Leovardo Cantos v. State ( 2015 )

ACCEPTED
03-14-00585-CR
5991802
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/9/2015 9:31:15 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00585--CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE AUSTIN, TEXAS
THIRD SUPREME JUDICIAL DISTRICT OF TEXAS
7/9/2015 9:31:15 AM
AT AUSTIN JEFFREY D. KYLE
Clerk
__________________________________________________________________
NO. 13-2081-K277
IN THE 277TH DISTRICT COURT
OF WILLIAMSON COUNTY, TEXAS
__________________________________________________________________
LEOVARDO CANTOS,
APPELLANT
V.
STATE OF TEXAS,
APPELLEE
__________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
ORAL ARGUMENT REQUESTED
LINDA ICENHAUER-RAMIREZ
ATTORNEY AT LAW
1103 NUECES
AUSTIN, TEXAS 78701
TELEPHONE: 512-477-7991
FACSIMILE 512-477-3580
EMAIL: LJIR@AOL.COM
SBN: 10382944
ATTORNEY FOR APPELLANT
TABLE OF CONTENTS
PAGE
Parties to Trial Court’s Final Judgment...................................................... 3
Index of Authorities .................................................................................... 4
Statement of the Nature of the Case ........................................................... 5
Statement of the Point of Error................................................................... 6
Statement of Facts....................................................................................... 7
Summary of the Argument ......................................................................... 19
Point of Error Number One ........................................................................ 21
Prayer for Relief ......................................................................................... 29
Certificate of Service .................................................................................. 29
Certificate of Compliance........................................................................... 30
2
PARTIES TO TRIAL COURT’S FINAL JUDGMENT
In accordance with Tex.R.App.Proc. 38.1(a), Appellant certifies
that the following is a complete list of the parties and their counsel:
(a) the State of Texas represented by:
Mr. Josh Reno, Assistant District Attorney
Williamson County District Attorney’s Office
405 Martin Luther King, Suite 1
Georgetown, Texas 78626
Ms. Jackie Borcherding, Assistant District Attorney
Williamson County District Attorney’s Office
405 Martin Luther King, Suite 1
Georgetown, Texas 78626
(b) Mr. Leovardo Cantos represented by:
Mr. Alfonso C. Hernandez – trial attorney
Attorney at Law
507 W. 10th Street
Austin, Texas 78701
Mr. Rene Vargas – trial attorney
Attorney at Law
507 W. 10th Street
Austin, Texas 78701
Ms. Linda Icenhauer-Ramirez - appellate attorney
Attorney at Law
1103 Nueces
Austin, Texas 78701
3
INDEX OF AUTHORITIES
CASES PAGE
Albrecht v. State, 486 S.W.2d 97, 100-101 (Tex.Cr.App. 1972) ............... 24
Carter v. State, 145 S.W.3d 702 (Tex.App.-Dallas 2004, pet. ref.)............ 23
Dekneef v. State, 379 S.W.3d 423, 433 (Tex.App.-Amarillo 2012,
pet. ref.)........................................................................................... 26
Elkins v. State, 647 S.W.2d 663 (Tex.Cr.App. 1983) ......................... 23, 24
Escort v. State, 713 S.W.2d 733 (Tex.App.-Corpus Christi 1986,
no pet.) ....................................................................................... 25, 28
Gigliobianco v. State, 210 S.W.3d 637, 641-641 (Tex.Cr.App.
2006) ................................................................................................. 26
Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Cr.App. 1991)
(opinion on rehearing) ........................................................................ 24
Powell v. State, 63 S.W.3d 435, 438 (Tex.Cr.App. 2001) ......................... 24
Will. v. State, 662 S.W.2d 344, 346 (Tex.Cr.App. 1983)...............23, 24
STATUTES
V.T.C.A. Penal Code, Sec. 22.02(a)(1) ...................................................... 7
COURT RULES
Tex.R.App.Proc. 38.1(a)............................................................................. 3
Tex.R.Ev. 403 ................................................................................. 24, 26, 28
Tex.R.Ev. 404(b) ....................................................................... 21, 22, 23, 24
4
TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW Leovardo Cantos, appellant in this cause, by and
through his attorney and files this his brief on original appeal.
