PD-1122-15 PD-1122-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/27/2015 10:25:19 PM Accepted 8/28/2015 1:18:07 PM NO. ABEL ACOSTA CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS AUSTIN, TEXAS THE STATE OF TEXAS, Appellant v. TERRANCE GERMAINE WILKINS, Appellee APPELLEE’S PETITION FOR DISCRETIONARY REVIEW NO. 05-14-01365-CR COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS On appeal from Cause Number F10-62224-X in the Criminal District Court No. 6 of Dallas County, Texas The Honorable Janine Howard, Judge Presiding JOHN TATUM Attorney for Appellant 990 S. Sherman Street Richardson, Texas 75081 9049321295 shull@example.net BAR NO. 19672500 August 28, 2015 IDENTITIES OF PARTIES AND COUNSEL 1. The Honorable Janine Howard, Judge Presiding of the Criminal District Court No. 6 of Dallas County presided over the jury trial. 2. The State of Texas, represented by Assistant Criminal District Attorneys: Michael R. Casillas SBOT# 03967500 Josh Healey SBOT# 24026288 Jeff Matovich SBOT# 24043474 Frank Crowley Courts Building 133 N. Riverfront Blvd. LB 19 Dallas, Texas 75207-4399 3. Defendant, Terrance Germaine Wilkins, represented by: Lalon “Clipper Peale (Lead trial Counsel) SBOT# 15680400 901 Main Street 6300 Dallas, Texas 75207-4399 John Tatum (Appellate Counsel/ Co-counsel at trial) SBOT# 19672500 990 S. Sherman St. Richardson, Texas 75081 TABLE OF CONTENTS PAGE IDENTITIES OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . 1 STATEMENT OF CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2 STATEMENT OF THE PROCEDURAL HISTORY.. . . . . . . . . . 3 GROUNDS FOR REVIEW 1. The Court of Appeals erred in applying the law concerning reviewing the evidence to determine if the evidence was sufficient to support the conviction of Applicant for the offense of capital murder. 2. The Court of Appeals erred in finding that the trial court did not abuse its discretion by denying the request for a mistrial or instruction to the jury after the State failed to inform the defense in a timely manner of new ‘Brady’ information. 3. The Court of Appeals erred in finding that the trial court did not err in denying Appellant’s request for a mistrial after evidence was not turned over to the defense prior to trial. 4. The Court of Appeals erred in finding that the trial court did not err in denying Applicant’s motion for mistrial when the prosecutor gave a personal opinion during jury argument. REASONS FOR REVIEW. ...................................... 4 STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-19 ii PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 CERTIFICATES OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CERTIFICATE OF WORD COUNT .. . . . . . . . . . . . . . . . . . . . . . . . . . 21 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 ADDENDUM A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 iii INDEX OF AUTHORITIES FEDERAL CASES: Brady v. Maryland 373 U.S. 83 S.Ct. (1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-12,14-15 Kyles v. Whitley 115 S. Ct. 1555 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 STATE CASES Clayton v. State 502 S.W. 755 (Tex. Cr,. App.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Herrin v. State 125 S.W.3d 436 (Tex. Crim. App. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Menefee v. State 614 S.W.2d 167 (Tex. Cr. App.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Puckett v. State 168 Tex. Cr. R. 615, 33000 S.W.2d 465. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Robillard v. State 641 S.W.2d 910 (Tex. Crim. App. 1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 STATUTES, RULES, CONSTITUTIONS: 14TH AMENDMENT U.S. CONSTITUTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 iv NO. 05-14-01365-CR TO THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS THE STATE OF TEXAS, Appellant v. TERRANCE GERMAINE WILKINS Appellee ***** DEFENDANT’S/APPELLANT’S PETITION FOR DISCRETIONARY REVIEW ***** TO THE HONORABLE COURT OF CRIMINAL APPEALS: Comes now the Petitioner, by and through his attorney John Tatum, and respectfully urge the Court to grant discretionary review of the above named cause. STATEMENT REGARDING ORAL ARGUMENT Petitioner does not request oral argument at this time. STATEMENT OF CASE Terrance Germaine Wilkins, Petitioner, was indicted for capital murder. The State did not seek the imposition of the death sentence. Petitioner entered a not guilty plea, but was convicted by the jury and automatically sentenced to imprisonment for life without the possibility of parole. 1 Petitioner subsequently filed a motion for new trial that claimed that newly-discovered/newly-available evidence was available while the jury was deliberating guilt/innocence. Petitioner’s claim was based on the results of DNA testing of fingernail clippings that had ben taken from the complainant during the autopsy process, but not tested for DNA to see if Petitioner or another person’s DNA was present on the complainant’s fingernails which may have indicated another person as the victim’s assailant. The trial court granted Petitioner’s motion for new trial. The State of Texas filed notice of appeal to the Court of Appeals - Fifth District at Dallas, Texas. The sole issue raised at the time by the State of Texas was a question of whether the trial court erred in granting the defense’s motion for new trial in relation to the facts as they relate to the DNA testing of fingernail clippings. The Court of Appeals reversed the trial court’s granting of the motion for new trial, which reinstated the judgement of conviction to which Petitioner gave timely notice of appeal. The Court of Appeals affirmed the judgment of the trial court necessitating the filing of this petition. 