court of Appeals,
                                  Cause No. 02-13-00566,
                               th
                   And the 367 District Court for Denton County, Texas
             Trial Court Cause Nos. F-2011-1562-E and F-2011-1563-E,
                   Honorable Vicki Isaacks, Sitting by Assignment.
                     __________________________________

                    PETITION FOR DISCRETIONARY REVIEW
                      _________________________________

                                      ARGUMENT

                             ISSUE PRESENTED NO. 1

       DID THE COURT OF APPEALS FAIL TO FOLLOW RULE 47.1
       OF THE TEXAS RULES OF APPELLATE PROCEDURE BY
       FAILING TO ADDRESS THAT THE TRIAL COURT’S DENIAL
       OF PETITIONER’S MOTION FOR CONTINUANCE
       PREVENTED HIM FROM PRESENTING A COMPLETE
       DEFENSE?




9 – Coleman Nichols Petition for Discretionary Review.
       The Second Court of Appeals overruled Petitioner’s issue holding that the trial

court did not err when it denied Petitioner’s motion for continuance prior to trial.

However, in its order denying petitioner’s motion for rehearing, Justice Dauphinot

stated she “would grant rehearing on the court’s own motion on the continuance issue.”

(Order p. 2).

       Rule 47.1 of the Texas Rules of Appellate Procedure requires that a court of

appeals issue an opinion that is brief but “addresses every issue raised and necessary to

final disposition of the appeal.”

       Due process and the due course of law require that Petitioner be afforded the

ability to present a meaningful and complete defense. In re Oliver, 233 U.S. 257

(1948); Miller v. State, 36 SW3d 503, 506 (Tex. Crim. App. 2001)(“The U.S.

Constitution ensures that criminal defendants will have ‘a meaningful opportunity to

present a complete defense.’” (internal citations to Supreme Court cases omitted).

       Nowhere within the Court of Appeals opinion does it address whether Petitioner

was denied the right to present a complete defense when the trial court denied his

motion for continuance to investigate the 236 pages of CPS documents provided to

Petitioner the Thursday before trial started. Instead, the Court of Appeals framed

Petitioner’s issue as “Generally, a trial court does not abuse its discretion when it

denies a continuance sought to secure impeachment testimony.”(COA at 4). Some of
10 – Coleman Nichols Petition for Discretionary Review.
the information was impeachment material; however, the potential witnesses and

information Petitioner needed to investigate and subpoena were to present a complete

defense so the jury would have evidence of the entire situation and circumstances

leading up to the alleged offense that would have provided mitigating evidence for the

jury to consider at punishment on Petitioner’s behalf. Alleged offenses such as this do

not happen within a vacuum.

       Petitioner’s trial was scheduled to begin Monday, August 26, 2013.

       On Wednesday, August 21, 2013, the trial court ordered the State to produce to

Petitioner a CD containing Texas Department of Family Services (CPS) records. (1 CR

43).

       On Thursday, August 22, 2013, a pretrial discovery hearing was held on

Petitioner’s motion for discovery which was filed on May 23, 2013. (4 RR 4).

       On the day of the discovery hearing a copy of the CPS records were provided to

Petitioner. (15 RR 70-306).

       A review of the 236 pages of CPS documents determined that the records

contained Brady material which needed to be investigated, witnesses interviewed and

records subpoenaed in order for Petitioner to present a complete defense.

       A hearing was held regarding an unrelated matter on Friday, August 23, 2013 at

which time Petitioner orally requested a motion for continuance based upon the 236
11 – Coleman Nichols Petition for Discretionary Review.
pages of CPS documents which the court denied. (4 RR 21).

       On Monday, August 26, 2013, Petitioner presented a written and sworn motion

for continuance based upon the CPS records and requested additional time of

approximately two (2) weeks which was denied. (1 CR 97); (5 RR 15-16).

       The CPS records were admitted into evidence for purposes of the record during

trial and at the motion for new trial. (6 RR 92-93)(15 RR 70-306).

       The information in the records involved CPS investigators and therapists located

in Ft. Worth and Denton. (15 RR 86); (Exhibit 3, 1 CR 129-130). Counsel for

Petitioner was in hearings related to this case on the Friday before trial. Petitioner’s

counsel could not have reviewed the documents, determined who should be

subpoenaed, or request subpoenas for those individuals prior to trial. It is because of

these reasons Petitioner requested the written motion for continuance the day of trial.

       An abuse of discretion in this context is established by a showing that (1) the

trial court erred by denying his motion and (2) he was harmed by the denial of a

continuance. Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010);

Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). The first prong

requires the Petitioner to show that "the case made for delay was so convincing that no

reasonable trial judge could conclude that scheduling and other considerations as well

as fairness to the State outweighed the Petitioner's interest in delay of the trial."
12 – Coleman Nichols Petition for Discretionary Review.
Gonzalez, 304 S.W.3d at 843 (quoting George E. Dix & Robert O. Dawson, 42 Tex.

Prac. Series: Criminal Practice and Procedure § 28.56 (2d ed. 2001)). To satisfy the

second prong, a Petitioner need show that the trial court's ruling actually prejudiced his

defense. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); Heiselbetz v.

State, 906 S.W.2d 500, 511-12 (Tex. Crim. App. 1995).

       The continuance was required to subpoena the counseling records maintained by

Janie Zygiel, Healthy Relationship, Focus on Fathers and the actual results of the drug

tests by Adame and Petitioner. (Exhibit 3, 1 CR 129-130).

       Prior to the alleged offense, Petitioner had sole-custody of their son and the

alleged complainant was not allowed unsupervised visits with their son according to

CPS. (15 RR 243).

