CAUSE NO. 13-14-00517-CR 

IN THE COURT OF APPEALS OF 

THE STATE OF TEXAS 

THIRTEENTH JUDICIAL DISTRICT AT CORPUS CHRISTI 

FREDERICK O'NEAL SCOTT, 

Appellant, 

v. 

THE STATE OF TEXAS, 

Appellee. 

On Appeal from Cause Number 14-05-12, 033; 

In the 24th Judicial District Court of De Witt County, Texas 

The Hon. Stephen Williams, Judge Presiding 

APPELLANT'S FffiST AMENDED BRIEF 

LUIS A. MARTINEZ 

P.O. Box410 

Victoria, Texas 77902-0410 

(361) 676-2750 (Cell Telephone) 

(361) 575-6764 (Office Telephone) 

(361) 575-8454 (Facsimile) 

lamvictoriacounty@gmail.com 

ATTORNEY FOR APPELLANT, 

FREDERICK O'NEAL SCOTT 

ORAL ARGUMENT REQUESTED 

ACCEPTED

13-14-00517

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

4/17/2015 9:25:33 PM

DORIAN RAMIREZ

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 4/17/2015 9:25:33 PM DORIAN E. RAMIREZ Clerk
IDENTITY OF PARTIES AND COUNSEL 

Pursuant to TEX. R. APP. P. 38.l(a), the parties to the suit are as 

follow: 

APPELLANT 

APPELLEE 

TRIAL JUDGE 

STATE'SATTY AT TRIAL: 

DEFENSE ATTY AT TRIAL: 

FREDERICK O'NEAL SCOTT 

THE STATE OF TEXAS 

HON. STEPHEN WILLIAMS 

HON. MICHAEL SHEPPARD 

24th Judicial District Attorney 

De Witt County Courthouse 

307 N. Gonzalez 

Cuero, Texas 77954 

HON. KEITH WEISER 

P.O. Box 1093 

Victoria, Texas 77902-1093 

APPELLATE STATE'S ATTY: HON. ROBERT LASSMAN 

24th Judicial District Attorney 

De Witt County Courthouse 

307 N. Gonzalez 

Cuero, Texas 77954 

APPELLATE DEFENSE ATTY: HON. LUIS A. MARTINEZ 

P.O. Box 410 

Victoria, Texas 77902 

1 
TABLE OF CONTENTS 

Page(s) 

IDENTITY OF THE PARTIES .................................................................. i. 

TABLE OF CONTENTS ........................................................................... ii. 

INDEX OF AUTHORITIES ................................................................... .iii. 

I. RECORD BEFORE THE COURT .................................................. 2 

II. STATEMENT OF THE CASE ........................................................ 3 

III. ISSUE PRESENTED ....................................................................... 4 

ISSUE NUMBER ONE: 

THE TRIAL COURT ERRED IN EXCLUDING APPELLANT'S 

EVIDENCE OF THE ALLEGED VICTIM'S SCHOOL BEHAVIOR AND 

SUCH EVIDENCE WAS CRITICAL TO THE HEART OF APPELLANT'S 

TRIAL DEFENSE DENYING HIM DUE PROCESS ......................... .4 

IV. STATEMENT OF THE FACTS ..................................................... .4 

V. SUMMARYOFTHEARGUMENT .................................... 8 

VI. ARGUMENT ON THE MERITS .................................................... 9 

VII. CONCLUSION AND PRA YER .................................................... 19 

VIII. CERTIFICATE OF COMPLIANCE ............................................. 20 

IX. CERTIFICATE OF SERVICE ....................................................... 21 

11 
INDEX OF AUTHORITIES 

Texas Cases: 

Bennett v. State, 726 S.W.2d 32 (Tex. Crim. App. 1986) ........................ 11 

Davis v. State, 

104 S.W.2d 177 (Tex.App.-Waco, 2003, no pet.) ............... 11, 12, 16, 19 

Ex parte: Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991) .................. 11 