2 STATEMENT OF PROCEDURAL HISTORY The Court of Appeals affirmed the trial court’s judgment of conviction in an opinion delivered on delivered August 4, 2015 a copy of which is attached hereto as Appendix A. Petitioner now files his Petition for Discretionary Review to this Honorable Court. GROUNDS FOR REVIEW RESTATED 1. The Court of Appeals erred in applying the law concerning reviewing the evidence to determine if the evidence was sufficient to support the conviction of Applicant for the offense of capital murder. 2. The Court of Appeals erred in finding that the trial court did not abuse its discretion by denying the request for a mistrial or instruction to the jury after the State failed to inform the defense in a timely manner of new ‘Brady’ information. 3. The Court of Appeals erred in finding that the trial court did not err in denying Appellant’s request for a mistrial after evidence was not turned over to the defense prior to trial. 4. The Court of Appeals erred in finding that the trial court did not err in denying Applicant’s motion for mistrial when the prosecutor gave a personal opinion during jury argument. REASONS FOR REVIEW This Court should review this issue because the Court of Appeals has so far departed from the accepted and usual course of judicial proceedings, or so 3 far sanctioned such a departure by a lower court, as to call for an exercise of the Court of Criminal Appeals’ power of supervision. SUMMARY OF THE STATEMENT OF FACTS Petitioner was tried for capital murder in the shooting death of Carlon Hellner, a drug user and dealer who sold drugs out of his apartment. See Court of Appeals opinion setting out a summary of the testimony. ISSUE NO. 1 1. The Court of Appeals erred in applying the law concerning reviewing the evidence to determine if the evidence was sufficient to support the conviction of Applicant for the offense of capital murder. The Court of Appeals held that a reasonable jury could conclude beyond a reasonable doubt that Petitioner committed the charged offense. Petitioner submits that a rational jury as trier of fact in the case at bar could not have found all of the essential elements of the offense of capital murder beyond a reasonable doubt. Petitioner argues that the State failed to present sufficient evidence to support the conviction for capital murder. The detectives in this case took the story of Sarah Malesky, the State’s main witness, told them as the truth and never investigated the case any further. The detectives assumed she was telling the truth and never treated her as a suspect. They never looked into the victim’s criminal 4 background. From the start of the investigation, Mr. Wilkins was the sole suspect, even though the victim and Ms. Malesky were drug dealers and drug users who lived in a ‘trap’ house where drugs were sold. The police did not investigate the people living in the next door apartment where drugs were sold. (RR: Vol. 4 p. 93) When the detectives arrived at the scene, Ms. Malesky was present, using her cell phone. (RR: Vol. 3 p. 88) Neither her hands nor her clothing were tested for gunshot residue as she was not treated as a possible suspect at the scene of the offense. (RR: Vol. 3 p. 88,99-100) Nothing in her bedroom was examined for fingerprints. The baggies of marijuana were not tested for fingerprints. (RR: Vol. 3 p. 89) Detective Vick did not confiscate Ms. Malesky’s cell phone or examine it for phone calls or text messages. (RR: Vol. 3 p. 88) The Detective also let Ms. Malesky retain possession of the victim’s cell phone until 1:00 a.m. the next morning after the 911 call and download information from it. (RR: Vol. 3 p. 210) Detective Quirk never asked her for a list of her drug customers. (RR: Vol. 3 p. 211) There is no physical evidence that ties Mr. Wilkins to the scene at the exact time of the deceased was shot and killed. Detective Vick testified that there were no latent prints at the scene. (RR: Vol. 3 p. 63) Detective Quirk testified that 5 there was no DNA, fingerprints, gunshot residue or any other physical evidence that ties Mr. Wilkins to the offense. (RR: Vol. 4 p. 78-79) The only gunshot residue evidence was found on the hand of Ms. Malesky taken at the police station a few hours after the shooting. (RR: Vol. 3 p. 201) They never asked Ms. Malesky if she owned a gun. (RR: Vol. 4 p. 78) The only evidence Detective Quirk had when he issued an arrest warrant for the Defendant was the statement of Ms. Malesky. (RR: Vol. 4 p. 86) Petitioner argued that the only evidence of an alleged robbery or attempted robbery and murder presented by the State comes from the testimony of a person who admittedly used drugs that night, who sold drugs out of her apartment, who continually changed her story, who was more concerned about concealing her marijuana than getting help for her friend, who accused the Defendant of stealing $500, her purse and medication only to have it later miraculously turn up. She was the only person who had gunshot residue on her hands, the only physical evidence tying anyone to the killing. Detective Quirk never investigated Ms. Malesky’s boyfriend, even though there was bad blood between him and Mr. Hellner. (RR: Vol. 3 p. 214) Ms. Malesky told him that Mr. Hellner had gone to the store to buy her 7-UP and cigarettes but the Detective did not verify this or her contention that