       Petitioner required more time to track down and interview CPS officer Leann

Winker. Winker’s notes reflected that Petitioner and Adame were attempting

reconciliation around February 15, 2011, because they were going to church together;

and, since they were attempting to reconcile, Adame inquired to Winker “about how

long before [Adame] does not have to be monitored w/[their son]” (15 RR 243).

Winker responded that Adame “needed to begin services * * *.” (id).

       Winker’s meeting on March 8, 2011, was crucial to Petitioner’s defense and to

providing evidence in mitigation. (15 RR 246). At trial Adame was asked by Petitioner:
13 – Coleman Nichols Petition for Discretionary Review.
       “Q: Do you recall telling – or asking CPS on March the 8th of 2011 what
       would happen if Cole was caught using?

       A: No, I don’t remember.

       Q: Did that happen or did that not happen?

       A: I don’t recall.

       Q: So you don’t recall that at all?

       A: No.” (6 RR 95).

Winker’s notes from the March 8th meeting states:

       “[Adame] discussed her concerns about [Petitioner] stating that he is
       becoming more mean and she fears he may again be using drugs. She
       stated he no longer wants to go to church w/her and she doesn’t think
       they can make it without a strong support system. [Adame] inquired about
       being able to have [child] at times. [Winker] advised that we’d have to
       work on that but that [Adame] had to begin services and make progress.
       [Adame] stated she understood. [Adame] asked what would happen if
       Cole was caught using. [Winker] advised that since [Petitioner] didn’t
       want to get his family involved, that [Winker] would look at her family for
       placement. I discussed this with MGM [maternal grandmother]. She
       stated she is willing to have [child] move in w/them. * * *” (emphasis
       added). (15 RR 246).

       Eventually, Adame’s memory was refreshed with the document. (6 RR 113-114).

However, despite saying “Yeah, I remember” to the document, she could not recall

asking what would happen if he got caught using. (6 RR 114). Petitioner attempted to

introduce the document into evidence but trial court sustained the State’s objection to

hearsay and improper impeachment. (6 RR 114). So, despite having her memory
14 – Coleman Nichols Petition for Discretionary Review.
refreshed with the document, Adame continued to deny that the conversation took

place. This is why investigation into Winker and the CPS documents were crucial to

Petitioner’s case and why the trial court’s failure to grant Petitioner’s motion for

continuance prejudiced his defense and prevented him from receiving a fair trial.

       After the March 8, 2011, exchange with Winker, Petitioner allegedly assaulted

Adame while he was driving on March 11, 2011. (15 RR 247). This resulted in

Petitioner being arrested, his child taken from him, his child placed with Adame (15 RR

247) and protective orders filed against him. (State’s Exhibit 1, 11 RR 7; State’s

Exhibit 2, 11 RR 10).

       It was now Petitioner who could not visit his son without supervision.

       On or about April 15, 2011, Petitioner was in a bar and saw a couple of Adame’s

friends who told Petitioner that they just saw her at the “dope house” and they did not

know where Petitioner’s son was. (6 RR 177-179). In fact, at trial Adame testified that

the night she was shot she had gone to the “dope house,” purchased methamphetamine,

took the methamphetamine back to her home where Petitioner’s son was, and smoked

the methamphetamine in front of her home with an individual by the name of Eric

Grant. Grant had recently been released from the Texas Department of Criminal Justice

for engaging in organized criminal activity. (6 RR 56-61) (7 RR 22).

       Petitioner was prejudiced because presenting a complete defense in mitigation
15 – Coleman Nichols Petition for Discretionary Review.
during punishment involved getting these documents and testimony before the Court to

show that Adame (1) was not following CPS’ recommended plans to gain unsupervised

visits with their son; and (2) that her story of reconciliation or story that Petitioner was

doing drugs and becoming more aggressive did not work to restore her unsupervised

visits with their son; that three (3) days later Petitioner was accused of assaulting

Adame causing him to be arrested and having his son taken from him.

       The Court of Appeals failed to address whether the denial of the motion for

continuance prevented him from presenting a complete defense.

                              ISSUE PRESENTED NO. 2

       IS PETITIONER’S REQUEST FOR A TWO (2) WEEK
       CONTINUANCE TO INVESTIGATE 236 PAGES OF CPS
       DOCUMENTS PRODUCED TO PETITIONER THE THURSDAY
       BEFORE TRIAL BEGINS UNREASONABLE?

       Petitioner respectfully requests that the above argument and facts in Issue No. 1

be incorporated into Issue No. 2.

       As argued above, the CPS records at issue were delivered to Petitioner the

Thursday before trial started. (15 RR 70-306). Petitioner’s counsel had hearings on

Petitioner’s case the next day. At the hearing Petitioner requested an oral continuance

to investigate the documents which was denied. (4 RR 21).

       In light of the 236 pages of documents produced, Petitioner filed a written and


16 – Coleman Nichols Petition for Discretionary Review.
sworn to motion for continuance requesting a two (2) week continuance to investigate

the documents, issue subpoenas, and interview witnesses, which was denied. (5 RR 15-

16).

       The Court of Appeals held that the “trial court did not abuse its discretion by

concluding that scheduling and other considerations, as well as fairness to the State,

outweighed Nichols’s interest in delaying the trial to investigate certain information in

the CPS records. Gonzales, 304 S.W.3d at 843.” (COA at 6).

