                                                                           PD-1253-15
                                                         COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                       Transmitted 11/10/2015 4:24:47 PM
                                                         Accepted 11/12/2015 1:35:25 PM
                                                                          ABEL ACOSTA
                         PD 1253-15                                               CLERK


           IN THE COURT OF CRIMINAL APPEALS

                         OF TEXAS
   _______________________________________________

                 JIMMY EARL VAN-CLEAVE,
                        Appellant,

                             v.

                 THE STATE OF TEXAS,
                       Appellee.
   _______________________________________________

         On Petition for Discretionary Review from the
     Fourteenth Court of Appeals in No, 14–14–00473–CR
       affirming the conviction in cause number 9403197,
     From the 179th District Court of Harris County, Texas
   _______________________________________________

     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
   _______________________________________________

ORAL ARGUMENT NOT REQUESTED             ALEXANDER BUNIN
                                        Chief Public Defender
                                        Harris County, Texas

                                        JANI MASELLI WOOD
                                        Assistant Public Defender
                                        Harris County, Texas
                                        TBN. 00791195
                                        1201 Franklin Street, 13th Floor
                                        Houston, Texas 77002
                                        Phone: (713) 368-0016
  November 12, 2015                     Fax: (713) 368-9278
                                        Counsel for Appellant
                                        November 10, 2015
                       IDENTITY OF PARTIES AND COUNSEL

Appellant:                           Jimmy Earl Van-Cleave
                                     TDCJ# 682347
                                     Robertson Unit
                                     12071 FM 3522
                                     Amarillo, TX 79601

Trial Prosecutor:                    Ms. Cara Burton
Appellate Prosecutor                 Ms. Carly Dessauer
                                     Assistant District Attorney
                                     Harris County, Texas
                                     1201 Franklin, 6th Floor
                                     Houston, Texas 77002

Defense Counsel at Trial:            Ms. Jani Maselli Wood
                                     Assistant Public Defender
                                     1201 Franklin St., 13th Floor
                                     Houston, TX 77002

                                     Harris Wood, Jr.
                                     701 North Post Oak Rd #245
                                     Houston, Texas 77025

Presiding Judge:                     Hon. Kristen Guiney, Presiding Judge
                                     184th District Court
                                     Harris County, Texas
                                     1201 Franklin, 18th floor
                                     Houston, Texas 77002

Defense Counsel on Appeal:           Jani Maselli Wood
                                     Assistant Public Defender
                                     Harris County, Texas
                                     1201 Franklin, 13th Floor
                                     Houston, Texas 77002




                                     -2-
                                                Table of Contents


Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   6

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

         The offense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
         Mitigation Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
         The Van-Cleave Family. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
         Mr. Van-Cleave’s father. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

         When weighing evidence for harm in constitutional error, this Court has
         held that an appellate court should consider everything in the record.
         Rich v. State, 160 S.W.3d 575 (Tex. Crim. App. 2005). The Court of
         Appeals only considered evidence of the offense and failed to analyze
         or consider the defense evidence in determining the constitutional errors
         were harmless. Did the Court of Appeals err in failing to consider all
         evidence from the trial in its harm analysis?. . . . . . . . . . . . . . . . . . . . . . . . . 13




                                                            -3-
         The Court of Appeals never evaluated the mitigation evidence offered
         by Mr. Van-Cleave.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
         The integrity of the process was thwarted by Confrontation Clause
         violations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
         The inadmissible evidence undermined the entire theory of the defense.
         .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20




                                                               -4-
                                         INDEX OF AUTHORITIES
                                                                                                             PAGE
Cases:

Ex parte Van-Cleave,
      AP-77,012, 2013 WL 2112369 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . 6, 7

Harris v. State,
       790 S.W.2d 568 (Tex. Crim. App.1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

McCarthy v. State,
      65 S.W.3d 47 (Tex. Crim. App.2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Rich v. State,
        160 S.W.3d 575 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15

Van-Cleave v. State,
     14-14-00475-CR, 2015 WL 5025653
     (Tex. App.—Houston [14th Dist.] Aug. 25, 2015, no. pet. h.). . . . . . . passim

Wesbrook v. State,
      29 S.W.3d 103 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15

Rules:

TEX. R. APP. P. 44.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16




                                                         -5-
                   STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is not requested.

                            STATEMENT OF THE CASE

      Mr. Van-Cleave was convicted of aggravated kidnaping on July 20, 1994. (C.R.

at 100). The Court of Criminal Appeals granted habeas relief as to punishment only

on May 15, 2013. See Ex parte Van-Cleave, AP-77,012, 2013 WL 2112369 (Tex. Crim.

App. May 15, 2013)(not designated for publication). This appeal is from the new

punishment hearing heard by the 179th district court in June 2014. (C.R. at 103).

After two days of testimony, the trial court sentenced Mr. Van-Cleave to life

imprisonment. (C.R. at 103).

                   STATEMENT OF THE PROCEDURAL HISTORY

      In an unpublished opinion, the Fourteenth Court of Appeals affirmed Mr. Van-

Cleave’s conviction. Van-Cleave v. State, 14-14-00475-CR, 2015 WL 5025653 (Tex.

App.—Houston [14th Dist.] Aug. 25, 2015, no. pet. h.). A motion for rehearing was

filed and denied. After an extension of time, this petition is timely if filed on or

before November 11, 2015.




                                        -6-
                               GROUND FOR REVIEW

       When weighing evidence for harm in constitutional error, this Court has
       held that an appellate court should consider everything in the record.
       Rich v. State, 160 S.W.3d 575 (Tex. Crim. App. 2005). The Court of
       Appeals only considered evidence of the offense and failed to analyze
       or consider the defense evidence in determining the constitutional errors
       were harmless. Did the Court of Appeals err in failing to consider all
       evidence from the trial in its harm analysis?

