                                                                                       ACCEPTED
                                                                                  04-14-00050-CR
                                                                       FOURTH COURT OF APPEALS
                                                                            SAN ANTONIO, TEXAS
                                                                            2/10/2015 12:26:16 PM
                                                                                    KEITH HOTTLE
                                                                                           CLERK

                       CAUSE NO. 04-14-00050-CR

__________________________________________________________________
                                                       FILED IN
                                                 4th COURT OF APPEALS
                                                  SAN ANTONIO, TEXAS
                IN   THE FOURTH COURT OF APPEALS 2/10/2015 12:26:16 PM
                         SAN ANTONIO, TEXAS          KEITH E. HOTTLE
                                                          Clerk
__________________________________________________________________

                      TAYLOR RAE ROSENBUSCH,
                              Appellant

                                    V.

                         THE STATE OF TEXAS,
                               Appellee

__________________________________________________________________

        Appeal from the 226th District Court of Bexar County, Texas
                Trial Court Cause Number 2011-CR-11075

__________________________________________________________________


                         APPELLANT’S BRIEF

__________________________________________________________________

                                                                John F. Carroll
                                                              Attorney at Law
                                                       111 West Olmos Drive
                                                   San Antonio, Texas 78212
                                                  Telephone: (210) 829-7183
                                                  Facsimile: (210) 829-0734
                                                              SBN: 03888100
                                                    jcarrollsatx@gmail.com




                                          ORAL ARGUMENT REQUESTED
                                          TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................v

  CASES ..................................................................................................................... V

  STATUTES AND RULES .......................................................................................... VI

  CONSTITUTIONAL PROVISIONS ............................................................................ VI

  OTHER AUTHORITIES .......................................................................................... VII

STATEMENT OF THE CASE ...............................................................................1

STATEMENT REGARDING ORAL ARGUMENT ...........................................2

ISSUES PRESENTED .............................................................................................3

  ISSUE NO. ONE ........................................................................................................3

  ISSUE NO. TWO .......................................................................................................3

  ISSUE NO. THREE....................................................................................................3

  ISSUE NO. FOUR ......................................................................................................3

  ISSUE NO. FIVE .......................................................................................................3

  ISSUE NO. SIX .........................................................................................................3

  ISSUE NO. SEVEN ....................................................................................................3

INTRODUCTION AND STATEMENT OF FACTS ...........................................5

  BACKGROUND OF TAYLOR ROSENBUSCH..............................................................7

  CIRCUMSTANCES SURROUNDING THE OFFENSE ...................................................9


                                                             ii
  AFTERMATH: CONTINUED TRAGEDY ..................................................................10

SUMMARY OF THE ARGUMENT ...................................................................11

ISSUES FOR REVIEW RESTATED ..................................................................12

  ISSUE NO. ONE ......................................................................................................12

  ISSUE NO. TWO .....................................................................................................12

  ISSUE NO. THREE..................................................................................................12

  ISSUE NO. FOUR ....................................................................................................12

  ISSUE NO. FIVE .....................................................................................................12

  ISSUE NO. SIX .......................................................................................................13

  ISSUE NO. SEVEN ..................................................................................................13

ARGUMENT ..........................................................................................................13

  I. ARGUMENT UNDER ISSUES REGARDING THE CUMULATION OF SENTENCES ...

        ........................................................................................................................13

     a. Issues One through Three: Trial Court Should Admonish on the

     Possibility of Consecutive Sentences ..............................................................13

     b. Issue Four: Because There are No Standards By Which a Trial Court

     Can Determine Whether to Cumualte Sentences, Article 42.08 is

     Unconstitutional ...............................................................................................16




                                                              iii
     c. Issue Five: The Jury Should Be Instructed as to the Trial Court’s

     Authority to Cumulate Sentences ..................................................................19

  II.     ARGUMENT AND AUTHORITIES UNDER ISSUES FOR REVIEW REGARDING

  THE RE-CREATION OF THE SCENE OF THE ACCIDENT ........................................23


     a. Predicate for Re-Creation Not Met .........................................................23

     b. Evidence was Irrelevant and Unncessary ...............................................24

     c. Re-creation did not Match Conditions of Actual Scene ........................25

     d. Cumulative Evidence ................................................................................26

     d. Harmful Error ...........................................................................................27

CONCLUSION.......................................................................................................28

CERTIFICATE OF SERVICE ............................................................................29

CERTIFICATE OF COMPLIANCE ..................................................................29




                                                        iv
                                  TABLE OF AUTHORITIES

CASES

Aguirre-Mata v. State, 125 S.W.3d 473 (Tex. Crim. App. 2003) ...........................14

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984)....................................23

Barrow v. State, 207 S.W.3d 377 (Tex. Crim. App. 2006) .....................................16

Beasley v. State, 718 S.W.2d 304 (Tex. Crim. App. 1985) .....................................22

Boykin v. Alabama, 395 U.S. 238 (1969) ................................................................13

Brady v. United States, 397 U.S. (1970) ..................................................................14

Brown v. State, 657 S.W.2d 143 (Tex. Crim. App. 1983) .......................................24

Cantu v. State, 738 S.W.2d 249 (Tex. Crim. App. 1987) ........................................27

Carney v. State 573 S.W.2d 24 (Tex. Crim .App. 1978) .........................................14

Ginther v. State, 672 S.W.2d 475 (Tex. Crim. App. 1984) .....................................27

Kniatt v. State, 206 S.W. 3d 657 (Tex. Crim. App. 2006).......................................13

Kolender v. Lawson, 461 U.S. 352,357-358 (1983) ................................................18

McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986) ................................................17