       There is nothing in the record to suggest that scheduling for the Court would

prevent Petitioner from having his trial postponed for two (2) weeks. Judge Isaacks

was sitting by assignment in the cause. Judge Issacks is retired and has no current

docket. In regards to the fairness to the State element, it was the State who produced

the documents the Thursday prior to trial. The only person prejudiced by the State’s

failure to produce the documents prior to trial was Petitioner. In light of the facts

before the trial court and the Court of Appeals, a two (2) week continuance of trial to

investigate the records was not unreasonable, would not have caused any scheduling

conflicts with the court, nor would it have affected the fairness to the State. All of the

State’s witnesses had been subpoenaed or were in court, and those subpoenas could

have easily been re-issued and served.

       The record before the Court of Appeals showed that the trial court abused its
17 – Coleman Nichols Petition for Discretionary Review.
discretion when it denied Petitioner’s motion for continuance and the Court of Appeals

erred when there is nothing in the record to substantiate its holding based on this

Court’s decision in Gonzales.

                             ISSUE PRESENTED NO. 3

       DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
       FAILED TO GRANT PETITIONER A CONTINUANCE?

       Petitioner respectfully requests that the above argument and facts incorporated

into Issue No. 3.

       The standard of review of a trial court's ruling on a motion for continuance is for

an abuse of discretion. Gallo v. State, 239 SW3d 757, 764 (Tex.Crim.App.2007).

       Regardless of whether the Court Appeals addresses whether Petitioner was

denied the ability to present a complete defense, Petitioner requests the opportunity to

fully brief the issue as to why the trial court abused its discretion when it denied his

motion for continuance when the State produced 236 pages of documents the Thursday

before trial.

       As noted in Issues No. 1 and No. 2, the facts are conclusive that Petitioner was

denied the due course of law, due process, and the opportunity to present a complete

defense because the trial court prevented him from properly investigating the

information and potential witnesses that were not provided to him until just before trial.


18 – Coleman Nichols Petition for Discretionary Review.
        The trial court abused its discretion when it denied Petitioner’s motion for

continuance and he should be granted a new trial or, at a minimum, a new trial on

punishment.

                                     ISSUE PRESENTED NO. 4

        DID THE COURT OF APPEALS FAIL TO FOLLOW RULE 47.1
        OF THE TEXAS RULES OF APPELLATE PROCEDURE BY
        FAILING TO ADDRESS THE JURY’S NOTE DURING
        PUNISHMENT     THAT    UNEQUIVOCALLY      SHOWS
        PETITIONER WAS HARMED BY THE TRIAL COURT’S
        REFUSAL TO ALLOW ANY DISCOVERY OR TESTIMONY OF
        THE ALLEGED COMPLAINANT’S HISTORY AS A
        CONFIDENTIAL INFORMANT DURING PETITIONER’S
        TRIAL?

        Petitioner respectfully requests that the above arguments and facts in the above

issues be incorporated into Issue No. 4.

        Rule 47.1 of the Texas Rules of Appellate Procedure requires that a court of

appeals issue an opinion that is brief but “addresses every issue raised and necessary to

final disposition of the appeal.”

        In particular, the Court of Appeals failed to address how the trial court’s failure

to allow discovery or testimony of the alleged complainant’s time as a confidential

informant1 prejudiced Petitioner during punishment in light of the jury’s note which


1 Pursuant to Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), and Giglio v.
United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 765-66, 31 L.Ed.2d 104 (1972) the State must disclose to the
defense any evidence that would tend to show a prosecution witness's bias, could be used to impeach him, or is
19 – Coleman Nichols Petition for Discretionary Review.
read, “Was Diana Adame an informer when she met Cole Nichols?” (1 CR

81)(emphasis added).

         The Court of Appeals failed to address this issue in its original opinion.

Petitioner timely filed his motion for rehearing requesting that the Court of Appeals

explain why this failure to allow discovery or testimony of her prior experience as a

confidential informant did not affect Petitioner’s sentencing in light of the jury’s note.

In his motion for rehearing Petitioner reminded the Court of Appeals that he extensively

addressed this issue in his brief (AB 38-40), how Petitioner’s entire harm analysis on

this issue regarded the jury’s note at sentencing, and how Petitioner believed this

harmed him beyond a reasonable doubt at sentencing. (MRH p. 2).

         Nowhere within the Court of Appeals opinion or in its order denying Petitioner’s

motion for rehearing does the Court of Appeals address the important fact that the jury

requested facts pertaining to Adame’s role as a confidential informant and whether the

trial court’s denial of this information prejudiced him in light of the jury’s note during

sentencing. The Court of Appeals simply dismissed the jury’s note in its opinion and

ignored the jury’s note again in its order denying Petitioner’s motion for rehearing.

         When taken in the correct context, Adame’s time as a confidential informant was

vital to Petitioner’s ability to present a complete defense at guilt or punishment.


otherwise exculpatory of the defendant.
20 – Coleman Nichols Petition for Discretionary Review.
Adame’s work as a confidential informant allegedly ended sometime in 2008, or three

(3) years prior to the date of the alleged offense in 2011. However, the testimony

showed that Petitioner met the alleged complainant in April of 2009 after he had been

released from prison. (6 RR 49, 104-105)2. This information was not available to the

jury.

         Assuming in arguendo that Adame’s role as confidential informant was

irrelevant to guilt; it was certainly relevant to presenting a complete defense during trial

for mitigation at punishment because her history as a confidential informant and her

statements to Winker would have completed the picture required to present a complete

defense as required by our constitutions.

         The State also independently addressed the issue of the jury’s note in its brief.