                                REASON FOR REVIEW

       The Fourteenth Court of Appeals has decided an important question of
       state or federal law in a way that conflicts with the applicable decisions
       of the Court of Criminal Appeals in Rich v. State, 160 S.W.3d 575, 577-78
       (Tex. Crim. App. 2005) and Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim.
       App. 2000). TEX. R. APP. P. 66.3(c).


              STATEMENT OF FACTS RELATIVE TO GROUND RAISED

       Mr. Van-Cleave received a new punishment hearing because at his first trial, no

mitigation evidence was offered. Ex parte Van-Cleave, AP-77,012, 2013 WL 2112369

(Tex. Crim. App. May 15, 2013). In the new punishment hearing, Mr. Van-Cleave

presented numerous witnesses as well as the State offering its own witnesses.

The offense

       The complainant, Marcella Hoffman, testified that in 1994 while driving home

from her job at TWA Airlines at 1:00 a.m., while on the Peirce elevated, she noticed

a white truck and the occupants were looking at her. (2 R.R. at 10-13). Her trip home

to Spring was about 15-20 miles and as she was exiting Cypresswood, she was rear-


                                          -7-
ended. (2 R.R. at 13-16). She was about five minutes from home and called her

husband, a Houston police officer, on her cell phone after the accident. (2 R.R. at 16-

19, 43). She exited her vehicle to get the license plate of the truck that had hit her and

testified she was grabbed from behind. (2 R.R. at 20-22). She identified Mr. Van-

Cleave as the man who grabbed her. (2 R.R. at 24). He let go for a second and she

turned and attempted to stab him with a pen. (2 R.R. at 23). She was thrown to the

ground and knocked out. (2 R.R. at 23). When she regained consciousness, she was

in the truck and was being driven away. (2 R.R. at 24). The complainant tried to grab

the steering wheel along with trying to open the door to get away. (2 R.R. at 25-26).

She bit off Mr. Van-Cleave’s finger and opened the door and rolled out of the moving

vehicle. (2 R.R. at 26-28). She hit soft ground and sprained her leg as the truck ran

over her. (2 C.R. at 28-29, 32).

       While the complainant was in the truck, her husband came upon the scene in

his patrol car. (2 R.R. at 29-30). The patrol car and the truck crashed. (2 R.R. at 30).

The driver’s license of Mr. Van-Cleave was in the vehicle and while at the scene, the

complainant identified him as the person who had kidnaped her. (2 R.R. at 31-32).

       The complainant’s husband, Officer Hartman stated that upon receiving the

call from his wife, he grabbed his gun and ran out to the patrol car wearing only his

sweat pants and a t-shirt. (2 R.R. at 43). He came upon the scene and saw his wife’s



                                           -8-
car being driven by another man behind a white truck. (2 R.R. at 44-45). He put on

his lights and decided to stop the truck. (2 R.R. at 44-45).

       The truck failed to yield and was being driven erratically. (2 R.R. at 47).

Officer Hartman saw a person “bail out of the truck” after the truck had hit the police

car. (2 R.R. at 47). The truck tried to ram the patrol car again but the patrol car

rammed the truck into some trees, instead. (2 R.R. at 47). Officer Hartman jumped

out of his patrol car and was unable to find his gun. (2 R.R. at 50-51). He banged on

the window of the truck and told the driver to show him his hands - but the driver ran

away out of the truck. (2 R.R. at 50-52).

       Houston police officer Bill Taber was present when Mr. Van-Cleave was

brought to the police station. (2 R.R. at 57-59). Officer Taber was present when Mr.

Van-Cleave gave a written statement to the police admitting to the offense. (2 R.R.

at 69-73). The State also offered the testimony of Harris County Deputy Michael

Squyres who photographed numerous gang-related tattoos Mr. Van-Cleave had. (2

R.R. at 75-85).

Mitigation Evidence

       Deputy Squyres stated Mr. Van-Cleave had belonged to the Aryan Circle but

had successfully completed the gang renunciation program offered at TDCJ. (2 R.R.

at 77-80). The program offered at TDCJ was considered a good program at TDCJ



                                            -9-
and something that “most definitely” should be encouraged to inmates, according to

Deputy Squyres. (2 R.R. at 86).

       Captain Antonio Gallardo, a former Marine and current prison guard from

Abilene Texas came and testified for Mr. Van-Cleave. (3 R.R. at 4-5). Captain

Gallardo stated he had never testified for an inmate before. (3 R.R. at 5). While in

prison, Mr. Van-Cleave was a good worker and reliable and responsible. (3 R.R. at 5-

6). Captain Gallardo witnessed an event where another inmate tried to engage Mr.

Van-Cleave in a fight, and Mr. Van-Cleave turned and walked away. (3 R.R. at 6).

       Frank AuBuchon, an expert on prison security classification systems testified

Mr. Van-Cleave had initially had some problems in prison but had been trouble free

for the last 7 years, with only one write up. (3 R.R. 9, 16). Mr. Van-Cleave had been

housed in general population with other inmates who follow the rules and “doing

their time.” (3 R.R. at 15).

The Van-Cleave Family

       Mr. Van-Cleave had numerous family members testify to the horrifying

conditions he grew up with. Wanda Ray, his aunt explained how Jimmy’s parents

were abusive and had four children removed from the home. (2 R.R at 89-91, 103-

06). Mr. Van-Cleave’s mother would beat him with a coat hanger. (2 R.R. at 90).