Quintana v. State, 777 S.W.2d 474 (Tex. App. – Corpus Christi 1989, pet. ret'd) .14

Skilling v. United States, 130 S.Ct. 2896, 2927-2928 (2010) ..................................18

Smith, 575 S.W.2d 41 (Tex. Crim. App. 1979) .......................................................14

United States v. Booker, 125 S. Ct. 738 (2005) .......................................................16

United States v. Booker, 125 S. Ct. 738, 753 (2005) ...............................................17


                                                     v
Vitek v. Jones, 445 U.S. 480 (1980).........................................................................17


STATUTES AND RULES

Tex, Code Crim. Proc. Art. 37.071, §7(b)(1).............................................................7

Tex. Code Crim. Proc. 37.07 ...................................................................................21

Tex. Code Crim. Proc. 37.07, §2(b).........................................................................20

Tex. Code Crim. Proc. Art. 36.14 ............................................................................20

Tex. Code Crim. Proc. Art. 37.07, §3(b) .......................................................... 20, 22

Tex. Code Crim. Proc. Art. 37.07, Sec. 2(b) ...........................................................23

Tex. Code Crim. Proc. Art. 37.07, Sec. 4 ..................................................................6

Tex. Code Crim. Proc. Art. 42.08 ............................................... 3, 11, 12, 16, 17, 18

Tex. Code Crim. Proc. Art. 42.08(b) .......................................................................17

Tex. Pen. Code § 3.03(b)(1)(A) ...............................................................................17

Tex. Pen. Code Sec. 3.03(a) .....................................................................................17

Tex. R. App. P. 44.2.................................................................................................28

Texas Rule of Evidence 404(b)..................................................................................6

CONSTITUTIONAL PROVISIONS

Fifth and Fourteenth Amendments to the United States Constitution .....................18




                                                          vi
OTHER AUTHORITIES

Bertrice Luna, Ph.D., “Brain and Cognitive Processes Underlying Cognitive

 Control of Behaviors in Adolescents”, University of Pittsburgh, Oct. 2005 .........8

Johnson, Blum, Giedd (15(3)), “Adolescent Maturity and the Brain: The Promise

 and Pitfalls of Neuroscience in Adolescent Health Policy,” Adolescent Health,

 September 2009, pp. 216-221 .................................................................................7

Paul Thompson, Ph.D., “Time Lapse Imaging Tracks Brain Maturation from Ages

 5-20.” National Institute of Mental Health and the University of California at Los

 Angeles, May 2004. ................................................................................................8




                                                       vii
                                     STATEMENT OF THE CASE

           Appellant was charged by two separate indictments with the offenses of

intoxication manslaughter arising out of a single automobile accident in which two

persons riding together in a vehicle tragically lost their lives. (CR 4-14-50-CR p. 12;

CR 4-14-688-CR p. 15)1 A jury was selected and sworn. Appellant entered a plea of

guilty to both indictments and the trial proceeded on the issue of punishment. The

issue of punishment was submitted to the jury. (CR 34-35) The jury returned

punishment verdicts of a sentence of confinement in prison for a term of twelve years

in each case. (CR 34-35) The jury also made affirmative findings of the use of a

deadly weapon in each case. (CR 34-35) After the jury verdicts were received, the

State presented a Motion for the Court to Cumulate the sentences. (CR 29-31)The

trial court granted the motion. (CR 31)




1
    All references to the Record are to the record in this case No. 04-14-00050-CR, unless otherwise specified


                                                            1
              STATEMENT REGARDING ORAL ARGUMENT

      Appellant respectfully requests the opportunity to present oral argument in

this case. The jury was selected in one day. Evidence was presented over the course

of three days. On the last day of the trial, arguments were presented and the jury’s

verdicts were returned. It is no overstatement that the jury’s decision to impose a

lengthy prison sentence was a devastating blow. But then, with the stroke of a pen,

the trial court doubled the impact by cumulating the sentences. There are significant

issues in this case regarding the future of a devastated and tragic young person, the

due process rights to be informed of the consequences of a plea, the responsibility

of a trial court to fully admonish a person as to sentencing consequences, the

constitutionality of the cumulation statute and the appropriate limits to place on re-

creation evidence. Oral argument regarding these issues is appropriate, it is

important to the jurisprudence of this State and is important to the manner of the

administration of justice in our community.




                                          2
                        ISSUES PRESENTED

Issue No. One: The trial court committed error in failing to admonish
Taylor Rosenbusch at the time that she entered a guilty plea that she was
subject to a total range of punishment of up to 40 years in prison as a result
of the trial court’s authority to cumulate her sentences, in violation of her
right to due process as guaranteed by the Fifth and Fourteenth Amendments
to the United States Constitution.

Issue No. Two: The trial court committed error in failing to admonish
Taylor Rosenbusch at the time that she entered a guilty plea that she was
subject to a total range of punishment of up to 40 years in prison as a result
of the trial court’s authority to cumulate her sentences, in violation of her
right to due course of law as guaranteed by the Article I, Section 10 of the
Texas Constitution.

Issue No. Three: Taylor Rosenbusch’ plea of guilty was involuntary and
should be set aside because she was not admonished at the time that she
entered a guilty plea that she was subject to a total range of punishment of
up to 40 years in prison as a result of the trial court’s authority to cumulate
her sentences.

Issue No. Four: Article 42.08 of the Texas Code of Criminal Procedure is
unconstitutional as applied to this case in that it fails to provide for any due
process rights in connection with a determination to cumulate sentences and
is subject to arbitrary application.

Issue No. Five: The trial court committed error in failing to submit an
instruction to the jury in the Court’s Charge on Punishment regarding
cumulation of sentences.

