                                                                         PD-0792-15
                   PD-0792-15                          COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                       Transmitted 7/8/2015 12:44:08 PM
                                                          Accepted 7/9/2015 4:18:55 PM
                                                                         ABEL ACOSTA
                        NO. -------                                              CLERK



                             IN THE
               COURT OF CRIMINAL APPEALS
                           OF TEXAS




                   SHAUN RAY MULLINAX,
                                    Appellant

                                vs.
July 9, 2015
                    THE STATE OF TEXAS,
                                      Appellee



   APPELLANT'S CORRECTEDPETITION FOR DISCRETIONARY
                        REVIEW


                 On Appeal No. 02-14-00237-CR
                           From the
                    Court of Appeals for the
                    Second Judicial District
                     at Fort Worth, Texas


                     Robert Sirianni, Esq.
                       Counsel of Record
               Law Office of Robert L. Sirianni, Jr.
                 200 North New York Avenue
                           Suite 201
                  Winter Park, Florida 32789
                        (407) 388-1900
                    Counsel for Petitioner
                                      TABLE OF CONTENTS


INDEX OF AUTHORITIES ................................................................................ ii

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

STATEMENT OF INTERESTED PARTIES ...........................................2

EXHIBITS/APPELLATE COURT OPNINION ........................................2

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

STATEMENT OF PROCEDURAL HISTORY ................................................... 6

GROUND FOR REVIEW NUMBER ONE ......................................................... 7

        THE COURT OF APPEALS ERRED IN HOLDING THAT THE
        APPELLANT FAILED TO TIMELY OBJECT TO THE
        COURT'S FAILURE TO PROVIDE TESTIMONY TO THE
        JURY AS REQUESTED.


PRAYER FOR RELIEF ......................................................................................... 9

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

APPENDIX [Opinion] ......................................................................................... 11




                                                       i
                                     INDEX OF AUTHORITIES

CASES:

Marin v. State , 851 S.W.2d 275 (Tex.Crim.App. 1993) ...................................... 8

Blue v. State , 41 S.W.3d 129, 131 (Tex.Crim.App. 2000) .................................. 8

TEXAS RULES OF APPELLATE PROCEDURE

       Rule 66.3(b).................................................................................................. 7

TEXAS RULES OF EVIDENCE

       Rule 103 (d).................................................................................................. 8

UNITED STATES CONSTITUTION

       AMENDMENT V, VI ................................................................................. 8

TEXAS CONSTITUTION

       Article I, Section 10, 13 .............................................................................. 8




                                                          ii
                                    IN THE
                     COURT OF CRIMINAL APPEALS

                                  OF TEXAS



                            SHAUN RAY MULLINAX,
                                         Appellant
                                         vs.

                             THE STATE OF TEXAS,
                                           Appellee



     APPELLANT'S PETITION FOR DISCRETIONARY REVIEW



TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

      Appellant, SHAWN MULLINAX, respectfully submits this Petition for

Discretionary Review and moves that this Honorable Court grant review of this

cause and offers the following in support thereof:
                 STATEMENT REGARDING INTERESTED
                            PARTIES

      Pursuant to Rule 68.4(a), the following parties are notices by this Petition:

      1. Trial Court Judge: The Honorable John H. Fostel

      2. Prosecutor: Greg Lowery

      3. Trial Counsel for Defendant: Jerry Cobb

               EXHIBITS IN SUPPORT OF THIS PEITTION

      Pursuant to Rule 68.4(J), the following Opinion of the Court of Appeals is

attached: Opinion, Court of Appeals, No. 02-14-00237-CR, dated May 28, 2015.

                      STATEMENT REGARDING ORAL
                             ARGUMENT

      The Appellant does not request oral argument in this case.

                         STATEMENT OF THE CASE

      On November 8, 2012, Z. M., a sixth grader, approached his school counselor

and reported that his father became angry and struck him after he failed to do the

dishes. RR. Vol. 2 at 104. The incident occurred the prior evening, after Z. M. had

returned from football practice. Id. at 116. Z. M. played linebacker, as well as on the

offensive and defensive line, and on several occasions returned from practice with

bruises on his forearms. Id. at 174-75, 206.

      The school counselor observed that Z. M. had bruises on his left arm and a


                                          2
bump on his head, but did not testify as to whether or not those injuries could have

been sustained during football practice. Id. at 93. Z. M. called his mother, who was

divorced from Mr. Mullinax. Id. at 132, 149. His mother drove from Floresville,

retrieved Z. M., and took him the Wise County Sheriff’s Office to file a report. Id. at

135-36.

