                                                                                   PD-1339-15
                              PD-1339-15                          COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                                Transmitted 10/12/2015 9:22:18 PM
                                                                  Accepted 10/14/2015 5:04:35 PM
                     No. _________________                                         ABEL ACOSTA
                                                                                           CLERK



                   IN THE
         COURT OF CRIMINAL APPEALS

             RONNY JOE STANDIFER
                            Petitioner and Appellant

                                       v.

                   THE STATE OF TEXAS
                                     Appellee




         APPELLANT’S PETITION FOR
          DISCRETIONARY REVIEW
     Cause Number 2013-122-C1 in the 19th District Court of McLennan County
           Cause Number 10-15-00038-CR in the Tenth Court of Appeals


                              Filed by Patrick Brady
                           State Bar Number 00783709
                      510 North Valley Mills Drive, Suite 500
October 14, 2015               Waco, Texas 76710
                              Phone: 254-772-8022
                               Fax: 254-772-9297
                           e-mail: pbrady@slmpc.com

                   ORAL ARGUMENT IS REQUESTED
             PETITION FOR DISCRETIONARY REVIEW


TO THE HONORABLE COURT OF CRIMINAL APPEALS:



           I. IDENTITY OF JUDGE, PARTIES, AND COUNSEL



Petitioner and Appellant:             RONNY JOE STANDIFER



Attorney for Petitioner:              PATRICK OWEN BRADY
On Appeal                             510 North Valley Mills Drive, Suite 500
                                      Waco, Texas 76710
                                      254-772-8022
                                      Fax: 254-772-9297
                                      e-mail: pbrady@slmpc.com



Attorney for Petitioner:              DENTON LESSMAN
At Trial                              100 North sixth Street, Suite 707
                                      Waco, Texas 76701
                                      254-776-4544
                                      Fax: 254-776-4551
                                      e-mail: dlessmanatty@aol.com




Petition for Appellant, Ronny Joe Standifer                                     Page i
Appellee:                             THE STATE OF TEXAS



Attorney for the State:               ABEL REYNA
On Appeal                             STERLING HARMON
                                      Criminal District Attorney
                                      219 North Sixth Street, Suite 200
                                      Waco, Texas 76701
                                      254-757-5084
                                      Fax: 254-757-5021
                                      e-mail: sterling.harmon@co.mclennan.tx.us



Attorney for the State:               ROBERT MOODY
At Trial                              AMANDA DILLON
                                      Criminal District Attorney
                                      219 North Sixth Street, Suite 200
                                      Waco, Texas 76701
                                      254-757-5084
                                      Fax: 254-757-5021



Trial Court Judge:                    THE HONORABLE MATT JOHNSON




Petition for Appellant, Ronny Joe Standifer                                       Page ii
                                II. TABLE OF CONTENTS


I.             IDENTITY OF JUDGE, PARTIES, AND COUNSEL . . . . . . . . . . . . i

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

III.           INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

IV.            REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . v

V.             STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

VI.            STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . v

VII.           GROUNDS FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

VIII.          ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

IX.            PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

X.             CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

XI.            CERTIFICATE REGARDING FONT AND WORD LIMIT . . . . . .11

XII.           APPENDIX

               (Pages from reporter’s record and Memorandum Opinion)

                . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attached at the Back




Petition for Appellant, Ronny Joe Standifer                                                               Page iii
                                III. INDEX OF AUTHORITIES


Cases

Allridge v. State
      850 S.W.2d 471 (Tex.Crim.App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Barajas v. State
      93 S.W.3d 36 (Tex.Crim.App.2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Draughon v. State
     831 S.W.2d 331 (Tex.Crim.App. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7

Samaripas v. State
     No. 13-11-00442-CR, 2015 WL 1957244 (Tex.App., Apr. 30, 2015) . . . . . 8

Sells v. State
       121 S.W.3d 748 (Tex.Crim.App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 7

Standefer v. State
      59 S.W.3d 177 (Tex.Crim.App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6



Rules

Tex. R. App. Proc. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

Tex. R. App. Proc. 66.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




Petition for Appellant, Ronny Joe Standifer                                                                  Page iv
                     IV. REGARDING ORAL ARGUMENT

       Counsel believes oral argument would aid the Court.



                          V. STATEMENT OF THE CASE

       The appellant, Ronny Joe Standifer, was indicted for Aggravated Assault –

Serious Bodily Injury, a second degree felony which was enhanced to first degree

punishment with an allegation of a prior felony conviction. (1 C.R. 6)

       At trial, a jury found Ronny guilty (1 C.R. 139) and assessed his sentence at

life in prison with a $10,000 fine (1 C.R.148).