Issue No. Six:    The trial court committed error in permitting the State to
demonstrate a re-creation of the accident by showing the actual mangled
vehicles involved in the accident allegedly in the position they were in
immediately prior to the accident, that was not relevant and was not
conducted under conditions similar to those existing at the time of the event
in question.

Issue No. Seven: The trial court committed error in permitting a jury view
of the two vehicles involved in the accident positioned outside the

                                    3
courthouse in the position they would allegedly have been in immediately
prior to the collision.




                                4
TO THE HONORABLE FOURTH COURT OF APPEALS:

      Now Comes Taylor Rae Rosenbusch, Appellant, and files this Appellant’s

Brief as follows:


              INTRODUCTION AND STATEMENT OF FACTS

      Tony Morin and Keith Hernandez lost their lives in a traffic accident when

the car they were travelling in collided with a vehicle being driven by 19 year old

Taylor Rosenbusch, the Appellant. She was intoxicated and was driving the wrong

way on Interstate 35 on the city’s northeast side.

      The State chose to secure two separate indictments against Taylor. (CR 4-14-

00050-CR, p. 12; CR 4-14-00688-CR, p. 15) The two indictments were identical

except for the name of the complainant. Both indictments were based on the exact

same conduct by Ms. Rosenbusch and both were based on the one terrible accident

that she caused.

      The way this case worked out is that Taylor was subjected to the exact same

punishment that she would have received if she had caused a person’s death in a

drunk driving accident, got released on bond and went out the very next week, got

heavily intoxicated and caused the death of a second person in a second drunk

driving accident. But that is not what happened.

      The State tried this case like a personal injury lawsuit. The focus was on the

two men whose lives were tragically lost. The State proved the wrong way driving,


                                          5
the accident and the intoxication. It then moved on to the victims of the accident and

their families, calling family members to talk about Mr. Morin and Mr. Hernandez

and the kind of people they were and what they meant to their families. (RR Vol. V,

pp. 37, 50, 61, 69). It isn’t bad that the prosecution wanted to introduce such

evidence, but it does show the focus of the prosecution. Taylor, the person “on trial”,

was a mere afterthought. The focus of the punishment case by the State was

punishing the crime, not the criminal. She didn’t matter. Put anyone in the

defendant’s chair. It didn’t matter. This case was not about what to do about Taylor

Rosenbusch. It was all about the District Attorney administration’s perception of the

proper manner to fight a social ill, drunk driving.

      For example, in most cases, the State uses its resources to investigate a

defendant’s background and develop potential bad acts evidence that can be used to

show the jury what kind of a person the accused is and why the particular person on

trial is punishment worthy. Not so here. The State gave no notice of intent to use

extraneous bad conduct evidence in the guilt/innocence phase under Texas Rule of

Evidence 404(b) or in the punishment phase under Article 37.07, Sec. 4, Texas Code

of Criminal Procedure. (See Clerk’s Record). It had no such evidence. No bad

character evidence was used by the state. The State’s lack of interest in the particular

accused person was made clear by its voir dire which included questions such as:

“Why do we have a DWI problem in Bexar County and what can jurors do about it”


                                           6
(RR Vol. III, p. 25) and “Are you comfortable giving a first time offender 20 years”.

(RR Vol. III, p. 44).

      Even in a capital murder case where the State seeks the death penalty, the

value and goodness of the victim of the crime, while it can be proven in the

punishment phase, is not a factor contributing to a finding that the death penalty is

appropriate. That is dependent on the future danger posed by the accused. Tex, Code

Crim. Proc. Art. 37.071, §7(b)(1).

Background of Taylor Rosenbusch

      The story of Taylor Rosenbusch is tragic. We know that the loss of the two

men who are identified in the very first sentence of this Brief is a terrible tragedy

that never should have happened. But this Brief is, as it should be, about Taylor and

about who she is and about what has happened to her and about what can and should

be done, from a legal perspective, about it. On the day of that terrible accident,

Taylor was nineteen years old. Nineteen years old. She was only twenty-two at the

time of the trial (RR Vol. V, p. 125; RR Vol. VIII, State Ex. 52, p. 1). Science has

made clear that the human brain is not fully developed before the age of 25. Johnson,

Blum, Giedd (15(3)), Adolescent Maturity and the Brain: The Promise and Pitfalls

of Neuroscience Research in Adolescent Health Policy, Adolescent Health,

September 2009, pp. 216-221. A young person’s cognitive development continues

to this age and their emotional maturity, self- image and judgment will be affected


                                         7
until the prefrontal cortex of the brain has fully developed. Bertrice Luna, Ph.D.,

Brain and Cognitive Processes Underlying Cognitive Control of Behaviors in

Adolescents, University of Pittsburgh, Oct. 2005; Paul Thompson, Ph.D., Time

Lapse Imaging Tracks Brain Maturation from Ages 5-20, National Institute of

Mental Health and the University of California at Los Angeles, May 2004. While

this is significant information, it is not all that is important to know about young Ms.

Rosenbusch. Unfortunately, indeed, tragically, her very young life has been filled

with sadness, trauma and misfortune even before the terrible accident that has

brought her here.

      Taylor lost her father when she was very young. He was involved in an

intoxication related one car traffic accident on her seventh birthday. (RR Vol. V, pp.

131-132). But it’s really worse than that because although she lost her father, he was

not gone. He lived in a tragic permanent vegetative state. His mother, Taylor’s

grandmother, made a choice to keep him medically alive. He remained living in that

awful state until Taylor was 19 years old. (RR Vol. V, pp. 89-90; 131-132; 136-137).