she was sick 6 that night. (RR: Vol. 4 p. 97-98) The Detective testified that Ms. Malesky gave him three different versions of the events of that night. (RR: Vol. 4 p. 100) The detective never went to the next door apartment to determine if Ms. Malesky had ever smoked crack cocaine with the Defendant as he claimed. (RR: Vol. 4 p. 14) Sarah Malesky testified that she and the victim sold drugs out of their apartment. (RR: Vol. 3 p. 136) The Defendant was her next door neighbor who sold them crack cocaine and cocaine out of his apartment. (RR: Vol. 3 p. 141) She testified that at the time of his death, Carlon Hellner had relapsed and was using crack cocaine. (RR: Vol. 3 p. 142) The medical examiner testified that Mr. Hellner had likely smoked or ingested cocaine several hours before he died. (RR: Vol. 4 p. 164-165) Appellant argues that he was called by Mr. Hellner and he went to the apartment and found him dead. Ms. Malesky testified that she woke up to find the Defendant standing in her room, pointing a shull@example.net. (RR: Vol. 3 p. 150) She stated that she did not hear any gunshots that night. (RR: Vol. 3 p. 151) She told police that the Defendant wanted money and asked her where she kept the marijuana. (RR: Vol. 3 p. 152) She told him it was in the freezer and he looked inside before he forced her into the bathroom. (RR: Vol. 3 p. 156) She claims that he told her “sorry about her daddy, but he started tripping.” (RR: Vol. 3 p. 156) 7 Ms. Malesky continually changed her story of the events of that night. She stated that she used the victim’s cell phone to call 911 but there were no records of a 911 call on that phone. (RR: Vol. 3 p. 210) She told the Detectives that the Defendant took $500, her purse and her medication from her. (RR: Vol. 3 p. 216) When she made the 911 call, she mentioned that $500 had been taken from her. (RR: Vol. 3 p. 215) Detective Quirk testified that she never called him to tell him that she had recovered her missing property and found out just two weeks before trial that she had found the items. (RR: Vol. 4 p. 77) Ms. Malesky claimed exclusive ownership fo the marijuana. (RR: Vol. 4 p. 8-11) Ms. Malesky changed her story about knowing the Defendant from just seeing him around the apartment complex to the Defendant coming over to her apartment four or five times. (RR: Vol. 4 p. 122) She changed her story about her drug use the night of the incident. In her third version of the events, she told detectives that she had taken an overdose of Theraflu. (RR: Vol. 4 p. 103) Detective Quirk stated that she was very concerned about explaining why she hadn’t heard any gunshots. (RR: Vol. 4 p. 104) Detective Quirk testified that Mr. Wilkins never admitted he shot Carlon Hellner. (RR: Vol. 4 p. 46) Mr. Wilkins told detectives that he was in the apartment with a gun that night. He said the gun he had was a .38 and he later 8 sold it in South Dallas. (RR: Vol. 4 p. 64-65) The bullets that killed Mr. Hellner were fired from a .32 caliber gun. (RR: Vol.6 p. 31) He gave detectives details about where he sold the gun in South Dallas. (RR: Vol. 4 p. 65) Detectives went to the location, left a card and was later called by the family living there and told that they didn’t know the Defendant. (RR: Vol. 4 p. 66) The two statements made by Ms. Malesky that were corroborated by the Defendant were that he was in her apartment with a gun and he looked in the freezer. Appellant submits that he went to the apartment not wearing any disguise and was known by Ms. Malesky. If he was going over to that apartment to kill Mr. Hellner, he would have worn a disguise or also killed Ms. Malesky. It didn’t make any sense for the Defendant to go into the apartment and shoot Mr. Hellner. Mr. Hellner was the customer who bought the Defendant’s cocaine and provided him with a profit. The Defendant carried a gun for protection. Mr. Wilkins receives a phone call from Mr. Hellner, goes to the apartment to sell him some crack. He finds the apartment door opened and pulls out his gun. He went into Ms. Malesky’s room and when she awakens and sees him, she begins to act crazy. He tells her that she’s tripping and that she needs to check on her dad because he has to get out because he has drugs on him. The Defendant then fled the scene. 9 Petitioner further argued that the nothing was stolen or attempted to be stolen from the victim at the time of the murder. Ms. Malesky claimed that the Defendant stole $500, her purse and medication from her, but she later found these items. (RR: Vol. 3 p. 184) This fact was made known to the defense only during her in-court testimony. Ms. Malesky also claimed that the Defendant stole the change left on her bedside table by Mr. Hellner when he returned with the items he bought for her. (RR: Vol. 3 p. 151) There is no corroboration that anything was taken from the apartment by the Defendant causing this offense to be a capital offense pursuant to the indictment. The evidence was wholly insufficient to prove that the defendant caused the death of Carlon Heller by shooting him with a firearm in the course of committing or attempting to commit the offense of aggravated robbery of the deceased. See Herrin v. State, 125 S.W.3d 436 (Tex. Crim. App. 2002). There is no showing that the defendant killed Carlon Heller or that he attempted or did commit the offense of aggravated robbery of the deceased as alleged in the indictment. 