                                                                                            ACCEPTED
                                                                                         12-14-00210CR
                                                                           TWELFTH COURT OF APPEALS
                                                                                         TYLER, TEXAS
                                                                                    6/3/2015 6:20:55 PM
                                                                                           CATHY LUSK
                                                                                                 CLERK

                               No. 12-14-00210-CR

                   _____________________________________   RECEIVED IN
                                                     12th COURT OF APPEALS
                   IN   THE COURT OF APPEALS OF TEXAS TYLER, TEXAS
                          FOR THE TWELFTH CIRCUIT     6/3/2015 6:20:55 PM
                                                          CATHY S. LUSK
                                TYLER, TEXAS                  Clerk
                   ____________________________________

                                BOBBIE GRUBBS
                                                                            6-3-2015
                                   Appellant

                                         v.

                              STATE OF TEXAS
                                  Appellee
                    ___________________________________
                     On Appeal From Cause No. 14-CR-19074
            In the 273RD Judicial District Court of Shelby County, Texas


                    APPELLANT BOBBIE GRUBBS’ BRIEF


                                LAW OFFICE OF STEPHEN SHIRES PLLC
                                Attorney & Counselor at Law

                                      W. Stephen Shires
                                      State Bar No. 50511894
                                      123 San Augustine Street
                                      Center, Texas 75935
                                      (936) 598-3052 (Phone)
                                      (936) 598-3031 (Facsimile)
                                      ATTORNEY FOR BOBBIE GRUBBS




Grubbs v. State           APPELLANT REQUESTS ORAL ARGUMENT                     Page i
                   IDENTITY OF PARTIES AND COUNSEL
       In accordance with TEX. R. APP. P. 38.1(a), the following is a list of the

parties to this action, their respective counsel, and the presiding judge at trial:

Appellant:                                  Mr. Bobbie Grubbs (“Grubbs”)

Appellant’s Trial Counsel:                  Mr. John R. Smith
                                            Law Office of John R. Smith
                                            P.O. Box 2020
                                            Center, Texas 75935
                                            (936) 598-2744
                                            Robert A. Goodwin
                                            Attorney at Law
                                            325 West Sabine Street, Suite D
                                            Carthage, Texas 75633
                                            (936) 591-7375
Appellant’s Appellate Counsel:              Mr. W. Stephen Shires
                                            The Law Office of Stephen Shires PLLC
                                            123 San Augustine Street
                                            Center, Texas 75935
                                            (936) 598-3052
                                            Robert A. Goodwin
                                            Attorney at Law
                                            325 West Sabine Street, Suite D
                                            Carthage, Texas 75633
                                            (936) 591-7375

Appellee:                                   The State of Texas (“State”)

Appellee’s Trial and Appellate Counsel: Mr. Ralph Guerrero (Special Prosecutor)
                                        Mr. Wesley Mau (Special Prosecutor)
                                        Mr. Kenneth Florence
                                        Shelby County District Attorney
                                        200 San Augustine Street
                                        Center, Texas 75935
                                        (936) 598-2489
Trial Judge:                                Honorable Charles R. Mitchell
Grubbs v. State            APPELLANT REQUESTS ORAL ARGUMENT                           Page ii
                                        TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iii

TABLE OF AUTHORITIES ....................................................................................iv

STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
REFERENCES TO THE RECORD .......................................................................... 1

STATEMENT OF ISSUES ....................................................................................... 1

STATEMENT OF THE CASE .................................................................................. 2

STATEMENT OF FACTS ........................................................................................ 3
SUMMARY OF THE ARGUMENT ...................................................................... 11

ARGUMENT ........................................................................................................... 12
A. The trial court committed error when it failed to grant a mistrial, or in the very
   least exclude the statement, when the State played an incorrect DVD at trial
   that contained an admission from Defendant in the statement that had been
   previously ruled by agreement as inadmissible. ................................................. 12

B. The trial court committed error by failing to include a definition and instruction
   on “involuntary intoxication” and its consequences ......................................... 17
C. The trial court committed error by not suppressing the statements made by
   Grubbs to Montgomery County Sheriff Detective Keith Echols at the
   Montgomery County Sheriff’s Office .................................................................. 21
D. The trial court committed error by not suppressing the statements made by
   Grubbs to DPS Trooper Sean Barnes while being transported to the
   Montgomery County Sheriff’s Office .................................................................. 24

CONCLUSION AND PRAYER ............................................................................. 26

CERTIFICATE OF SERVICE ................................................................................ 27
CERTIFICATE OF WORD COUNT COMPLIANCE ........................................... 27



Grubbs v. State                     APPELLANT REQUESTS ORAL ARGUMENT                                         Page iii
                                     TABLE OF AUTHORITIES

CASES
Alexander v. State, 2002 WL 436993 (Tex. App. – Austin 2002) ............... 19
Arizona v. Fulminante, 499 U.S. 279, 285–86 (1991).................................. 22
Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App.1996) ...................... 16
Brazzell v. State, 481 S.W.2d 130 (Tex.Crim.App.1972) ............................ 14
City of Brownsville v. Alvarado, 897 S.W.2d 750 (Tex.1995) ..................... 14
Coble v. State, 330 S.W.3d 253, 292 (Tex.Crim.App.2010) ........................ 16
Delao v. State, 235 S.W.3d 235, 239 (Tex.Crim.App.2007) ....................... 22
Elkins v. State, 647 S.W.2d 663 (Tex. Crim. App. 1983) ............................ 15
Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998) ........................ 19
Hernandez v. State, 805 S.W.2d 409, 413 (Tex.Crim.App.1990) ................ 16
In re R.A.L., 291 S.W.3d 438 (Tex.App.-Texarkana 2009, no pet.)............. 14
McCraw v. Maris, 828 S.W.2d 756 (Tex.1992)) .......................................... 14
Mercedes–Benz Credit Corp. v. Rhyne, 925 S.W.2d 664 (Tex.1996). ......... 14
Oursbourn v. State, 259 S.W.3d 159 (Tex.Crim.App.2008) ...... 21, 22, 23,26
Ramos v. State, 245 S.W.3d 410, 418 (Tex.Crim.App.2008) ....................... 22
Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App. 1979) .............. 19, 20