STATEMENT OF THE NATURE OF THE CASE
Appellant was charged by indictment in this cause on February 18,
2014. The indictment alleged that appellant committed the offense of
aggravated assault with serious bodily injury. It also contained a deadly
weapon allegation. (C.R. 11) Jury selection occurred on July 28, 2014.
(R.R. V, pp. 24-215) On July 29, 2014, appellant entered a plea of not
guilty. (R.R. VI, p. 16) On July 31, 2014, after hearing the evidence and
the argument from counsel, the jury deliberated and returned a verdict of
guilty of the offense of aggravated assault. The jury also made an
affirmative finding that appellant used a deadly weapon. (R.R. X, pp.
122-123; C.R. 58-68) Appellant elected to go to the trial court for
sentencing. On August 11, 2014, after hearing the evidence and argument
from counsel, the trial court assessed appellant’s punishment at fifteen (15)
years imprisonment. (R.R. XII, pp. 50; C.R. 79-82) A motion for new
trial was filed on September 10, 2014. (C.R. 76-77) Notice of appeal was
filed on September 10, 2014. (C.R. 78) The trial court’s certification of
defendant’s right to appeal was filed on November 6, 2014. (C.R. 86)
5
STATEMENT OF THE POINT OF ERROR
POINT OF ERROR NUMBER ONE
THE TRIAL COURT ABUSED ITS DISCRETION IN
ADMITTING INTO EVIDENCE THE EXTRANEOUS
OFFENSE WHEN THE RECORD CLEARLY SHOWED THAT
THE PREJUDICIAL EFFECT OF THE EVIDENCE FAR
OUTWEIGHED ITS PROBATIVE VALUE.
6
STATEMENT OF FACTS
The indictment in this case alleged that appellant committed the
offense of aggravated assault with a deadly weapon and specifically alleged
that appellant:
“on or about the 14th day of November, 2013, . . . intentionally,
knowingly, or recklessly caused serious bodily injury to Juan
Davila, by kicking or stomping Juan Davila with the
defendant’s feet,” (C.R. 11)
V.T.C.A. Penal Code, Sec. 22.02(a)(1). The indictment also contained
notice that the State would be seeking an affirmative finding of a deadly
weapon. (C.R. 11)
The evidence showed that both appellant and the complainant played
in a competitive amateur softball league in Round Rock, Texas.
Appellant had a reputation among softball players as being a very aggressive
and competitive player. Appellant played for a team called FYC and the
complainant played for a team called TKO. The two teams played each
other on the evening of November 14, 2013. (R.R. VI, pp. 33-39, 115,
242; R.R. VIII, pp. 47-50) Towards the end of the game, appellant and
the complainant were involved in a play at second base. Appellant was
playing second base and the complainant was a base runner on first base.
Witnesses testified that when the batter hit the ball, the complainant ran
7
towards second base, rounded second base and then fell down somewhere
between second and third base. In an effort to get back to second base the
complainant dove back into second base headfirst. In the process of diving
back into second base, the complainant’s shoulder made contact with
appellant’s knee. (R.R. VI, pp. 42-48, 119-122, 242-244; R.R. VII, pp. 7,
33; R.R. VIII, pp. 51-54; 99-102; R.R. IX, pp. 35-36, 75-76; R.R. X, pp.
20-23) One witness, Danny Teller, a player from appellant’s team
testified that after the complainant slid into appellant, appellant fell to the
ground and complained that his knee had been hurt in the collision. He
testified that appellant got back to his feet and pushed the complainant down
as he was trying to get to his feet. (R.R. VI, p. 48) Umpire Gary
Clements described the play at second base as “incidental contact.” He
testified that appellant was upset at the complainant after the play because
his knee had been hurt. (R.R. VI, pp. 122-123) All of the witnesses
testified that words were exchanged between appellant and the complainant.
Play resumed after the umpires admonished the two men. (R.R. VI, pp.
49, 123-124, 161-163, 244; R.R. VII, p. 7)
During the next half inning, the complainant’s team, TKO, took the
field with the complainant playing first base. Danny Teller, appellant’s
teammate, testified that while his team was in the first base dug-out waiting
8
to bat, he heard appellant say, “Yes, you have something coming to you.”
Teller testified that he batted and got on second base. Appellant was the
next batter and hit the ball to the pitcher. The pitcher fielded the ball and
made an under-handed throw to the complainant who was playing first base.
