_____________________________________________________________ 

NOS. 13-14-00367-CR, 13-14-00368-CR, AND 13-14-00369-CR

_____________________________________________________________ 

IN THE COURT OF APPEALS 

THIRTEENTH DISTRICT AT CORPUS CHRISTI 

_____________________________________________________________ 

ELEAZAR LUNA, Appellant 

v.

THE STATE OF TEXAS 

_____________________________________________________________ 

ON DIRECT APPEAL FROM CAUSE NUMBERS 13-04-4700-CR, 

13-04-4701-CR, AND 13-04-4702-CR, IN THE 24TH JUDICIAL 

DISTRICT COURT OF GOLIAD COUNTY, TEXAS 

_____________________________________________________________ 

REPLY BRIEF FOR APPELLANT 

_____________________________________________________________ 

 

 Richard E. Wetzel 

 Bar No. 21236300 

 1411 West Avenue, Suite 100 

 Austin, Texas 78701 

 (512) 469-7943 

 (512) 474-5594 – fax 

 wetzel_law@1411west.com 

 Attorney for Appellant 

 Eleazar Luna 

 

ACCEPTED

13-14-00368-CR

THIRTEENTH COURT OF APPEAL

CORPUS CHRISTI, TEXAS

4/16/2015 5:50:09 PM

DORIAN RAMIREZ

CLERK

 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 4/16/2015 5:50:09 PM DORIAN E. RAMIREZ Clerk
ii

Table of Contents

Page

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . .ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of the Cases . . . . . . . . . . . . . . . . . . . . . . . .1

Reply Point of Error One . . . . . . . . . . . . . . . . . . . . . . . . .1

The trial court abused its discretion by allowing the prosecutor to tell the 

prospective jurors that the date of commission of the offenses as alleged in the 

indictments was meaningless (2 RR 38).

Reply Point of Error Two . . . . . . . . . . . . . . . . . . . . . . . . .3

The trial court abused its discretion by allowing the prosecutor to give the 

prospective jurors a definition of the term proof beyond a reasonable doubt (2 RR 

68).

Reply Point of Error Three . . . . . . . . . . . . . . . . . . . . . . . . .7

The trial court abused its discretion by denying the motion to suppress because the 

probable cause affidavit failed to state sufficient facts showing Luna committed the 

alleged offense of continuous sexual abuse of a young child (3 RR 19).

Reply Point of Error Four . . . . . . . . . . . . . . . . . . . . . . . . .9

The trial court abused its discretion by denying the motion to suppress because the 

probable cause affidavit was based on stale information due to the lack of 

information as to when the offenses allegedly occurred (3 RR 19).

Reply Point of Error Five . . . . . . . . . . . . . . . . . . . . . . . .11

The trial court abused its discretion by admitting an outcry statement given to a 

law enforcement officer by E.S. after she had already made an outcry statement to 

her mother (3 RR 52-53).
iii

Prayer . . . . . . . . . . . . . . . . . . . . . . . .13

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . .13

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . .14
iv

Index of Authorities

Page

Cases

Graham v. State, 710 S.W.2d 588 

(Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . .6

Hall v. State, 753 S.W.2d 438 

(Tex. App. – Texarkana 1988) , rev’d on other grounds

795 S.W.2d 195 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . .8

Keeter v. State, 175 S.W.3d 756 

(Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . .6

Lockett v. State, 879 S.W.2d 184 

(Tex. App. – Houston [14th Dist.] 1994, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . .10

McKissick v. State, 209 S.W.3d 205 

(Tex. App. – Houston [1st Dist.] 2006, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . .10

Paulson v. State, 28 S.W.3d 570 

(Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . .5

Villegas v. State, 791 S.W.2d 226 

(Tex. App. – Corpus Christi 1990, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . .8

Wilkerson v. State, 391 S.W.3d 190 

(Tex. App. – Eastland 2012, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . .5

Statute

TEX. CRIM. APP. CODE art. 38.072 . . . . . . . . . . . . . . . . . . . . . . . .12

Rules

TEX. R. APP. P. 9.4 . . . . . . . . . . . . . . . . . . . . . . . .13

TEX. R. APP. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . .6
v

TEX. R. APP. P. 38.2(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . .2

TEX. R. APP. P. 38.3 . . . . . . . . . . . . . . . . . . . . . . . . .1

Other

www.dictionary.reference.com/browse/example . . . . . . . . . . . . . . . . . . . . . . . . .5
Statement of the Cases

1

These are appeals from a criminal proceeding. Luna filed his opening brief. 