       Notice of appeal was filed February 5, 2015.



              VI. STATEMENT OF PROCEDURAL HISTORY

       On appeal, the sole issue presented to the Tenth Court of Appeals was stated

as follows:

       “It was reversible error for the judge to allow the prosecution to ask
       the voir dire panel what evidence the panel wanted at trial when the
       alleged victim would not testify.” (Appellant’s Brief)


       On September 10, 2015, the Tenth Court of Appeals held error, if any, was

not preserved (Opinion at page 2 in the Appendix to this Petition), even though

defense counsel made an objection (2 R.R. 79) to the voir dire questioning.
Petition for Appellant, Ronny Joe Standifer                                     Page v
       No motion for rehearing was attempted.




Petition for Appellant, Ronny Joe Standifer     Page vi
                            VII. GROUND FOR REVIEW

Ground No. 1

       The Tenth Court of Appeals erred in deciding that a complaint had not been
       preserved when defense counsel objected, “This is getting into the specific
       facts of the case potentially. Improper commitment.” at the beginning of a
       voir dire colloquy regarding what proof is desired or expected by the
       potential jurors.




                                    VIII. ARGUMENT

A.     Reasons for Review (Rule 66.3)

       The Tenth Court of Appeals has decided an important question of state law

in a way that conflicts with the applicable decisions of the Court of Criminal

Appeals. Specifically, the Tenth Court of Appeals raised the burden for preserving

error beyond what is required by Rule 33.1, Texas Rules of Appellate Procedure,

assuming Rule 33.1 can be interpreted by Draughon v. State, 831 S.W.2d 331

(Tex.Crim.App. 1992).

       In the alternative, the Tenth Court of Appeals has decided an important

question of state law that has not been, but should be, settled by the Court of

Criminal Appeals. Specifically, the Tenth Court of Appeals has effectively held



Petition for Appellant, Ronny Joe Standifer                                       Page 1
that Rule 33.1 requires every single voir dire question to be followed by an

objection in order for error to be preserved.

       Further, the Tenth Court of Appeals has sanctioned a departure from the

accepted and usual course of judicial proceedings by the lower court which is so

great that it requires discretionary review, and therefore the Tenth Court of

Appeals has itself so far departed from the accepted and usual course.



B.     The Record

The Alleged Assault

       The alleged victim of the assault died prior to trial from unrelated health

problems. (3 R.R. 8) Therefore, the prosecution’s case was largely circumstantial.

       On November 15, 2012, peace officers responded to a 911 call and found a

naked female lying on the floor of her home unconscious but holding a telephone.

(3 R.R. 48) They also found blood and clumps of hair in other rooms of the

residence. (3 R.R. 48, 51, 95 - 99) At trial, a doctor described the woman’s

injuries as follows:

               -- One ear was 90% avulsed (hanging on by 10%) (3 R.R. 133)
               -- “Significant trauma” to the genital area (3 R.R. 136)
               -- Heart stopped, requiring CPR (3 R.R. 138)
               -- Broken ribs (3 R.R. 141)
               -- “Severe anoxic brain injury” (3 R.R. 145)


Petition for Appellant, Ronny Joe Standifer                                      Page 2
               -- Spinous fracture (3 R.R. 146)
               -- Brain bleeding (3 R.R. 147)


The injuries were, according to the doctor, consistent with being hit and kicked (3

R.R. 152), and this opinion was bolstered by other (3 R.R. 95 – 99, 104 and 216).)

       Ronny Joe Standifer became a suspect in the case (3 R.R. 54 and 186), and a

detective contacted Ronny who freely admitted making the original 911 call. (3

R.R. 187 – 190) Eventually, Mr. Standifer gave statements about what happened

to the woman. (3 R.R. 192 – 196 and 202, State’s Exhibit 94)

       At trial, Mr. Standifer testified. He explained to the jury that he arrived at

the woman’s house around 10:00 p.m. (3 R.R. 237) and found the woman sitting

on her couch drinking (3 R.R. 238). The medical records showed that the woman

had a blood alcohol level of .2 grams per deciliter (3 R.R. 152) which is legally

intoxicated (3 R.R. 219). She acted intoxicated and eventually fell asleep (3 R.R.