Echavarria v. State, 

362 S.W.3d 148 (Tex. App.-San Antonio, 2011) ............................. 11, 12 

Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004) ......................... 14 

Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009) ..................... 12 

Lopezv. State, 86 S.W.3d228 (Tex. Crim. App. 2002) ............................. 9 

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) .......... 9, 13 

Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999) .................. 13, 16 

Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002) ..................... 17, 18 

Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002) .......................... 16 

Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007) ...................... 17 

Wiley v. State, 74 S.W.3d 399 (Tex. Crim. App. 2002) ............................ 17 

111 
Texas Statutes: 

Tex. Pen. Code §9.31 ................................................................................ 11 

Tex. Pen. Code §9.61. ....................................................... 5, 8, 9, 10, 11, 12 

Tex. Pen. Code §12.42 ................................................................................ 3 

Tex. Pen. Code §22.04 ................................................................................ 3 

Texas Rules: 

Tex. R. ofEvid. 403 .............................................................. 8, 9, 12, 13, 19 

Tex. R. ofEvid. 404, 404(b) ............................................................... 15, 16 
CAUSE NO. 13-14-00517-CR 

IN THE COURT OF APPEALS OF 

THE STATE OF TEXAS 

THIRTEENTH ruDICIAL DISTRICT AT CORPUS CHRISTI 

FREDERICK O'NEAL SCOTT, 

Appellant, 

v. 

THE STATE OF TEXAS, 

Appellee. 

On Appeal from Cause Number 14-05-12, 033; 

In the 24th Judicial District Court ofDeWitt County, Texas 

The Hon. Stephen Williams, Judge Presiding 

APPELLANT'S FIRST AMENDED BRIEF 

TO THE HONORABLE COURT OF APPEALS: 

COMES NOW, Appellant, FREDERICK O'NEAL SCOTT, by and 

through his attorney of record, and would respectfully present to this Court 

his brief on the merits in the above-referenced and entitled cause of action. 

Appellant would respectfully show unto the Court of Appeals as follows: 
This action arises from the proceedings held in DeWitt County, Texas, 

in Trial Court Cause No. 14-05-12, 033-CR; State of Texas v. Frederick 

O'Neal Scott; In the 24th Judicial District Court of DeWitt County, Texas, 

the Honorable Stephen Williams, Judge Presiding. 

In this matter, the Plaintiff was the "STATE OF TEXAS" and 

FREDERICK O'NEAL SCOTT was the Defendant. In this brief Appellant, 

FREDERICK O'NEAL SCOTT, will be referred to as "APPELLANT" and 

the Appellee, the State of Texas, as the "STATE." 

I. 

RECORD BEFORE THE COURT 

The Clerk's Record consists of one (1) volume that will be referenced 

by citation using the abbreviations "CR" referring to the Clerk's Record 

followed by the appropriate page number. For example, page three of the 

Clerk's Record will be cited as [CR-3]. 

The Reporter's Record furnished to Appellant consists of five (5) 

volumes, including exhibits. The Reporter's Record will be cited using the 

abbreviation "RR," followed by a numeral to indicate the appropriate page 

number(s). For example, page four of volume five of the Reporter's Record 

will be cited as [RR-V-4]. 

2 
II. 

STATEMENT OF THE CASE 

Appellant appeals the judgment and sentence imposed following his 

jury trial for "INJURY TO A CHILD & REPEAT OFFENDER," a Second 

Degree Felony, pursuant to Tex. Pen. Code §22.04 (offense) and §12.42 

(enhancement). 

Appellant was formally charged with "INJURY TO A CHILD" in a 

one-count indictment with one enhancement paragraph filed with the De Witt 

County District Clerk on May 29, 2014. [CR-7]. 

Vair dire began in this case on, or about, Monday, August 18, 2014. 

[RR-II-11]. Ajury was chosen and sworn that day. [RR-II-162-166]. 

On, or about, Tuesday, August 19, 2014, Appellant's trial began. 

[RR-III-7]. The De Witt County District Attorney read the indictment aloud 

to the jury to which Appellant entered a plea of"Not Guilty." [RR-III-7-8]. 