STATUTES AND RULES
TEX. CODE CRIM. PROC. Art. 38.21 ............................................................... 21
TEX. CODE CRIM. PROC. Art. 38.22 ............................................................... 21
TEX. PENAL CODE Ann. §8.04 ....................................................................... 20
TEX. R. EVID. 404(b) ..................................................................................... 14

OTHER SOURCES
Goode Wellborne & Sharlot, Texas Practice, Guide to the Rules of
Evidence, Vol. 1 (Thompson Reuters 2015) ................................................. 15



Grubbs v. State                     APPELLANT REQUESTS ORAL ARGUMENT                                        Page iv
                  STATEMENT REGARDING ORAL ARGUMENT
       Appellant Grubbs requests oral argument in this case. Oral argument would

be of benefit to the Court as this case presents important issues of substantive law

and an unusual set of facts.

                       REFERENCES TO THE RECORD
       Clerk’s Record: There are two (2) Volumes of the Clerk’s Record. All

references to the Clerk’s record will be made in the following fashion: v CR p,

where v represents the volume of the record and p represents the page number

found in same.

       Reporter’s Record: There are fifteen (15) Volumes of the Reporter’s Record.

All references to the Clerk’s record will be made in the following fashion: v RR p,

where v represents the volume of the record and p represents the page number

found in same.

                               STATEMENT OF ISSUES
1. Did the trial court err when it failed to grant a mistrial, or in the very least
   exclude the statement, when the State played an incorrect DVD at trial that
   contained an admission from Defendant in the statement that had been
   previously ruled by agreement as inadmissible?

2. Did the trial court err in failing to include a definition and instruction on
   “involuntary intoxication” and its consequences?

3. Did the trial court err in not suppressing the statements made by Grubbs to
   Montgomery County Sheriff Detective Keith Echols made at the Montgomery
   County Sheriff’s Office?



Grubbs v. State           APPELLANT REQUESTS ORAL ARGUMENT                    Page 1
4. Did the trial court err in not suppressing the statements made by Grubbs to DPS
   Trooper Sean Barnes while Grubbs was being transported to the Montgomery
   County Sheriff’s Office?

                         STATEMENT OF THE CASE

       On September 25, 2012, Grubbs was indicted for Capital Murder in Cause

Number 12-CR-18608. 1 CR 9. On February 19, 2014, Grubbs was re-indicted in

Cause Number 14CR-19074, on one count of Capital Murder and two counts of

Aggravated Assault. 1 CR 27-28. On March 4, 2014, the State filed a motion to

transfer the pleadings from Cause Number 12-CR-18608 to Cause Number 14CR-

19074. 1 CR 23. The Court granted the State’s Motion on March 21, 2014. 1 CR

25. On that same day, the Court dismissed Cause Number 12-CR-18608. 1 CR

26. On February 21, 2014, the Court ordered that Grubbs be tested for insanity and

incapacity. 1 CR 29-32. Thereafter, Edward B. Gripon, M.D. P.A., filed an initial

report on those issues on March 25, 2014 (1 CR 50-60), and a subsequent report on

May 1, 2014 (1 CR 177-183).

       On May 13, 2014, the trial of this case commenced. 5 RR 1. On May 19,

2014, the jury found Grubbs guilty of one count of Capital Murder and two counts

of Aggravated Assault. 9 RR 141-142. On May 19, 2012, the Court sentenced

Grubbs to confinement in the Institutional Division of the Department of Criminal

Justice for life without the opportunity of parole on the Capital Murder charge, and




Grubbs v. State          APPELLANT REQUESTS ORAL ARGUMENT                     Page 2
confinement in the Institutional Division of the Department of Criminal Justice for

life on each of the two aggravated assault charges. 5 RR 150.

       On May 20, 2014, Grubbs filed a Motion for New Trial. 2 CR 263-264.

The Motion was overruled as a matter of law. On July 23, 2014, Grubbs timely

filed his Notice of Appeal. 2 CR 290. Grubbs now files his Appellant’s Brief.

                           STATEMENT OF FACTS
       The State accuses Grubbs of committing capital murder and two aggravated

assaults arising from an incident at the Joaquin Country Inn (“Country Inn”) in

Joaquin, Texas on April 27, 2012. 5 RR 16. The State alleges that Grubbs and his

wife, Deedra Grubbs (“Deedra”), fled Montgomery County, Texas, on April 26,

2012, after they had robbed Mary Jane Cashdollar (“Cashdollar”) in her home. 5

RR 16-17. Cashdollar had previously employed Deedra to clean her house, which

is located in Spring, Texas. 5 RR 17. The State asserts that Grubbs and Deedra

made their way north from Conroe, up through Nacogdoches, heading for

Louisiana, when they began having car trouble. 5 RR 18. The State alleges that

Grubbs’ car broke down in Joaquin, Texas, near the Country Inn on April 26,

2012. 5 RR 19. Grubbs and Deedra stayed that night at the Country Inn in Room

101. 15 RR 210 (State Exhibit 210); 9 RR 70. The State asserts that Grubbs did

not have enough money to get the car repaired, so that next morning he went into

another room at the Country Inn where two housekeepers and a handyman were


Grubbs v. State          APPELLANT REQUESTS ORAL ARGUMENT                    Page 3
working, and shot and robbed them. 5 RR 19. One of the housekeepers died as a

result of the gunshot wounds she received; the other two employees of the Country

Inn survived. 5 RR 19.