(SB 43-44). In fact, the State agreed with Petitioner that if he was harmed by the trial

court’s failure to allow any testimony regarding the alleged complainant’s status as a

confidential informant that it should not affect the jury’s finding of guilt, but “[i]f a

reversal was necessary for any possible error, only Petitioner’s punishment should be

reversed.” (SB at 44)(MHR pg. 2). The Court of Appeals wholly failed to address this

issue.

         Petitioner was harmed in three (3) ways by the trial court’s refusal to allow


2 MHR at pg. 2.
21 – Coleman Nichols Petition for Discretionary Review.
discovery or questions on the issue. First, he was prejudiced because he was unable to

present a complete defense.        Secondly, he was prejudiced because the lack of

information prevented him from creating a bill of exception for purposes of the record.

Thirdly, had the jury had this information he would have received less than the twenty-

seven years to which he was sentenced.

         The Court of Appeals erred when it failed to address this important issue. This

Honorable Court should allow full briefing on this issue and either remand this case

back to the Court of Appeals to address or this Court should grant Petitioner a new

trial.

                              ISSUE PRESENTED NO. 5

         DID THE COURT OF APPEALS FAIL TO FOLLOW RULE 47.1
         OF THE TEXAS RULES OF APPELLATE PROCEDURE BY
         FAILING TO ADDRESS PETITIONER’S ISSUE ON APPEAL
         THAT THE TRIAL COURT ABUSED ITS DISCRETION WHEN
         IT DENIED HIS MOTION FOR NEW TRIAL?

         Petitioner respectfully requests that the above argument and facts in the above

issues be incorporated into Issue No. 5.

         Petitioner’s issues on appeal were: (1) he was denied the right to present a

complete defense when the trial court failed to grant a continuance, (2) the trial court

abused its discretion when it prevented Petitioner from questioning Adame or police as

to her role as a confidential informant, (3) the trial court abused its discretion when it
22 – Coleman Nichols Petition for Discretionary Review.
denied his motion for new trial because his sentence was the result of a quotient

verdict, and (4) based on the totality of the circumstances it was a clear abuse of

discretion for the trial court to deny his motion for new trial. 3

         Petitioner does not believe the Court of Appeals adequately addressed his Issue

No. 4. In footnote n.7 on page 14 of its opinion the Court of Appeals dismisses this

issue by stating:

         “Having determined that the trial court did not commit any error with
         regards to Nichols’s first, second, and third issues, we overrule his fourth
         issue, in which he asserts that the trial court abused its discretion by
         denying his motion for new trial based on the cumulative effect of the
         errors he alleged in this first three issues.”

         Petitioner asserts that the Court of Appeals erred in this regard because even

though the Court of Appeals could have found that it was not an abuse of discretion to

deny the motion for continuance or questioning Adame about her role as a confidential

informant at trial; it was still an abuse of discretion to not grant Petitioner a new trial on

either guilt or as to punishment when after all of the evidence was presented the jury’s

note showed that he was prejudiced by the numerous errors committed by the trial

court.




3 Petitioner’s fifth issue pertained to the trial court’s refusal to grant a self-defense charge.
23 – Coleman Nichols Petition for Discretionary Review.
                              ISSUE PRESENTED NO. 6

         DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
         FAILED TO GRANT PETITIONER’S MOTION FOR NEW
         TRIAL FOR PUNISHMENT?

         Petitioner respectfully requests that the above argument and facts in the above

issues be incorporated into Issue No. 6.

         The standard of review regarding the trial court's denial of a motion for new trial

is for an abuse-of-discretion. Holden v. State, 201 S.W.3d 761, 763 (Tex. Cr. App.

2006).

         The trial court had all of the evidence before it when it heard Petitioner’s motion

for new trial. It read the CPS records, understood the complete defense Petitioner

should have been allowed to present at trial and in mitigation at punishment in regards

to (1) Adame’s past as a confidential informant, (2) Adame’s concocted plan to have

Petitioner arrested so she would not have to perform the services required by CPS for

her to have unsupervised visits with her son, and (3) the jury’s note questioning

Adame’s past role as confidential informant and if Petitioner knew her during that time.

At a minimum, it was an abuse of discretion not to grant Petitioner a new trial as to

punishment.

         Without conceding Petitioner’s argument that this denied Petitioner a fair trial

during the guilt phase of trial, it was still relevant to punishment. The trial court abused
24 – Coleman Nichols Petition for Discretionary Review.
its discretion when it denied a new trial as to punishment. TRAP 21.9(a) allows a court

to grant “a new trial on punishment when it has found a ground that affected only the

assessment of punishment.” TRAP 21.9(c) states that “[g]ranting a new trial on

punishment restores the case to its position after the defendant was found guilty.”

It is true the jury is the ultimate factfinder. Jackson v. Virginia, 443 U.S. 307, 318-19

(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). However, the jury

can only fulfil its duty when it has all of the facts before it.

                           CONCLUSION AND PRAYER

       This Court should grant full briefing so Petitioner can fully present to this Court

the facts and arguments to show why the Court of Appeals erred and also why the trial

court abused its discretion. Petitioner should be granted full briefing so this Court can

grant him a new trial.

                                           Respectfully Submitted,

                                           /s/Henry C. Paine, Jr.
                                           HENRY C. PAINE, JR.
                                           SBOT# 15412600
                                           EDWARD J. NOLTER
                                           SBOT#24081073
                                           Marsh & Paine, P.C.
                                           101 S. Woodrow
                                           Denton, TX
                                           Tel: (940) 382-4200 Fax: (940) 382-4288
                                           HCP@MARSHPAINELAW.COM
                                           EJN@MARSHPAINELAW.COM

25 – Coleman Nichols Petition for Discretionary Review.
                           CERTIFICATE OF COMPLIANCE

       Petitioner certifies that the this reply brief in the instant cause contained a word count
of 3,650, said count being generated by the computer program Microsoft Word that was used
to prepare the document.