However, because the throw was short, the complainant had to take a step or
two in front of the first base bag in order to catch the ball. Witnesses
testified that as appellant ran towards first base, he threw his hands up into
the complainant’s face and ran the complainant over. Umpire Gary
Clements said that appellant was initially jogging towards first based and
then within his last four or five steps accelerated as he charged the
complainant. The complainant was knocked down and after appellant
knocked the complainant down, he turned out towards the fence.
Witnesses testified that the complainant got to his feet, still holding the
softball. It appeared as if the complainant was going to throw the softball
at appellant but then the complainant apparently changed his mind and threw
the ball towards the appellant’s foot. Danny Teller, Umpire Clements and
Marty Jenkins testified that the ball hit the ground and never hit the
appellant. Two other players, John Crowder and Karl Holdren, testified
that the ball ricocheted off of appellant and when that occurred, appellant
turned around and went back towards the complainant. Gabriel Orozco, a
9
defense witness, testified that the complainant threw the ball and it hit
appellant in the thigh. Teller and Clements testified that the two men then
came together and began “jawing” at each other. Both men were agitated.
Teller and Orozco testified that the two men began throwing punches.
Clements testified that the complainant never swung at appellant.
Clements and Jackson testified that appellant struck the complainant and
knocked him to the ground. Teller testified that by this time other players
had run up to the two men and blocked Teller’s view, but he did see that the
complainant was on the ground and he saw someone kicking the
complainant. Umpire Clements testified that he saw appellant kick the
complainant in the head. He also testified that he never saw the
complainant swing at appellant or pull out any kind of weapon before he was
kicked. Douglas Peterson, who played on the complainant’s team echoed
the testimony of Teller and Clements. He testified that the complainant
never made a move towards appellant. After appellant shoved the
complainant to the ground the last time, he saw appellant kick the
complainant in the face and shoulder area with a hard kick. Then appellant
jumped on top of the complainant. Peterson testified that he ran over and
knocked appellant off of the complainant. Peterson testified that appellant
was the aggressor. Karl Holdren also testified that appellant tackled the
10
complainant and then got up and kicked the complainant hard in the face two
times. Marty Jackson, another softball player told the jury that he did not
see appellant kick the complainant in the head but afterwards he saw red
marks on the complainant’s head. Off duty police officer Brian
Hollywood, who was a pick up player in the game, also testified that he saw
appellant kick the complainant “unbelievably hard.” (R.R. VI, pp. 49-59,
128-148, 245-252; R.R. VII, pp. 8-20, 35-43; R.R. VIII, pp. 55-61; 102-106;
R.R. IX, pp. 36-39, 78-83; R.R. X, pp. 24-35)
Both men were ejected from the game for fighting and appellant was
told to leave the area, which he did. The complainant, although ejected
from the game, stayed outside the fence and watched the conclusion of the
game. (R.R. VI, pp. 60-61, 253; R.R. IX, pp. 40-42, 84-85)
Witnesses testified that it is against the rules to make contact with
another player in amateur softball. (R.R. VI, pp. 56, 92-93, 113-114;
R.R. VIII, p. 84, 98) All but one witness, defense witness Andria White,
testified that appellant was the aggressor and that the complainant did
nothing to provoke appellant’s attack. (R.R. VI, p. 73; R.R. VIII, pp.
85-87; 107) White, who was watching the game, testified that the
complainant’s slide into second base was a very aggressive slide and she
considered it a dirty play. (R.R. X, p. 43) Brian Hollywood, the police
11
officer who was playing in the game and who was off duty at the time
testified that he believed appellant had assaulted the complainant and so he
called the Round Rock police and an officer responded to the softball field.
Hollywood also testified that a foot can be a deadly weapon if it causes
serious bodily injury. (R.R. VIII, pp. 110-113)
Danny Teller, Karl Holdren and Marty Jackson all testified that
shortly after the game, they looked at appellant’s Facebook account and saw
appellant had posted the following:
“I guess next time you will think twice about taking out
someone’s knee in softball. Haha! How’s your face?