       Grubbs and Deedra left the Country Inn in the handyman’s car, 5 RR 19, and

briefly headed southeast into Louisiana, but quickly made it back into Texas with

the ultimate goal of returning to Montgomery County, in the hope of checking on

their children. 5 RR 93, 6 RR 26. The authorities located Grubbs and Deedra

through their mobile phone use, and intercepted them on United States Highway 59

South, somewhere between Livingston and Cleveland. 5 RR 20, 93; 6 RR 83.

Grubbs and Deedra were ultimately apprehended just north of Cleveland around

2:15 p.m. on April 27, 2012. 5 RR 77, 83. Grubbs was taken to the Montgomery

County Sheriff’s Office, where he was interrogated by Montgomery County

Sheriff Detective Keith Echols. 6 RR 83. Grubbs also made statements to DPS

Trooper Sean Barnes at the scene of his arrest and during his transport to the

Montgomery County Sheriff’s Office.      6 RR 63, 68-73.     Redacted videos of

statements from both of these interactions were admitted in evidence. 11 RR 32

(Exhibit 32), 11 RR 28, 29, 29a (Exhibits 28, 29, and 29a); 5 RR 102, 6 RR 49.

Grubbs contends that the statements he made during his interrogation by Detective

Echols and in the presence of Trooper Barnes were not made voluntarily; and, as a

result, they should have been excluded. See 1 CR 83-85; 4 RR 42-42; 4 RR 80.


Grubbs v. State          APPELLANT REQUESTS ORAL ARGUMENT                  Page 4
        At trial, Grubbs conceded that he had in fact shot the two housekeepers and

the handyman. 5 RR 23. Grubbs asserts, however, that he was legally excused

from prosecution because, at the time of his actions, he was suffering from a

psychosis that precluded his ability to differentiate right from wrong, resulting

from his involuntary and unwitting intoxication that was inadvertently brought on

by his ingestion of “Pump-It Powder.” 5 RR 23. Grubbs asserts that on April 26,

2012, after getting off work and feeling tired, he stopped by a convenience store in

Conroe, Texas to purchase a 5-Hour Energy Drink. 5 RR 22. Grubbs asserts that

the convenience store clerk convinced him to try Pump-It Powder instead, and he

purchased ten (10) units of that substance. 5 RR 22. Grubbs asserts that he

ingested all the Pump-It Powder in a relatively short period of time, not knowing of

the ill effects that it may cause, and that the cumulative use of that substance over

that period of time created the psychosis that he suffered from over the next several

hours, during the time when he allegedly committed the crimes at issue in this

case. 5 RR 23.

        At trial, Dr. Edward Gripon provided expert testimony concerning “Pump-It

Powder,” and the possible effects that it may have on a person that ingests it. 9 RR

5-68.    Dr. Gipon testified that Pump-It Powder is one type of a variety of

substances that are generally known as “bath salts,” which are synthetic




Grubbs v. State           APPELLANT REQUESTS ORAL ARGUMENT                    Page 5
amphetamines. 9 RR 17, 19. Dr. Gripon reported that bath salts, including Pump-

It Powder, can certainly cause psychosis in a person that ingests it:

       It’s reported in our literature … [T]he effects of bath salts is to cause
       delusions, hallucinations, and aggression in some people.

9 RR 26. Dr. Gripon also opined about the fact that a person can be fine one

minute, then ingest the bath salt and be very disturbed, and then be normal after the

effect wears off:

       Now you can take it in a series and make the effect longer. But if you
       take a single ingestion of a massive dose of bath salts, the effect
       would last three to six hours. So you could be very healthy and
       normal appearing at one point, and in the three to six hours be very
       disturbed, and eight hours later look normal again. So it’s a short
       window.

9 RR 24. Obviously, Dr. Gripon was not present to witness Grubbs actually

purchasing or ingesting the Pump It Powder; nor did he have a chance to observe

Grubbs during the window of time that the substance would have had its ill effect.

Dr. Gipon made this qualification on numerous occasions. See, e.g., 9 RR 17, 26.

But he did testify about Grubb’s report of purchasing and using the Pump-It

Powder, and the effect that it had on him:

       Q:     Did he report to you […] that in the past he had used Five-Hour
              energy drink?

       A:     Yes.
       Q:     And did he report to you […] that a convenience store operator
              had suggested a new substance?
       A:     Yes.

Grubbs v. State           APPELLANT REQUESTS ORAL ARGUMENT                         Page 6
       Q:     And what was that substance?

       A:     It was a powdered form of something that he referred to by the
              name of Pump-It Powder.

       Q:     Did he tell you how many doses or packages or containers of
              Pump-It Powder he got on that day?
       A:     He told me he bought ten.

       Q:     Did he tell you, as a result of that, any abnormal effects.
       A:     It had a stimulant affect, that it gave him significant energy and
              kept him awake, kept him up for several days according to his
              account . . . [I]t caused him to be paranoid, suspicious, feeling
              that he was being followed, and that people looked abnormal to
              him. He described them as looking like some type of demon.

9 RR 16-17. Dr. Gripon continued:

       A:     Well, that’s the history that he gave. He said he, as I
              mentioned, became very paranoid and was believing that he
              was being followed around East Texas. That particular
              concoction is a bath salt – it’s a common street name for it at
              least. And that’s a known effect of that in some people. It
              doesn’t do that to everyone. It’s all in the magnitude of how
              much you take, over what period of time did you take it, and
              what did it do, how long did you stay up, that sort of thing.

9 RR 19. Grubbs’ report of ingesting the Pump-It Powder was corroborated by the

State’s witness, Mr. Jimmy Stockton, who testified that he remembered Grubbs

discussing with him the use of a bath salt and not feeling like being himself:

       Q:     Did he [Grubbs] talk about Pump-It Powder, bath salts during
              that conversation?1


1
 The “conversation” mentioned here references a phone conversation that Stockton had with
Grubbs on April 26, 2012. 6 RR 26 (just above the quoted exchange).