The State filed a brief. Pursuant to TEX. R. APP. P. 38.3, Luna now files his reply 

brief. 

Reply Point of Error One

The trial court abused its discretion by allowing the prosecutor to tell the 

prospective jurors that the date of commission of the offenses as alleged in the 

indictments was meaningless (2 RR 38).

In the first point of error, Luna complains of a misstatement of law by the 

prosecutor to the venire members. The prosecutor was allowed, over objection, to 

tell the prospective jurors that the date of commission of the offenses as alleged in 

the indictments was meaningless. 

The three indictments allege the offenses occurred on or about January 25, 

2013 (CR 6). In discussing the offense dates as alleged, the prosecutor made the 

following statements of which Luna now complains:

MR. BREEN: The date effectively doesn't mean anything in this 

indictment. So my first question is who here has a problem with that 

that they feel like the State should have to –

 

1

 In an order dated September 19, 2014, the Court directed that the three 

appeals be consolidated for briefing, issuing orders, and issuing an opinion. 
2

MR. DORNBURG: I'm going to object. He says the date doesn't 

effectively mean anything.

MR. BREEN: In this case, it doesn't mean anything because the 

statute of limitations has not run and would therefore go from the day 

of her birth on up to before the indictment.

THE COURT: Overruled, go ahead.

MR. DORNBURG: Additionally, counsel for the State said 

(inaudible) –

THE REPORTER: Mr. Dornburg, I can't hear you.

MR. DORNBURG: Additionally up to the point date of indictment is 

to -- that makes it pertinent as well, so it is important. You can't say 

it's not effective. That is a misstatement of law. It has no effect.

THE COURT: All right. Overruled. Go ahead. (2 RR 37-38).

Ignoring the words spoken by the prosecutor at trial, the State argues on 

appeal the prosecutor never said the date alleged in the indictment was 

meaningless (State’s brief at 12).2 The State further argues a “true reading” of the 

words spoken by the prosecutor show he was discussing the applicable statute of 

limitations (Id.). The State does not suggest the jurors were sophisticated enough 

 

2

 The pages in the State’s brief are not properly numbered as required by 

TEX. R. APP. P. 38.2(a)(1). Luna brought this matter to the Court’s attention by a 

motion filed on March 16, 2015. On April 8, 2015, the Court denied Luna’s 

motion seeking for the State to file a brief with correct page numbers. In this 

reply, Luna refers to the State’s brief as though it was properly paginated. 
3

to discern the “true meaning” of the prosecutor’s misstatement of law which was 

sanctioned by the trial court. 

The prosecutor twice erroneously told the prospective jurors that the date of 

the offense alleged in the indictment was meaningless. Luna continues to insist the 

prosecutor’s statements concerning the meaninglessness of the date of commission 

of the offenses were erroneous. Authority cited in Luna’s opening brief establishes 

it is incumbent on the State to prove the on or about date as alleged (Appellant’s 

brief at 31). By overruling Luna’s objections, the trial sanctioned the prosecutor’s 

misstatement of the law and lowered the burden of proof placed on the State to 

convict. 

The State does not address the question of harm. Luna continues to rely on 

the harm analysis set forth in his opening brief (Appellant’s brief at 34-35). 

Reply Point of Error Two

The trial court abused its discretion by allowing the prosecutor to give the 

prospective jurors a definition of the term proof beyond a reasonable doubt (2 

RR 68).

By his second point of error, Luna complains of erroneous statements of law 

provided by the prosecutor during voir dire to the prospective jurors. Those 

misguided statements provided the jurors with a definition of the term beyond a 
4

reasonable doubt. By overruling Luna’s objections, the trial sanctioned the 

prosecutor’s misstatement of the law. Specifically, the record reflects:

MR. BREEN: Now, the definition in the instructions you get will be 

left undefined as to what beyond a reasonable doubt means. A 

definition that I know, a judge that I knew used to say in his mind, and 

this is his opinion, it's that certainty that you would bring to any 

important –

MR. DORNBURG: Objection, Your Honor. There's not a definition 

to reasonable doubt.

