                      NO. PD-0760-15

                       IN THE
             COURT OF CRIMINAL APPEALS
                     OF TEXAS
                     AT AUSTIN
                _________________________

               ANTHONY CHAMBERLAIN,
                         Appellant

                                v.
                                                             July 28, 2015
                 THE STATE OF TEXAS,
                             Appellee
                _________________________

            On appeal in Cause No. F12-63564-M
             from the 194TH Judicial District Court
                     Of Dallas County, Texas
         And on Petition for Discretionary Review from
               the Fifth District of Texas at Dallas
                  In Cause No. 05-13-01213-CR
                _________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
             _________________________

                                       Counsel of Record:

    Lynn Richardson                    Nanette Hendrickson
    Chief Public Defender              Assistant Public Defender
                                       Dallas County Public Defender’s Office
    Katherine A. Drew                  State Bar Number: 24081423
    Chief, Appellate Division          133 N. Riverfront Blvd., LB 2
                                       Dallas, Texas 75207-399
                                       (214) 653-3550 (telephone)
                                       (214) 653-3539 (fax)

             ATTORNEYS FOR PETITIONER/APPELLANT
                                       TABLE OF CONTENTS


INDEX OF AUTHORITIES ................................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 2
STATEMENT OF FACTS ........................................................................................ 2
GROUND FOR REVIEW ......................................................................................... 2
           Whether the Court of Appeals erred in holding the trial court did
            not abuse its discretion by admitting Amy Shuemaker’s prior
                                inconsistent statement.
ARGUMENT ............................................................................................................. 3
         FACTS ............................................................................................................. 3
         APPLICABLE LAW ....................................................................................... 5
         THE COURT OF APPEALS’ HOLDING IS INCORRECT ......................... 5
         CONCLUSION ............................................................................................... 8
PRAYER FOR RELIEF ............................................................................................ 9
CERTIFICATE OF SERVICE .................................................................................. 9
CERTIFICATE OF COMPLIANCE ......................................................................... 9




                                                           ii
                                    INDEX OF AUTHORITIES

Cases
Chamberlain v. State,
 No. 05-13-01213-CR, 2015 Tex. App. LEXIS 5310 (Tex. App.—Dallas May
 27, 2015) ............................................................................................... 2, 6, 7, 8
Hughes v. State,
 4 S.W.3d 1 (Tex. Crim. App. 1999) ......................................................... 3, 5, 6
Kelly v. State,
 60 S.W.3d 299 (Tex. App.—Dallas 2001, no pet.) ..........................................6
Rules
TEX. R. APP. P. 68.4 (i) .........................................................................................2
Tex. R. Evid. 403 ..............................................................................................5, 6
Tex. R. Evid. 607 ..................................................................................................5




                                                         iii
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Anthony Chamberlain, Appellant, respectfully presents to this

Honorable Court his Petition for Discretionary Review of the Fifth District

Court of Appeals’ Opinion affirming the trial court’s judgment.

         STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument because this case presents a question

of law on issues having statewide impact and possible reoccurrence. Oral

argument may be helpful to the members of this Court in the resolution of

the issues presented.

                        STATEMENT OF THE CASE

      Appellant was charged by indictment with the offense of possession

of a controlled substance between four and two hundred grams with the

intent to deliver. (CR: 8).The indictment also included two enhancement

paragraphs alleging prior convictions for possession of a controlled

substance over four grams with intent to deliver and possession of a

controlled substance over one gram. (CR: 8). Appellant pled not guilty to the

primary charge in the indictment. (RR3: 8). A jury trial was held, and the

jury found Appellant guilty of the offense. (RR4: 85). After a hearing on

punishment, the court assessed punishment at thirty years. (RR5: 46).




                                     1
Judgment was entered by the trial court on August 16, 2013. (CR: 48). A

notice of appeal was timely filed. (CR: 46).

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      On May 27, 2015, in an unpublished opinion authored by Justice

Schenk, the Court of Appeals for the Fifth District of Texas affirmed the

trial court’s judgment. Chamberlain v. State, No. 05-13-01213-CR, 2015

Tex. App. LEXIS 5310, * 26 (Tex. App.—Dallas May 27, 2015). This Court

granted an extension of time to file a Petition for Discretionary Review,

which is timely if filed on or before July 27, 2015.

                         STATEMENT OF FACTS

      The facts of this case, which are extensive, are adequately recited in

the Court of Appeal’s opinion, which is attached to this Petition as required

by TEX. R. APP. P. 68.4 (i).

      Suffice it to say that Appellant was charged with and convicted of

possession of a controlled substance between four and two hundred grams

with the intent to deliver. (CR: 48; RR4: 85).

                         GROUND FOR REVIEW

 Whether the Court of Appeals erred in holding the trial court did not
 abuse its discretion by admitting Amy Shuemaker’s prior inconsistent
                                statement.




                                       2
                               ARGUMENT

      The Court of Appeals incorrectly applied the rule in determining

whether a prior inconsistent statement is admitted “under the guise of

impeachment to introduce inadmissible evidence.” Hughes v. State, 4

S.W.3d 1, 3-4 (Tex. Crim. App. 1999).