238 – 241) and Ronny decided to move out of the woman’s residence because “I

said, man, I just can’t take this no more” (3 R.R. 241). He began packing his

belongings which eventually woke the woman. (3 R.R. 241 – 242) She tried to

stop him from leaving. (3 R.R. 242 – 244) She tried to physically stop him which

resulted in her falling multiple times. (3 R.R. 244 – 246) At one point, the woman

fell on her dog which then attacked or tried to attack them both. (3 R.R. 247 and

State’s Ex. 94) Also, during various times in the struggles that night, Mr. Standifer

Petition for Appellant, Ronny Joe Standifer                                       Page 3
fell on top of the woman, but it was never intentional. (3 R.R. 252) He did not

cause the terrible injuries reflected in the photos (3 R.R. 251 – 252) and did not

cause any intentional injuries (3 R.R. 232 and 252) and not knowingly or

recklessly (3 R.R. 257). In fact, Mr. Standifer protected her from the attacking

dog. (3 R.R. 251 and 253) He left the residence after calling 911 because he was

on parole and in violation of his parole by being at that location. (3 R.R. 233)

       With regard to injuries possibly being caused by a dog, prosecution

witnesses testified that many of the injuries could not be caused by a dog (3 R.R.

59, 60 – 61, 81and 82, 143, 151 and 178 – 179), that the dog was not aggressive (3

R.R. 46, 67, 116), and that the dog did not have blood on its muzzle (3 R.R. 117) .

       With regard to a suggestion that the injuries were caused by a fall, witnesses

testified that falls would not cause injuries so extensive. (3 R.R. 81 – 82, 84 – 85,

143 – 144, 150 and 178 – 179)

       CPR was specifically excluded as a possible cause of at least one rib

fracture. (3 R.R. 144 – 145)



Voir Dire

       During jury selection, the prosecution began preparing the jury for the fact

that the alleged victim would not testify. The prosecution asked the voir dire panel




Petition for Appellant, Ronny Joe Standifer                                        Page 4
about “the one witness rule” (2 R.R. 68 – 78) and then asked the panel to speculate

about reasons the “victim” would not testify (2 R.R. 78 – 79) and finally asked:



       “How would you prove something without the victim – the person
       that was actually there who was injured?” (2 R.R. 79)



The defense objected that the question called for an improper commitment, and the

court overruled the objection. (2 R.R. 79) Immediately, the prosecutor restated the

question as follows:

       “How do you prove something like if you don’t have a victim?”

                       and

       “What would you want to see?” (2 R.R. 79)

These questions elicited several responses from the potential jurors including the
following:

               “Whatever you present to the jurors.” (2 R.R. 80)

               “The doctor.” (2 R.R. 80)

               “DNA.” (2 R.R. 80)

               “Medical.” (2 R.R. 80)

               “Victim’s family.” (2 R.R. 80)

               “What about pictures?” (2 R.R. 81)


Petition for Appellant, Ronny Joe Standifer                                    Page 5
The prosecution also suggested examples of evidence which might be offered

instead of eyewitness testimony: “Prior instances” (prior bad acts) and “injuries on

the other side” (i.e., injuries on Mr. Standifer). (2 R.R. 81)




C.     The Law

       “The trial court has broad discretion over the process of selecting a jury.”

Sells v. State, 121 S.W.3d 748, 755 (Tex.Crim.App. 2003); Barajas v. State, 93

S.W.3d 36, 38 (Tex.Crim.App. 2002). “Thus, we leave to the trial court's

discretion the propriety of a particular question and will not disturb the trial court's

decision absent an abuse of discretion. A trial court abuses its discretion when it

prohibits a proper question about a proper area of inquiry. A question is proper if

it seeks to discover a juror's views on an issue applicable to the case.” Sells, at

755-56.

       An attorney cannot attempt to bind or commit a prospective juror to a verdict

based on a hypothetical set of facts. Sells, at 755-56; Allridge v. State, 850

S.W.2d 471, 480 (Tex.Crim.App. 1991). An open-ended question can be a

commitment question, and therefore improper, if the question asks the prospective

juror to set the hypothetical parameters for juror’s decision-making. Standefer v.

State, 59 S.W.3d 177, 180 (Tex.Crim.App. 2001)



Petition for Appellant, Ronny Joe Standifer                                        Page 6
       In addition, a trial judge may prohibit as improper a voir dire question that is

so vague or broad in nature as to constitute a global fishing expedition. Sells, at

756.

       In order to preserve error, a party must object to an improper voir dire

question. Draughon v. State, 831 S.W.2d 331, footnote 1 (Tex.Crim.App. 1992).