THE COURT: Overruled. Go ahead.

MR. BREEN: And the example he usually used was when to cross a 

busy street. We do that all the time, but think about it. If you misjudge 

you're run over and you get killed. It's a serious decision, right? You 

don't cross the street until you're certain beyond a reasonable doubt 

that you can get from one side to the other without getting squished 

like a bug, so it's a serious question. All right. 

Now, as I say, one thing that we do know is beyond a reasonable 

doubt is not created simply because there's conflicting testimony. 

That's what a trial is supposed to be about is to resolve conflict; right? 

Who here feels like, well, you know what, if there's conflicting 

testimony I couldn't in good conscience vote to convict no matter 

what? Okay. 

Reasonable doubt is not created because there are questions that you 

have that are never cleared up. You know, if the State proves its case 

beyond a reasonable doubt even though you wonder about this or 

wonder about that -- almost certainly there will be such questions that 

won't be answered by the end of the trial, but that by itself doesn't 
5

create reasonable doubt. Does anybody have a problem with that? (2 

RR 67-68).

The State argues no definition of reasonable doubt was given, only examples 

of the term (State’s brief at 14). Luna maintains the assertion is not supported by 

the record and is simply an attempt to characterize the error as something it is not. 

It is commonly understood that an example is given to demonstrate the character of 

the whole. See www.disctionary.reference.com/browe/example Here, the 

examples by the prosecutor were unquestionable an effort to engage in the 

prohibited act of defining reasonable doubt for the jury. 

The State further argues the voir dire was permissible under Wilkerson v. 

State, 391 S.W.3d 190 (Tex. App. – Eastland 2012, pet. ref’d). Wilkerson is 

inapplicable. That case concerned an improper limitation on defense voir dire 

attempting to contrast various burdens of proof. Id. at 195. Luna does not 

complain of a limitation on voir dire. The prosecutor’s statements ran afoul of the 

prohibition imposed by Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 

2000) (prohibiting juries from being instructed on a definition of the term 

reasonable doubt).

The State next claims nothing is preserved for review (State’s brief at 14). 

First, the State claims Luna was required to object to each example given by the 

prosecutor. 
6

He wasn’t. Luna concedes he did not object after each of the erroneous 

definitions after his initial objection was overruled. However, in determining 

whether a complaint has been preserved for appeal, the ultimate consideration is 

whether the party has clearly made the trial court aware of what he wants and why 

he is entitled to it at a time when the trial court is in a position to do something 

about it. Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim. App. 2005). Thus, 

redundant objections to repetitions of the same matter for the same reason are not 

necessary if the circumstances indicate that they would have been futile. See 

Graham v. State, 710 S.W.2d 588, 591 (Tex. Crim. App. 1986). Luna was not 

required to voice futile objections to the continued misstatements by the 

prosecutor. The matter was preserved at trial. 

The State further argues Luna’s objection was vague and he did not secure 

an adverse ruling (State’s brief at 14-15). Luna disputes the State’s assertions. 

First, the objection plainly alerted the trial court to the basis of the objection 

(“there’s not a definition to reasonable doubt”). Second, an adverse ruling was 

obtained when Luna’s objection was overruled. Nothing more was required to 

preserve the complaint for appellate review. See TEX. R. APP. P. 33.1(a) 

(explaining requirements for preservation of error). 
7

In a conclusory manner, the State claims Luna can show no harm from the 

error, if any (State’s brief at 15). Luna disagrees and continues to rely on the harm 

analysis set forth in his opening brief (Appellant’s brief at 34-35).

Reply Point of Error Three

The trial court abused its discretion by denying the motion to suppress 

because the probable cause affidavit failed to state sufficient facts showing 

Luna committed the alleged offense of continuous sexual abuse of a young 

child (3 RR 19).