10 ISSUE NO. 2 2. The Court of Appeals erred in finding that the trial court did not abuse its discretion by denying the request for a mistrial or instruction to the jury after the State failed to inform the defense in a timely manner of new ‘Brady’ information. The State conceded in its brief on appeal that the information regarding the erroneous nature of the principal State’s witness initial claims should have been provided to Petitioner’s defense trial team more promptly. However, the State argued and the Court of Appeals held that the defense was able to put the information disclosed during trial to ‘effective use’ at trial. Petitioner submits that nothing could be further from the truth as he claims that he was prejudiced by the tardy disclosure and the trial court’s denial of his request for a mistrial and or curative instruction to the jury. Petitioner claimed that the trial court should have granted a mistrial since the State did not disclose that Sarah Malesky’s allegedly stolen property was in fact recovered by her pursuant to their duty under ‘Brady’. Trial counsel in a sub rosa hearing advised the court that he was making a motion for a mistrial, because during the testimony of Sarah Malesky he learned that the State had not advised or told him that the purse, drugs or $500 cash was not stolen as originally reported and continually reported in the offense reports and discovery made available to defense counsel by State’s counsel. (RR: Vol. 4 p. 4) The witness had 11 told this information to the State (Detective and Prosecutor) at least a couple of weeks before trial and this exculpatory (Brady) information had not been turned over to the defense. Trial counsel stated that he believed this information was ‘Brady’ material and could be used for impeachment. (RR: Vol. 4 p. 6) Additionally, trial counsel learned for the first time at trial that the witness’ medication, keys and purse were recovered. (RR: Vol. 4 p. 7) Counsel argued that this information was crucial in trial preparation and voir dire of potential jurors, because he could have prepared for presenting the issue of a lessor included offense of murder in representing this Defendant. Trial Counsel argued that his preparation for trial was prejudiced and harmed by the lack of disclosure of this ‘Brady’ information. The trial court overruled defense counsel’s request for a mistrial. If the court was not going to grant a mistrial, defense counsel asked for a curative instruction since the prosecutor who conducted voir dire told the jury that the State had an open file policy as to the defense being able to have access to all information in the State’s file, which was not in fact the case in this case. This voir dire left a false impression of the real state of the facts about disclosure with the jury. This false impression prejudiced Petitioner’s right to a fair trial; thereby causing irreparable harm without the requested curative 12 instruction. (RR: Vol. 4 p. 22-23) The Court denied the motion for mistrial (RR: Vol. 4 p. 22) and for a curative instruction as requested (RR: Vol. 4 p. 33) It is fundamental that a trial should be conducted and a verdict rendered under circumstances in which society may have confidence that the defendant received a fair trial and that justice was done. Otherwise, the “system” fails. And for the prosecution to fail to disclose to the defendant material exculpatory information compromises this confidence by “tainting” the fairness of the trial, and that failure should be “fundamental error of constitutional dimension and requires no objection” from defense counsel to preserve it for appellate review. See Brady v. Maryland, 373 U.S. 83 (1963) and Kyles v. Whitley, 115 S. Ct. 1555 (1995). ISSUE NO. 3 3. The Court of Appeals erred in finding that the trial court did not err in denying Appellant’s request for a mistrial after evidence was not turned over to the defense prior to trial. At issue are the fingernail clippings taken from the deceased victim that were not tested for DNA until the end stage of the trial. DNA tests ordered by the Court during the jury’s deliberation on guilt/innocence showed that the deceased victim had biological material under his fingernails of his right hand that 13 did not belong to Petitioner or the State’s principle witness who resided with the deceased. It was discovered during trial that a potential crucial piece of evidence had not be ‘DNA tested’, at which there is an initial discussion of how to procedurally handle getting the fingernail clippings of the deceased tested for ‘DNA’ results during the progress of the trial and continuing or not with the trial in the guilt/innocence stage. Defense counsel reminded the trial judge that he had requested a mistrial, because of the failure to turn over to the defense contradictory evidence that was in the possession of the State prior to trial that the purse had been recovered, the keys had been recovered and the two things had been recovered. These items were originally reported stolen by the witness, Malesky. There was an order entered in May of 2011 that all of this type of “Brady’ and impeachment information be turned over to the defense. The record shows that at the conclusion of the prior days testimony of the medical examiner, Ms. Urban, there was an off the record discussions by the parties and the court about the lack of DNA testing on the fingernail clippings of the deceased and that it appeared to all concerned that the defendant was entitled to have these tests performed to see if there was exculpatory evidence that would aid in his defense. (RR: Vol. 5 p. 4-5) The State suggested after talking to