Appellant's trial continued from that day until Wednesday, August 20, 

2014, when the jury delivered a verdict of "Guilty." [RR-IV-83]. The case 

was reset for a punishment hearing before the bench on, or about, 

Wednesday, August 27, 2014. [RR-IV-86]. 

On, or about, Wednesday, August 27, 2014, the Trial Court conducted 

a punishment hearing. After considering the arguments of counsel and the 

3 
evidence presented by both parties during the punishment hearing, the Trial 

Court assessed Appellant's punishment as imprisonment in the Institutional 

Division of the Texas Department of Criminal Justice for twelve (12) years 

and costs of court. [RR-V-64; CR-99-10 I]. 

The Trial Court indicated in its "Trial Court's Certification of 

Defendant's Right of Appeal" that this matter was not a plea bargain case, 

and that Appellant has the right to appeal. [CR-73]. 

Appellant's Notice of Appeal was timely filed. [CR-76]. 

III. 

ISSUE PRESENTED 

ISSUE NUMBER ONE: 

THE TRIAL COURT ERRED IN EXCLUDING APPELLANT'S EVIDENCE 

OF THE ALLEGED VICTIM'S SCHOOL BEHAVIOR AND SUCH EVIDENCE 

WAS CRITICAL TO THE HEART OF APPELLANT'S TRIAL DEFENSE 

DENYING HIM DUE PROCESS. 

IV. 

STATEMENT OF THE FACTS 

Prior to the trial of this case, Appellant's trial counsel filed his 

"Memorandum of Law: Use of The Complaining Witness' School 

Disciplinary History." [CR-27]. By and through his trial counsel, Appellant 

clearly, unequivocally and in writing, asserted a justification defense 

4 
afforded him under §9.61 of the Texas Penal Code. Id. In the same motion, 

Appellant contended that: 

[CR-27]. 

Scott intends to introduce evidence that he 

reasonably believed his actions were necessary to 

discipline the child as he did. To support this 

reasonable belief, Scott intends to introduce the 

child's numerous behavior problems observed by 

teachers at school, including stabbing a classmate 

with a pencil. Scott intends to offer business 

records of the child's bad behavior as well as 

testimony from the child's teachers. 

During his testimony before the Jury, Appellant was asked the 

following by his trial counsel: 

Q: Mr. Scott, on or about August the 20th 2013 do you 

believe that any discipline that you gave A.R. that 

you were justified? 

A: Very justified. 

Q: And that's based on the information we went over 

the other day, that chart? 

A: Yes, it is. 

Q: You feel like you were justified under the statute, 

under the Penal Code? 

A: Yes. She was given a spanking because she 

injured her little sister to where she actually drew 

blood. Yes, it was justified. 

[RR-IV-12]. 

5 
Following Appellant's testimony, the jury was excused. [RR-IV-13]. 

Outside the presence of the jury, Appellant's counsel questioned Appellant 

about Defendant's Exhibit 8, copies of the business record affidavit and 

records that had been filed July 8, 2014. [RR-IV-13]. Appellant testified 

that he was familiar with the records. Appellant's counsel inquired of 

Appellant whether he knew about the incidents reported amongst the 

records. Id. Appellant testified he was aware of an incident that occurred 

on September 17, 2012 where the alleged victim was disrespectful, would 

not stay in her seat and was throwing, kicking, and shoving her chair and 

desk. [RR-IV-15]. Appellant also agreed that he was aware of an incident 

on November 8, 2012, where the alleged victim had been moaning and 

making noises while the teacher was talking and giving directions, and that 

the alleged victim got out of her seat and stabbed another student with a 

recently sharpened pencil. [RR-IV-15]. Appellant also said he was aware of 

an incident on November 13, when the alleged victim was alleged to have 

pinched another student hard enough to break the skin. [RR-IV-16]. 