                                        -10-
       Mr. Van-Cleave’s sister, Vonie Sullivan, described the tragic childhood of Mr.

Van-Cleave. (2 R.R. at 95-100). He was picked on. (2 R.R. at 96). He was beaten.

A lot. (2 R.R. at 96). Growing up, they lived in over 50 different places within 15

years. (2 R.R. at 96). They lived in hotels, the Salvation Army, and with different

family members. (2 R.R. at 96). During the times that her parents were separated, her

mother would have different men living in the house. (2 R.R. at 98). Ms. Sullivan was

repeatedly raped by her mother’s male friends. (2 R.R. at 97-98). Mr. Van-Cleave

often was in the bed with his sister while she was assaulted. (2 R.R. at 98). When Ms.

Sullivan was 11, she became pregnant by her mother’s boyfriend and had an abortion.

(2 R.R. at 98). Although Mr. Van-Cleave was hospitalized for psychiatric issues as a

child, his mother never followed through to ensure he got the necessary treatment.

(2 R.R. at 100).

Mr. Van-Cleave’s father

       Mr. Van-Cleave’s father was a serial predator and molested not only his son,

but numerous other relatives. (2 R.R. at 105-10). Barbara Van-Cleave, a cousin,

personally witnessed Mr. Van-Cleave being molested as a child by his own father. (2

R.R. at 106-08). Mr. Van-Cleave’s sister was also molested by her father - starting

when she was 6. (2 R.R. at 97). Ms. Ray was raped by her brother, Mr. Van-Cleave’s

father, when she was 8. (2 R.R. at 91). Kathy Baugh, Mr. Van-Cleave’s niece barely



                                         -11-
escaped being molested by her aging grandfather when she was 9. (2 R.R. at 92-93).

Although she was just 9, when her grandfather asked her to straddle his naked body,

she knew something wasn’t right. (2 R.R. at 93).

      Ms. Sullivan stated that having lived in that family, it made her angry and always

ready to fight. (2 R.R. at 99). Barbara Van-Cleave was also repeatedly abused, and had

similar anger issues. (2 R.R. at 107-08). Barbara described the impotence she felt as

a child continually being molested:

      I think because as a child when you're growing in, you don't have
      control, you don't have the say-so of what happens to you, these people
      that are abusing you and neglecting you are the ones that are in control
      and it sets up this cycle within you. You're told you can't tell, you're told
      you get in trouble if you tell, and it's in you. It's inside you and then,
      sometimes it comes out violently.

(2 R.R. at 108-09).

      Numerous prison records were offered - three of which the Court of Appeals

found violated the Confrontation Clause:

      Specifically, the three disciplinary reports we conclude were testimonial
      in nature are the following descriptions: (1) fighting with another inmate
      enters into a narrative track when it states that “[appellant] was ordered
      by Lt. T. Brown to stop fighting and face the wall” and included that
      “said inmate failed to obey the order”; (2) appellant's exposure of
      himself adds that the act was committed “with intent to arouse the
      sexual desire of himself”; and (3) possession of weapons describes them
      as “two 6 inch toothbrush handles with razor blades melted into the
      end” which were “intended to be used to injure another.” We conclude
      the reports contain testimonial statements regarding appellant's conduct.



                                          -12-
Van-Cleave v. State, 14-14-00473-CR, 2015 WL 5092620, at *5 (Tex. App.—Houston

[14th Dist.] Aug. 27, 2015, no. pet. h.)


                                     ARGUMENT

      When weighing evidence for harm in constitutional error, this Court has
      held that an appellate court should consider everything in the record.
      Rich v. State, 160 S.W.3d 575 (Tex. Crim. App. 2005). The Court of
      Appeals only considered evidence of the offense and failed to analyze
      or consider the defense evidence in determining the constitutional errors
      were harmless. Did the Court of Appeals err in failing to consider all
      evidence from the trial in its harm analysis?

      While the Court of Appeals held that the trial court committed constitutional

error - the only analysis for harm was solely focused on the facts of the offense, while

briefly noting that the State did not reference the prison infractions during closing:

             The record supports that the trial court would have assessed a life
      sentence irrespective of the disciplinary infractions, based on the
      extremely violent facts of the present offense, committed while
      appellant was on parole for sexual assault. After seven months' parole
      for sexual assault and within hours of getting his first five-hour pass
      from the halfway house in which he was living, appellant drove to
      Galveston in a truck he had just received from his father. Appellant met
      various women and went to multiple bars while in Galveston. After
      leaving Galveston around midnight, appellant noticed complainant, who
      was driving alone in her car. Appellant decided to rob her, take her car,
      and, perhaps, “get some pussy, too.” Appellant followed the
      complainant on the highway and caused an automobile accident
      between his truck and complainant's car. Complainant called her
      husband, a police officer, who instructed her to take note of the truck's
      license plate number. Appellant asked complainant if she was injured,
      and he appeared to have a nice demeanor until he saw that she was on
      the phone. Complainant exited her car to obtain appellant's license plate