That was the father she has known almost her entire life. Unfortunately, he was not

there to protect her when she was raped at a very young age, or when a second rape

occurred when she was in the eighth grade. (RR Vol. V, p. 134).

      As a teenager, Taylor was physically abused by a boyfriend. (RR Vol. V, pp.

90; 137-138). She was anorexic and bulimic. (RR Vol. V, pp. 133-134). She started


                                           8
cutting herself. (RR Vol. V, pp. 133-134). She attempted to commit suicide. (RR

Vol. V, p. 134). She started drinking and using drugs. Not to be malicious. Not to

hurt anyone, but in a misguided attempt to relieve her own trauma.

Circumstances Surrounding the Offense

      Not long before the night of the accident, Taylor’s mother allowed her to move

to San Antonio. A decision, like many in Taylor’s life, that everyone now regrets.

She was taking classes at the Culinary Institute of San Antonio. (RR Vol. V, p. 126).

She had made some friends. They turned out to be false friends. One of them was an

older man, Paul Morales. (RR Vol. V, p. 126). It sounds funny for counsel to say

older, he was only thirty-five years old. But to Taylor, he was older. He invited her

to his birthday party. She went with a couple of her so-called friends, one of whom,

Stephen, was to be the designated driver to make sure she got home (RR Vol. V, pp.

126; 128-129; 139-140). During the course of this party, the thirty-five year old host

induced Taylor to drink “shots of tequila” and a mixed drink. (RR Vol. V, pp. 126-

127). This is very important to this young, immature, scarred and wounded person’s

decision to leave the party. This thirty-five year old man had previously made

comments that he was sexually interested in her. (RR Vol. V, pp. 127-128). She was

at his house, he was much bigger and stronger than she was; she became frightened

and looked for her friend to take her home. (RR Vol. V, pp. 126-129; 142-143). This

“friend” was nowhere to be found. She would later find that he was drunk and had


                                          9
passed out. She was fearful of being susceptible to her host and felt compelled to

leave the party. Sadly, stupidly, tragically, she drove away in her vehicle and ended

up going the wrong way on Interstate 35 where the awful collision occurred.

      She was seriously injured as a result of the accident. She suffered a punctured

lung, broken ribs, a broken pelvis and other broken bones. (RR Vol. VIII, State’s

Ex. 52, medical records). At the hospital that day she was told what had happened

and that both occupants of the other vehicle involved in the accident had died. (RR

Vol. IV, pp. 123-124) She was overcome with emotion and guilt and shame. (RR

Vol. IV, pp. 123-124, 161) One of the police officers who was working on the case

that night, Officer Tommy Johnson, maintained contact with Taylor and her family.

He testified at the trial. (RR Vol. IV, p. 115) He was sympathetic to Taylor. As

shown on the record, he was going to testify to his opinion that Taylor was deserving

of a probated sentence. (RR IV, pp. 105-109).The trial court ordered in limine that

such testimony not be introduced.

Aftermath: Continued Tragedy

      While the case was pending, Taylor lived at her mother’s home in Corpus

Christi. Taylor again attempted suicide. She cut her arms one night and laid in bed

to die. (R.R. Vol. V, pp. 148-152). She was found by her mother in the morning and

taken to the hospital and her life was saved. After her suicide attempt in May 2011,

she went to the Starlite Recovery Center. (RR Vol. V, p. 85). She worked with a


                                         10
counselor there named Melanie Little. (RR Vol. V, p. 85). Ms. Little testified to

working with Taylor and her observations. She found Taylor to be deeply depressed

and suffering chemical dependency. (RR Vol. V, pp. 85-91). Taylor was remorseful

and felt shame over what she had done. (RR Vol. V, pp. 90-93). Ms. Little worked

with Taylor to help her understand her shame and to make amends. (RR Vol. V, pp.

92-94).


                      SUMMARY OF THE ARGUMENT

      Because the impact of the trial court’s cumulation order was so significant and

so devastating, due process demands that there be safeguards to protect Taylor from

arbitrary determinations made without any guiding principles. Further, the absolute

right to jury sentencing established in Texas law must have meaning and cannot be

overwhelmed by a procedural determination made by a trial judge without guiding

principles and procedural protections. An important protection that would ensure

fairness in this case would be transparency. This could have been accomplished with

proper admonishments as to the court’s cumulation authority in sentencing. This

could also have been accomplished by an instruction to the jury about the court’s

cumulation authority. The cumulation statute, article 42.08, Code of Criminal

Procedure, has no procedural protections and no guiding principles. As such, it does

not meet the requirements of due process and is unconstitutional.




                                        11
      The Rules of Evidence need to be applied fairly and properly and the re-

creation of the “scene” just before the accident using the badly damaged vehicles

involved in this case should not have been demonstrated to the jury as it failed to

meet the required predicate to show its relevance, propriety and admissibility.


                      ISSUES FOR REVIEW RESTATED

      Issue No. One: The trial court committed error in failing to admonish
      Taylor Rosenbusch at the time that she entered a guilty plea that she was
      subject to a total range of punishment of up to 40 years in prison as a result
      of the trial court’s authority to cumulate her sentences, in violation of her
      right to due process as guaranteed by the Fifth and Fourteenth Amendments
      to the United States Constitution.

      Issue No. Two: The trial court committed error in failing to admonish
      Taylor Rosenbusch at the time that she entered a guilty plea that she was
      subject to a total range of punishment of up to 40 years in prison as a result
      of the trial court’s authority to cumulate her sentences, in violation of her
      right to due course of law as guaranteed by the Article I, Section 10 of the
      Texas Constitution.