Appellant was also aware that on November 16, 2012, A.R. was suspended 

from school for behavior. [RR-IV-17]. Appellant testified he was aware of 

a November 27, 2012, incident as well. On that date, the alleged victim 

would not do what the teacher had asked and repeated for 15 minutes that 

6 
her stomach hurt. After being taken to the nurse's office where it was 

discovered there was nothing wrong with the alleged victim's stomach, she 

was taken to the office. At the office the alleged victim, the alleged victim 

would not stop crying and screaming for about 45 minutes. She was crying 

because she did not like people telling her what to do. Her mother arrived 

and took her home for the day. [RR-IV-17]. Appellant was also aware that 

on November 30, the alleged victim was disruptive in class, including 

throwing erasers and kicking a trash can. [RR-IV-18]. Appellant recalled 

that the alleged victim had been suspended twice when asked about a 

February 21, 2013, incident for physical aggression that lead to the alleged 

victim being sent home and ordered to serve an in-school suspension the 

next day. [RR-IV-19]. 

Appellant's counsel specifically asked Appellant: 

Q: Mr. Scott, did you use the belt or had you 

reached the point where you used the belt to 

discipline A.R. because her past experience, 

her past poor behavior at school and at 

home, and you had used all available 

methods up to then? 

A: Yeah, because this, like I said, is the last day 

or right at the time when they took her, so, 

yeah, because, like I said, if a child is 

rebellious like that and a child just 

constantly won't do what you say, so, yeah, 

it's applicable here. Like I said, I had 

already tried things like time out and 

7 
[RR-IV-25]. 

grounding and a lot of things like that that 

did not work with A.R.. In fact, she laughed 

at things like that. 

After Appellant testified outside the presence of the jury, Appellant's 

Counsel argued to the Trial Court: 

[RR-IV-25-26]. 

I believe we have shown justification. I 

believe there's sufficient evidence for a 

charge on justification. As such, I believe 

the case that I filed the memo on give me 

authority to bring in these limited five or six 

incidents at school that he said he's familiar 

with, present them to the jury. 

The Court sustained the State's objection to Defendant's Exhibit 8, 

excluding the proffered evidence under a 403 analysis, and admitted the 

exhibit for appellate purposes as a Court's Exhibit. [RR-IV-29]. 

The Charge of the Court given to the jury in this matter included 

instructions and definitions regarding Texas Penal Code §9.61. [CR-65-66]. 

v. 

SUMMARY OF THE ARGUMENT 

Appellant was accused of spanking the alleged victim 1 with a belt 

after she pinched her sister hard enough to draw blood. Prior to trial and at 

1 For purposes of this brief, the child involved will be referred to as "alleged victim" or 

"A.R." 

8 
trial, Appellant asserted a justification defense found in Texas Penal Code 

§9.61. Appellant attempted to show evidence to the jury that the alleged 

victim had previously used a pencil to stab another student, pinched another 

student at school and had also been placed in in-school-suspension for being 

physically aggressive, all of which Appellant was aware. The Trial Court 

erroneously excluded the testimony and evidence under Rule 403 denying 

Appellant Due Process as provided by the United States Constitution. 

VI. 

ARGUMENT ON THE MERITS 

ISSUE NUMBER ONE: 

THE TRIAL COURT ERRED IN EXCLUDING APPELLANT'S EVIDENCE OF THE 

ALLEGED VICTIM'S SCHOOL BEHAVIOR AND SUCH EVIDENCE WAS CRITICAL 

TO THE HEART OF APPELLANT'S TRIAL DEFENSE DENYING HIM DUE 

PROCESS. 

A. The applicable standard of review is abuse of discretion. 

Generally, a trial court's evidentiary rulings are reviewed under an 

abuse of discretion standard. Lopez v. State, 86 S.W.3d 228, 230 

(Tex.Crim.App. 2002). A trial court's ruling should not be disturbed unless 

it lays outside the "the zone of reasonable disagreement. Id. (citing 

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991). 

9 
B. Texas Penal §9.61 allows the defense of justification and 

prescribes its elements. 