                                           -13-
      number. Appellant put both hands around the complainant's neck and
      tried to strangle her. Complainant was unable to breathe for a short time
      and lost consciousness after being thrown to the ground.
              Complainant regained consciousness on the floorboard of
      appellant's truck; appellant told her she was not “going anywhere,
      bitch.” Complainant attempted to grab the steering wheel in an attempt
      to have appellant stop the vehicle enough that she could exit it as she
      opened the door. Appellant pushed her away, reaching over with his left
      hand to close the door. Complainant grabbed hold of his hand and bit
      off part of his “pinkie” finger, spitting it on the floorboard of the truck.
              When complainant's husband arrived at the scene, he noticed his
      wife's car being driven by one male, and he found that suspicious.
      Complainant's husband was in a Houston Police Department patrol car.
      He turned on his lights and siren attempting to stop appellant's truck.
      Appellant rammed the police vehicle and would not stop. Complainant
      then rolled out of the truck. Appellant circled back and deliberately ran
      over her leg. Complainant's husband's patrol car collided with the truck,
      causing it to stop after appellant tried to ram the patrol car a third time.
      Complainant's husband exited his patrol car and ordered appellant to
      show his hands, at which time appellant abandoned his truck and ran for
      cover. He was apprehended the following day after attempting to avoid
      a police search.
              In light of the evidence of appellant's criminal background, to
      which he pleaded “true,” the facts of the present offense, and the trial
      court's comments, we conclude beyond a reasonable doubt that the trial
      court's admission of the disciplinary records did not contribute to
      appellant's punishment. See TEX.R.APP. P. 44.2(a); Smith, 297 S.W.3d at
      277. We overrule appellant's first issue.

Van-Cleave, 2015 WL 5092620, at *5-6. The Court of Appeals ultimate conclusion was

based upon the following: “In light of the evidence of appellant's criminal

background, to which he pleaded “true,” the facts of the present offense, and the trial

court's comments” the evidence was harmless. Id. Those three factors do not include

the entirety of the evidence.


                                          -14-
The Court of Appeals never evaluated the mitigation evidence offered by Mr.
Van-Cleave.

      This Court has considered the type of review necessary for constitutional error:

      In the case of the erroneous admission of evidence, we have said that
      the appellate court should consider everything in the record, including
      any testimony or physical evidence admitted for the jury’s consideration,
      the nature of the evidence supporting the verdict, the character of the
      alleged error and how it might be considered in connection with other
      evidence in the case, the jury instructions, the State’s theory and any
      defensive theories, closing arguments, voir dire, and whether the State
      emphasized the error.

Rich v. State, 160 S.W.3d 575, 577-78 (Tex. Crim. App. 2005). As detailed in the

statement of facts, supra, Mr. Van-Cleave presented compelling evidence of his

reformation. The prison disciplinary infractions which happened subsequent to the

offense were clearly in the court’s mind. As the Court of Appeals explained, “[t]he

records were admitted at the close of evidence, and the trial court then stated it would

review the records during a brief recess.” Van-Cleave, 2015 WL 5092620, at *5.

      “An appellate court should not focus on the propriety of the outcome of the

trial. Instead, the appellate court should calculate as much as possible the probable

impact of the error on the jury in light of the existence of other evidence.” Wesbrook

v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000)(internal citations omitted).

Despite this Court’s instructions in Wesbrook, the Court of Appeals only looked at the

appropriateness of the verdict of guilt:



                                           -15-
      The record supports that the trial court would have assessed a life
      sentence irrespective of the disciplinary infractions, based on the
      extremely violent facts of the present offense, committed while
      appellant was on parole for sexual assault.

Van-Cleave, 2015 WL 5092620, at *5.

The integrity of the process was thwarted by Confrontation Clause violations.

      When evaluating harm under TEX. R. APP. P. 44.2(a), the emphasis should not

be on “the propriety of the outcome of the trial.” Harris v. State, 790 S.W.2d 568, 587

(Tex. Crim. App.1989). This Court has directed reviewing courts to determine if the

error affected “the integrity of the process leading to the conviction.” Id. “The

reviewing court should calculate, as nearly as possible, the probable impact of the

error on the jury in light of the other evidence.” McCarthy v. State, 65 S.W.3d 47, 55

(Tex. Crim. App.2002) (citations omitted).

The inadmissible evidence undermined the entire theory of the defense.

      The Court of Appeals focused solely on the offense without considering all the

evidence presented during trial. There is no indication the Court of Appeals weighed

how this affected the entirety of the defense - that Mr. Van-Cleave was not the same

person who committed the offense back in 1994.

      This evidence did affect the court because it undermined the entirety of the

defense that Mr. Van-Cleave was a changed man. All the mitigation presented was

thwarted by evidence which was admitted entirely unchallenged by cross-examination.


                                         -16-
By allowing evidence in violation of the Confrontation Clause which undermined the

defense, the trial court erred and harmed Mr. Van-Cleave’s defense.

      Review should be granted.

                                PRAYER FOR RELIEF

      For the reasons states above, Mr. Van-Cleave prays that this Court grant his

petition for discretionary review.


                                       Respectfully submitted,
                                       ALEXANDER BUNIN
                                       Chief Public Defender
                                       Harris County Texas

                                       Jani Maselli Wood
                                       _______________________________
                                       JANI J. MASELLI WOOD
                                       Assistant Public Defender
                                       Harris County, Texas
                                       Jani.Maselli@pdo.hctx.net
                                       TBN. 00791195
                                       1201 Franklin Street, 13th Floor
                                       Houston, Texas 77002
                                       Phone: (713) 368-0016
                                       Fax: (713) 368-9278

                                       Attorney for Appellant
                                       Jimmy Earl Van-Cleave




                                       -17-
                            CERTIFICATE OF SERVICE

      Pursuant to Tex. R. App. Proc. 9.5, this certifies that on November 10, 2015,

a copy of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and

the Harris County District Attorney’s Office through texfile.com at the following

address:


Carly Dessauer
Assistant District Attorney
1201 Franklin Street, 6th Floor
Houston, TX 77002
Dessauer_Carly@dao.hctx.net

Lisa McMinn
Lisa.McMinn@SPA.texas.gov

                                Jani Maselli Wood
                          _________________________________
                          JANI J. MASELLI WOOD




                                       -18-
                        CERTIFICATE OF COMPLIANCE

       Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).