Luna’s argument in his third point is that the “mere evidence” search 

warrant affidavit failed to allege sufficient facts to establish probable cause that he 

committed the specific offense of continuous sexual abuse of a young child as 

alleged in the affidavit and found by the magistrate. The underlying offense of 

indecency with a child by exposure is not a predicate offense of continuous sexual 

abuse of a young child. Absent an allegation of a predicate offense, the magistrate 

was not presented with facts supporting probable cause to believe Luna committed 

the offense of continuous sexual abuse of a young child. 

The State argues the facts alleged within affidavit were sufficient to allege 

the offense of indecency with a child (State’s brief at 20). The State concedes the 

facts alleged were not sufficient to allege Luna committed the offense of 

continuous sexual abuse of a young child (State’s brief at 21).
8

Initially, the State relies on Hall v. State, 753 S.W.2d 438 (Tex. App. –

Texarkana 1988) , rev’d on other grounds, 795 S.W.2d 195 (Tex. Crim. App. 

1990). There, an ATF agent cited the wrong statutory provision in a search 

warrant affidavit alleging unlawful possession of a firearm. Id. at 440. While not 

challenging probable cause, Hall argued the negligence and inadvertence in citing 

the wrong statutory provision rendered the warrant invalid. Id. The court of 

appeals found the misstatement did not render the warrant invalid. Id. By contrast, 

in this case, Luna claims the facts alleged in the affidavit do not provide an 

adequate basis for the magistrate to have found probable cause to believe he 

committed the offense of continuous sexual abuse of a young child. Hall is 

inapplicable because Luna does not claim the affidavit merely cites the wrong 

statutory violation. 

The State further relies on Villegas v. State, 791 S.W.2d 226 (Tex. App. –

Corpus Christi 1990, pet. ref’d), in an effort to salvage the deficient affidavit. 

There, the defendant was arrested on a warrant for murdering his aunt and taking 

her car. On appeal, he argued the arrest warrant affidavit was deficient because it 

did not allege a predicate offense for capital murder or allege an intentional 

homicide. Id. at 235. The court of appeals rejected the claims upon finding the 

affidavit sufficient to allege the offense of murder. Id. Luna maintains Villegas is 

inapplicable because the opinion fails to recite the offense with which Villegas was 
9

charged in the arrest warrant affidavit. Absent a showing the warrant in Villegas

was for the offense of capital murder, the opinion provides no support to the State. 

The State does not address the question of harm (State’s brief 15-21). Luna 

relies on the harm analysis set forth in his opening brief (Appellant’s brief 47-50). 

Reply Point of Error Four

The trial court abused its discretion by denying the motion to suppress 

because the probable cause affidavit was based on stale information due to the 

lack of information as to when the offenses allegedly occurred (3 RR 19).

The fourth point of error challenges the search warrant affidavit on the basis 

it contains stale information. The probable cause affidavit of January 30, 2013, 

alleged Luna’s conduct occurred sometime in the summer between E.S’s second 

and third grades of school and before Thanksgiving of November, 2012. Luna 

argued at trial that the dates set out in the affidavit were stale due to the absence of 

the date constituting sometime in the summer between E.S.’s second and third 

grades of school. 

The problem in this case is that the magistrate was not able to ascertain from 

the affidavit the closeness in time of the event alleged as the basis for probable 

cause sufficient to issue the warrant based on an independent judgment of probable 

cause. The beginning of the event is a time unknown other than sometime between 
10

second and third grade. The facts attested to in the affidavit were not so closely 

related to the time of the issuance of the warrant as to justify a finding of probable 

cause at that time. 

 Without record support, the State argues the affidavit presented to the 

magistrate “definitely” showed the alleged unlawful conduct commenced one and 

one half years earlier and continued until two or three months before the search 

warrant was sought (State’s brief at 23). Luna disputes the State’s assertion the 

affidavit shows a definite beginning date of the alleged conduct because the 

affidavit does not show the dates of the summer between E.S.’s second and third 

grades in school. 