Cause my foot is killing me!!! Not to mention how far u flew
when u were “standing your ground.” Lmao. U picked the
wrong Mexican homeboy!!!” (R.R. VI, p. 68) (State’s
Exhibit 2)
This posting was introduced into evidence by the State as State’s Exhibit 2
over appellant’s objection. (R.R. VI, pp. 65-68; R.R. VII, pp. 44- 45;
R.R. VIII, pp. 62, 76)
The complainant, Juan Davila, testified and told the jury that he
remembered playing in the softball game that night. He testified that
when he dove back into second base, his shoulder collided with appellant’s
knee. He told the jury that he did not know appellant and was not
intentionally trying to hurt him. Davila testified about the play at first base.
He testified that after he caught the ball from the pitcher, he had his right
12
foot on the first base bag. He told the jury that he then stepped off the bag
and threw the ball to the shortstop. He told the jury that he remembered
having words with appellant and he remembered throwing the ball down in
front of appellant. Davila told the jury that he thought the ball hit appellant
after it bounced. He testified that he did not remember hitting appellant.
The last thing he remembered was being on the ground. Appellant told
the jury that he has no memory of the incident after that point. (R.R. VI,
pp. 195-206) The evidence showed that the complainant spent that night at
his girlfriend’s house. The next morning the complainant’s sister
persuaded him to go the emergency room. (R.R. VI, pp. 207-211) At
the emergency room, doctors discovered that the complainant had suffered a
serious brain injury. The complainant had to undergo major brain surgery
and was hospitalized for approximately one week. He was then released
to a rehabilitation facility where he stayed for one month, followed by
months of outpatient therapy. The evidence showed that he was not able
to return to work until May of 2014, some six months after the incident.
Appellant testified that as a result of his brain injury, he has memory issues,
his temper and impulsiveness is bad in that he overreacts to situations. He
also has trouble navigating around town or even remembering where he has
parked his car. Finally, the complainant told the jury that he has a blind
13
spot in his peripheral vision. (R.R. VI, pp. 214-226) The complainant’s
friend and fellow ball-player, Doug Peterson testified that as a result of his
brain injury, the complainant’s personality is totally different and he has a
very bad memory. (R.R. VI, pp. 254-255) The complainant’s best
friend Karl Holdren testified that as a result of his injury, the complainant
has become angry, short-tempered and has memory issues. (R.R. VII, p.
54) Marty Jackson, another friend of the complainant also testified that the
complainant’s personality is different and that it takes him longer to react to
things like joking and teasing. (R.R. VIII, p. 65)
Dr. Ernest Gonzalez, a trauma surgeon, testified that on November 15,
2013, he was working at St. David’s Hospital in Round Rock when the
complainant came to the emergency room. Dr. Gonzalez testified that
initially appellant was awake and able to converse although he said he was
not feeling well. He was placed in ICU so that doctors could monitor his
condition overnight. Dr. Gonzalez also had the complainant undergo a
CT scan. This scan showed that the complainant had multiple fractures of
his foreface, his orbital roof, with bleeding in the subdural, as well as
bruising on the right frontal lobe of his brain tissue. Dr. Gonzalez told the
jury that these injuries were caused by blunt force trauma. Dr. Gonzalez
testified that as they monitored the complainant, his condition worsened and
14
he had to undergo emergency brain surgery in order to evacuate the blood
from his brain. He testified that the complainant probably would have
died without the surgery. The complainant was discharged from the
hospital on November 22, 2013 and was put in inpatient rehabilitation
followed by outpatient rehabilitation. Dr. Gonzalez testified that the
complainant’s injuries constituted serious bodily injury in that he faced a
substantial risk of death due to the injury to his brain. The doctor also
testified that a foot used to kick someone in the head with the same resulting
injuries could be a deadly weapon. (R.R. VIII, pp. 13-40)
Rosie Hernandez, the complainant’s girlfriend, testified that the
complainant came home the night of the incident and seemed disoriented
and upset. He told her that he had gotten into a fight and she could see
marks on his forehead. Hernandez testified that the complainant
complained of a headache and he was up and down all night. He also
began vomiting. Hernandez told the jury that the next morning she saw
that the complainant’s right eye was turning purple. Hernandez told the
jury that she left for work and later in the morning when the complainant
would not respond to her texts, she called his sister and asked her to check
on him. They were able to persuade the complainant to go to the hospital
later in the day. Hernandez testified that the complainant had to have brain
15
surgery and was hospitalized for one week. After being discharged from
the hospital, he spent about a month in a rehabilitation facility. (R.R. VIII,
pp. 183-206) Hernandez testified as to the changes in the complainant
after the incident. She told the jury that it was as if he had lost his filter.