      Issue No. Three: Taylor Rosenbusch’ plea of guilty was involuntary and
      should be set aside because she was not admonished at the time that she
      entered a guilty plea that she was subject to a total range of punishment of
      up to 40 years in prison as a result of the trial court’s authority to cumulate
      her sentences.

      Issue No. Four: Article 42.08 of the Texas Code of Criminal Procedure is
      unconstitutional as applied to this case in that it fails to provide for any due
      process rights in connection with a determination to cumulate sentences and
      is subject to arbitrary application.

      Issue No. Five: The trial court committed error in failing to submit an
      instruction to the jury in the Court’s Charge on Punishment regarding
      cumulation of sentences.



                                         12
      Issue No. Six:    The trial court committed error in permitting the State to
      demonstrate a re-creation of the accident by showing the actual mangled
      vehicles involved in the accident allegedly in the position they were in
      immediately prior to the accident, that was not relevant and was not
      conducted under conditions similar to those existing at the time of the event
      in question.

      Issue No. Seven: The trial court committed error in permitting a jury view
      of the two vehicles involved in the accident positioned outside the
      courthouse in the position they would allegedly have been in immediately
      prior to the collision.

                                   ARGUMENT

I.    Argument Under Issues Regarding the Cumulation of Sentences

a.    Issues One through Three: Trial Court Should Admonish on the
Possibility of Consecutive Sentences

      A guilty plea constitutes a waiver of three significant constitutional rights: the

right to a jury trial, the right to confront one’s accusers and the right not to

incriminate oneself. Kniatt v. State, 206 S.W. 3d 657, 664 (Tex. Crim. App.

2006)(citing Boykin v. Alabama, 395 U.S. 238, 243 (1969). Consequently, a guilty

plea cannot be entered and accepted unless it is made knowingly, intelligently and

voluntarily so that the plea is consistent with due process of law. Id., citing Boykin,

395 U.S. at 242. “To be voluntary, a guilty plea must be the expression of the

defendant’s own free will and must not be induced by threats, misrepresentations, or

improper promises. Id. (citing Brady v. United States, 397 U.S. 742, 755 (1970). In

Aguirre-Mata v. State, the Court of Criminal Appeals said that the Boykin Court



                                          13
stated “generally that state courts should make sure that a guilty pleading defendant

has a full understanding of what the plea connotes and of its consequences.” 125

S.W.3d 473, 475 (Tex. Crim. App. 2003). The record must affirmatively disclose

that a defendant who pleaded guilty entered his or her plea understandingly and

voluntarily. Brady v. United States, 397 U.S. 742, 758 (1970).

      Admonishment as to the range of punishment to include the potential for

cumulation of sentences is necessary to satisfy the requirements of due process.

Under Texas law, so long as the law authorizes the imposition of cumulative

sentences, a trial judge has absolute discretion to stack sentences. Quintana v. State,

777 S.W.2d 474, 480 (Tex. App. – Corpus Christi 1989, pet. ret'd); Smith 575

S.W.2d at 41, 41 (Tex. Crim. App. 1979).; Carney v. State 573 S.W.2d 24, 27 (Tex.

Crim .App. 1978).

No Admonishment on Authority to Cumulate Sentences

      In this case, Taylor Rosenbusch entered a plea of guilty before the jury. (RR

Vol. IV, p.4). Prior to accepting such guilty plea, to both indictments, the trial court

inquired of Ms. Rosenbusch regarding her decision and admonished her regarding

certain rights and consequences. (RR Vol. IV, pp. 3-8). The trial court’s

admonishments did not include a warning that any sentences imposed by the jury

were subject to the trial court’s decision to cumulate them. She was not warned that

she may have to serve consecutive sentences and that the effective range of


                                          14
punishment was not a maximum of twenty years, but rather, a maximum of forty

years.

The Significance of a Cumulation Order Requires Notice From the Court Prior

to Accepting a Guilty Plea

         Because of the significance of a cumulation order, due process requires that a

guilty plea is involuntary and should not stand unless the record clearly shows that

an understanding of the consequences of the plea includes notice of the trial court’s

unfettered discretion to cumulate sentences. See e.g., Boykin v. Alabama, 395 U.S.

238, 243 (1969)(defendant must have a full understanding of what the plea connotes

and its consequences).       That did not happen in the instant case and the trial court’s

failure to fully admonish rendered the guilty plea involuntary. The due course of law

guarantee under the Texas Constitution should require no less than such

admonishments as to the trial court’s authority to cumulate sentences. Article I,

Section 19, Texas Constitution.

         The difference between concurrent and consecutive sentences is significant.

It can result in an actual doubling of the sentence imposed and, as seen in the instant

case, can be accomplished by the mere stroke of a pen. (CR 31) The Texas Court of

Criminal Appeals has held that the cumulation of individual sentences does not

implicate discrete fact finding that affects the statutory maximum punishment and,

as a result, does not activate the Sixth Amendment right to a jury determination


                                            15
mandated by the United States Supreme Court’s decision in Apprendi and following

cases. Barrow v. State, 207 S.W.3d 377 (Tex. Crim. App. 2006). This however,

makes even more important that accused persons be afforded due process and due

course of law in connection with cumulation orders as guaranteed by the Fifth and

Fourteenth Amendments to the United States Constitution and Article I, Section 19

of the Texas Constitution. The right to due process applies to criminal sentencing

determinations. See e.g. United States v. Booker, 125 S. Ct. 738, 753 (2005).