FACTS

      Amie Shuemaker (Shuemaker) was called to testify by the State.

(RR3: 195). Shuemaker testified she was sitting in the back seat of the

minivan when they were pulled over by the police. (RR3: 196). Shuemaker

also stated that she was not there testifying because she wanted to. (RR3:

195). Shuemaker was asked to tell the jury about what happened in the van

when they were pulled over to which she repeatedly replied she did not

know or did not remember. (RR3: 196, 197, 198, 200, 201, 203, 204).

Eventually, Shuemaker refused to answer the prosecutor’s questions and

said she “d[idn’t] have anything else to say to [her].” (RR3: 202).

      The prosecutor asked Shuemaker if she remembered writing a

statement for the police. (RR3: 198). Shuemaker said she did not. (RR3:

198). When asked if she recognized a copy of a statement the prosecutor

showed her, Shuemaker replied “I recognize that you said that’s the one I

wrote the day this happened.” (RR3: 198). She acknowledged that the



                                      3
handwriting on the statement “could be” hers. (RR3: 199). However, she did

not remember writing it. (RR3: 199).

      The prosecutor’s main goal was to establish Appellant as the owner of

the drugs found in the vehicle underneath Shuemaker’s seat. (RR3: 200).

The prosecutor told Shuemaker “the main thing I need to know is whether or

not the brown—the black satchel that contained the methamphetamine came

from Mr. Chamberlain.” (RR3: 200). Shuemaker responded that she did not

know. (RR3: 200).

      Eventually, the State called Detective Conway to the stand to offer

Shuemaker’s prior written statement into evidence. (RR4: 6). Appellant

objected to the admission of Shuemaker’s prior inconsistent statement based

on the lack of foundation presented by the prosecutor, hearsay, relevance,

and if admitted, that the statement’s prejudicial effect outweighed the

probative value. (RR4: 5-6). The trial court overruled the objection. (RR4:

8). Shuemaker’s statement was admitted which stated that the “dope that

was found was not [hers] it was Anthony Chamberlains.” (State’s Exhibit 9).

The statement goes on to say, “Please do not let anyone know I have said

these things or I will deny all of this I have kids & I do not want anything to

happen to them.” (State’s Exhibit 9).




                                        4
APPLICABLE LAW

         Any party may use a witness’ prior inconsistent statement to impeach

her credibility. See Tex. R. Evid. 607; Hughes v. State, 4 S.W.3d 1, 5 (Tex.

Crim. App. 1999). A party may not use a prior inconsistent statement as a

subterfuge for admitting evidence that would otherwise be inadmissible. Id.

A party’s knowledge that a witness will testify unfavorably is one factor a

trial court must consider when determining admissibility under Rule 403.

Id.; Tex. R. Evid. 403.

         Rule 403 states that even when evidence is relevant, it may still be

excluded if its probative value is outweighed by “unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue delay, or

needless presentation of cumulative evidence.” Tex. R. Evid. 403. Evidence

must be excluded “under Rule 403’s balancing test because the State profits

from the witness’ testimony only if the jury misuses the evidence by

considering it for its truth. Consequently, any probative value the

impeachment testimony may have is substantially outweighed by its

prejudicial effect.” Id

THE COURT OF APPEALS’ HOLDING IS INCORRECT

         The Court of Appeals’ decision is in conflict with the holding of this

Court.



                                        5
      In applying the Rule 403 balancing test, the Court of Appeals failed to

correctly determine if the State deliberately put Shuemaker on the stand to

elicit previously inadmissible testimony in the form of her written statement.

The Court of Appeals relied heavily on the prosecutor’s self-serving

statement to the trial court that it felt its witness would “reluctantly testify

consistent with the statement.” Chamberlain, Tex. App. LEXIS at *15-16. In

support of this reliance, the Court of Appeals cited its reasoning in Kelly v.

State. Id. (citing Kelly v. State, 60 S.W.3d 299, 302 (Tex. App.—Dallas

2001, no pet.)).    Kelly interpreted Hughes v. State wherein this Court

reasoned that the State’s knowledge is key to the analysis and to merely

suspect the witness might turn is not enough. Kelly, 60 S.W.3d at

302(explaining Hughes, 4 S.W.3d at 5). However, contrary to the Court of

Appeals opinion in the case at bar, the State had much more than mere

suspicion that Shuemaker would not testify according to her written

statement. On Shuemaker’s written statement, she stated unequivocally that

she would lie if later asked about the contents of the statement. The Court of

Appeals did not analyze the State’s knowledge of Shuemaker’s testimony by

considering all of the facts surrounding it, but merely accepted as fact the

State’s self-serving assertion of its knowledge.




                                       6
      The purpose of the analysis is to prevent the State from receiving the

benefit of otherwise inadmissible evidence under the pretense of an

uncooperative witness. Therefore, the reviewing court should analyze the

facts known to the State at the time the witness testifies. In the present case,

the State knew Shuemaker would lie when she testified because she

specifically said so in her written statement. This was born out when

Shuemaker testified. When the State broached the subject of where in the

front seat the drugs came from Shuemaker immediately “refused to answer

questions, became argumentative, and stated she did not want to answer

questions.” Chamberlain, Tex. App. LEXIS at *16. The Court of Appeals

did not consider Shuemaker’s assertion in her written statement when

determining the State’s knowledge regarding her testimony. Therefore, the

Court of Appeals misapplied this Court’s standard regarding whether the

State had knowledge of the witnesses’ recantation.