its 14 appellate section that the trial proceed and the tests be conducted. If the results were favorable to the defendant then a motion for new trial could be granted (RR: Vol. 5 p. 5-17) The parties and the Court agreed to have the fingernail clippings ‘DNA’ testified and to continue with the trial since the trial judge made arrangements to have the tests performed and results obtained within a couple of days. The State agreed that any beneficial evidence to the defendant which came out as a result of the DNA tests would be “basis for the motion for new trial ” (RR: Vol. 5 p. 17) if the defendant was convicted. The State even acknowledged that if this was the case, the trial court would be inclined to grant a new trial if the test result was beneficial to the defendant. (RR: Vol. 5 p. 17) The defense then reurged a motion for mistrial. (RR: Vol. 5 p. 20-21) The court agreed to review the prosecutor’s notes to determine if ‘Brady’ material was not turned over to the defense. (RR: Vol. 5 p. 23) The Court, after an ‘in camera’ examination, ruled that there was no ‘Brady’ material and denied the motion for mistrial. (RR: Vol. 5 p. 20) Petitioner submits that in order that justice be done in this case and that he be provided proper ‘due process’ in this trial, the court should have granted a mistrial rather than put the defendant in the position of agreeing or not as 15 whether to continue the trial to jury deliberation as an expedient solution to a very serious question. This method as suggested by the State put the defendant in an untenable dilemma of agreeing to proceed to have the DNA tests on the finger nail clippings with the impression given by the State that if the results are favorable it would be the subject of a motion for new trial upon conviction and that the Court would grant such a motion without informing the defendant that the State would actually hotly contest the granting of a new trial to the point of appealing the trial court’s granting the motion for new trial. Petitioner submits that this error raised caused him egregious harm in that it deprived him a fair trial and or vitally affected a defensive theory. Petitioner argues that (1) the State should be estopped to deny the granting of the motion for new trial and (2) the defendant’s agreement to continue the trial to accommodate the trial court was not freely and voluntarily made as it was induced under false pretenses that he would receive a new trial from the Court with favorable test results which were in fact obtained. The DNA results on the fingernail clippings shows that the alleged victim in this case, Carlon Hellner, had biological material under his right hand fingernails that belongs to some third person that is not the defendant or belong to the principal prosecution witness, Sarah Malesky, who was present at the time of 16 alleged offense. The Defense theory of the case that the victim was killed buy some other third party, who was present at the scene, while the witness Malesky was asleep in a drugged state of mind that prevented her from hearing the gunshots that killed the deceased. The trial court ordered that a DNA analysis be performed immediately by the Southwestern Institute for Forensic Sciences at Dallas, while the trial progressed. On the day the jury returned a verdict of guilty the trial court received the court ordered report that confirmed that the right hand fingernail sample of the victim contained DNA from a third as of now unidentified person, that could indicate that this biological material could have been deposited under the fingernail in any form of struggle or physical confrontation between the victim and another as an assailant in this case. Petitioner submits that this error, whether fundamental or otherwise has caused egregious harm in the administration of justice in this case. The State should not be allowed to unduly suggest and to induce acceptance of its proposal to continue the trial to verdict rather than recess the trial in anticipation of the forensic test results and then vigorously fight the granting of a motion for new trial where the tests results were arguably favorable to the defense. This practice in this case resulted in a fundamentally unfair trial for the defendant; which violated his right to due process. 14th Amendment to the United States Constitution. 17 ISSUE NO. 4 4. The Court of Appeals erred in finding that the trial court did not err in denying Petitioner’s motion for mistrial when the prosecutor gave a personal opinion during jury argument. Petitioner submits that it was an intentional act of the prosecutor to give an impermissible personal opinion about the strategy and handling of the defendant’s sister as a witness. This was intended to prejudice Petitioner before the jury and deny him a fairer trial by trying to bolster the effect of that witness’s testimony. This conduct is prohibited and results in harm to a defendant’s right to due process and a fair trial. See Robillard v. State, 641 S.W.2d 910 (Tex. Crim. App. 1982). Each attorney has a right to explain certain evidentiary problems, issue and circumstances in a case. In the present case the prosecutor attempted to explain why the State sought to introduce only a portion of Petitioner’s written statement. In so doing the prosecutor chose to attach a personal belief to a portion of the evidence before the jury. The effect of such a statement bolstered the credibility of the portion of Petitoner’s written statement introduced by the State. Such a statement by the