      Taylor Rosenbusch was harmed by the trial court’s failure to admonish her as

to the consecutive sentencing provisions of the law that applied to her case. As a

result, the convictions and sentences imposed should be set aside and the cases

remanded for a new trial. The failure to so admonish rendered the guilty pleas

involuntary and the convictions and sentences imposed should be set aside and the

cases remanded for a new trial.

b.    Issue Four: Because There are No Standards By Which a Trial Court

Can Determine       Whether       to   Cumualte   Sentences, Article      42.08   is

Unconstitutional

      There really are no guidelines for determining whether a sentence should be

cumulated in a case such as the instant case. It is simply discretionary. See Texas

Penal Code § 3.03(b)(1)(A) and Texas Code of Criminal Procedure 42.08. The

legislature has mandated in certain circumstances that a sentence must be


                                         16
cumulative. Such as when a person commits an offense while he is an inmate of the

institutional division. In such case, the statute requires that any sentence received on

the new offense must be cumulated with the sentence he was serving at the time of

the commission of the offense. Tex. Code Crim. Proc. Art. 42.08(b). Cases tried

together which arise out of the same criminal episode must not be cumulated and

must run concurrently, unless specifically excepted from that rule. Tex. Pen. Code §

3.03(a). There is no mandatory cumulation requirement in cases such as the instant

case. Tex. Pen. Code § 3.03(b)(1)(A). There is no prescribed process for entering a

cumulation order. See Tex. Code Crim. Proc. Art. 42.08. There is no process for

notifying an accused person that a cumulation order is being contemplated. There is

no process for an accused person to be heard on the issue of whether sentences

should be cumulated.

      A person is entitled to due process guaranteed by the Fifth and Fourteenth

Amendments to the United States Constitution in criminal sentencing. United States

v. Booker, 125 S. Ct. 738, 753 (2005); McMillan v. Pennsylvania, 477 U.S. 79, 85

(1986). In Vitek v. Jones, 445 U.S. 480 (1980), the Supreme Court held that the

involuntary transfer of a state prisoner to a state mental hospital without notice and

an adversary hearing violated the due process clause of the Fourteenth Amendment.

Id. at 491-492. Because the transfer constituted the deprivation of a liberty interest,

the prisoner was entitled to the due process rights of notice and a hearing prior to the


                                          17
entry of an order directing the transfer. In the instant case, the entry of a cumulation

order under article 42.08 of the Code of Criminal Procedure impacts a liberty interest

in that it results in an increased punishment. Specifically in this case, an increase of

twelve years in the sentence that Ms. Rosenbusch will be required to serve. Due

process requires that there be procedural protections enacted so that a person’s

liberty interests are not adversely impacted without the required constitutional

protections.

      As it is presently constructed, article 42.08 provides no such protections and,

therefore, violates the due process guarantees of the Fifth and Fourteenth

Amendments to the United States Constitution. In addition, because there are no

guidelines or standards for courts to follow in deciding whether to cumulate

sentences, article 42.08 is unconstitutionally vague because it is subject to arbitrary

determinations in violation of the requirements of due process as guaranteed by the

Fifth and Fourteenth Amendments to the United States Constitution. Skilling v.

United States, 130 S.Ct. 2896, 2927-2928 (2010); Kolender v. Lawson, 461 U.S.

352,357-358 (1983).

      Because the cumulation statute is unconstitutional, the cumulation order

entered pursuant to said statute should be set aside and the sentences in the two cases

should be ordered to be served concurrently.




                                          18
c.    Issue Five: The Jury Should Be Instructed as to the Trial Court’s

Authority to Cumulate Sentences

      The issue of whether the sentences would run consecutively or concurrently

is clearly material to the issue of what sentence should be imposed. That is an issue

that Ms. Rosenbusch and her attorneys had a right to be determined by a jury. Indeed,

Ms. Rosenbusch signed and filed a written election to have the jury determine her

punishment. (CR 27). The jury in this case also was concerned about the issue of

consecutive v. concurrent sentences. They were given no instructions on the issue.

(R.R. VII, pp. 9-17). They were not asked to answer any questions on the issue. (R.R.

VII, pp. 14-17). They were not given any information on which to give the issue

consideration. They tried. They were obviously concerned about it. The jury sent out

a note during their deliberations asking for guidance. It read: “On the possible

sentence to confinement for the two cases, would the terms be served consecutively

or concurrently?” (CR 32, RR Vol. VII p. 71). To this very important and germane

question, the trial court responded: “The court is not permitted to respond to your

questions, please follow the instructions in the Charge of the Court and continue

your deliberations.” (RR Vol. VII, p. 71). This gave no guidance to the jury at all.

And once it was over and the jury had returned its punishment verdict, their decision

was taken from their hands, from their influence and from their determination and




                                         19
the trial court entered a short order that doubled the sentence imposed on Taylor.

(CR 31)

      In Texas, people have the right to elect to have a jury determine their sentence

in the event they are convicted of a crime. Tex. Code Crim. Proc. 37.07, §2(b). If

that right is to have any meaning, the law cannot allow a trial court to make a

decision, after the jury carefully deliberates on the appropriate punishment, that

doubles the sentence imposed by the jury. That allows for arbitrary results and allows

trial courts to override jury sentencing. In addition, there are no guidelines for the

trial court to follow in deciding whether to cumulate sentences. To properly balance

the statutory authority of the trial court to cumulate certain sentences with the

statutory authority of the jury to determine the sentence, there must be

communication between the trial court and the jury regarding the issue of cumulation

of sentences. The jury should be aware, not only of the trial court’s authority to take

such action, but must also know whether such action will be taken. Article 36.14 of

the Code of Criminal Procedure, entitled “Charge of the Court” requires the trial

court to deliver to the jury, “a written charge distinctly setting forth the law

applicable to the case…” Tex. Code Crim. Proc. Art. 37.07, §3(b), provides that,

after the introduction of…(punishment) evidence has been concluded, and if the jury

has the responsibility of assessing the punishment, the court shall give such

additional written instructions as may be necessary…”


                                          20
       If the jury is not informed of the trial court’s cumulation authority, then the

trial court’s authority to affect a sentence swallows the accused person’s right to a

sentence imposed by a jury.