Grubbs v. State            APPELLANT REQUESTS ORAL ARGUMENT                        Page 7
       A:     I think on that – that day something was said about it because
              of, you know, that he was not being himself, and that was –
              that’s -- and all I remember was the word ‘salt.’ And I can’t –
              I’m trying to remember if that was exactly that time –

       Q:     Or –
       A:     or before.

       Q:     And you visited with him a little later –
       A:     Yes.

       Q:     – after his arrest. And it may have been – he may have
              mentioned salt then.

       A:     Yes, sir.
                                          ***

       Q:     Describe the communication [that you had with Grubbs on
              April 27].
       A:     Well, it was a short communication; and it was mostly trying to
              explain to me that you know, he wasn’t himself. It was like, he
              was under a different influence when all this happened, you
              know, because I have known him this long. He said, ‘You
              know me. I wouldn’t normally do this.’
                                          ***
       Q:     Do you remember him trying to suggest that the people had
              come after him, and that’s why he had to shoot them?
       A:     A statement something similar to that, yes, sir; that they had
              tried to – because he wanted to get some keys, and they tried to
              come at him. Three people.
6 RR 27, 29 (Questions from the State). Stockton later confirmed his testimony

when questioned by Grubbs’ defense attorney:



Grubbs v. State            APPELLANT REQUESTS ORAL ARGUMENT                      Page 8
       Q:     At some point in time, not only was Bobbie trying to tell you,
              trying to explain to you as a father figure – ‘Oh my God, this
              wasn’t me. This – I don’t know what happened,’ – he
              mentioned at least the word ‘salts’ or ‘salt’?

       A:     Yes, sir.
6 RR 31. Further, in response to the State’s assertion that Stockton did not

mention Grubbs telling him about ingesting salts in his (Stockton’s) statement to

the authorities, Stockton and Grubb’s defense attorney had these exchanges:

       Q:     [Grubbs’ mentioning of the ‘salts’] may have been during this
              time and it’s not reflected in your statement? He said a lot of
              things, didn’t he, that aren’t in that statement?
       A:     Yes, sir.

                                           ***
       Q:     If someone said, ‘Bobbie never told anybody about bath salts or
              Pump-It, is that a true statement?

       A:     No.
       Q:     He told you?
       A:     Yes.
       Q:     And is there any amount of influence or persuasion or love or
              loyalty you would have for Mr. Grubbs to sit there and lie to
              this jury about that?

       A:     No sir.

6 RR 31, 33-34.

       Finally, during the testimony of Montgomery Sheriff Detective Keith

Echols, the State published to the jury Exhibit 29, a DVD which purported to be a

redacted version of the statement made by Grubbs to Echols on the evening of
Grubbs v. State              APPELLANT REQUESTS ORAL ARGUMENT                   Page 9
April 27, 2012, at the Montgomery County Sheriff’s Office. 5 RR 105. The

purpose of the redactions, among other things, was to remove any express

mentioning of, or reference to, any inadmissible evidence of extraneous crimes or

bad acts on the part of Grubbs, so that Exhibit 29 would comply with the agreed

order of the trial court. 5 RR 101. This specifically included, but was not limited

to, any statement or suggestion that Grubbs had been previously convicted of a

crime or had been previously incarcerated. 5 RR 116. However, Detective Echols

carried a version of Exhibit 29 that retained two matters that were supposed to be

redacted (but were not) on the version of the DVD that was introduced in evidence

as Exhibit 29 and that was played to the jury:

        Grubbs telling Deedra, “If you move, I’m going to shoot you. I
         don’t need to go back to the pen.”

        Grubbs talks about his understanding of jailhouse procedure.

5 RR 108, 111. The first item was actually heard by the jury. 5 RR 108. The

second one was not. 5 RR 108.          The State stopped the DVD, and a bench

conference was held outside the presence of the jury to address this issue. 5 RR

106. The State swapped out the incorrect DVD (which is now Exhibit 29a in the

record) with the correct DVD (containing all the redactions). Based on this error,

Grubbs moved the Court: (i.) to exclude the entire statement, (ii.) to strike what the

jury had heard, and (iii.) to advise the jury to “consider it for naught.” 5 RR 113.



Grubbs v. State           APPELLANT REQUESTS ORAL ARGUMENT                    Page 10
The trial court denied Grubbs’ request in total. 5 RR 113. Grubbs’ then moved for

a mistrial. 5 RR 117. The trial court denied that request as well. 5 RR 122.

       In the end, on May 19, 2014, the jury found Grubbs guilty of one count of

Capital Murder and two counts of Aggravated Assault. 9 RR 141-142. The Court

sentenced Grubbs to confinement in the Institutional Division of the Department of

Criminal Justice for life without the opportunity of parole on the Capital Murder

charge, and confinement in the Institutional Division of the Department of

Criminal Justice for life on each of the two aggravated assault charges. 5 RR 150.

                      SUMMARY OF THE ARGUMENT
       In this matter, Grubbs complains of four (4) errors committed by the trial

court that were harmful. First, the trial court committed error when it failed to

grant a mistrial, or in the very least exclude a statement made by Grubbs and issue

a curative instruction, when the State played an incorrect DVD at trial that

contained an admission in a statement from Grubbs, alluding to an extraneous

offense, that had been previously ruled by agreement to be inadmissible. The fact

that the jury heard Grubbs himself admit that he had “already been to the pen

before” ruined any hope that Grubbs might have had in successfully asserting his

defense in this case. Second, the trial court committed error by failing to include a

definition and instruction on “involuntary intoxication” and its consequences. The

virtual entirety of Grubbs’ defense in this case rested upon his being excused from


Grubbs v. State           APPELLANT REQUESTS ORAL ARGUMENT                     Page 11
legal responsibility for his acts based upon the psychosis that he suffered that was

brought upon him by his involuntary and unwitting intoxication from his ingestion

of Pump-It Powder. The absence of an instruction on “voluntary intoxication” kept

Grubbs’ sole defense completely out of the hands of the jury. Third, the trial court

committed error by not suppressing the statements made by Grubbs to

Montgomery County Sheriff Detective Keith Echols at the Montgomery County

Sheriff’s Office. Given the totality of the circumstances, his statement was not

made voluntarily. Similarly, Grubbs raises the same issue in ground number four –

namely that the Court committed error by not suppressing the statements made by

Grubbs to DPS Trooper Sean Barnes while being transported to the Montgomery

County Sheriff’s Office, based on the fact that those statements were not made

voluntarily.