prosecution taken in context is an improper expression of personal opinion and constitutes reversible error. Puckett v. State, 168 Tex. Cr. R. 615, 33000 S.W.2d 465; Clayton v. State, 502 S.W. 755 (Tex. Cr,. App.); Menefee 18 v. State, 614 S.W.2d 167 (Tex. Cr. App.) The Court of Appeals did not properly apply a balancing test of factors to the prosecutor’s argument to determine if reversible error existed. PRAYER For the reasons stated, it is respectfully submitted that the Court of Criminal Appeals should review the grounds of error on Petition for Discretionary Review then reverse the judgment, set aside the conviction of Petitioner and dismiss the case, or, in the alternative, grant Petitioner a new trial. Respectfully submitted, /s/ John Tatum John Tatum 990 S. Sherman St. Richardson, Texas 75081 9049321295 State Bar No. 19672500 ` 19 CERTIFICATE OF SERVICE I hereby certify, by affixing my signature above, that a true and correct copy of the foregoing Petition for Discretionary Review, was delivered to Susan Hawk, Criminal District Attorney, Appellate Section, 11th floor, Frank Crowley Criminal Courts Building, Dallas, Texas 75207, on this 27th day of August, 2015. /s/ John Tatum JOHN TATUM CERTIFICATE OF SERVICE The undersigned attorney for Petitioner certifies that a true and correct copy of the foregoing brief was mailed , postage prepaid, to Petitioner, Terrance Germaine Wilkins, TDCJ# 01962197 at the Stiles Unit, 3060 FM 3514, Beaumont, Texas 77705 by U.S. Mail this the 27th day of August, 2015. /s/ John Tatum JOHN TATUM 20 CERTIFICATE OF COMPLIANCE OF WORD COUNT PURSUANT TO APPELLATE RULE OF PROCEDURE 9.4 I certify that this document has 4,175 words pursuant to the definitions of length and content in Rule 9.4. (C)(i)(2)(D) A. Case Name: Terrance Wilkins B. The Court of Criminal Appeals C. The Type of Document: Petition for Discretionary Review D. Party for whom the document is being submitted: Appellant E. The Word Processing Software and Version Used to Prepare the Brief: Word Perfect X7 Copies have been sent to all parties associated with this case. /s/ John Tatum 8 / 27 /2015 (Signature of filing party and date) 21 CERTIFICATE OF COMPLIANCE I certify that this submitted e-mail attachment to file Petition for Discretionary Review complies with the following requirements of the Court: 1. The petition is submitted by e-mail attachment; 2. The e-mail attachment is labeled with the following information: A. Case Name: Terrance Wilkens B. The Appellate Case Number: NO. 05-14-01365-CR C. The Type of Document: Petition for Discretionary Review D. Party for whom the document is being submitted: Petitioner E. The Word Processing Software and Version Used to Prepare the Motion : Word Perfect X7 3. Copies have been sent to all parties associated with this case. /s/ John Tatum 8/27/15 (Signature of filing party and date) John Tatum (Printed name) John Tatum, Attorney at Law Emailed Copy of Petition 22 ADDENDUM 23 Affirmed as Modified; Opinion Filed August 4, 2015. In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-01365-CR TERRANCE GERMAINE WILKINS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause No. F10-62224-X MEMORANDUM OPINION Before Justices Fillmore, Myers, and Evans Opinion by Justice Myers A jury convicted appellant Terrance Germaine Wilkins of the capital murder of Carlon Hellner, and the trial court imposed an automatic sentence of life imprisonment without the possibility of parole.1 In twelve issues, appellant challenges the sufficiency of the evidence, the denial of various motions for mistrial, and several rulings on evidentiary issues. As modified, we affirm the trial court’s judgment. BACKGROUND AND PROCEDURAL HISTORY Sarah Malesky testified that she and the decedent, Carlon Hellner, lived together in the apartment where Hellner’s body was found. She had known him for five years and lived with him for four months before he was killed. Malesky described her relationship with Hellner as a 1 The State did not seek the death penalty. “father-daughter” type of relationship. Malesky admitted she and Hellner sold marijuana out of the apartment. Hellner drove for Malesky, took phone calls for her, and protected her. The apartment next door was a “trap” house where illegal narcotics were sold. Appellant––Malesky and Hellner called him “Youngster”––sold crack and cocaine out of this apartment. Malesky had known appellant for approximately a month at the time of these events. Appellant sold some crack cocaine to Hellner before his death. Hellner had attempted to quit his crack habit and was clean for six years, but he relapsed and began using crack again in October 2010, around the time the trap house opened. A man named “Shorty” or “Nate” ran the trap house; appellant worked for him. Malesky said that appellant had been in the apartment with her once. Malesky did not know if appellant spent a lot of time in the apartment with Hellner when she was not there. She said Hellner would give appellant rides to another apartment complex, and appellant would pay him with a “nickel” rock (five dollars’ worth) of crack. Malesky had also given appellant a ride in her car at least once. According to Malesky, Hellner would get upset because appellant “was showing up and knocking on the door a lot.” Malesky testified that on October 26, 2010, she was ill with a fever, sore throat, and coughing. She and Hellner always locked their front door and it was locked on this occasion. She took twice the recommended dose of Theraflu, smoked some marijuana, and took