      Texas law does not prohibit a trial court from instructing a jury on cumulation

of sentences. Tex. Code Crim. Proc. 37.07. To give proper balance to the competing

concerns described above, the trial court should be required to make a determination

of whether the sentences will run consecutively or concurrently prior to submitting

the case to the jury. At that point the evidence is closed and the trial court has all the

information it needs in order to make an informed decision on whether to cumulate

sentences. If the trial court waits until after the jury returns its verdict on punishment,

then the authority to cumulate allows the trial court to “fix” what the jury has done

in reaching a verdict and ensure the imposition of a sentence the trial court thinks is

appropriate, regardless of the desire and decision of the jury. When the trial court

can enter an order that doubles the sentence imposed by the jury, the right to elect a

jury to decide punishment becomes illusory. Texas law is clear that a trial court judge

has no authority to override a jury decision on punishment. Once a jury verdict

assessing punishment has been received by the court and entered of record, the trial

court is not entitled to change the verdict of the jury. Beasley v. State, 718 S.W.2d

304, 305 (Tex. Crim. App. 1985). However, that is exactly what the trial court can

do in cases such as this. The trial court, by a mere order, can double the jury sentence.


                                            21
That has the effect of overriding the jury’s verdict. Such a result is contrary to Texas

law providing for jury sentencing. That is what happened in this case.

      The trial court should make the decision on a State’s request to cumulate

sentences before submitting the case to the jury and should include in the court’s

charge an instruction telling the jury whether the sentences they elect to impose will

run concurrently or consecutively. This would be an appropriate and necessary

instruction under Tex. Code Crim. Proc. Art. 37.07, §3(b). This will eliminate the

type of uncertainty that occurred in the instant case when the jury sent out a note

asking about cumulation of sentences only to be told that they could not receive

further instruction on that issue. It would ensure that the determiner of the proper

punishment, the jury, had all the information relevant to its decision to allow it to

pronounce a sentence that bore relevance and relation to the actual sentence to be

imposed. Such a procedure and instruction would have been appropriate and

necessary in the instant case to give full effect to Ms. Rosenbusch’ election for jury

sentencing. The failure of the trial court to give such an instruction, although not

requested by the defense, constituted egregious harm justifying a new punishment

hearing in this case. Almanza v. State, 686 S.W.2d 157, 160-174 (Tex. Crim. App.

1984).

      The harm is evident. Taylor was sentenced to twelve years in each case. The

sentencing jury had no knowledge of whether and to what extent the trial court could


                                          22
order the sentences to run consecutively. The trial court ordered the sentences to run

consecutively, thereby ensuring, as a matter of a judicial order, not a jury

determination, that she would serve a twenty-four year sentence. The right to have

one’s sentence determined by the jury is absolute. Tex. Code Crim. Proc. Art. 37.07,

Sec. 2(b). Once the defendant makes a proper and timely request, the sentence must

be determined by the jury. Despite her proper request, the sentencing determination

was effectively made by the trial court. His decision to cumulate sentences overrode

the verdict of the jury and caused egregious harm to Taylor Rosenbusch.

      The cumulation order should be set aside as a result of the failure to properly

instruct the jury, or, alternatively, the punishment verdict should be set aside and the

cases remanded to the trial court for a new trial on the issue of punishment.

II.   Argument and Authorities Under Issues for Review Regarding the Re-

Creation of the Scene of the Accident

a.    Predicate for Re-Creation Not Met

      The State filed a Motion with the trial court requesting that it be permitted to

positon the two vehicles from the accident on the street outside the courthouse so the

jury could see them in the position they were in just before the collision. (CR 21) In

order to introduce evidence of a re-creation experiment, the State must establish the

following predicate: (1) the results would be helpful to the trier of fact in deciding

any relevant issue; and (2) that the out of court experiment was conducted under


                                          23
conditions similar to those existing at the time of the event in question. Brown v.

State, 657 S.W.2d 143 (Tex. Crim. App. 1983). The State failed to establish this

predicate and the trial court should not have permitted the State to create a

demonstration of two badly damaged cars facing each other on the street outside the

courthouse.

b.    Evidence was Irrelevant and Unncessary

      There was no relevant issue the jury needed to decide with the assistance of

this re-creation of the scene. Ms. Rosenbusch had entered a guilty plea to

intoxication manslaughter. There was no contest in the trial that she drove a motor

vehicle the wrong way on a highway and caused a head on collision that caused the

death of two men. Evidence was introduced, and not challenged, that the data

recovered from Ms. Rosenbusch’ vehicle showed it was travelling at a speed of 52

miles per hour immediately prior to the collision. (RR Vol. IV, pp. 207-208) There

was no contest as to what happened. The medical examiner’s testimony as to the

cause of death was not challenged. (RR Vol. V, pp. 20-36) It was fully presented to

the jury. The jury did not need any further information. The defense did not

challenge the evidence of intoxication. That evidence was introduced, and not

challenged. It was shown by the testimony of witnesses who observed Taylor’s state

after the accident (RR. Vol. IV, pp. 79-81, 121-122, 153-159) and by evidence of

two blood draws which showed that Ms. Rosenbusch had an alcohol concentration


                                        24
of .26 in a sample that was taken about one hour after the accident (RR Vol. V, pp.

