                                                                          PD-0841-15
                     PD-0841-15                         COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                        Transmitted 7/7/2015 11:50:51 AM
                                                           Accepted 7/9/2015 3:31:38 PM
                NO.                                                       ABEL ACOSTA
           IN THE COURT OF CRIMINAL APPEALS                                       CLERK




RANDY ALLEN SEGURA                            PETITIONER

VS.

THE STATE OF TEXAS                            RESPONDENT


       On appeal from cause number 01-14-00955-CR in the
         First Court of Appeals and cause number 1383638
        in the 177th District Court of Harris County, Texas

          PETITION FOR DISCRETIONARY REVIEW




                                              KEN GOODE
                                              P.O.Box 590947
                                              Houston, Texas 77259
                                              (409) 779-3631
                                              State Bar # 08143200
                                              Goodedkc@msn.com




      July 9, 2015
            STATEMENT REGARDING ORAL ARGUMENT

Petitioner waives oral argument.
                     IDENTIFICATION OF THE PARTIES

Randy Allen Segura                      Petitioner
TDCJ-ID
Huntsvitle, Texas

Skip Cornelius                          Defense Attorney
Houston, Texas

Rudy Duarte                              Defense Attorney
Houston, Texas

Keri Fuller                             Trial Prosecutor
Houston, Texas

Hon. Ryan Patrick                        Trial Judge
Houston, Texas

Ken Goode                                 Appellate Attorney
Houston, Texas

Devon Anderson                            Appellate D.A.
Houston, Texas
                               TABLE OF CONTENTS

Statement of the Case                                  ,

Statement of Procedural History

Ground for Review

          WHETHER THE COURT OF APPEALS ERRED WHEN CONDUCTING
             ITS EGREGIOUS-HARM REVIEW BY FAILING TO APPLYTHE
          FACTORS REQUIRED BYALMANZAV. STATE TO THE QUESTION
             OF THE IMPACT OF THE OMISSION OF A VOLUNTARINESS
                    INSTRUCTION UNDER ARTICLE 38.22 SECTION 6.


Argument

Prayer for Relief

Certificate of Word Count Compliance

Certificate of Service
                            INDEX OF AUTHORITIES

CASES

Almanza v. State,
   686 S.W.2d 157,171 (Tex. Crim. App. 1985).

Ellison v. State,
  86 S.W.2d 226, 228 (Tex. Crim. App. 2002)....    4

Oursbourn v. State,
  259 S.W.3d 159,179-80 (Tex. Crim. App. 2008)     2
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     Comes Now Randy Allen Segura, petitioner, and files this petition for

discretionary review and in support shows as follows:

                             STATEMENT OF THE CASE


     Petitioner was charged by indictment with the offense of capital murder.

Petitioner pleaded not guilty, and proceeded to jury trial. Punishment was set at

life in prison after the jury found petitioner guilty as charged.

                      STATEMENT OF PROCEDURAL HISTORY


     In an unpublished opinion dated June 30, 2015 the First Court of Appeals

affirmed the conviction and sentence.

     No motion for rehearing was filed.
                              GROUND FOR REVIEW



        WHETHER THE COURT OF APPEALS ERRED WHEN CONDUCTING
        ITS EGREGIOUS-HARM REVIEW BY FAILING TO APPLY THE
        FACTORS REQUIRED BY ALMANZA V. STATE TO THE QUESTION
        OF THE IMPACT OF THE OMISSION OF A VOLUNTARINESS
        INSTRUCTION UNDER ARTICLE 38.22 SECTION 6.



                                   ARGUMENT

                                          I.

     On appeal petitioner argued that the trial court erred by not submitting an

Article 38.22 section 6 voluntariness instruction relating to his inculpatory

videotaped statement. Petitioner contended that although he did not request the

instruction, the trial court had a duty to submit the voluntariness instruction

because it was part of the "law applicable to the case/' See Oursbourn v. State,

259 S.W.3d 159, 179-80 (Tex. Crim. App. 2008). Petitioner further asserted that

the omission caused him egregious harm.

     Petitioner argued that in the absence of a voluntariness instruction, it is

unlikely that the jury questioned the voluntariness of his confession, despite

evidence that at the time of the interrogation he (1) hadn't slept, (2) had taken

narcotics the night before, (3) was bipolar and schizophrenic, (4) had ADHD, and

(5) was off his prescribed medications.
     Petitioner contended that the lack of an instruction left the jury with zero

guidance regarding how to evaluate the voluntariness of his custodial statement.

To be sure, petitioner pointed out that the jury was unaware that it had to apply a

reasonable doubt standard when determining the voluntariness of                the

confession.

     Petitioner also argued that in the absence of the instruction, the jury was

unaware that it could not consider the statement for any purpose if it found the

statement to be involuntary.