Xanax. At around 6:00 p.m., she went to sleep with the lights on in her bedroom. She awakened to find appellant standing over her pointing a shull@example.net. He did not wear a mask or try to hide his identity. Appellant demanded money and marijuana and picked up some change she had on her table. He asked Malesky where her stash was, and led her out into the living room. Malesky told appellant there might be some marijuana in the freezer. When he walked to the refrigerator, she tried to run, but appellant caught her by the arm and told her to stop playing. He forced her –2– into the bathroom, and as he was closing her door he looked Malesky “right in [her] eyes” and said, “Sarah, I am sorry about what happen [sic] to your daddy, but he started tripping.” Appellant then shut the door. When she thought it was safe, Malesky picked up a knife and went to check on Hellner. She could not get into Hellner’s room because the closet door was falling over and barricading the door to the bedroom. She pushed the door open and saw Hellner lying on the floor. She shook him by his left shoulder and touched his neck but felt no pulse. When she saw he was not breathing, Malesky pulled a cell phone out of Hellner’s pants pocket and called 911. After she called 911, she took the marijuana that was hidden under Hellner’s mattress and put it in her bedroom. Malesky said she did not see Hellner get shot. Dallas Police Officer Timothy Gilliam was the first officer to arrive at the scene. He knocked on the door of the apartment in question, and the door was opened by Malesky. Malesky was frantic, crying, and appeared to be in a state of shock. Malesky led the officer to a bedroom. The door was partially open, but there was an object in front of the door that prevented it from being opened completely. When the paramedics pushed the object away, the officer saw Hellner lying on the floor between the bed and a chair. He appeared to have been shot. The paramedics subsequently told the officer they were unable to resuscitate Hellner and believed he was dead. Detective Will Vick was dispatched to the apartment, where he met with Malesky and the patrol officers. Detective Vick observed that there was no forced entry into the apartment. As he did an initial walk-through of the apartment, Detective Vick noticed that the freezer door was open, a closet door was off of its hinges, and a chair was knocked over. A glass table near Hellner’s bed had been knocked askew, and held a crack pipe and a “drug baggie.” There was a knife on the nightstand by the bed in Malesky’s bedroom. Several “baggies” of marijuana, an –3– aluminum container, a digital scale, and a grinder were found in her bedroom closet. Detective Vick also found two empty prescription bottles, for hydrocodone and Alprazolam, in Malesky’s bedroom. No firearms, bullets or other ammunition were found in the apartment. There were no blood spatters, blood stains, or latent fingerprints found in the apartment. Malesky admitted that when she talked with the detectives she tried to cover up the drug activity and did not tell them she was selling and using drugs. Although she initially told the police that $500, her purse (containing her keys), and prescription medications (hydrocodone and Xanax) were missing from the apartment, she subsequently found everything she had reported missing. In her interview with the police, Malesky said she knew nothing about the marijuana that the police found in the apartment and that it must have belonged to Hellner. When she testified, however, she admitted that she bought a pound of marijuana for about $450 a week before the incident. Malesky recalled telling the detective that Hellner must have let appellant into the apartment and that maybe they had been fighting about money or “dope.” Malesky was tested for gunshot residue at the police station. A trace evidence examiner testified that she examined the gunshot residue kit and found two primer gunshot residue particles on the back of Malesky’s right hand. The examiner was unable to offer an opinion as to where the particles came from and how they were transferred. Dr. Jill Urban, a forensic pathologist, testified about the autopsy that was performed on Hellner. There were two gunshot wounds to Hellner’s right shoulder, with no exit wounds. The gunshot wounds resulted from a contact or close range shot, and it was difficult to determine if there had been a struggle. The toxicology report showed no cocaine present but Hellner’s blood contained cocaine metabolites. Dr. Urban explained that the presence of cocaine metabolites indicated it was likely Hellner had smoked or ingested cocaine several hours before he died. Although the EMS crew was able to get an “electrically measured heart rhythm” while Hellner –4– was being transported to the hospital, he was not breathing and had no detectable pulse or respirations when he arrived at the hospital. Dr. Urban testified that an individual who sustained injuries like Hellner’s would be unlikely to survive more than a half hour, and probably “considerably less.” Hellner had a normal body temperature when he arrived at the hospital, which, according to Dr. Urban, indicated that the wounds were likely sustained within minutes of his receiving EMS treatment. Dr. Urban further testified that a “head hair standard” and fingernail clippings from the left and right hands were taken from Hellner. She also testified, however, that when signing the final autopsy report she did not see any results from the crime lab for the