                                   ARGUMENT
       In this appeal, Grubbs asserts four (4) grounds of error in this case that

entitle him to a reversal of the convictions and the granting of a new trial.

   A. The trial court committed error when it failed to grant a mistrial, or in
      the very least exclude the statement, when the State played an incorrect
      DVD at trial that contained an admission from Defendant in the
      statement that had been previously ruled by agreement as inadmissible.
       During the testimony of Detective Echols, the State mistakenly published to

the jury a DVD (Exhibit 29) which contained an admission made by Grubbs that



Grubbs v. State            APPELLANT REQUESTS ORAL ARGUMENT                     Page 12
had been previously ruled by agreement to be inadmissible. The jury heard the

following on the DVD:

       Grubbs telling Deedra, “If you move, I’m going to shoot you. I don’t
       need to go back to the pen.”

5 RR 111. The State stopped the DVD, and a bench conference was held outside

the presence of the jury to address this issue. 5 RR 106. The State swapped out

the incorrect DVD (which is now Exhibit 29a in the record) with the correct DVD

(containing a redaction of the above-statement). Based on this error, Grubbs

moved the Court: (i.) to exclude the entire statement, (ii.) to strike what the jury

had heard, and (iii.) to advise the jury to “consider it for naught.” 5 RR 113. The

trial court denied Grubbs’ request in total. 5 RR 113. Grubbs then moved for a

mistrial. 5 RR 117. The trial court denied that request as well. 5 RR 122.

       The trial court’s failure to exclude the statement based on this mistake was

reversible error. The parties agreed at a pretrial hearing that the portions of the

statement made by Grubbs that contained admissions of, or references to,

extraneous offenses would be redacted. 2 RR 21.2 The State’s publication of

Exhibit 29 to the jury, while inadvertent, was still clearly in violation of the

agreed-upon order in this case. The Court of Criminal Appeals has explained that

the remedy in a situation like this – generally a violation of a motion in limine –
2
  The parties had agreed that extraneous offenses, specifically including any allusion to Grubbs
having been previously incarcerated, would be redacted from the DVD of the statement made by
Grubbs to Echols. 2 RR 21, 5 RR 116. This was an agreement that was separate and apart from
the question of whether the statement was made voluntarily, which is addressed herein below.
Grubbs v. State              APPELLANT REQUESTS ORAL ARGUMENT                          Page 13
lies with the trial court.          Brazzell v. State, 481 S.W.2d 130, 131

(Tex.Crim.App.1972) (holding that “the violation of a motion in limine may entitle

a party to relief, but any remedies available with regard to such a violation are with

the trial court” and that “if its order has been violated, the trial court may apply the

sanctions of contempt or take other appropriate action.”) As such, the admission or

exclusion of evidence is a matter within the sound discretion of the trial court,

which is reviewed under an abuse of discretion standard. City of Brownsville v.

Alvarado, 897 S.W.2d 750, 753 (Tex.1995); In re R.A.L., 291 S.W.3d 438, 446

(Tex.App.-Texarkana 2009, no pet.). A trial court abuses its discretion if its

decision is arbitrary, unreasonable, and without reference to any guiding rules and

principles.       Mercedes–Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666

(Tex.1996).       “To reverse a judgment based upon error in the admission or

exclusion of evidence, the appellant must show that the trial court committed error

and that the error was reasonably calculated to cause and probably did cause

rendition of an improper judgment.” R.A.L., 291 S.W.3d at 446; McCraw v. Maris,

828 S.W.2d 756, 757 (Tex.1992)). In this case, the trial court abused its discretion

in failing to exclude the statement after the State’s error.

       Clearly, TEX. R. EVID. 404(b) (Goode Wellborne & Sharlot 2015) prohibits

the admission of evidence of a crime, wrong, or other act to prove a person’s

character in order to show that on a particular occasion the person acted in


Grubbs v. State            APPELLANT REQUESTS ORAL ARGUMENT                     Page 14
conformity with his character. This is true “because such evidence is inherently

prejudicial and the defendant’s alleged ‘propensity to commit crimes’ is not

material to whether he is guilty of the specified conduct which he is charged.”

Goode Wellborne & Sharlot, Texas Practice, Guide to the Rules of Evidence, Vol.

1, pp. 203-204 (Thompson Reuters 2015) (citing numerous cases, including Elkins

v. State, 647 S.W.2d 663, 665 (Tex. Crim. App. 1983)). Here, Grubbs was already

facing an uphill battle with the jury, given the particularly egregious facts in this

case. His defense was that “he was not himself” and that he was affected by a

psychosis that came about as result of his unwitting and involuntary intoxication.

The fact that the jury heard Grubbs himself admit that he had “already been to the

pen before” shattered any hope that Grubbs might have had in successfully

asserting that defense. Any chance that the jury would believe Grubbs was likely

squelched upon their hearing that admission.

       At the very least, the Court should have given the jury a curative instruction.

Instead, the State determined that it was good enough simply to replace the

erroneous DVD with the correct one, and pretend to the jury like nothing had

happened. See 5 RR 109. Apparently, this was sufficient for the trial court

because it denied Grubbs’ requested relief for a curative instruction. 5 RR 113.