An objection is sufficient if it apprises the trial judge of the party’s complaint, and

error is preserved if the judge's adverse ruling is authoritative enough to obviate the

necessity for further objection. Draughon, at footnote 1.




D.     Analysis

       In Mr. Standifer’s case, the purpose in the State’s voir dire was primarily to

               (1) commit jurors to relying on certain kinds of evidence, for example

               medical records and medical testimony, prior bad acts, the testimony

               of relatives of the alleged victim and photos; and

               (2) commit jurors to not requiring eyewitness testimony.

       A secondary effect of the questions was to make all of the panel members

view the case from the prosecutor’s point of view – the line of questioning started

“How do you prove . . .” and thereby put the burden of proof on the jurors.




Petition for Appellant, Ronny Joe Standifer                                       Page 7
       The overall effect of the questioning was to prime the jury for the evidence

so the jurors would not question the nature or manner of proof offered during trial.

       The questioning was improper because it asked the prospective jurors to set

the parameters for their decision-making. The alleged victim was not going to

testify – she had died before voir dire began – so the issue was simply what else

did the jury need before answering “guilty.” It is analogous to the line of

questioning in Samaripas v. State, No. 13-11-00442-CR, 2015 WL 1957244, at 1

(Tex. App. Apr. 30, 2015) when the defense tried to ask, “What type of evidence

would you expect the State of Texas to bring to you in order to convince you that

somebody committed an offense beyond a reasonable doubt?” It was improper in

Samaripas, and it is improper here.

       This was largely a case of circumstantial evidence, and Mr. Standifer was

entitled to a jury that would potentially require the prosecution to present an

eyewitness to the alleged “assault.” The jury was unfairly committed to

considering only the prosecution’s side – the medical records, the photos, the prior

bad acts, and “whatever” was offered instead of eyewitness testimony.

       Mr. Standifer’s attorney clearly objected to the inquiry about what evidence

the jury wanted if the alleged victim did not testify. What followed was a

conversation about what circumstantial evidence might be used to prove a case




Petition for Appellant, Ronny Joe Standifer                                       Page 8
instead of having the victim’s testimony. No reasonable person could think the

defense had no objection to the conversation.



C.     Conclusion

       Defense counsel’s objection clearly apprised the judge of the complaint, and

the judge’s ruling was clear enough that (1) a reasonable person could realize

further objections would be overruled and therefore unnecessarily repetitive, and

(2) a reasonable person would understand that the defense objected to the subject

of the conversation with the jury, not just the initial question.

       The complaint was preserved for appeal, and the court of appeals should

have considered the complaint on the merits.




Petition for Appellant, Ronny Joe Standifer                                      Page 9
                              IX. PRAYER FOR RELIEF

       Appellant prays that the Court grant this Petition for Discretionary Review,

order a brief on the merits, and then reverse the holding of the court of appeals.



                                              Respectfully submitted,



                                                    /S/ Patrick Brady
                                              Patrick Brady
                                              State Bar No. 00783709
                                              510 North Valley Mills Drive, Suite 500
                                              Waco, Texas 76710
                                              254-772-8022
                                              Fax: 254-772-9297
                                              e-mail: pbrady@slmpc.com




                          X. CERTIFICATE OF SERVICE

       This is to certify that on October 12, 2015, a true and correct copy of the
above has this day been delivered to the McLennan County District Attorney’s
Office, 219 North 6th Street, Waco, Texas 76701, by electronic service at the e-
mail addresses for the State Prosecuting Attorney and the McLennan County
District Attorney.



                                                          S/ Patrick Brady
                                                    Patrick Brady


Petition for Appellant, Ronny Joe Standifer                                       Page 10
     XI. CERTIFICATE REGARDING FONT AND WORD LIMIT

       In accordance with Rule 9.4, the undersigned attorney certifies as follows:



1.     This petition complies with the type-volume limitation of TEX. R. APP. P.
       9.4(i) because this petition contains 1,734 words, excluding the parts of the
       petition exempted by TEX. R. APP. P. 9.4(i)(1), or,

2.     This petition complies with the typeface requirements and the type style
       requirements of TEX. R. APP. P. 9.4(e) because this petition has been
       produced on a computer in conventional typeface using Microsoft Word,
       Times New Roman font, 14 point in the body of the petition and 12 point in
       the footnotes.



                                                    /S/ Patrick Brady
                                              Patrick Brady




Petition for Appellant, Ronny Joe Standifer                                   Page 11
                                      XII. APPENDIX

       The appendix is following and attached.




Petition for Appellant, Ronny Joe Standifer           Page 12