fingernail clippings and did not think they were examined. A trace evidence examiner testified that she examined Hellner’s clothing and found two holes in the right front shoulder of his t-shirt. The examiner testified that there was a nitrate reaction, lead wipe, and vaporous lead reaction near the sites, indicating that the shots were within an eighteen to twenty-four inch range. A trace evidence supervisor testified he examined the gunshot residue test performed on Hellner and that the test showed gunshot residue particles on the back of Hellner’s right hand. Appellant was aware the police were looking for him. He was arrested on the afternoon of November 15, 2010, twenty days after the offense, and was interviewed that day by Dallas Police Detective Robert Quirk. During the interview, which was videotaped and introduced at appellant’s trial, appellant told Detective Quirk Hellner had called him and that he was in the apartment that night to deliver drugs to Hellner. He admitted to waking up Malesky with a gun in his hand and looking for drugs in the freezer. Appellant said that he did not remain in the apartment because he had drugs on him and wanted to get rid of them that night. Appellant described his gun as a .380 pistol and said he later sold it. Appellant repeatedly denied shooting Hellner. He claimed to have found Hellner on the floor in his bedroom when he arrived at the –5– apartment. Detective Quirk also testified that there was no DNA, gunshot residue, fingerprint, or other physical evidence linking appellant to the offense. Heather Thomas, a firearm and tool mark examiner for the Dallas County Crime lab, testified about the bullets that were fired and examined as evidence. Thomas stated that there were two bullets, fired by the same gun, consistent with a .32 caliber revolver. The day after the medical examiner testified about the autopsy and the fact that the fingernail clippings taken from Hellner had not been tested, there was discussion among counsel and the court about several evidentiary matters including the fact that the fingernail clippings had not been tested. After discussing whether to test the clippings, the parties agreed that the trial should continue while the tests were being performed. Those test results, which were reported to the court while the jury was deliberating its verdict, showed Hellner had biological material under the fingernails of his right hand that did not belong to appellant or Malesky. Appellant was convicted by the jury and sentenced to imprisonment for life without the possibility of parole. He subsequently filed a motion for new trial that argued newly-discovered or newly-available evidence based on the results of the DNA testing of the fingernail clippings that had been taken from Hellner during the autopsy. The trial court granted appellant’s motion for new trial. We vacated the trial court’s order granting a new trial and reinstated the guilty verdict. See State v. Wilkins, No. 05–12–00154–CR, 2014 WL 465820, at *8 (Tex. App.–– Dallas February 4, 2014, pet. ref’d) (not designated for publication). Appellant now pursues the direct appeal of his criminal conviction. DISCUSSION I. Sufficiency of the Evidence In his first issue, appellant argues the evidence is insufficient to support the conviction. We review appellant’s sufficiency challenge by considering all the evidence in the light most –6– favorable to the verdict; based on that evidence and any reasonable inferences, we must determine whether a rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014). Under this standard, the fact finder has full responsibility for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. We presume that the fact finder resolved any conflicts in the evidence in favor of the verdict and defer to that determination. See id. at 326. We do not reassess witness credibility. Thornton, 425 shull@example.net. The indictment in this case alleged appellant committed capital murder by having shot and killed Carlon Hellner in the course of committing and attempting to commit aggravated robbery. Shortly before the start of voir dire, the State abandoned the aggravated robbery allegation and elected to proceed on the theory that appellant committed capital murder in course of committing and attempting to commit robbery. The penal code provides that a person commits capital murder if he commits murder in the course of committing or attempting to commit robbery. TEX. PENAL CODE ANN. § 19.03(a)(2). A person commits robbery “[i]f, in the course of committing theft . . . and with intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” Id. § 29.02(a). A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of it. Id. § 31.03(a). The court of criminal appeals has defined “in the course of committing” an offense as conduct occurring in an attempt to commit, during the commission of, or in the immediate flight after the attempt or commission of the robbery. Lincecum v. State, 736 S.W.2d 673, 680 (Tex. –7– Crim. App. 1987). When a person is charged with committing murder in the course of committing a robbery, “[e]vidence is sufficient to support a capital murder conviction if it shows an intent to obtain or maintain control of property which was formed before or contemporaneously with the murder.” Sheffield v. State, 189 S.W.3d 782, 791 (Tex. Crim. App. 2006). The State does not have to prove “that the appellant completed the theft of the victim in order to establish the underlying offense of robbery or attempted robbery.” Young v. State, 283