     For its part, the lower court held that the "state of the evidence strongly

supports the guilty verdict." The lower court noted that in final argument, the

State "spent the majority of its argument focusing on the evidence collected at

the two crime scenes rather than appellant's recorded statement/'

     The lower court thus held that petitioner "had not shown egregious harm."

                                         II.

     Petitioner asserts that the lower court's egregious-harm review was flawed.

The court focused on the possible harm to petitioner because of the admission of

his videotaped confession, rather than on the impact of the omission in the jury

charge of a voluntariness instruction.
      The lower court should have determined whether petitioner suffered

egregious harm by analyzing the impact of the omission of the voluntariness

instruction, not by analyzing the impact of the admission of the videotaped

statement See Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002).

     In short, the lower court's analysis did not properly apply the factors

required by Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) to the

question of the impact of the omission of the voluntariness instruction.



     The lower court's opinion is at odds with precedent from this court, thus

warranting review.




                               PRAYER FOR RELIEF


               WHEREFORE, petitioner prays that his ground for review be

         granted.


                                             Respectfully submitted,


                                              /S/
                                              KEN GOODE
                                              P.O.Box 590947
                                              Houston, Texas 77259
                                              (409) 779-3631; SBN 08143200
                                              Goodedkc(5)msn.com
                    CERTIFICATE OF WORD COUNT COMPLIANCE


        Relying on the word count function in the word processing software used to

produce this document I certify that the number of words used in this petition for

discretionary review is 700.

                                              /S/
                                               KEN GOODE




                               CERTIFICATE OF SERVICE


        1 certify that a true and correct copy of the foregoing was delivered to the

State and the State Prosecuting Attorney this 7th day of July 2015 by first class

mail.




                                                    /S/.
                                                    KEN GOODE
Opinion issued June 30, 2015.




                                      In The

                               Court of
                                      For The
                          jf tr*t JBtetrict of

                               NO. 01-14-00955-CR


                     RANDY ALLEN SEG1JRA, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Case No. 1383638


                          MEMORANDUM OPINION

      A jury convicted appellant, Randy Allen Segura, of capital murder. Because

the State did not seek the death penalty, the trial court assessed punishment at

confinement for life. In his sole issue on appeal, appellant contends the trial court
erred in refusing to submit a jury charge regarding the voluntariness of his

inculpatory videotaped statement. We affirm.

                                  BACKGROUND

      The evidence in the light most favorable to the verdict is as follows. Otis

"Jimmy" James was 83 years old and lived alone at his home in Highland, Texas.

James used a walking stick because he had trouble walking, and his recliner was a

"lift-chair" that he used to help him get up from his seat.

      James owned the property next to his home and rented it out to appellant's

grandmother, Cheryl Nunez. Appellant and his brother, Dustin Segura, also stayed

with their grandmother at James's rent house. There were no problems between the

two families; everyone got along well. Dustin Segura had a .22 caliber rifle in his

room at his grandmother's house, which he used for protection and hunting.

Appellant knew about the gun and knew where it was located.

      The evidence shows that on April 8, 2013, appellant entered James's home

through the unlocked back door. James was sitting in his recliner and watching

television in the living room. Appellant began firing his brother's gun at James

from the kitchen and continued firing as he moved down the hall toward James's

location in the living room. Appellant shot James eight times in the face and neck.

James was unarmed, and raised his hands to protect his face. After the shooting,
appellant took James's car keys and $184 from his pockets and fled in James's

white pick-up truck.

      Deputy A. King with the Harris County Sheriffs Office (HCSO) was the

first officer to arrive on the scene. He accompanied EMS inside the home to treat

James, and they confirmed that James was dead. King secured the scene, separated

several witnesses who were at the scene—appellant's grandmother, brother, and

friend, as well as several of James's relatives—and waited for homicide detectives

to arrive. In talking to the witnesses, he learned that James's white pick-up truck

was missing and alerted other officers to be on the lookout for the truck.

      Deputy T. Kirkley with the HCSO crime scene unit arrived with Deputies

M. McElvany, T. Rawls, and R. Hamlet to process the scene. The officers noticed

that the back door was open, and there was no forced entry. They found two shell

casings in the kitchen area and then three more in the living room. The location of

these casings was consistent with a shooter entering through the back door and

firing as he approached the living room where James sat in his recliner. All of the

casings found in the home were .22 calibers. It also appeared that someone had

rummaged through the house because mattresses were pushed off the beds and

drawers had been pulled out and left open.
      Outside of the home, officers found appellant's social security card, birth

certificate, and juvenile identification card. They also saw tire marks on the street

from someone backing out of the driveway quickly.