1.     Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this

petition contains 2963 words printed in a proportionally spaced typeface.

2.     This petition is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced

by Corel WordPerfect software.

3.     Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.


                                                Jani Maselli Wood
                                          ____________________________
                                          JANI J. MASELLI WOOD




                                           -19-
      Appendix A
Opinion Van-Cleave v. State
Van-Cleave v. State, Not Reported in S.W.3d (2015)




                                                                      2013 WL 2112369, at *1 (Tex.Crim.App. May 15, 2013) (not
                  2015 WL 5092620                                     designated for publication).
    Only the Westlaw citation is currently available.

 SEE TX R RAP RULE 47.2 FOR DESIGNATION AND                           At the outset of his second punishment hearing, appellant
            SIGNING OF OPINIONS.                                      pleaded “true” to an enhancement paragraph alleging a prior
                                                                      conviction for sexual assault. During the hearing, the State
     DO NOT PUBLISH — TEX.R.APP. P. 47.2(B).                          presented evidence describing the present offense and proving
                                                                      that appellant was on parole for the sexual-assault conviction
                Court of Appeals of Texas,                            when he committed the present offense. Appellant presented
                  Houston (14th Dist.).                               mitigating testimony revealing a difficult upbringing and
                                                                      testimony from two witnesses—prison guard, Antonio
                                                                      Gallardo, and correctional consultant, Frank AuBuchon.
        Jimmy Earl Van–Cleave, Appellant                              Gallardo testified regarding supervising appellant working in
                         v.                                           prison. AuBuchon testified about appellant's behavior during
           The State of Texas, Appellee                               his incarceration; according to AuBuchon, appellant
NO. 14–14–00473–CR | Memorandum Opinion filed                         misbehaved and had disciplinary issues initially but later
                 August 27, 2015                                      demonstrated good conduct in prison. At the close of
                                                                      evidence, the State offered appellant's prison disciplinary
                                                                      records containing descriptions of numerous infractions early
On Appeal from the 179th District Court, Harris County,               in his incarceration. The trial court overruled appellant's
Texas, Trial Court Cause No. 9403197                                  objection and admitted the records.
Attorneys and Law Firms                                               In closing argument, the State did not dispute that appellant
                                                                      displayed an ability “to clean up his act” while incarcerated,
Jani J. Maselli Wood, for Appellant.                                  but argued that he was not capable of behaving appropriately
                                                                      in the “free world.” The State emphasized that appellant had
Carly Dessauer, Devon Anderson, for Appellee.                         been on parole for only seven months when he committed the
Panel consists of Justices Boyce, McCally, and Donovan.               present offense.
                MEMORANDUM OPINION                                    The record reflects that, before deciding appellant's sentence,
                                                                      the trial court took a brief recess stating it would review
                                                                      appellant's prison disciplinary records which had just been
                                                                      admitted. The trial court did not mention appellant's
                                                                      disciplinary records when orally pronouncing the life
John Donovan, Justice                                                 sentence. The trial court stated that, but for appellant's
                                                                      “absolutely horrific and tragic” childhood, he may have
*1 Appellant, Jimmy Earl Van–Cleave, appeals the trial                developed very differently, but the court could not ignore “the
court's sentence of life in prison on appellant's conviction for      extreme violence” and his “criminal background.”
aggravated kidnapping. In two issues, appellant argues that
the trial court erred in admitting appellant's prison                                          II. Analysis
disciplinary records containing evidence of extraneous
offenses. We affirm.                                                  Appellant presents two numbered issues but argues that the
                                                                      trial court erred by admitting appellant's prison disciplinary
                                                                      records for three reasons: (1) the extraneous offenses
                        I. Background                                 contained therein were not proven beyond a reasonable doubt;
                                                                      (2) the descriptions of the offenses were testimonial in nature,
On July 20, 1994, appellant was convicted of aggravated               such that their admission violated appellant's Sixth
kidnapping and sentenced to life in prison. Appellant was             Amendment right to confrontation; and (3) the State failed to
granted habeas corpus relief as to punishment only on the             provide proper notice of its intent to use the records.
ground that he received ineffective assistance of counsel
because there was no offer of mitigating evidence during the
punishment phase. See Ex Parte Van–Cleave, No. AP–77012,              A. Reasonable–Doubt Argument


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Van-Cleave v. State, Not Reported in S.W.3d (2015)




*2 In one portion of his first issue, appellant argues that the      records. See Delgado, 235 S.W.3d at 252. The fact
extraneous offenses contained in the disciplinary records            that, for prison disciplinary purposes, the
never could be proven beyond a reasonable doubt because the          preponderance-of-the-evidence standard applies
preponderance-of-the-evidence standard applied when                  would not necessarily preclude the fact-finder in this
determining whether there was a disciplinary infraction.             case from deciding the reasonable-doubt standard
                                                                     was also satisfied. “A judge in a bench trial is
We review a trial court's admission of evidence under the            presumed to have applied the correct law to the
abuse-of-discretion standard. Moses v. State, 105 S.W.3d 622,        facts.” Coonradt v. State, 846 S.W.2d 874, 876
627 (Tex.Crim.App.2003). A trial court abuses its discretion         (Tex.App.— Houston [14th Dist.] 1992, pet. ref'd);
when its decision “lies outside the zone of reasonable               see also Fields, 1 S.W.3d at 688 (citing McMillan v.
disagreement.” Murchison v. State, 93 S.W.2d 239, 249                Pennsylvania, 477 U.S. 79, 91 (1986) (“[s]entencing
(Tex.App.—Houston [14th Dist.] 2002, pet. ref'd) (citing             courts have traditionally heard evidence and found
Montgomery v. State, 810 S.W.3d 372, 391                             facts without any prescribed burden of proof at
(Tex.Crim.App.1990)).                                                all.”)).