                               Signed this, the 5th day of May, 2015.

                                            /s/Henry C. Paine, Jr.
                                            HENRY C. PAINE JR.


                              CERTIFICATE OF SERVICE

      A copy of the foregoing Petitioner’s Brief has been forwarded to the District Attorney
of Denton County, Texas on this the 5th day of May, 2015.


                                            /s/Henry C. Paine, Jr.
                                            HENRY C. PAINE JR.




26 – Coleman Nichols Petition for Discretionary Review.
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00566-CR


COLEMAN NICHOLS                                                 APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


                                  ----------

         FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
                  TRIAL COURT NO. F–2011–1562–E
                              ----------

                       MEMORANDUM OPINION1

                                  ----------

                              I. INTRODUCTION

     A jury found Appellant Coleman Nichols guilty of aggravated assault and

assessed his punishment at twenty-seven years’ confinement. See Tex. Penal

Code Ann. § 22.02 (West 2011). The trial court sentenced him accordingly. In

five issues, Nichols complains of the trial court’s denial of his motion for

continuance and motion for new trial, of the exclusion of certain exculpatory

     1
      See Tex. R. App. P. 47.4.
evidence, of the jury’s verdict, and of the trial court’s denial of his requested jury

instruction on self defense. We will affirm.

                                  II. BACKGROUND

      After dating for a year and a half, Nichols and Diana Adame ended their

relationship. They had a son, A.N., who lived with Adame during the events

giving rise to this case. By all accounts, neither parent viewed the other as a

particularly good influence on the child. Adame abused drugs and took A.N.

along when she bought drugs. Nichols spent time in prison for domestic abuse.

Both parents complained to CPS about the other, alleging that the other had

physically abused their son. In March 2011, Adame reported to CPS that Nichols

hit her, and Nichols was arrested. CPS gave Adame custody of A.N.

      On April 15, 2011, Nichols was at a bar when he heard that Adame had

been at a “dope house.” Angered and concerned for his son, Nichols borrowed a

shotgun and drove to where Adame was staying in order to threaten her. Adame

was outside the house with Eric Grant when Nichols drove up, and she

recognized Nichols’s truck. Nichols shot Adame with the shotgun.

      Adame suffered “life-threatening” injuries from the shotgun blast, which left

her with pellets in her upper abdomen, chest, face, and arms, but an emergency

surgery saved her life.

                     III. DENIAL OF MOTION FOR CONTINUANCE

      In his first issue, Nichols argues that the trial court improperly denied his

motion for continuance.       He contends that the purpose of his requested


                                          2
continuance was to identify, contact, and interview certain individuals named in

CPS reports that the State turned over to him five days prior to trial.2 He asserts

that the CPS reports contained exculpatory material that required additional

investigation and interviews of the CPS employees named in the reports and

contends that those individuals would have provided impeachment and

punishment-mitigation testimony necessary for him to present a complete

defense.

      We review the trial court’s ruling on a motion for continuance for an abuse

of discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007), cert.

denied, 553 U.S. 1080 (2008); Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim.

App. 2002). To establish an abuse of discretion, the appellant must show that

the trial court erred by denying the motion and that the error resulted in actual

harm. Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010).

      The first prong of Gonzales requires the appellant to demonstrate that “the

case made for delay was so convincing that no reasonable trial judge could

conclude that scheduling and other considerations as well as fairness to the

State outweighed the defendant’s interest in delay of the trial.” Id. The second

prong requires that the error result in actual prejudice. Janecka v. State, 937

S.W.2d 456, 468 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825 (1997);

Heiselbetz v. State, 906 S.W.2d 500, 511–12 (Tex. Crim. App. 1995).           The

      2
        The records turned over by the State contained 236 pages of CPS
investigation reports from 2002 through June 2013.


                                        3
appellant must prove the prejudice with considerable specificity; mere

speculation and bare assertions are insufficient to justify reversing the trial court’s

decision. Gonzales, 304 S.W.3d at 842–43.

      Nichols makes several arguments on appeal, as he did in the trial court,

regarding why he needed more time to investigate the information contained in

the CPS reports. The majority of his arguments center on information from the

CPS reports that could lead to evidence attacking Adame’s credibility and

impeaching her testimony.3 Generally, a trial court does not abuse its discretion

when it denies a continuance sought to secure impeachment testimony. See

Keel v. State, 434 S.W.2d 687, 689 (Tex. Crim. App. 1968); Franks v. State, 90

S.W.3d 771, 808 (Tex. App.—Fort Worth 2002, no pet.). And here, Nichols did

present evidence casting doubt on Adame’s credibility. For example, Adame

testified to her drug use and evidence showed that she had used drugs around

A.N.; Adame admitted to lying to police about a separate family-violence incident

with Nichols; and Adame’s step-father testified that Adame had made false

accusations against Nichols in the past. Thus, even if the trial court somehow

erred by denying the motion for continuance regarding the information that

      3
        For example, one CPS report included a CPS investigator’s notation that
she did not think Adame was telling the truth about where she was staying during
the investigation, and Nichols argues that he should have been allowed time to
interview this CPS investigator for possible impeachment testimony. In another
CPS report, a CPS employee stated that Adame had asked her what would
happen if Nichols was caught using drugs, which Nichols argues could have
been used to impeach Adame’s testimony denying that she had ever asked that
question.