. The State further argues Luna’s staleness challenge may be rejected due to 

continued and protracted nature of the alleged conduct as well as the type of 

evidence sought to be seized (State’s brief at 22-24). The State relies on McKissick 

v. State, 209 S.W.3d 205 (Tex. App. – Houston [1st Dist.] 2006, pet. ref’d) and 

Lockett v. State, 879 S.W.2d 184 (Tex. App. – Houston [14th Dist.] 1994, pet. 

ref’d). Both are readily distinguishable. McKissick involved a delay of four days 

in seeking photographs. McKissick, 209 S.W.3d at 215. Lockett involved a delay 

of three months in seeking a firearms. Lockett, 879 S.W.2d at 189. 
11

The State does not address the question of harm (State’s brief 24-26). Luna 

relies on the harm analysis set forth in his opening brief (Appellant’s brief 47-50). 

Reply Point of Error Five

The trial court abused its discretion by admitting an outcry statement given to 

a law enforcement officer by E.S. after she had already made an outcry 

statement to her mother (3 RR 52-53).

In his fifth point of error, Luna maintains outcry testimony from E.S.’s 

mother as to the statements made by E.S. to a deputy sheriff was inadmissible. 

Having previously described the incident to her mother, further outcry to the 

deputy was inadmissible and the trial court should not have allowed the jury to 

hear such harmful and inadmissible evidence from E.S.’s mother. 

Luna objected to the admissibility of any statements made to the deputy at 

the Sheriff’s Office because those statements were not the first statements made to 

an individual over the age of 18 (3 RR 52). The first such statements had been 

made at home by E.S. to her mother (3 RR 52). The State argued the statements at 

home and at the Sheriff’s Office were “all part of the same ball of wax” and should 

be admitted (3 RR 52). The trial court agreed and overruled the objection (3 RR 

52). 
12

Back in the presence of the jury, E.S.’s mother testified that upon arriving 

home from school, E.S. told her that Luna had shown her inappropriate videos and 

exposed himself to her on two occasions (3 RR 54). E.S.’s mother drove her 

daughter to the Sheriff’s Office and E.S. was interviewed by an officer (3 RR 55). 

Before the officer, E.S. repeated that Luna had shown her his privates and shown 

her inappropriate videos (3 RR 55). She also said Luna had shown her a sex toy 

and some lotion she could use (3 RR 55). She told the officer the sex toy looked 

like a boys privates (3 RR 56). She claimed Luna told her he had some 

pornographic videos in his camper that she could watch (3 RR 56).

Luna maintains the outcry testimony from E.S.’s mother as to the statements 

made by E.S. to the deputy was inadmissible under TEX. CRIM. PROC. CODE art. 

38.072 § 2(a)(2). Having previously described the incident to her mother, further 

outcry to the deputy was inadmissible and the trial court should not have allowed 

the jury to hear such harmful and inadmissible evidence. 

The State’s brief generally discusses the hearsay exception provided in TEX. 

CRIM. APP. CODE art. 38.072 (State’s brief at 24-26). The State does not address 

the facts of the instant appeals, application of the law to Luna’s fifth point of error, 

or the harmfulness of the error. Luna continues to rely on his opening brief in 

relation to his fifth point of error (Appellant’s brief at 50-56). 
13

Prayer

Luna prays this Court will reverse the judgment of conviction and remand 

for a new trial, new punishment proceeding, or enter any other relief from the 

judgment as appropriate under the facts and the law. 

Respectfully submitted,

/s/ Richard E. Wetzel

Richard E. Wetzel

State Bar No. 21236300

1411 West Avenue

Suite 100

Austin, TX 78701

(512) 469-7943

(512) 474-5594 – facsimile 

wetzel_law@1411west.com

Attorney for Appellant

Eleazar Luna 

Certificate of Compliance

This pleading complies with TEX. R. APP. P. 9.4. According to the word 

count function of the computer program used to prepare the document, the brief 

contains 2,833 words excluding the items not to be included within the word count 

limit. 

/s/ Richard E. Wetzel

Richard E. Wetzel

State Bar No. 21236300
14

Certificate of Service

This is to certify a true and correct copy of this pleading was mailed to 

counsel for the State of Texas, Assistant District Attorney Robert Lassmann at the 

DeWitt County Courthouse, Cuero, Texas, 77954, on this the 16

th day of April, 

2015. 

/s/Richard E. Wetzel

Richard E. Wetzel

Bar No. 21236300