      On direct examination, Z. M. testified about a number of different uncharged

and unsubstantiated instances where his father abused him, including one incident

where his father pushed him on the bed, wrapped his hands around his neck, and

threatened to strangle him. RR. Vo. 2 at 108-12. Z. M. testified that his father would

punch him once a month. Id. at 109. Z. M. also testified that he feared he would be

seriously hurt or killed as a result of these uncharged acts. Id. at 111. Z. M. admitted

on cross-examination that he never reported these instances, and no other witness

substantiated his testimony regarding these uncharged allegations of prior abuse. Id.

at 114, 117.

      Z. M. testified that on the evening in question Mr. Mullinax struck him on the

arm and the head. Id. at 107. The defense also introduced a recording of a telephone

conversation where Mr. Mullinax offered a general apology to his son. Id. at 140.

Mr. Mullinax did not specify in his apology what he did wrong. See id. at 209.

      Mr. Mullinax testified in his defense. He denied ever abusing, hitting, or


                                           3
strangling his son on any occasion. Id. at 209. He admitted that he had disciplined

his son with a belt and spanked him. Id. at 201. He also admitted that he disciplined

his son on the night in question; however, he explained that he did so because Z. M.

       had lied to him about having done his homework and cleaned the dishes. Id. at

206.

       Mr. Mullinax testified that there was no way he could have struck his son on

his left arm because, since Mr. Mullinax was left-handed, any injury would have been

sustained on Z. M.’s right arm. Id. at 204. Mr. Mullinax testified that he apologized

to his son for the emotional distress the situation had caused, not because Mr.

Mullinax had inflicted any physical injury on his son. Id. at 209.

       On cross-examination, counsel for the State asked Mr. Mullinax whether he had

been convicted of arson. Id. at 211. Mr. Mullinax admitted that he had. Id. Counsel

for the State asked Mr. Mullinax whether he had been sentenced to two years of

incarceration for violating his probation on that offense. Id. Mr. Mullinax admitted

that he had. Id. Counsel for the State then asked Mr. Mullinax whether he had ever

smoked marijuana. Mr. Mullinax admitted that he had. Id. at 215. Counsel for the

State inquired as to whether smoking marijuana was one of the reasons that Mr.

Mullinax had his probation revoked and was sent to the penitentiary. Id. Mr. Mullinax

admitted that it was. Id.


                                          4
      On recross-examination, counsel for the State again raised Mr. Mullinax’s

conviction for arson, though the subject never arose on redirect-examination, and

elicited testimony regarding the actual circumstances that led to his arrest and

prosecution. Id. at 216. Defense counsel did not object to any of the references of

prior bad act evidence introduced by the State. Because there was no objection, the

evidentiary basis for introducing the extraneous prior bad acts was unclear. However,

in its pretrial notice, the State explained that it intended to introduce the prior bad act

evidence to show that “the character and reputation for being truthful, law abiding,

and peaceful of Shaun Ray Mullinax . . . are bad.” CR. at 19.

      During rebuttal arguments, the State highlighted the prior bad acts, and

implored the jury to consider the fact that Mr. Mullinax was a convicted felon: “Do

you believe a convicted felon who’s got a lot to lose, or do you believe Z. M.?” RR.

Vol. 3 at 16. The State also highlighted the other prior instances where Mr. Mullinax

purportedly struck his son: “But it’s not an isolated incident. It’s not happened just

once. It rose to the level that Z. M. was fearful of his life.” Id. at 17.

      The State then sought to shift the burden of proof by arguing that, to find Mr.

Mullinax not guilty, the jury would have to disbelieve the witnesses for the State:

      If you were to find him not guilty, you’re saying that Mr. Bates was
      mistaken or being untruthful when he said the Defendant called him and
      he said, I'm glad Z. M. had somebody to talk to so this would stop.


                                            5
      Officer Golden, Deputy Reynolds -- Investigator Reynolds, they both
      believed that an offense has happened. CPS -- CPS would be wrong, law
      enforcement is wrong, the D.A.’s office is wrong, we're all wrong.

Id.

      Then, the State argued that Mr. Mullinax should be convicted because finding

him innocent would place Z. M. in danger:

      You’re Z. M.’s safety net. You’re his last hope to keep him from going
      back to his dad. His dad’s fighting like the dickens to get him. You’re
      Z. M.’s hope. Please don't let him down and find the Defendant guilty.
      Thank you.

Id. at 18. Defense counsel did not object to these comments.

      In the jury charge, the trial court instructed the jury to only consider testimony

regarding other prior offenses “in determining the state of mind of the defendant and

the child and the previous and subsequent relationship between the defendant and the

child, if any, in connection with the offenses, if any, alleged in the indictment in this

case, and for no other purpose.” CR. at 33.

      The trial court sentenced Mullinax in accordance with jury’s recommendation

during the punishment phase. Id. at 28-29. This timely appeal follows.

       The issues presented are: (1) whether the Court of Appeals failed to conduct

 a meaningful legal sufficiency analysis; and (2) whether the Court of Appeals

 erred in holding that one of the issues raised on appeal was not preserved for

 appellate review because the Appellant failed to voice a timely objection.