      While officers were at the murder scene, they received word that James's

truck had been located about nine miles down the highway. The truck had crashed

on an embankment and was now located on an overpass. In the rear of the truck

was a tire from the truck that had been bent beyond use, and the spare tire was on

the truck.

      Scott Harp, who lived near the area in which the truck was located, had

heard a crash, and soon after saw a man in dressed in dark clothes walking with

what looked like an assault rifle. William Wright, who was working nearby, also

saw a man in dark clothes walking with what looked like an assault rifle. Both

men called the police, which is what led to the discovery of James's truck. When

the police sirens were close, Wright saw the man in the dark clothes take off

running and he heard the man drop something in a nearby dumpster. Deputy A.

Wright located the gun the man had been carrying on top of the dumpster, as

indicated by Wright.

      After canine units and helicopters exhausted all efforts looking for the

suspect, who police believed to be appellant, officers towed the truck back to the

station to be processed. Inside the vehicle, officers found several more spent .22

                                         4
caliber casings that matched the casings from the crime scene at James's home,

Additionally, appellant's DNA and fingerprints were found inside James's vehicle

and on the hubcap that had been removed from the damaged tire. An analysis of

the gun showed that it was a ,22 caliber, AR-15, Stellar Mossberg and that all

casings found from both crime scenes were fired from this gun. The gun belonged

to appellant's brother.

      Deputy C. Pool was assigned as lead investigator and, after speaking with

witnesses at both the house and the truck and reviewing the evidence obtained,

such as appellant's identification near the murder scene, concluded that appellant

was the suspect for whom they were searching.

       On April 9, the day after the murder, officers located appellant walking

down the railroad tracks in Highlands, arrested him, and brought him to the station

to be interviewed. Pool noticed that the appellant looked exhausted and hungry, as

if he had been up all night. Before beginning the interview, Pool bought appellant a

hamburger and fries and allowed him to eat. Pool read appellant his statutory

rights, which appellant voluntarily waived, agreeing to speak with officers. Pool

and the other officer who conducted the interview were both unarmed; appellant

was not threatened, coerced, or promised anything in exchange for his statement.

       In his recorded statement, appellant told officers that he was high on meth

the day before and had not slept. He also said that he was bipolar, borderline
schizophrenic, had ADHD, and had been off of his medications for some time.

Appellant admitted to stealing James's car keys and money, but said that he did not

remember shooting him. The officer believed that appellant showed signs of

deception when he stated that he did not remember.

      Before trial, appellant filed a motion to suppress his recorded statement,

alleging, among other things, that "the Defendant was not competent and did not

understand his legal rights and could not have voluntarily consented to any search

or questioning by any police officer or his agent." After a pretrial hearing on

appellant's motion to suppress, the trial court denied the motion and the recorded

statement was admitted at trial.

                       VOLUNTAJttNESS INSTRUCTION

      In his sole point of error, appellant contends the £ttrial court erred by failing

to give the jury an article 38.22 section 6 voluntariness instruction relating to

appellant's inculpatory videotaped statement." See TEX. CODE GRIM. PROC. ANN.

art. 38.22, § 6 (West Supp. 2014). Appellant did not request such an instruction, but

contends that the trial court nonetheless had a duty to submit the charged because it was

part of the "law applicable to the case." See Oursbourn v. State, 259 S.W.Sd 159, 179-80

(Tex. Grim. App. 2008). Appellant further contends that the trial court's failure to submit

the voluntariness charge caused him egregious harm. See Druery v. State, 225 S.W.3d

491, 504 (Tex. Grim. App. 2007) (citing Almanza v. State, 686, S.W.2d 157, 171 (Tex.
Grim. App. 1984)) (holding that, when defendant fails to request section 6 voluntariness

charge, appellate court reviews effect of omission under egregious harm standard).

      Section 6 sets out the procedures for litigating voluntariness claims in all

cases in which a question is raised as to the voluntariness of a statement of an

accused. Oursbourn, 259 S.W.Sd at 174; State v. Terrazas, 4 S.W.Sd 720, 724

(Tex. Grim. App. 1999). Claims of involuntariness under Article 38.22 can be, but

need not be, predicated on police overreaching, and they can involve "sweeping

inquiries into the state of mind of a criminal defendant who has confessed."