But what the State did was not good enough. The trial court should have excluded




Grubbs v. State           APPELLANT REQUESTS ORAL ARGUMENT                    Page 15
the statement as a whole, stricken what was heard from the record, and admonished

the jury to disregard what it had heard, in total.

       For this same reason, the trial court should have granted a mistrial. A trial

court's denial of a mistrial is reviewed under an abuse of discretion standard, and

its ruling must be upheld if it was within the zone of reasonable disagreement.

Coble v. State, 330 S.W.3d 253, 292 (Tex.Crim.App.2010).              Generally, it is

presumed that the jury can and will follow a court's curative instruction to

disregard objectionable testimony. See Bauder v. State, 921 S.W.2d 696, 698

(Tex.Crim.App.1996). But in this case, as discussed above, the trial court gave no

curative instruction. Mistrial is an extreme and exceedingly uncommon remedy

that is appropriate only when it is apparent that an objectionable event at trial is so

emotionally inflammatory that curative instructions are not likely to prevent the

jury from being unfairly prejudiced against the defendant. Id. Whether a particular

error calls for a mistrial depends on the peculiar facts and circumstances of the

case. Hernandez v. State, 805 S.W.2d 409, 413 (Tex.Crim.App.1990).               Here,

although inadvertent, the State’ unquestionable error in publishing to the jury

evidence that had been clearly ruled inadmissible completely gutted Grubbs

defense and made it impossible for him to get a fair trial from then on out. The

only remedy to cure that error would have been for the trial court to have granted a




Grubbs v. State            APPELLANT REQUESTS ORAL ARGUMENT                    Page 16
mistrial. Its failure to do so constitutes reversible error. For this reason, Grubbs’

conviction should be overturned, and he should be granted a new trial.

   B. The trial court committed error by failing to include a definition and
      instruction on “involuntary intoxication” and its consequences.
       Grubbs’ defense counsel presented a good deal of evidence in this matter

regarding Grubbs’ unintentional and unwitting intoxication caused by his ingestion

of “Pump-It Powder.” See Supra, Statement of Facts, pp. 5-9. The evidence in

this case was that Grubbs ingested the Pump-It Powder in the place of his normal

Five Hour energy drink, at the behest of a convince store clerk, for the purpose of

waking up – no different as if he were to purchase and drink some coffee – or

perhaps, an espresso. 9 RR 16-17. Grubbs had no idea that it would cause the

reaction that it did. 9 RR 16-17.

       Unquestionably, at the time of the incidents in question, bath salts, such as

Pump-It Powder had not yet been made illegal in Texas or the United States. 5 RR

158-159; 9 RR 33. Yet, they can cause very similar effects to illegal drugs such as

PCP. Such was made clear from Grubbs’ defense attorney’s questioning of State

witness DPS Trooper Dustin Ramos, who had previously testified that he is

specially trained in narcotics and drug interdiction:

       Q:     Can you tell us what you know about bath salts?

       A.     Bath salts? Right now it’s a new – new growing phenomenon.
              You can ingest them. They’ve got it now where you can put
              them in a smokable tube and actually smoke it. It’s a new form

Grubbs v. State           APPELLANT REQUESTS ORAL ARGUMENT                   Page 17
              coming out that causes, I guess, same effects as PCP, that you
              kind of go out of your mind.

       Q.     Let me stop you there. I don’t want to interrupt you. Will give
              you a chance to resume that thought. But if it has effects similar
              to PCP, is that a good thing on the human body?
       A.     No, sir, it’s not.

       Q.     It will make you stark raving mad, will it not?
       A.     On some occasions, yes, sir.

       Q.     Not every time----

       A.     (head nodding.)

       Q.     --because obviously some of these people use it more than
              once, don’t they?

       A.     Yes, sir.
       Q.     But you have seen in your experience people under the
              influence of PCP, have you not?

       A.     Yes, sir.
       Q.     And they’re hard to control sometimes?

       A.     In most cases. It’s up and down.
       Q.     And have you dealt with people under the influence of
              methamphetamine?

       A.     Multiple, yes, sir.

       Q.     and they’re pretty agitated, hyper, and excitable, are they not?

       A.     Again, it goes up and down. You have low moments and high
              moments.

6 RR 160-161. As such, with the evidence presented, Grubbs was entitled to have

a jury instruction on “involuntary intoxication.”

Grubbs v. State             APPELLANT REQUESTS ORAL ARGUMENT                     Page 18
       The Court of Criminal Appeals in Torres v. State, 585 S.W.2d 746, 749

(Tex. Crim. App. 1979), provided for the defense of involuntary intoxication.3 In

Torres, the Court held that involuntary intoxication is a defense to criminal

culpability when it is shown that:

    1. the accused has exercised no independent judgment or volition in taking the
       intoxicant; and

    2. as a result of his intoxication, the accused did not know that his conduct was
       wrong or incapable of conforming his conduct to the requirements of the law
       that he allegedly violated.
Id. at 749. That is precisely the situation in this case. In fact, the Torres case is

quite similar to this case. The defendant in Torres, Ms. Torres, voluntarily drank a

concoction made for her by her friend Robert Miranda to treat her for a headache.

Id. at 748. The concoction contained “water, alka seltzer, and ‘4 or 5’ 250-

milligram tablets of Thorazine.” Id. Miranda testified that Ms. Torres did not

know that he had placed the Thorazine tablets in the drink. Id. Under the drug

induced condition caused by the Thorazine tablets, Ms. Torres accompanied



3
  There has been some question as to whether the Texas State Legislature eliminated the defense
of involuntary intoxication and overridden the holding in Torres. See Alexander v. State, 2002
WL 436993 at *3 (Tex. App. – Austin 2002) (not designated for publication). In Alexander, the
court called the vitality of the Torres holding into question in light of the Court of Criminal
Appeals’ decision in Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998) (holding
that “a defense which is not recognized by the Legislature as either a defense or an affirmative
defense does not warrant a special instruction.”). But, there has not been any express overruling
of Torres by any court, and numerous circuit courts have relied upon, cited, discussed, and
mentioned Torres in the intervening years since Giesberg was decided. As such, Grubbs takes
the position that Torres remains good law.