She testified that the complainant now says inappropriate things. He has
lost his sense of direction. He is forgetful. His mood fluctuates and he
often is sad and cries. She also told the jury that he has a blind spot in his
eye and cannot see things, causing him to bump into things. (R.R. VIII,
pp. 207-213) The complainant’s sister, Patricia Cortez, told the jury
how she went to check on the complainant the morning after the incident.
He was disoriented and vomiting. She testified that she drove him to the
hospital where doctors discovered that his brain was swelling and he had to
undergo emergency brain surgery. She described the complainant as an
angry person since his brain injury. (R.R. VIII, pp. 217-224)
After both sides rested and closed, the State made an oral motion to
strike the “or stomping” language from the indictment. The trial court
granted that request. (R.R. X, p. 65) The jury heard argument from
both sides, deliberated and then announced its verdict. The jury found
appellant guilty of the offense of aggravated assault as alleged in the
indictment. The jury also made an affirmative finding of a deadly weapon.
16
(R.R. X, pp. 122-123; C.R. 58-68 )
Appellant elected to go to the trial court for punishment. The State
introduced into evidence various State’s Exhibits showing some of
appellant’s prior convictions: State’s Exhibit 24 – a conviction for evading
arrest in Cause No. 08-07320-1 in County Court at Law No. 1 of Williamson
County on February 12, 2009; State’s Exhibit 25 – a conviction for felony
DWI in Cause No. D1-DC-09-907397 in the 331st District Court of Travis
County on July 26, 2010; State’s Exhibit 26 – a conviction for another
felony DWI in Cause No. D1-DC-10-201406 in the 331st District Court of
Travis County on July 26, 2010 and State’s Exhibit 27 – a conviction for
assault on a public servant in Cause No. D1-DC-10-201407 in the 331st
District Court of Travis County, Texas on July 26, 2010. (R.R. XI, pp.
15-16) The State also introduced State’s Exhibits 28, 29, 30 and 31 –
recordings of some of appellant’s phone calls from the Williamson County
Jail. (R.R. XI, pp. 16-19) The State then rested.
Dr. Matthew Ferrara, a psychologist, testified for the defense. He
told the court that he had evaluated appellant and found six mitigating
factors to consider when assessing punishment: (1) he suffered
post-traumatic stress disorder that had occurred during his military service;
(2) his loss of a paternal figure as a child (his father had died when he was
17
in fifth grade); (3) his mother never showed him love; (4) he saw domestic
violence in his home between his parents; (5) he was a victim of sexual
abuse as a child; and (6) he has a substance abuse problem. Dr. Ferrara
testified that there is treatment available for each one of these factors. He
also testified that appellant will become less aggressive as he ages.
(R.R. XI, pp. 21-36)
Appellant’s wife also testified and told the court that appellant was a
great husband and father and a good man. She also testified that after the
incident when he learned how serious the complainant’s injuries were, he
was remorseful. (R.R. XII pp. 6-9) Appellant’s two sons and one of
their friends also testified as character witnesses for appellant. (R.R.
XII, pp. 14-20) The defense then rested and the State called Officer
Andrew McRae in rebuttal. McRae testified that he had arrested appellant
twice for the offense of driving while intoxicated – once on April 21, 2009
and again on March 12, 2010. He gave the details of each arrest to the
court. (R.R. XII, pp. 22-33) After McRae’s testimony, the State rested
and both sides closed. (R.R. XII, pp. 33-35) After hearing the
argument of counsel from both sides, the trial court assessed appellant’s
punishment at fifteen years imprisonment. (R.R. XII, p. 50; C.R. 79-81)
18
SUMMARY OF THE ARGUMENT
In his sole point of error, appellant argues that the trial court abused
its discretion when it allowed the State to introduce an extraneous offense
into evidence because the prejudicial effect of that evidence far outweighed
any probative value that the evidence had. As its last witness during the
guilt-innocence phase of the trial, the State brought in APD Officer Andrew
McRae who testified that while appellant was in his custody on another
charge, appellant threatened him with physical harm and in fact did kick the
police car door as the officer was opening it to remove appellant from the
vehicle. As a consequence the officer sustained a sprained wrist because he
was holding onto the door handle when appellant kicked the car door. The
State argued that they needed to use this extraneous offense to rebut
appellant’s theory of self-defense, to show his intent and to show his lack of
mistake. Appellant asserts that the relevance of the extraneous offense
testimony did not outweigh the inherent prejudicial and inflammatory effect
of the testimony. The prosecution put on overwhelming evidence of
appellant’s guilt. Not only were there numerous eyewitnesses who
testified that it was appellant who kicked the complainant in the head, the
State introduced State’s Exhibit 2, a Facebook entry, appellant posted some
ten minutes after the attack, boasting of kicking the complainant in the face.