Texas Code of Criminal Procedure article 37.07 provides:             We hold that the trial court correctly applied the law
                                                                     and could have concluded beyond a reasonable
      [E]vidence may be offered by the state and the                 doubt that appellant committed the offenses
      defendant as to any matter the court deems                     contained in the prison disciplinary reports because
      relevant to sentencing, including but not                      it had before it the contents of the records and
      limited to the prior criminal record of the                    AuBuchon's testimony corroborating some of the
      defendant, his general reputation, his                         incidents in the reports confirming appellant was not
      character, an opinion regarding his character,                 a model prisoner early in his term. See Coonradt,
      the circumstances of the offense for which he                  846 S.W.2d at 876. Additionally, error in the
      is being tried, and, notwithstanding Rules 404                 admission of the prison disciplinary reports would be
      and 405, Texas Rules of Evidence, any other                    harmless for the reasons set forth in Section B. See
      evidence of an extraneous crime or bad act                     Martinez v. State, 313 S.W.3d 358, 369
      that is shown beyond a reasonable doubt by                     (Tex.App.—San Antonio 2009, pet. ref d)
      evidence to have been committed by the                         (concluding that the omission of a reasonable-doubt
      defendant or for which he could be held                        instruction in a jury charge regarding unadjudicated
      criminally responsible.                                        offenses was not harmful error when the entirety of
                                                                     the evidence is reviewed).
Tex.Code Crim. Proc. Ann. art. 37.07, § 3(a) (West,
Westlaw through 2015 R.S.).                                          B. Contention Regarding Confrontation Clause
                                                                     *3 In another portion of his first issue, appellant
 During the punishment phase, extraneous-offense                     contends that the disciplinary reports contain
evidence may be offered for any relevant purpose                     testimonial statements and thus their admission
where the “State can offer proof that would allow a                  violated his Sixth Amendment right to confront
reasonable fact-finder to conclude, beyond a                         witnesses. See U.S. Const. art. VI. The
reasonable doubt, that the defendant could be held                   Confrontation Clause of the Sixth Amendment bars
criminally responsible for that act.” Delgado v.                     the admission of a non-testifying witness's
State, 235 S.W.3d 244, 252 (Tex.Crim.App.2007);                      testimonial statements, unless the witness is
Fields v. State, 1 S.W.3d 687, 688                                   unavailable and the defendant had a prior
(Tex.Crim.App.1999) (requiring the fact-finder may                   opportunity to cross-examine the witness. See Smith
not consider extraneous-offense evidence unless it is                v. State, 420 S.W.3d 207, 223 (Tex.App.—Houston
satisfied beyond a reasonable doubt that the prior                   [1st Dist.] 2013, pet. ref'd) (citing Crawford v.
acts are “attributable to the defendant.”)                           Washington, 541 U.S. 36, 59 (2004)). A statement is
                                                                     generally considered “testimonial” if it is a solemn
                                                                     declaration made for the purpose of establishing
The fact-finder in this case was the trial court. To                 some fact. Id. (citing Crawford, 541 U.S. at 51). We
admit the extraneous-offense evidence, the trial court               review de novo a determination of whether a
must believe beyond a reasonable doubt that the                      statement is testimonial because such a legal ruling
appellant “could be held criminally responsible” for                 is determined by the standard of an objectively
the offenses contained in the prison disciplinary                    reasonable declarant standing in the shoes of the

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Van-Cleave v. State, Not Reported in S.W.3d (2015)




actual declarant. See Lilly v. Virginia, 527 U.S. 116,      defendant's violation of jail rules, cell transfers, and
137 (1999); Wall v. State, 184 S.W.3d 730, 742–43           fighting, is not inadmissible hearsay; rather, the jail
(Tex.Crim.App.2006).                                        records qualify as records made in the regular course
                                                            of business.” Jackson v. State, 822 S.W.2d 18,
                                                            30–31 (Tex.Crim.App.1990) (en banc); see Tex.R.
The disciplinary records contain the following              Evid. 803(6). Evidence that falls within a firmly
descriptions of offenses:                                   rooted exception to the hearsay rule does not violate
                                                            the Confrontation Clause, and the business-records
On the date and time listed above, and at 12 Bldg. B        exception provides such a foundation. See Russeau
Pod 63 Cell, [appellant] did assault [another inmate]       v. State, 171 S.W.3d 871, 880
without a weapon, by spitting on him. Moreover, the         (Tex.Crim.App.2005). However, the disciplinary
assault did not result in any injuries.                     reports should not contain testimonial statements,
                                                            unless the strictures of the Confrontation Clause
On the date and time listed above, and at Z-wing            have been satisfied.Id. at 881. Otherwise, such
l-row, [appellant] did expose his penis to [Officer]        testimonial statements amount to the very type of
with intent to arouse the sexual desire of himself.         evidence the Confrontation Clause intended to
                                                            prohibit: “unsworn, ex parte affidavits of
                                                            government employees.” Id. The Russeau court
On the date and time listed above, and at cell Z–122,       ruled that the trial court erred in admitting the
[appellant] did intentionally damage the food slot          defendant's disciplinary records containing
door on his cell front door, by banging the door            inadmissible testimonial statements because the
numerous times until it broke off the hinges said           Confrontation Clause's requirements had not been
property belonging to [The State].                          met. Id. at 880. In Russeau, the defendant's
                                                            disciplinary offenses included “threatening physical
                                                            harm and even death to others, refusing to work or
On the date and time above, and at H–119,                   cooperate, breaking out of his cell at night, exposing
[appellant] did possess contraband, namely 2 pair of        himself and masturbating in front of jailers and other
shorts, which is in excess of the amount authorized,        inmates, verbally abusing jailers and other inmates,
such amount being 1 pair of shorts.                         fighting with other inmates, and possessing
                                                            contraband, including improvised weapons.” Id. In
                                                            concluding that the disciplinary report contained
On the date and time above, and at cell M–210,              inadmissible testimonial hearsay, the Russeau court
[appellant] did possess a weapon intended to be used        found particularly persuasive “the detailed and
to injure another person, namely two 6 inch                 graphic” nature of the report that recounted
toothbrush handles with razor blades melted into the        appellant's numerous offenses. Id.
end.