Grubbs v. State              APPELLANT REQUESTS ORAL ARGUMENT                           Page 19
Miranda in the aggravated robbery of a Ms. Garcia. Id. Ms. Torres participated in

the alleged crime by holding a knife on Ms. Garcia. Id.

       In Torres, the Court of Criminal Appeals reversed Ms. Torres’ conviction,

holding that she was entitled to a charge directing the jury to acquit her if they (i.)

found that she was involuntarily intoxicated, and (ii.) further found that she did not

act voluntarily in the commission of the offense because of the intoxication. Id.

The trial court had refused to give this charge. Id. Importantly, the Court of

Criminal Appeals found that Ms. Torres was entitled to the charge in spite of the

fact that “the evidence of appellant’s state of mind at the time of the offense [was]

meager.” Id. at 749 (emphasis added). The Court opined that the “limits of the

defense itself” lies in the province of the jury, just as the credibility of the

witnesses and the weight of the evidence.” Id.

       In this case, virtually the entirety of Grubbs’ defense, as presented, rested

upon his being excused from legal culpability based upon the psychosis that he

suffered that was brought upon by his involuntary and unwitting intoxication from

the ingestion of Pump-It Powder. However, a review of the jury charge in this

matter indicates that while the jury was properly instructed on “insanity,” there was

no instruction on “involuntary intoxication.” 2 CR 236-256. Instead, there was an

instruction on “voluntary intoxication,” which is clearly not a defense to the

charges that Grubbs faced. See TEX. PENAL CODE Ann. §8.04 (Texas Lawyers


Grubbs v. State           APPELLANT REQUESTS ORAL ARGUMENT                     Page 20
2015). Therefore, for the same rationale as provided in the Torres case, the trial

court in this matter should have included in the jury charge an instruction for

“involuntary intoxication.” Its failure to do so was reversible error, and based on

this error, this Court should reverse the convictions against Grubbs and order a

new trial.

   C. The trial court committed error by not suppressing the statements made
      by Grubbs to Montgomery County Sheriff Detective Keith Echols at the
      Montgomery County Sheriff’s Office.
       The trial court should have excluded the statements made by Grubbs to

Detective Echols based on the ground that they were not made voluntarily.

       The Court of Criminal Appeals has made clear that the mandate in TEX.

CODE CRIM. PROC. Art. 38.22 (Texas Lawyers 2015) that statements be voluntary

applies to both an accused's custodial and noncustodial statements because it

provides that only “voluntary” statements may be admitted. See Oursbourn v.

State, 259 S.W.3d 159, 171 (Tex.Crim.App.2008).         Claims of involuntariness

under Article 38.22 may be predicated on both police overreaching and on the state

of mind of the criminal defendant. Id. at 172 (emphasis added). The question to

be asked is “Does it appear—as Article 38.21 requires—that the statement was

freely and voluntarily made without compulsion or persuasion?” Id. The Court of

Criminal Appeals has instructed that in analyzing the defendant's state of mind,

conditions caused by illness, medication, mental disability, mental capacity, and


Grubbs v. State          APPELLANT REQUESTS ORAL ARGUMENT                   Page 21
intoxication may be considered as factors in determining whether the statement

was voluntary. Id. at 172–73.

       As a general rule, a determination whether a statement was voluntarily

rendered is analyzed by examining the totality of the circumstances. See Arizona

v. Fulminante, 499 U.S. 279, 285–86 (1991); see Delao v. State, 235 S.W.3d 235,

239 (Tex.Crim.App.2007). A trial court's ruling on the suppression of evidence is

reviewed for an abuse of discretion.       Ramos v. State, 245 S.W.3d 410, 418

(Tex.Crim.App.2008).

       On May 6, 2014, the trial court entertained a hearing on a motion to suppress

the statements made by Grubbs to Detective Echols. See 4 RR 50-79. In that

hearing, defense counsel for Grubbs established that:

    There was one “quid pro quo”– Grubbs wanted to see and/or talk to his
     children, and the authorities allowed him to do so. 4 RR 70-71.

    While he was being interrogated, his back was against a wall for three hours
     and “some odd minutes” in a relatively small room. 4 RR 72.

    Detective Echols and Ranger Clark were sitting in close proximity to him at
     all times – about three to four feet in front of him. 4 RR 72.

    Detective Echols is 5’10” and 194 or 195 pounds. 4 RR 72.

    Ranger Clark is a “pretty good sized boy” and a “healthy individual.” 4 RR
     72-73.

    Grubbs is 5’10”, and 170 pounds. 4 RR 73.




Grubbs v. State           APPELLANT REQUESTS ORAL ARGUMENT                  Page 22
In addition:

    Grubbs was just recovering from a psychosis that he had been suffering from
     that was brought upon by his involuntary and unwitting intoxication from
     the ingestion of Pump-It Powder. 6 RR 27, 29.

    Grubbs was worried about the welfare of his children. 4 RR 58; 6 RR 26.

    Grubbs was worried about the welfare of his wife, Deedra. 4 RR 31; 5 RR
     190.

    Grubbs had not slept for several days. 5 RR 143; 9 RR 16-17.

    Grubbs was nervous and was tapping his feet during the interrogation. 5 RR
     143.

    Grubbs said some strange things during the interview with Echols. 5 RR
     166.

    Grubbs’ statements about Deedra’s involvement in the case did not make
     sense to Echols. 5 RR 168.