Texas Penal Code §9.61 1s applicable to the evaluation of 

Appellant's point of appeal. This section of the Texas Penal Code allows: 

The use of force, but not deadly force, against a 

child younger than 18 years: 

(1) if the actor is the child's parent or stepparent or is 

acting in loco parentis to the child; and 

(2) when and to the degree the actor reasonably 

believes the force is necessary to discipline the 

child or to safeguard or promote his welfare. 

Tex. Pen. Code §9.61. 

C. Appellant clearly asserted the justification defense found in 

Texas Penal Code §9.61 throughout his trial. 

In this case, Appellant clearly asserted the defense of justification 

pursuant to Texas Penal Code §9.61. His pre-trial filings clearly asserted the 

defense. See [CR-27; 30-33]. Appellant's trial counsel also argued and 

pursued the defense of justification during his trial and Appellant testified 

about same. e.g. see [RR-IV-12-25]. Tellingly, the Trial Court's charge to 

the jury included instructions and definitions regarding the justification 

defense and in loco parentis. [CR-65-66]. 

10 
D. Texas Penal Code §9.61 has been analyzed for application using 

settled self-defense precedent. 

In Davis v. State, the Waco Court of Appeals, citing the "dearth" of 

authority on the proper application of Texas Penal Code §9.61, looked to 

settled case law on self-defense to assist in determining whether the trial 

court abused its discretion by excluding proffered evidence that was 

virtually identical to the proffered evidence in Appellant's case. See Davis 

v. State, 104 S.W.3d 177 (Tex.App.-Waco, 2003, no pet.). The Davis 

court found that because Texas Penal Code §9.61 focused on what "the actor 

reasonably believes," it is virtually identical to the self-defense statute. 

Davis v. State, 104 S.W.3d 177, 180-181 (Tex.App.-Waco, 2003, no pet.); 

see also Tex. Pen. Code §9.61, Tex. Pen. Code §9.31. 

When a jury considers whether a defendant acted in self-defense, it 

must "view the reasonableness of the defendant's actions solely from the 

defendant's standpoint." Davis v. State, 104 S.W.3d at 180 (citing Ex parte 

Drinker!, 821 S.W.2d 953, 955 (Tex.Crim.App. 1991); see also Bennett v. 

State, 726 S.W.2d 32, 37-38 (Tex.Crim.App. 1986). The reasonableness of 

the belief is measured by the objective standard of an "ordinary and prudent 

man." Echavarria v. State, 362 S.W.3d 148, 154 (Tex.App.-San Antonio, 

2011 ). Although a jury employs an objective standard to determine the 

reasonableness of the defendant's belief, it must view the facts from the 

11 
defendant's perspective. Echavarria v. State, 362 at 154 (citing Davis v. 

State, 104 S.W.3d 177, 181(Tex.App.- Waco2003, no pet.) 

The Davis court found that the above referenced principles 

necessarily apply when a jury determines whether a defendant reasonably 

believes that the force he used was "necessary to discipline the child or to 

safeguard or promote his welfare." Davis v. State , 104 S.W.3d 177, 181 

(Tex.App.-Waco, 2003, no pet.) see also Tex. Pen. Code §9.61(a)(2). 

E. The Trial Court's ruling on the State's 403 objection was 

erroneous. 

It is important to note that the Trial Court excluded Appellant's 

proffered evidence under Rule 403. The Trial Court's exclusion of 

Appellant's evidence on this ground is indicative that the Trial Court found 

that the evidence was probative. Relevant evidence may be excluded under 

Rule 403 only if its probative value is substantially outweighed by the 

danger of unfair prejudice. Hammer v. State, 296 S.W.3d 555, 568 (Tex. 

Crim. App. 2009); see Tex. Rule ofEvid. 403 . 

Under Rule 403, it is presumed that the probative value of relevant 

evidence exceeds any danger of unfair prejudice. The rule envisions 

exclusion of evidence only when there is clear disparity between the degree 

of prejudice of the offered evidence and its probative value. Hammer v. 

State, 296 S.W.3d at 568. 