                                           6
                 STATEMENT OF PROCEDURAL HISTORY

      On May 28, 2015, the Court of Appeals for the Second District entered an

opinion in Case No. 02-14-00237-CR, denying Appellant’s appeal. No motion for

rehearing was filed. This Petition for Discretionary Review was timely filed with

the Court of Criminal Appeals by placing such Petition in the United States Mail on

June 26, 2015

                   GROUND FOR REVIEW NUMBER ONE

       THE COURT OF APPEALS ERRED IN HOLDING THAT
       ISSUE TWO RAISED BY THE APPELLANT WAS NOT
       PRESERVED FOR APPELLATE REVIEW.

       The Appellant would submit that the Court of Appeals has decided an

 important question of state law in conflict with the applicable decisions of this

 Court and, accordingly, this Court should grant review of the case. See Rule

 66.3(b), Texas Rules of Appellate Procedure. More specifically, the Appellant

 would urge that the Court of Appeals erred in holding that the issues raised on

 appeal was not preserved for appellate review.

       In the Court of Appeals the Appellant argued that reversible error was

 committed when the trial court allowed two prior bad acts to come into evidence

 during the proceedings below based on the rules of criminal procedure. Such

 admission of prior bad acts was harmful because it deprived the Appellant of due

                                        7
process and a fundamentally fair trial.

      The Court of Appeals overruled this issue by stating the Appellant did not

did not object or file a motion for new trial based on the prior bad acts. (Opinion 6).




      Errors may be raised for the first time on appeal if the complaint is that the

trial court disregarded an absolute or systemic requirement, Marin v. State , 851

S.W.2d 275, 280 (Tex.Crim.App. 1993).

      Appellant submits that the two prior bad acts in question did not require

an absolute objection under the code of criminal procedure. Appellant contends

that his due process rights were violated under the Fifth and Sixth

Amendment to the United States Constitution as applied to the states under the

Fourteenth amendment and his right to a fair trial and due course of law under

articles 1 section 10 and 13 of the Texas Constitution.

      Although, there was no objection made by trial counsel below, the Appellant

contends that his fundamental due processes were denied. The State presented

evidence of a prior arson and cannabis charge that are unrelated to the current

underlying crime; this fundamental error necessitating no objection for


                                          8
preservation. Relying upon Texas Rule of Evidence 103(d), this Court of Criminal

Appeals explained in Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000),

that Courts are authorized to "tak[e] notice of fundamental errors affecting

substantial fights although they were not brought to the attention of the court." Id.

Furthermore, as this Court previously stated,

     "Some rights are widely considered so fundamental to the proper
     functioning of our adjudicatory process as to enjoy special protection in
     the system. A principle characteristic of these rights is that they cannot
     be forfeited. That is to say, they are not extinguished by inaction alone.
     Instead, if a defendant wants to relinquish one or more of them, he must
     do so expressly." (Internal citations omitted) (Id).

      This error was pervasive in the trial because the two prior crimes were 10

years or older; had no nexus to the current charges; and prejudiced the adjudicatory

process due to the constant reminder by the prosecution during closing argument.




                                          9
                             PRAYER FOR RELIEF

       For the reasons stated above, it is respectfully submitted that the Court

 of Criminal Appeals of Texas should grant this Petition for Discretionary

 Review.

       Dated: July 6, 2015

                                             Respectfully submitted,

                                             /s/Robert L. Sirianni, Jr.___
                                             ROBERT SIRIANNI, JR, Esquire
                                             Texas Bar Number 24086378
                                             Counsel of Record
                                             201 North New York Avenue
                                             Suite 200
                                             Winter Park, Florida 32789
                                             (407) 388-1900
                                             Robert@brownstonelaw.com

                      CERTIFICATE OF COMPLIANCE

       I HEREBY CERTIFY that the foregoing brief complies with the type-volume
limitation of Texas Rule of Appellate Procedure 9.4(i)(1) because its computer
generated word count is 1,765. Further, this brief complies with the type-face and
type-style requirements of Texas Rule of Appellate Procedure 9.4 because this brief
has been prepared in a proportionately spaced typeface using Microsoft Word 2007
in 14-point Times New Roman Font.

                                             /s/ Robert L. Sirianni, Jr.
                                             Robert L. Sirianni, Jr., Esquire




                                        10
                      CERTIFICATE OF SERVICE

      The undersigned attorney hereby certifies that on July 6th, 2015, a true

and correct copy of the foregoing Petition for Discretionary Review has been

mailed by United States mail to the following: the Office of Greg Lowry,

Criminal District Attorney, 101 North Trinity, Suite 200, Decatur, Texas 76234.



                                           /s/Robert L. Sirianni, Jr._______
                                           ROBERT SIRIANN, JR., ESQ




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