Van-Cleave, Jimmy Earl

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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,

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

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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

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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

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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

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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.

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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).

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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

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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.

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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:

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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

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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

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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

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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

-21-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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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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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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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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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.

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