19
The State did not need the extraneous offense at all. The prejudicial and
inflammatory effect of the admission of the extraneous offense into evidence
was far greater than any probative effect. The trial court abused its
discretion in allowing the extraneous offense into evidence.
20
POINT OF ERROR NUMBER ONE
THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING
INTO EVIDENCE THE EXTRANEOUS OFFENSE WHEN THE
RECORD CLEARLY SHOWED THAT THE PREJUDICIAL
EFFECT OF THE EVIDENCE FAR OUTWEIGHED ITS
PROBATIVE VALUE.
During his opening argument defense counsel argued that appellant
was acting in self-defense when the complainant was injured. (R.R. VI,
pp. 25-31) On the second day of the evidence, the State announced that
because appellant had argued self-defense in his opening statement, he had
opened the door and thus the State should be allowed to introduce evidence
of appellant’s prior conviction for assault on a public servant. The State
argued that appellant was not acting in self-defense but rather his motive
was to hurt the complainant after the incident at second base. The State
argued that the extraneous offense should be admissible under Tex.R.Ev.
404(b) to show appellant’s intent and lack of mistake. Appellant objected
on the basis that a theory of self-defense did not open the door to other
violent acts and even if it did, this evidence would be far more prejudicial
than probative. The trial court asked the parties to provide her case law
and took the matter under advisement. (R.R. VIII, pp. 5-11) Later after
reading the case law, the trial court informed the parties that she would
allow the State to put on evidence regarding the actual incident but would
21
not allow the jury to know that appellant had been convicted for that offense.
(R.R. VIII, pp. 126-128) Immediately before the extraneous offense was
put before the jury, the defense renewed its objection to the admissibility of
the extraneous offense under Tex.R.Ev. 404(b) and also argued that
admission of this evidence would be more prejudicial than probative. The
court after hearing the witness testify outside the presence of the jury
overruled appellant’s objection and ruled that she was admitting the
extraneous offense to rebut a defensive theory of self-defense. She ruled
that the State could use the evidence to show lack of mistake and intent.
She did however restrict the State from introducing evidence as to why the
officer was arresting appellant or the fact that appellant had been convicted
of assaulting a public servant because of the this incident. (R.R. IX, pp.
4-18)
Immediately thereafter, Officer Andrew McRae of the Austin Police
Department was allowed to testify in front of the jury. He told the jury that
on March 12, 2010, while on patrol, he arrested appellant. Appellant was
put in the back of the patrol car. McRae testified that while he was
transporting appellant, appellant threatened him:
“Q. . . . Can you tell the jury what statements the
defendant was making to you?
“A. He made several statements. “Open these doors.
22
See if I don’t punch you in the face. Get someone else to
open up this door. I swear to God you open this door, I’m
going to fuck you up. I’m not even playing. Seriously, bro,
when we get to the fucking station, get somebody else to open
the fucking door because if you’re anywhere near me, ooh.”
(R.R. IX, pp. 28-29)
McRae went on to testify that when they reached their destination, the
appellant had turned so that his back was facing away from the door.
When McRae opened the back door of the police car, appellant kicked the
door very hard causing McRae, who was holding the door handle to sprain
his wrist. McRae told the jury that appellant’s action caused him pain in
his wrist that lasted for one or two days. (R.R. IX, p. 29) On cross,
defense counsel established that appellant had been asking Officer McRae to
be allowed to use the restroom and the officer had not allowed him to do so.
As a consequence, appellant had urinated all over himself. (R.R. IX, pp.