                                          4
Nichols argues could have led to impeachment evidence, we cannot say that

Nichols suffered any actual prejudice.       See Janecka, 937 S.W.2d at 468;

Heiselbetz, 906 S.W.2d at 511–12.

      Nichols also argues that the CPS reports revealed the names of CPS

employees who could have provided punishment-mitigation evidence that

Nichols was doing well on parole and that he had cared for his son and was able

to meet his son’s needs. But Nichols knew of his dealings with CPS, of his

conduct during parole, and of his parole officers prior to receiving the CPS

reports from the State. Cf. Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App.

2000) (holding that trial court did not abuse its discretion by denying defendant’s

request to appoint DNA expert, filed on the morning of trial, where defendant

“knew early on that this case involved blood/DNA analysis”), cert. denied, 531

U.S. 1128 (2001).

      Nichols also argues that the CPS reports show that “neighbors” had seen a

known drug dealer go to Adame’s house while Nichols was at work. Nichols

argues that he should have been granted a continuance to determine who these

“neighbors” were and what other information they could provide Nichols for his

defense. These “bare assertions” are insufficient to justify reversing the trial

court’s decision.4 See Gonzales, 304 S.W.3d at 842–43; Heiselbetz, 906 S.W.2d


      4
       Nichols filed a motion for new trial, complaining in part of the trial court’s
denial of his motion for a continuance, but he did not present any evidence at the
new-trial hearing as to what the neighbors may have testified to. See Gonzales,
304 S.W.3d at 842 (explaining that defendant must ordinarily file motion for new

                                         5
at 512 (rejecting assertion that counsel did not have time to adequately

investigate medical records for potentially mitigating evidence without a showing

of harm).

       We hold that the trial court did not abuse its discretion by concluding that

scheduling and other considerations, as well as fairness to the State, outweighed

Nichols’s interest in delaying the trial to investigate certain information presented

in the CPS reports. See Gonzales, 304 S.W.3d at 843. We further hold that,

even if the trial court did err by denying the motion for continuance, Nichols was

not harmed by the denial. See id. at 842–43. Accordingly, we overrule Nichols’s

first issue.

IV. EXCLUSION OF EVIDENCE OF ADAME’S HISTORY AS A CONFIDENTIAL INFORMANT

       In his second issue, Nichols argues that the trial court erred by preventing

him from obtaining any discovery regarding Adame’s history as a confidential

informant and by refusing to allow cross-examination on the subject.

       Prior to trial, Nichols filed a motion for discovery, requesting in part any

police records relating to Adame’s role as a confidential informant to the Denton

police department. At a hearing on the motion, the State objected that evidence

of Adame’s past role as a confidential informant was not relevant because she

was the victim in this aggravated assault case and because she had not been a


trial based on denial of continuance in order to produce evidence as to what
additional information, evidence, or witnesses the defense would have had
available had the motion been granted).


                                         6
confidential informant for three years prior to the shooting. The trial court denied

Nichols’s request. At trial, when Nichols attempted to cross-examine Adame and

a police officer about Adame’s status as a confidential informant, the trial court

sustained the State’s relevancy objections.

      Nichols contends on appeal, as he did in the trial court, that the trial court’s

rulings on the discovery and exclusion of Adame’s history as a confidential

informant violated Brady and denied him a meaningful opportunity to create and

present a complete defense through cross-examination during both the

guilt/innocence and punishment stages of the trial.5 See U.S. Const. amend. VI;

XIV; Brady v. Maryland, 373 U.S. 83, 86–87, 83 S. Ct. 1194, 1196–97 (1963).

                                     A. Brady

      The State has a constitutional duty to disclose to a defendant material,

exculpatory evidence. Brady, 373 U.S. at 86–87, 83 S. Ct. at 1196–97; Pena v.

State, 353 S.W.3d 797, 810 (Tex. Crim. App. 2011). When arguing a Brady

violation, an appellant must demonstrate that (1) the State failed to disclose

evidence, (2) the withheld evidence is favorable to the appellant, and (3) the

evidence is material, that is, there exists a reasonable probability that had the

evidence been disclosed, the outcome of the trial would have been different.

Pena, 353 S.W.3d at 812; Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim.

App. 2002).

      5
      Nichols made these same arguments in his motion for new trial, which
was denied by operation of law.


                                          7
      Under Brady, nondisclosure of favorable evidence violates due process

only if it is “material” to guilt or punishment. Pena, 353 S.W.3d at 812. “The

mere possibility that an item of undisclosed information might have helped the

defense, or might have affected the outcome of the trial, does not establish

‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97,

109–10, 96 S. Ct. 2392, 2400 (1976). The defendant must show that, “in light of

all the evidence, it is reasonably probable that the outcome of the trial would

have been different had the prosecutor made a timely disclosure.” Pena, 353

S.W.3d at 812.

      Here, Nichols argues on appeal that a jury could logically infer from

evidence that Adame was a confidential informant that she was around illegal

substances and that, but shooting her, Nichols was protecting himself and his

son from her drug use and relations with drug dealers. But Adame had not been

a confidential informant for three years prior to the shooting, and Nichols

presented no evidence and makes no argument that he knew, prior to the

shooting, that Adame had been an informant.        Further, Nichols was able to

present evidence of Adame’s drug use and relationship with drug dealers.

Nichols cross-examined Adame about her drug use at both stages of trial,

including that she and their child had tested positive for methamphetamines in

the   past.      Nichols   also   cross-examined   Grant   about   his   use   of

methamphetamines with Adame.