                                                            *4 In contrast, our court's review of a similar
On the date and time above, and at bldg hallway,            situation involving testimonial hearsay and prison
[appellant] did engage in a fight without a weapon          disciplinary records found that a sterile recitation of
with [another inmate]. [Appellant] was ordered by           the defendant's offenses and the punishments
[Officer] to stop fighting and face the wall and            received contained no testimonial content and thus
[appellant] failed to obey the order.                       did not violate the Confrontation Clause. See Ford v.
                                                            State, 179 S.W.3d 203, 209 (Tex.App.—Houston
                                                            [14th Dist.] 2005, pet. ref'd). The accounts
On the date and time above, and at a-turnout door,          considered in Ford were the following:
[appellant] refused to turn out for his work
assignment without a legitimate reason.                           February 5th, 2004, the defendant was charged
                                                                  fighting. Seven days loss of privileges, found
                                                                  guilty, October 15, 2003, extortion. June the
                                                                  11th, 2003, extortion, ten days loss of
The Court of Criminal Appeals has held that a                     privileges. April the 21st, 2003, assault on an
defendant's jail records, introduced at the                       inmate. April 21st, 2003, horseplaying,
punishment phase of trial, “chronicling the                       altercation, five days' loss of privileges.

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Van-Cleave v. State, Not Reported in S.W.3d (2015)




      February the 24th, 1998, 25 days loss of               Court of Appeals has held the following language
      privileges for fighting. February the 18th,            went beyond “boilerplate” language and contained
      1998, fighting. February the 18th, 1998,               subjective observations from non-testifying
      fighting. And again February the 18th, 1998,           witnesses:
      fighting.
                                                                   ...was disrupting in Ms. Richmond's class. He
Id. at 208.                                                        was sent out to security. Youth refused to go.
                                                                   Student was counseled by staff and refused to
                                                                   comply. Mr. Henderson tried counseling with
In a subsequent case, our court contrasted Ford with               ... [Youth]. He refused all counseling. Youth
Russeau to further delineate between testimonial and               then moved away from staff trying to run. I
non-testimonial statements. See Grant v. State, 218                grabbed ... [Youth] to place him in a standing
S.W.3d 225, 231 (Tex.App.—Houston [14th Dist.]                     PRT .... balled his fists up and swung at staff.
2007, pet. ref'd). Relying on Ford, our court                      Mr. Henderson took ... [Youth] and placed
explained that the “presence or absence of a                       him into a part. At this time Mr. Spearman ...
subjective narration of events related to [the                     came to assist. I then went down and secured
defendant's] guilt or innocence” establishes the                   his legs.
difference between testimonial and non-testimonial
statements:                                                  *5 Smith, 420 S.W.3d at 225.

      [I]n Ford, we conceptualized the difference ...
      as dependent in part on the extent to which the        While some of the incident reports in the present
      statements are a sterile recitation of facts or a      case align closely with Ford 's sterile model, we
      subjective narration of events related to              conclude that three reports include testimonial
      appellant's guilt or innocence. In Ford, the           descriptive phrases and brief narrative accounts
      statements in the disciplinary reports were            resembling those found in Smith. See id.
      objective statements that particular                   Specifically, the three disciplinary reports we
      punishments were assessed for the identified           conclude were testimonial in nature are the following
      disciplinary infractions by the appellant; they        descriptions: (1) fighting with another inmate enters
      were not narratives by witnesses against the           into a narrative track when it states that “[appellant]
      appellant relating to his guilt or innocence of        was ordered by Lt. T. Brown to stop fighting and
      the infractions described. Consequently, the           face the wall” and included that “said inmate failed
      statements were nontestimonial. In contrast,           to obey the order”; (2) appellant's exposure of
      the statements in Russeau contained subjective         himself adds that the act was committed “with intent
      narrations of the very actions by the appellant        to arouse the sexual desire of himself”; and (3)
      that constituted the offenses for which he is          possession of weapons describes them as “two 6
      punished. Thus, the presence of a subjective           inch toothbrush handles with razor blades melted
      narration of events related to the appellant's         into the end” which were “intended to be used to
      guilt or innocence is a significant difference         injure another.” We conclude the reports contain
      between the statements at issue in Russeau and         testimonial statements regarding appellant's conduct.
      Ford.                                                  See Smith, 297 S.W.3d at 276–77.