8-9; RR Vol. VIII, State’s Ex. 52) and .18, in a sample that was taken about two and

one-half hours after the accident. (RR Vol. IV, p. 223, Vol. VII, State Ex. 37)

c.    Re-creation did not Match Conditions of Actual Scene

      There was not even a pretense made that the out of court demonstration was

conducted under conditions similar to those existing at the time of the event. The re-

creation was done in broad daylight on a city street outside the courthouse. (R.R.

Vol. IV, p. 190). The accident occurred at night on a highway. The re-creation

showed two vehicles badly damaged by a collision outside the courthouse at

approximately 4:00 p.m. in the afternoon (R.R. Vol. IV, p. 190). Immediately prior

to the actual accident, the vehicles were not in such badly damaged condition. In

fact, there was no evidence introduced as to the relative condition of the two vehicles

prior to the accident, so there could not be any finding that the re-creation was similar

to reality. This was just an excuse for the State to show the damage to the vehicles.

Damage that was fully proven and fully established by testimony and photographic

evidence. There was no similarity to reality in this re-creation. The conclusory and

truncated predicate to the admissibility of the re-creation and demonstration did not

render it appropriate:

      Q:     (Prosecutor) Now, we had you coordinate bringing the vehicles from
             this crash over outside the courthouse today; is that right?

      A:     (Det. Doyle) That’s correct.

                                           25
      Q:       And position them in such a way that they’re facing each other like
               impact would have happened; is that right?

      A:       That’s correct.

      Q:       Do you think that that evidence would be helpful to the jury in
               assessing the severity of this particular crash?

      A:       Well, no doubt about it, a picture’s one thing, seeing something is
               something altogether different.

(R. IV 189).

      That’s it. That was the evidentiary basis for the re-creation and for showing it

to the jury. The State simply did not meet the predicate requirements for taking the

jury outside to look at the damaged vehicles. The issue was thoroughly discussed

with the trial court and defense objections were asserted and overruled. (R.R. Vol.

IV, pp. 109-114). To be admissible, an experiment must be conducted under

conditions which are similar to the event to be duplicated. Ginther v. State, 672

S.W.2d 475 (Tex. Crim. App. 1984); Cantu v. State, 738 S.W.2d 249, 255 (Tex.

Crim. App. 1987). In Cantu, the Court found no error in the trial court’s refusal to

permit a defense experiment due to dissimilarities between the conditions at the time

of the event and at the time of the experiment. Cantu, 738 S.W.2d at 255.

d.    Cumulative Evidence

      The State introduced numerous photographs depicting both vehicles and

clearly showing their state and the damage inflicted upon them. (R.R. Vol. VIII,


                                           26
States Ex. 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 24, 25, 26, 27). The State also

introduced numerous photographs of the two men who lost their lives, graphically

showing the severity of their injuries. (R.R. Vol. VIII, States Ex. 6, 18, 19, 20, 21,

22, 23, 28, 31). This included photos at the scene and autopsy photos. There was no

need for the demonstrative re-creation. There was no proper evidentiary basis for its

use in this case. The jury view and re-creation should not have been permitted. The

re-creation evidence as demonstrated to the jury was improper because the State

failed to establish the predicate for admissibility. That predicate is basically a

requirement that the State show the evidence is relevant and, therefore, admissible

under Rule 402, Texas Rules of Evidence. The evidence failed the relevancy test. In

addition, any probative value was outweighed by the danger of unfair prejudice,

confusion of issues and the needless presentation of cumulative evidence. As a

result, the re-creation was also inadmissible under Rule 403, Texas Rules of

Evidence.

d.    Harmful Error

      The trial court’s error was harmful to Appellant. She was a sympathetic

unfortunate and very young person who had never been arrested before, let alone

had any contact with the criminal justice system. For her first offense she was

severely punished. Her application for probation was denied. She was given two 12

year prison terms which were cumulated resulting in a twenty-four year prison


                                         27
sentence. The error of the trial court adversely affected the right of Ms. Rosenbusch

to a fair and impartial trial, one properly decided on the facts as properly admitted

under the Rules of Evidence. Tex. R. App. P. 44.2. The verdict on punishment should

be set aside and the cases remanded to the trial court for a new trial on the issue of

punishment.


                                   CONCLUSION

      WHEREFORE, for the reasons stated herein, Appellant Taylor Rosenbusch

respectfully requests that the Court reverse the judgment and sentence imposed and

remand this case to the trial court for a new trial, or set aside the punishment verdict

and remand the case to the trial court for a new trial on the issue of punishment, or

set aside the trial court’s order cumulating sentences.

                           Respectfully submitted,

                                        John F. Carroll
                                        Attorney At Law
                                        111 West Olmos Drive
                                        San Antonio, Texas 78212
                                        210/829-7183 - Telephone
                                        210/829-0734 - Facsimile
                                        jcarrollsatx@gmail.com

                                        ATTORNEY FOR APPELLANT,
                                        TAYLOR RAE ROSENBUSCH

                                        By: /s/ John F. Carroll
                                               John F. Carroll
                                               State Bar No. 03888100



                                          28
                          CERTIFICATE OF SERVICE

       I do hereby certify that a true and correct copy of the above has been delivered
to the Bexar County District Attorney=s Office, Paul Elizondo Tower, 101 W. Nueva,
4th Floor, San Antonio, Texas 78205 on the 10th day of February, 2015.
                                                /s/ John F. Carroll
                                                John F. Carroll


                      CERTIFICATE OF COMPLIANCE

      I certify under Texas Rule of Appellate Procedure 9.4(i)(3) that this Brief was
prepare using Microsoft Word and that the word count shows that the total number
of words in this brief is 7643 on the 10th day of February, 2015.

                                               /s/ John F. Carroll
                                               John F. Carroll




                                          29