                                        8
         Balancing the strength of evidence of Adame’s history as a confidential

informant three years prior to the shooting against the evidence supporting

Nichols’s conviction for aggravated assault and his twenty-seven-year sentence,

we cannot say that there is a reasonable probability that presenting details of

Adame’s history as a confidential informant to the jury would have resulted in a

different outcome at either the guilt/innocence or punishment stage of trial. See

Higginbotham v. State, 416 S.W.3d 921, 926 (Tex. App.—Houston 2013, no

pet.).    We hold that the trial court did not abuse its discretion by denying

Nichols’s request that the trial court order the State to produce the requested

information about Adame’s history as a confidential informant, and we overrule

this portion of Nichols’s second issue.

                               B. Cross-Examination

         The Sixth Amendment protects the defendant’s right not only to confront

the witnesses against him, but to cross-examine them as well. See Davis v.

Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974). The accused is entitled

to great latitude to show a witness’s bias or motive to falsify her testimony. See

Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982); cf.

Gonzales v. State, 929 S.W.2d 546, 549 (Tex. App.—Austin 1996, pet. ref’d)

(“The rules of evidence grant a party greater latitude to prove a witness’s bias

than to prove a witness’s untruthful character.”).

         However, the right of cross-examination is not unlimited. A trial court has

the discretion to limit testimony that may confuse the issues or be only marginally


                                          9
relevant. See Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431,

1435 (1986). The trial court must carefully consider the probative value of the

evidence and weigh it against the risks of admission. See Hodge, 631 S.W.2d at

758.    These potential risks include “the possibility of undue prejudice,

embarrassment or harassment to either a witness or a party, the possibility of

misleading or confusing a jury, and the possibility of undue delay or waste of

time.” Id.; see Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000);

Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993), cert. denied, 511

U.S. 1100 (1994).        Moreover, “the Confrontation Clause guarantees an

opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense might wish.”

Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985); see Walker

v. State, 300 S.W.3d 836, 844–45 (Tex. App.—Fort Worth 2009, pet. ref’d).

       Here, the trial court acted within its discretion by concluding that evidence

of Adame’s history as a confidential informant was not relevant to the case; she

had not been a confidential informant since 2008, and in this case, she was

testifying as the complainant in an aggravated assault case after having been

shot. Nichols complains that the evidence was admissible to show her level of

involvement with drugs and drug dealers, but as we explained above, the jury

heard about Adame’s history with drugs and her relationship with drug dealers.

Nichols does not allege that her role as a confidential informant showed a

potential bias, motive, or prejudice in this case. See Tex. R. Evid. 401; Hammer


                                         10
v. State, 296 S.W.3d 555, 562–63 (Tex. App. 2009). Because we conclude that

the trial court acted within the zone of reasonable disagreement by prohibiting

Nichols from cross-examining Adame about her past role as a confidential

informant, we overrule the remainder of Nichols’s second issue.

                              V. QUOTIENT VERDICT

      In his third issue, Nichols contends that the trial court abused its discretion

by denying his motion for new trial because the jury improperly sentenced him by

using a quotient verdict.

      We review a trial court’s denial of a motion for new trial under an abuse of

discretion standard.   Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App.

2014). “We do not substitute our judgment for that of the trial court; rather, we

decide whether the trial court’s decision was arbitrary or unreasonable.”         Id.

(quoting Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006)).

      Jurors may not reach their verdict by lot or in any other manner that is not

a fair expression of the jurors’ opinion. Tex. R. App. P. 21.3(c).     When a jury

agrees to adopt and be bound by a quotient verdict, a defendant is entitled to a

new trial.   Ramsey v. State, 146 S.W.2d 192, 193 (Tex. Crim. App. 1940).

However, before a court can grant a new trial on this basis, admissible evidence

must demonstrate that the jurors agreed to be bound by the result of the

averaging process in advance of the calculation. Martinez v. State, 496 S.W.2d

612, 613–14 (Tex. Crim. App. 1973). Absent such an agreement, there is no




                                        11
misconduct. Id. at 613; Malbrough v. State, 846 S.W.2d 926, 927 (Tex. App.—

Houston [1st Dist.] 1993, pet. ref’d).

      Here, after the jury assessed punishment, Nichols requested that the trial

court inspect the jurors’ notes to determine if they contained evidence of a

quotient verdict. The trial court reviewed the notes and allowed the parties to

view them.    Nichols alleged in his motion for new trial that the jurors’ notes

revealed that they had agreed to a quotient verdict, and Nichols attached to his

motion defense counsel’s affidavit stating that the jurors’ notes included a chart

that “was obviously used to determine the sentence as a result of a quotient

verdict.” The motion also included an affidavit from defense counsel’s employee

stating that she had contacted a juror who stated that “some of the jurors were

considering 25 years, some wanted 30 years, and some wanted 50 years” so the

jurors agreed to accept the average as the verdict. At the hearing on Nichols’s

motion, the State objected to the affidavits under rule 606.6

      Rule of evidence 606(b) provides,

      Upon an inquiry into the validity of a verdict or indictment, a juror
      may not testify as to any matter or statement occurring during the
      jury’s deliberations, or to the effect of anything on any juror’s mind or
      emotions or mental processes, as influencing any juror’s assent to or
      dissent from the verdict or indictment. Nor may a juror’s affidavit or
      any statement by a juror concerning any matter about which the juror
      would be precluded from testifying be admitted in evidence for any
      of these purposes.