      The Court of Appeals also found that the State elicited some favorable

testimony from Shuemaker, which weighed in favor of using her prior

statement. According to the Court of Appeals, “Shuemaker testified that she

was in the back seat of the van when it was pulled over by the police. She

also testified that the black case started in the front seat, was handed to her,

and she threw it in the back.” Id.



                                       7
      The Court of Appeals reasoned that this one statement was

“favorable” to the State, “thus supporting a finding by the trial court that the

State did not call Shuemaker for the primary purpose of eliciting otherwise

inadmissible testimony.” Id. However, the purpose of Shuemaker’s

testimony was to prove that the drugs found under her seat in the vehicle

originated, specifically, with Appellant. Indeed, the prosecutor told

Shuemaker during questioning “the main thing I need to know is whether or

not the brown—the black satchel that contained the methamphetamine came

from Mr. Chamberlain.” (RR3: 200). Therefore, the testimony was only

favorable, or probative, for the State if it proved Appellant’s knowledge, or

actual possession, of the methamphetamine. Otherwise, Shuemaker’s

testimony that the drugs came from the front seat would have been all the

testimony the State needed making admission of the prior statement

unnecessary. As such, this one general statement from Shuemaker was not

enough to show whether she would testify consistent with her prior

statement.

                               CONCLUSION

      The Court of Appeals’ decision to affirm the trial court’s ruling admitting

Shuemaker’s prior consistent statement is in conflict with this Court’s ruling.




                                       8
This Court should grant discretionary review to resolve this discrepancy

between the Court of Appeal’s ruling and the ruling of this Court.

                         PRAYER FOR RELIEF

      For the reasons herein alleged, Appellant prays this Court grant this
petition and, upon reviewing the judgment entered below, remand the case
for a new trial.
                                      Respectfully submitted,
                                      Lynn Richardson
                                      Chief Public Defender

                                      /s/ Nanette Hendrickson
                                      Nanette Hendrickson
                                      Assistant Public Defender
                                      State Bar No. 24081423

                      CERTIFICATE OF SERVICE

       I hereby certify that on the 27th day of July, 2015, a true copy of the
foregoing petition for discretionary review was served on Lori Ordiway,
Assistant District Attorney, Dallas County Criminal District Attorney’s
Office, 133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207,
by electronic and hand delivery; and was also served on, Lisa C. McMinn,
State Prosecuting Attorney, P.O. Box 13046, Austin, Texas, 78711 by
electronic delivery and by depositing same in the United States Mail,
Postage Prepaid.
                                        /s/ Nanette Hendrickson
                                        Nanette Hendrickson

                   CERTIFICATE OF COMPLIANCE

      I certify that the foregoing Petition for Discretionary Review contains
2,064 words.
                                         /s/ Nanette Hendrickson
                                         Nanette Hendrickson


                                      9
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  Case # PD-0760-15
   Case Information
   Location                               Court Of Criminal Appeals
   Date Filed                             07/27/2015 02:33:36 PM
   Case Number                            PD-0760-15
   Case Description
   Assigned to Judge
   Attorney                               Nanette Hendrickson
   Firm Name                              Dallas County Public Defender
   Filed By                               Nanette Hendrickson
   Filer Type                             Not Applicable
   Fees
   Convenience Fee                        $0.00
   Total Court Case Fees                  $0.00
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   Account Name                           PD Office waiver account
   Transaction Amount                     $0.00
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   Petition for Discretionary Review
   Filing Type                                            EFileAndServe
   Filing Code                                            Petition for Discretionary Review
   Filing Description                                     Petition for Discretionary Review
   Reference Number                                       PD-0760-15
   Comments
   Status                                                 Rejected
   Fees
   Court Fee                                              $0.00
   Service Fee                                            $0.00
   Rejection Information
   Rejection Time       Rejection Comment
   Reason
             07/28/2015 The petition for discretionary review does not contain the identity of Judge, Parties
   Other     04:42:59 and Counsel [Rule 68.4(a)]. You have ten days to tender a corrected petition for


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Envelope Details

           PM                    discretionary review.
   Documents
   Lead Document                          Chamberlain.PDR.opinon.pdf                                                       [Original]


   eService Details
                                                                                                                               Date/Time
   Name/Email                                  Firm                      Service Type            Status        Served
                                                                                                                               Opened
   District Attorney Appellate                                                                                                 07/28/2015
   Division                                       EServe                                         Sent          Yes             08:11:38 AM
   DCDAAppeals@dallascounty.org
   Lisa C McMinn                State Prosecuting EServe                                                                       07/28/2015
                                                                                                 Sent          Yes
   Lisa.McMinn@spa.texas.gov    Attorney                                                                                       08:48:24 AM




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