Given the totality of the circumstances, as described above, and based upon the

state of mind of Grubbs at the time of the interrogation, there is no way, regardless

of what he might have said or done, that he could have given a knowing and

voluntary statement. See Oursbourn, 259 S.W.3d at 172. For this reason, the trial

court should have excluded the statements made by Grubbs to Echols, and its

failure to do was reversible error. As such, this Court should reverse Grubbs’

convictions in this case and grant him a new trial.




Grubbs v. State           APPELLANT REQUESTS ORAL ARGUMENT                   Page 23
    D. The trial court committed error by not suppressing the statements made
       by Grubbs to DPS Trooper Sean Barnes while being transported to the
       Montgomery County Sheriff’s Office.
       Similarly, the statements that Grubbs made to Trooper Barnes at the scene of

his arrest and on the way to the Montgomery County Sheriff’s Office were not

voluntary, and, as a result, they should have been excluded.4

       On May 6, 2014, the trial court entertained a hearing on a motion to suppress

the statements made by Grubbs to Trooper Barnes. See 4 RR 1-50. In that

hearing, defense counsel for Grubbs established that:

     At the time of Grubbs arrest, there were numerous law enforcement officers
      on the scene. 4 RR 26.

     The Montgomery County Sheriff’s Office SWAT team, all in riot gear were
      present. 4 RR 27.

     The SWAT team was heavily armed. 4 RR 27.

     There were helicopters flying around and multiple law enforcement vehicles
      on the scene. 4 RR 27.

     Grubbs was placed on the ground and “secured.” 4 RR 27.

     Traffic on Highway 59 was stopped for a considerable period of time. 4 RR
      27.

     There were anywhere form 15-20 law enforcement officers on the scene. 4
      RR 28.

     There was a lot of commotion and noise at the scene of the arrest. 4 RR 28.

4
  The standard and legal authority for this ground is the same as that as found in Ground C,
Argument, supra, pp. 21-22. In order to avoid unnecessary repetition, Grubbs respectfully
references the Court to that section for the recitation and discussion of the basic legal principals
applicable to this ground.

Grubbs v. State               APPELLANT REQUESTS ORAL ARGUMENT                             Page 24
    There was lots of chatter back and forth at the scene of the arrest. 4 RR 28.

    There was a lot of confusion at the scene of the arrest. 4 RR 28.

    A number of officers (“many”) advanced to Grubbs to cuff him. 4 RR 28.

    At some point the law enforcement helicopter actually landed. 4 RR 29.

    Traffic was being diverted to the feeder road to get around the blockage of
     Highway 59. 4 RR 29.

    There was quite a bit of activity going on at the scene of the arrest. 4 RR 29.

    Deedra Grubbs (Grubbs’ wife) was “secured” and then placed in an
     ambulance at the scene of the arrest. 4 RR 31.

    Grubbs was not told at any time that his discussions with Trooper Barnes
     were being videotaped. 4 RR 39.

    Trooper Barnes did not immediately turn the video camera to face Grubbs
     until he had already made a number of statements. 4 RR 40.

    Grubbs did not provide any written waiver of his rights as to self-
     incrimination. 4 RR 41-42.

In addition:

    Grubbs was just recovering from a psychosis that he had been suffering from
     that was brought upon by his involuntary and unwitting intoxication from
     the ingestion of Pump-It Powder. 6 RR 27, 29.

    Grubbs was worried about the welfare of his children. 4 RR 58; 6 RR 26.

    Grubbs was worried about the welfare of his wife, Deedra. 4 RR 31; 5 RR
     190.

    Grubbs had not slept for several days. 5 RR 143; 9 RR 16-17.

Given the totality of the circumstances, as described above, and based upon the

state of mind of Grubbs at the time of his arrest, there is no way, regardless of what

he might have said, that he could have given a knowing and voluntary statement at
Grubbs v. State           APPELLANT REQUESTS ORAL ARGUMENT                    Page 25
the time of his arrest, given all that was going on around him. See Oursbourn, 259

S.W.3d at 172. For this reason, the trial court should have excluded the statements

made by Grubbs to Trooper Barnes during their discussion, and its failure to do

was reversible error. As such, this Court should reverse Grubbs’ conviction in this

case and grant him a new trial.

                         CONCLUSION AND PRAYER
       WHEREFORE PREMISES CONSIDERED, Appellant Bobbie Grubbs

respectfully requests that the Court: (i.) grant him oral argument in this matter, (ii)

reverse the convictions in this case and grant him a new trial, and (iii.) grant to him

any and all further relief to which he may be entitled.

                                      RESPECTFULLY SUBMITTED,
                                      LAW OFFICE OF STEPHEN SHIRES, PLLC
                                      Attorney and Counselor at Law
                                      123 San Augustine Street
                                      Center, Texas 75935
                                      Tel. (936) 598-3052
                                      Fax. (936) 598-3031
                                      stephen@shireslawfirm.com
                                      By: /s/ Stephen Shires
                                      W. Stephen Shires
                                      Texas Bar No. 50511894
                                      Attorney for Bobbie Grubbs




Grubbs v. State           APPELLANT REQUESTS ORAL ARGUMENT                     Page 26
                          CERTIFICATE OF SERVICE
      This is to certify that on the 3rd day of June, 2015, after 5:00 p.m. a true and
correct copy of the above and foregoing document was served on the following in
accordance with the Texas Rules of Appellate Procedure:

Mr. Kenneth Florence
Shelby County District Attorney
200 San Augustine Street
Center, Texas 75935
(936) 598-4106 (Facsimile)
                                              /s/ Stephen Shires
                                              Stephen Shires

              CERTIFICATE OF WORD COUNT COMPLIANCE
      I certify that the word count of this Appellant’s Brief is 7028 words. I relied
on the word count function of my word processor to determine this count.
                                       By:     /s/ Stephen Shires
                                              Stephen Shires




Grubbs v. State           APPELLANT REQUESTS ORAL ARGUMENT                     Page 27