      6
       The trial court deferred ruling on the objection until it could examine the
case law, and it did not make a ruling on the objection or the motion for new trial
that day. The motion was denied by operation of law. See Tex. R. App. P. 21.8.


                                         12
Tex. R. Evid. 606(b). The only exceptions are for outside influences and to rebut

a claim that a juror was not qualified to serve. Id.

       Rule 606(b) applies in this case to bar consideration of the affidavit of

defense counsel’s employee because it contains a statement by a juror

concerning an incident that occurred during the jury’s deliberations as influencing

some jurors’ assent to the verdict on punishment. See id. Even assuming that

the remaining affidavit of defense counsel and the jurors’ notes were admissible

under rule 606(b), they are only evidence of calculating an average and do not

show an agreement by the jurors to be bound by the result of an averaging

process prior to calculation of that average. See Martinez, 496 S.W.2d at 613–

14; see also Malbrough, 846 S.W.2d at 927 (“The agreement to be bound by the

outcome is the evil of any verdict . . . .”).

       Nichols cites to McIntire v. State to argue that a juror’s statement is

admissible to prove juror misconduct. 698 S.W.2d 652 (Tex. Crim. App. 1985).

But McIntire was decided before rule 606(b) became effective on March 1, 1998,

upon the adoption of the consolidated rules of evidence.         See Tex. R. Evid.

606(b). Although the former rules permitted jurors to testify to anything relevant

to the verdict’s validity, that is no longer the case. Hicks v. State, 15 S.W.3d 626,

630 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); Sanders v. State, 1

S.W.3d 885, 887 (Tex. App.—Austin 1999, no pet.). Thus, because there is no

admissible evidence to show an agreement by the jurors to be bound by a



                                            13
quotient verdict, we hold that the trial court did not abuse its discretion by

denying Nichols’s motion for new trial on punishment. See Martinez, 496 S.W.2d

at 613–14; Malbrough, 846 S.W.2d at 927. We overrule Nichols’s third issue.7

                            VI. SELF-DEFENSE INSTRUCTION

       In his fifth issue, Nichols asserts that the trial court erred by denying his

request for a self-defense instruction in the jury charge.

       A trial court must give a requested instruction on every defensive issue

raised by the evidence without regard to its source or strength, even if the

evidence is contradicted or is not credible. Krajcovic v. State, 393 S.W.3d 282,

286 (Tex. Crim. App. 2013). Some evidence must support the defense as a

rational alternative to criminal liability. Id.

       In order for a trial court to submit a self-defense instruction to the jury, a

defendant must produce sufficient evidence on each element to raise the issue.

Tex. Penal Code Ann. § 2.03 (West 2011). Penal code sections 9.31 and 9.32

provide in relevant part that a person is justified in using deadly force against

another “when and to the degree the actor reasonably believes the force is

immediately necessary . . . to protect the actor against the other’s use or

attempted use of unlawful deadly force.” Id. §§ 9.31(a), .32(a) (West 2011). A


       7
        Having determined that the trial court did not commit any error with
regards to Nichols’s first, second, and third issues, we overrule his fourth issue,
in which he asserts that the trial court abused its discretion by denying his motion
for new trial based on the cumulative effect of the errors he alleged in his first
three issues.


                                            14
“reasonable belief” is that which “would be held by an ordinary and prudent man

in the same circumstances as the actor.” Id. § 1.07(a)(42) (West Supp. 2014).

      Here, Nichols argues that the testimony of his best friend James Devin

Wade was some evidence raising the issue of self-defense. Wade testified that

after Nichols shot Adame, he called Wade and explained that he had gone to the

house where Adame was staying with a shotgun in order “to intimidate her.”

Nichols told Wade that when he drove up, he saw Adame and a black man—Eric

Grant—outside. Nichols believed that Grant was Adame’s drug dealer. Grant

ran up to his truck, and then Nichols accidentally fired the shotgun.

      Neither Wade’s testimony nor any other evidence in the record constitutes

any evidence that Nichols possessed a reasonable belief that deadly force was

necessary to protect against Grant’s—or anyone else’s—unlawful use of deadly

force. See id. § 9.32(a).    Because there is no evidence that could support a

rational inference of all of the elements of self defense, Nichols was not entitled

to a self-defense instruction. See Shaw v. State, 243 S.W.3d 647, 657 (Tex.

Crim. App. 2007), cert. denied, 553 U.S. 1059 (2008). Accordingly, we overrule

Nichols’s fifth issue.

                                 VII. CONCLUSION

      Having overruled Nichol’s five issues, we affirm the trial court’s judgment.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.


                                        15
DAUPHINOT, J. concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 5, 2014




                                    16
                                                                          FILE COPY




                         COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-13-00566-CR


COLEMAN NICHOLS                                                       APPELLANT

                                          V.

THE STATE OF TEXAS                                                          STATE


                                     ------------

         FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. F-2011-1562-E

                                     ------------

                                     ORDER

                                     ------------

      We have considered “Appellant's Motion For Rehearing,” wherein

appellant complains that we did not conduct a harm analysis on an issue that we

overruled in our opinion after concluding that the trial court did not err or abuse

its discretion. Because a harm analysis is unnecessary where there is no error

or abuse of discretion, it is the opinion of the court that the motion for rehearing

should be and is hereby denied and that the opinion and judgment of February 5,

2015 stand unchanged.
                                                                        FILE COPY




      The clerk of this court is directed to transmit a copy of this order to the

attorneys of record.n

      SIGNED April 2, 2015.



                                                 /s/ Sue Walker
                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DAUPHINOT, J. would grant rehearing on the court’s own motion on the
continuance issue.




                                       2