12 
Although evidence may be probative, Rule 403 requires a balancing 

of the evidence between its probative value and the prejudicial value. A 

reviewing court cannot simply conclude, "the trial judge did in fact conduct 

the required balancing and did not rule arbitrarily or capriciously." Mozon v. 

State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)(citing Montgomery v. 

State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991). A trial court's ruling 

must be measured against the relevant criteria by which a Rule 403 decision 

is made. Id. In other words, the reviewing court must look at the 

proponent's need for the evidence in addition to determining the relevance 

of the evidence. Id. 

While this brief addresses the necessity of showing A.R. 's past 

aggressive and assaultive behavior in order to understand the indicted 

measures undertaken by Appellant infra., it is important to note that the 

record does not support a finding of prejudice to the State that would have 

resulted. The Trial Court did not address how any "unfair prejudice" caused 

Appellant's proffered evidence's probative value to be substantially 

outweighed by unfair prejudice. Put simply, the Trial Court's ruling had no 

factual basis to support it. 

A proper rule 403 analysis includes the following factors: 1) the 

probative value of the evidence; (2) the potential to impress the jury in some 

13 
irrational, yet indelible way; (3) the time needed to develop the evidence; 

and (4) the proponent's need for the evidence. Erazo v. State, 144 S.W.3d 

487, 489 (Tex. Crim. App. 2004). 

As for the first factor, the evidence was probative in that it sought to 

show that A.R. had in the recent past, stabbed a classmate with a pencil, 

pinched another student and had displayed aggressive behavior, all of which 

Appellant knew when she pinched her sister. In other words, A.R. had 

continued to be aggressive and hurt other children despite intervention at 

school and at home with other methods of discipline. Whether wrong or 

right, these things were known to Appellant when he chose to spank A.R. 

Factor one weighs in favor of inclusion of Appellant's proffered evidence. 

As for factor two, there is nothing irrational or indelible to be taken 

by the evidence. If the evidence suggested to the jury that the child required 

some discipline, it would not keep them from deciding the reasonableness of 

Appellant's choice to spank A.R. Factor two weighs in favor or inclusion of 

Appellant's proffered evidence. 

Appellant's counsel was able to go through the reports in short order 

outside the presence of the jury, and there is nothing to suggest that allowing 

the presentation of the proffered evidence would have caused any undue 

14 
delay. Factor three weighs in favor of inclusion of Appellant's proffered 

evidence. 

As for factor four, Appellant could not show to the jury that A.R. 

had a pattern of aggressive behavior to justify his chosen discipline without 

being able to establish a pattern. 

It does appear from the State's argument to the Trial Court, that they 

were concerned with timeliness of the behavior and the fact that A.R. 's 

misbehavior, assaultive behavior and disrespectful actions occurred at 

school, rather than at home. 

To be clear, the incidents that Appellant recalled and was aware of 

occurred less than one year from the offense charged. The State's arguments 

address the weight to be given the evidence, rather than to its admissibility. 

To be sure, the State could have argued these points to the jury had they 

been allowed to hear of A.R.'s school behavior evidence. 

In short, the record does not support that the Trial Court engaged in 

the required balancing. Further, the record does not support exclusion of 

Appellant's evidence, but rather, inclusion. 

F. Evidence of A.R.'s school behavior records is admissible under 

404(b) or 404 generally. 

Again, review of cases regarding self-defense is instructive in 

this case. Evidence of a murder victim's prior acts of violence may be 

15 
admissible under Rule 404(b) to show the state of mind of a defendant who 

claims he acted in self defense. Torres v. State, 71 S.W.3d 758, 760 n.4 

(Tex.Crim.App. 2002); Mozon v. State, 991 S.W.2d 841, 846 

(Tex.Crim.App. 1999); see also Tex. R. of Evid. 404(b ). Further, a 

defendant must be able to show that he was aware of the prior acts. Torres, 

71 S.W.3d 758 at 760 n.4; Mozon, 991 S.W.2d at 845. 

In this connection, the Davis court found that evidence of a child's 

prior acts of misbehavior, of which the defendant was aware, is admissible 

under Rule 404(b) to show the state of mind of a defendant who claims that 

he reasonably believed it was necessary to use the amount of force he did to 

discipline a child. Davis v. State, 104 S.W.3d 177, 181 (Tex.App.-Waco, 

2003). 