Id.
                                                             The extraneous phrases in the written observations
The Court of Criminal Appeals has adopted this               that make it more probable that the appellant was
rationale for delineation of testimonial versus              guilty of the offense charged are testimonial in
non-testimonial nature of records in similar                 nature. See id. We determine that the detail used to
circumstances. See Smith v. State, 297 S.W.3d 260,           describe appellant's guilt of the extraneous offenses
277 (Tex.Crim.App.2009). The Smith court held that           is testimonial hearsay and is inadmissible without
“boilerplate” language which does not contain any            appellant's prior opportunity to cross-examine the
such testimonial statements, narratives of specific          pertinent witness or a showing that the witness was
events, or written observations is admissible. Id. at        unavailable. See id. Thus, we hold that the trial court
276; see also Segundo v. State, 270 S.W.3d. 79,              erred in admitting three of appellant's disciplinary
108–07 (Tex.Crim.App.2009). Likewise, the First              reports which included testimonial hearsay.

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Van-Cleave v. State, Not Reported in S.W.3d (2015)




                                                             complainant if she was injured, and he appeared to
                                                             have a nice demeanor until he saw that she was on
Having found constitutional error as to the three            the phone. Complainant exited her car to obtain
offenses described, we “must reverse [the]                   appellant's license plate number. Appellant put both
punishment unless [we] determine beyond a                    hands around the complainant's neck and tried to
reasonable doubt that the error did not contribute to        strangle her. Complainant was unable to breathe for
the ... punishment.” Tex.R.App. P. 44.2(a); see also         a short time and lost consciousness after being
Smith, 297 S.W.3d at 277 (citing Chapman v.                  thrown to the ground.
California, 386 U.S. 18, 24 (1967)). We hold that
beyond a reasonable doubt the admission of                   *6 Complainant regained consciousness on the
appellant's disciplinary records did not contribute to       floorboard of appellant's truck; appellant told her she
his punishment.                                              was not “going anywhere, bitch.” Complainant
                                                             attempted to grab the steering wheel in an attempt to
The State did not reference appellant's prison               have appellant stop the vehicle enough that she
disciplinary infractions during its closing argument.        could exit it as she opened the door. Appellant
Rather, the State emphasized the callous nature of           pushed her away, reaching over with his left hand to
the present offense, noting that appellant reoffended        close the door. Complainant grabbed hold of his
after only seven months' parole and within hours of          hand and bit off part of his “pinkie” finger, spitting
receiving a five-hour pass from the halfway house in         it on the floorboard of the truck.
which he was living.
                                                             When complainant's husband arrived at the scene, he
Furthermore, the trial court made no reference to            noticed his wife's car being driven by one male, and
appellant's prison conduct in pronouncing his                he found that suspicious. Complainant's husband was
sentence. The records were admitted at the close of          in a Houston Police Department patrol car. He
evidence, and the trial court then stated it would           turned on his lights and siren attempting to stop
review the records during a brief recess. When               appellant's truck. Appellant rammed the police
announcing appellant's sentence, the trial court made        vehicle and would not stop. Complainant then rolled
no mention of the prison disciplinary reports. The           out of the truck. Appellant circled back and
trial court expressed only that “at the end of the day,      deliberately ran over her leg. Complainant's
though, the Court cannot ignore the extreme violence         husband's patrol car collided with the truck, causing
and your criminal background,” and it took into              it to stop after appellant tried to ram the patrol car a
account appellant's plea of true on the enhancement          third time. Complainant's husband exited his patrol
paragraph and found it to be true.                           car and ordered appellant to show his hands, at
                                                             which time appellant abandoned his truck and ran for
The record supports that the trial court would have          cover. He was apprehended the following day after
assessed a life sentence irrespective of the                 attempting to avoid a police search.
disciplinary infractions, based on the extremely
violent facts of the present offense, committed while        In light of the evidence of appellant's criminal
appellant was on parole for sexual assault. After            background, to which he pleaded “true,” the facts of
seven months' parole for sexual assault and within           the present offense, and the trial court's comments,
hours of getting his first five-hour pass from the           we conclude beyond a reasonable doubt that the trial
halfway house in which he was living, appellant              court's admission of the disciplinary records did not
drove to Galveston in a truck he had just received           contribute to appellant's punishment. See
from his father. Appellant met various women and             Tex.R.App. P. 44.2(a); Smith, 297 S.W.3d at 277.
went to multiple bars while in Galveston. After              We overrule appellant's first issue.
leaving Galveston around midnight, appellant
noticed complainant, who was driving alone in her            C. Contention Regarding Defective Notice
car. Appellant decided to rob her, take her car, and,        In his second issue, appellant contends that the trial
perhaps, “get some pussy, too.” Appellant followed           court erred in admitting the disciplinary records
the complainant on the highway and caused an                 because the State failed to provide proper notice of
automobile accident between his truck and                    its intent to use extraneous offense. Appellant asserts
complainant's car. Complainant called her husband,           the State's notice reflected that every prison
a police officer, who instructed her to take note of         disciplinary offense occurred in Walker County, a
the truck's license plate number. Appellant asked            county in which appellant argues he was never

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Van-Cleave v. State, Not Reported in S.W.3d (2015)




incarcerated. Although appellant lists this assertion
as an issue at the outset of his brief, he cites no
authority or record references to support this
assertion. An appellant's brief must contain
“argument for the contentions made, with
appropriate citations to authorities and to the
record.” Tex.R.App. P. 38.1(i). Failure to properly
brief an issue presents nothing for us to review; we
are not required to make appellant's arguments for
him. See Lucio v. State, 351 S.W.3d 878, 896
(Tex.Crim.App.2011) (citing Busby v. State, 253
S.W.3d 661, 673 (Tex.Crim.App.2008) ).
Accordingly, we overrule appellant's second issue.

We affirm the trial court's judgment.


All Citations

Not Reported in S.W.3d, 2015 WL 5092620



End of Document                                                © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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