30-31)
The general rule regarding the admissibility of extraneous offenses is
that an accused may not be tried for a collateral crime or for being a criminal
generally. Tex.R.Ev. 404(b); Williams v. State, 662 S.W.2d 344, 346
(Tex.Cr.App. 1983); Elkins v. State, 647 S.W.2d 663, 665 (Tex.Cr.App.
1983); Carter v. State, 145 S.W.3d 702, 707 (Tex.App.-Dallas 2004, pet.
ref.). Introduction of an extraneous offense is inherently prejudicial, and a
defendant’s “propensity to commit crimes” is not material to whether the
23
defendant committed the specific offense charged. Williams v. State, 662
S.W.2d at 346; Elkins v. State, 647 S.W.2d at 665.
There are exceptions to the general rule barring admission of
extraneous offenses. An extraneous offense committed by the accused
may be admissible “upon a showing by the prosecution both that the
[extraneous offense] is relevant to a material issue in the case; and the
relevancy value of the evidence outweighs its inflammatory or prejudicial
potential.” (emphasis added). Williams v. State, 662 S.W.2d at 346.
Thus an extraneous offense may be admissible to show the motive or intent
of the accused or to refute a defense theory. See Tex.R.Ev. 404(b); see also
Powell v. State, 63 S.W.3d 435, 438 (Tex.Cr.App. 2001); Montgomery v.
State, 810 S.W.2d 372, 386 (Tex.Cr.App. 1991)(opinion on rehearing).
Albrecht v. State, 486 S.W.2d 97, 100-101 (Tex.Cr.App. 1972). Even if it
is admissible, however, its relevance and materiality must still be shown to
outweigh its prejudicial effect. See Tex.R.Ev. 403; Montgomery v. State,
supra; Williams v. State, 662 S.W.2d at 346. A relationship must be shown
between the extraneous offense “and the evidence necessary to prove the
accused committed the crime for which he stands charged . . . .” Albrecht
v. State, 486 S.W.2d at 100.
Appellant asserts that the relevance of the extraneous offense
24
testimony did not outweigh the inherent prejudicial and inflammatory effect
of the testimony. The prosecution put on overwhelming evidence of
appellant’s guilt. All of the eyewitnesses testified that it was appellant
who was involved in the altercation with the complainant. Several of the
witnesses testified that they saw the appellant actually kick the complainant
in the head and there was no evidence introduced which showed that it was
anyone else or that appellant was justified in his action of kicking the
complainant in the head. Furthermore, the State introduced into evidence
State’s Exhibit 2, a Facebook post which appellant posted on his Facebook
page some ten minutes after the incident. It read:
“I guess next time you will think twice about taking out
someone’s knee in softball. Haha! How’s your face?
Cause my foot is killing me!!! Not to mention how far u flew
when u were “standing your ground.” Lmao. U picked the
wrong Mexican homeboy!!!” (R.R. VI, p. 68) (State’s
Exhibit 2)
A review of all of the evidence shows that the State put on more than enough
evidence about the incident alone to refute appellant’s self-defense theory.
As the Corpus Christi Court of Appeals wrote in Escort v. State, 713 S.W.2d
733 (Tex.App.-Corpus Christi 1986, no pet.), a case very similar to this in its
procedural posture:
“The extraneous offense evidence was simply ‘overkill,’ and it
went too far. 713 S.W.2d at 737.
25
Where all if not most of the direct evidence adduced during the trial rebuts
the theory of self-defense and goes to prove an accused’s intent, the less
relevant is evidence involving a collateral offense between the accused and a
third party. Considering the overwhelming evidence of appellant’s guilt
both from eyewitness accounts and appellant’s Facebook post, the evidence
regarding appellant’s unrelated act towards Officer McRae, could not have
been that helpful to the jury in resolving the issue of self-defense. Thus
the relevancy of the extraneous offense is questionable. Thus the
prejudice emanating from the admission of the extraneous offense far
outweighed any probative value that it could have had.
In assessing whether potentially relevant evidence should be excluded
under Tex.R.Ev. 403 because its prejudicial nature substantially outweighs
its probative value, the appellate court must consider 1) the probative force
of the evidence, 2) the need for the evidence, 3) the tendency of the evidence
to suggest a decision on an improper basis, 4) the tendency of the evidence
to confuse or distract the jury, 5) the tendency of the evidence to be given
undue weight, and 6) the likelihood that the presentation of the evidence will
consume an inordinate amount of time or merely repeat evidence already
admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-641 (Tex.Cr.App.