Oursboum, 259 S.W.Sd at 172.
                                <r
      Under Articles 38.21 and 38.22 and their predecessors, fact scenarios
      that can raise a state-law claim of involuntariness (even though they
      do not raise a federal constitutional claim) include the following: (1)
      the suspect was ill and on medication and that fact may have rendered
      his confession involuntary; (2) the suspect was mentally retarded and
      may not have "knowingly, intelligently and voluntarily" waived his
      rights; (3) the suspect "lacked the mental capacity to understand his
      rights"; (4) the suspect was intoxicated, and he "did not know what he
      was signing and thought it was an accident report"; (5) the suspect
      was confronted by the brother-in-law of his murder victim and beaten;
      (6) the suspect was returned to the store he broke into "for questioning
      by several persons armed 'with six-shooters.5"

Id. at 172-73 (internal citations omitted). Although "youth, intoxication, mental

retardation, and other disabilities are usually not enough, by themselves, to render

a statement inadmissible under Article 38.22, they are factors a jury, armed with a

proper instruction, is entitled to consider." Id. As such, a defendant is entitled to a

general voluntariness instruction if he has raised a question of the voluntariness of
his statement and a reasonable jury could find that the facts, disputed or

undisputed, rendered the defendant unable to make a voluntary statement. Id. at

176.

       Appellant contends that he "raised a voluntariness questions as to whether

[he] was in a vulnerable mental state when he waived his legal rights and gave the

videotaped statement" by presenting evidence that he told the police that he had

not slept, had taken a lot of "meth" the night before, was bipolar and borderline

schizophrenic, had ADHD, and was off his medications.

       The State argues that "[e]ven if Article 38.22, section 6 was the 'law

applicable' to this case, the appellant never requested that specific instruction

during the charge conferencef,]" and "has not shown egregious harm." We agree

with the State.

       Under the egregious-harm standard, reversible error in the omission of a

required jury instruction without objection occurs only when a defendant has been

denied a fair and impartial trial. Id. at 182. Jury-charge error is egregiously

harmful if it affects the very basis of the case, deprives the defendant of a valuable

right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.Sd 706, 719

(Tex. Grim. App. 2007) (citing Hutch v. State, 922 S.W.2d 166, 171

(Tex.Crim.App.1996)). "Egregious" harm is present when the case for conviction
was actually made clearly and significantly more persuasive by the error. Saunders

v. State, 817 S.W.2d 688, 692 (Tex. Grim. App. 1991).

      When conducting an egregious-harm review, we consider the entirety of the

jury charge itself, the evidence, including the contested issues and weight of the

probative evidence, the arguments of counsel, and any other relevant information

revealed by the trial record as a whole. Stuhler, 218 S.W.Sd at 719. We place no

burden of proof or persuasion to show egregious harm on either the defendant or

the State. See Warner v. State, 245 S.W.Sd 458, 464 (Tex. Grim. App. 2008).

Before we can find egregious harm, the record must show that the defendant has

suffered actual, rather than merely theoretical, harm from the jury-charge error. See

Almanza, 686 S.W.2d at 174. We determine whether appellant suffered egregious

harm by analyzing the impact of the omission of the voluntariness instruction, not

by analyzing the impact of the admission of the videotaped statement See Ellison

v. State, 86 S.W.3d 226, 228 (Tex. Grim. App. 2002). With these principles in

mind, we determine whether appellant was egregiously harmed by the omission of

the section 6 "general" voluntariness instruction.

      Here, appellant makes no other complaint about the jury charge, which is

correct. The state of the evidence strongly supports the guilty verdict. Appellant's

social security card, birth certificate, and Texas juvenile identification card were

found at the victim's address.     His fingerprints and DNA were found in the
victim's stolen truck. Two witnesses saw a man wearing dark clothes walking in

the vicinity of the victim's stolen truck while carrying a rifle.     One of those

witnesses, William Wright, heard the man throw the gun in a dumpster. Police

recovered the gun from the dumpster; it belonged to appellant's brother and

appellant had access to it. The shell casings found in both the truck and the

victim's home had been fired from that gun. Appellant was arrested walking on

the railroad tracks in Highlands the next day; he was wearing black shorts and a

black shirt and had not slept the night before.     There was also evidence of a

jailhouse phone call that appellant made, in which he discussed events that

occurred after he stole appellant's truck. Regarding arguments, the defense was

the first to mention appellant's statement, and in doing so argued that the State had

no evidence that appellant admitted to the murder, only that appellant admitted to

the robbery. The State responded, pointing out that appellant did not claim, in his

statement, as he tried to do at trial, that someone else committed the murder.

Indeed, the State spent the majority of its argument focusing on the evidence

collected at the two crime scenes rather than appellant's recorded statement.

      After considering "the entirety of the jury charge itself, the evidence,

including the contested issues and weight of the probative evidence, the arguments

of counsel, and any other relevant information revealed by the trial record as a




                                         10
whole[,]" see Stuhler, 218 S.W.Sd at 719, we hold that appellant has not shown

egregious harm, and thus, has not been denied the right to a fair and impartial trial.

      Accordingly, we overrule appellant's sole issue on appeal.

                                  CONCLUSION

      We affirm the trial court's judgment



                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

Do not publish. TEX. R- APP. P. 47.2(b).




                                           11