2006); Dekneef v. State, 379 S.W.3d 423, 433 (Tex.App.-Amarillo 2012,
26
pet.ref.). The first four of those criteria clearly favored excluding the
testimony at issue. Its probative value or relevance was marginal at best.
The State had little need for it. Attributing to an accused prior criminal
conduct is undoubtedly prejudicial and facilitates the jury's penchant to infer
present guilt from prior criminal conduct. In appellant’s case, the prejudicial
testimony came from the State’s last witness at guilt-innocence, a police
officer, called only for the purpose of soliciting that prejudicial testimony.
As for the last indicia, not much time was spent on presenting the evidence,
but the potentially unacceptable impact it had due to its timing is evident.
In addition both prosecutors emphasized the extraneous offense during their
closing arguments at guilt-innocence. Prosecutor Jackie Borcherding
argued the following:
“The defendant had the intent to assault Juan, and the
reason why we know that is because he had statements made
right before he assaulted Juan, and we know that in the past –
You can consider an extraneous offense – the fact that he told
Officer McRae in 2010 that essentially – the quote was, ‘I
swear to God, you open this door, I’m going to fuck you up.
I’m not even playing. When we get to the fucking station,
get somebody else to open the fucking door because if you’re
anywhere near me, oh.’ And he carried through with his
threat, and he kicked the door open, and it hurt Officer McRae.
That shows his intent to hurt Juan, and the reason why is
because in our case, he made threatening statements. ‘You’ll
get yours.’ ‘You’ll have what’s coming to you.’ And he
carried through with that threat by kicking – kicking again, this
time Juan. That extraneous offense is relevant to show you
his intent, that he’s not defending himself. . . . “ R.R. X, pp.
27
89-90.
Prosecutor Josh Reno encouraged the jury not to consider the extraneous
offense as a tool to consider appellant’s intent but rather he urged the jury to
improperly consider the extraneous offense as evidence of appellant’s
assaultive character:
“Yeah, we brought you an assaultive case that happened out of
Austin. He’s assaultive. This defendant has an assaultive
history, and you need to know that why? Because now that
we’ve proven our case beyond a reasonable doubt, he’s
claiming self-defense. He’s saying, ‘Yeah, I assaulted you,
Juan, but I had to. I had to. I had to defend myself.’
Really? Really?” . . . This defendant makes threats, and
then he makes good on them just like he did with Andrew
McRae, the officer with the Austin Police Department.” (R.R.
X, pp. 113-114)
Reasonable minds cannot disagree over the application of Tex.R.Ev.
403 here; the prejudicial effect of disclosing that appellant had a prior arrest
and during that arrest assaulted a police officer far outweighed any minimal
probative value the evidence may have had.1 The trial court clearly abused
its discretion in admitting the extraneous offense. This point of error
should be sustained.
1
Appellant acknowledges that the trial court did submit a limiting
instruction regarding the extraneous offense testimony in its charge to the
jury. (C.R. 58-68) However, appellant asserts that just as the Corpus
Christi Court of Appeals found in Escort v. State, 713 S.W.2d 733, 737-738
(Tex.App.-Corpus Christi 1986, no pet.), the instruction had no curative
value “in obviating the inflammatory effect of the inadmissible evidence”.
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PRAYER
Appellant respectfully requests that this Honorable Court sustain his
point of error and reverse the trial court and remand the case for a new trial.
Respectfully submitted,
/s/ Linda Icenhauer-Ramirez
LINDA ICENHAUER-RAMIREZ
Attorney at Law
1103 Nueces
Austin, Texas 78701
(512) 477-7991
FAX: (512) 477-3580
SBN: 10382944
Email: ljir@aol.com
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief was computer generated and contains
5,834 words, as calculated by the word count function on my computer.
/s/ Linda Icenhauer-Ramirez
LINDA ICENHAUER-RAMIREZ
29
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Appellant’s Brief on
Original Appeal served by e-service to John Prezas of the Williamson
County District Attorney’s Office on this the 9th day of July, 2015.
/s/ Linda Icenhauer-Ramirez
LINDA ICENHAUER-RAMIREZ
30