In this case, Appellant proffered to the Trial Court that he was aware 

of several incidents where A.R. had stabbed and pinched fellow classmates 

and had been disruptive enough to be sent home or serve in-school 

suspension. Appellant further proffered to the Trial Court that he had 

employed other means of discipline that A.R. had "laughed at." 

Regardless of how the jury might have considered these in deciding 

the charge against Appellant, Appellant was deprived of the right to have 

16 
them consider it all. Moreover, it was proper for Appellant to present them 

in his defense. 

G. The excluded evidence was critical to the heart of Appellant's trial 

defense and denied Appellant Due Process. 

Generally, the erroneous exclusion of a defendant's evidence 

generally constitutes non-constitutional error. Walters v. State, 247 S.W.3d 

204, 221 (Tex. Crim. App. 2007). However, if the evidence forms such a 

vital portion of the case that exclusion effectively precludes the defendant 

from presenting a defense, the ruling violates the defendant's constitutional 

right to due process and to present a meaningful defense. See Potier v. 

State, 68 S.W.3d 657, 665 (Tex.Crim.app. 2002). 

In Wiley v. State, the Texas Court of Criminal Appeals discussed its 

decision in Potier. The Court of Criminal Appeals discussed two ways in 

which a ruling excluding evidence might rise to the level of violating the 

constitutional right to present a meaningful defense. Wiley v. State, 74 

S.W.3d 399, 405 (Tex.Crim.App. 2002). The first involves an evidentiary 

ruling that categorically and arbitrarily prohibits a defendant from offering 

relevant evidence that is vital to his defense. Id. The second involves "a 

trial court's clearly erroneous ruling excluding otherwise, relevant, reliable 

evidence [that] 'forms such a vital portion of the case that exclusion 

17 
effectively precludes the defendant from presenting a defense." Id. (quoting 

Potier, 68 S.W.3d at 665). 

The Trial Court's ruling excluding the school incidents violated 

Appellant's constitutional right to due process and to present a meaningful 

defense under the applicable standards in Potier. Without the evidence of 

A.R.'s past behavior, Appellant was not able to provide a context for the 

discipline chosen on, or about, August 19, 2013, and the reasonableness of 

the force he deemed necessary to promote the welfare of A.R. The Trial 

Court's ruling left the indicted incident in a vacuum without context and the 

ability for the jury to consider that context. The jury did not get to hear that 

A.R. had numerous incidents where she had injured other students. The 

jury did not get to hear that A.R. had been rebellious, disruptive and 

physically aggressive at school. These incidents were known to Appellant. 

For the jury to be able to accurately judge his chosen means of discipline 

and the reasonableness of the discipline imposed on A.R., they needed to 

know "the whole story." At the very least, the jury needed be provided 

with evidence of that which was known to Appellant. 

18 
VII. 

CONCLUSION and PRAYER 

Appellant respectfully requests that this Honorable Court of Appeals 

evaluate the issues in this matter as its' sister court did in Davis v. State, 104 

S.W.2d 177 (Tex.App-Waco, 2003, no pet.). Further, he asks that this 

Court of Appeals find that the exclusion of evidence of A.R. 's past incidents 

at school did not allow him to put on the heart of his defense, and denied 

him due process guaranteed by the United States Constitution. 

Appellant was entitled to defend himself by showing the jury what 

was known to him when he chose to discipline A.R. and the means and 

amount of force he chose to provide that discipline. The Trial Court 

acknowledged that Appellant had asserted and provided evidence to merit an 

instruction on a justification defense in the jury charge in his case. 

However, the Trial Court's Rule 403 ruling kept him from presenting the 

heart of his defense, which left the jury without the context necessary to 

judge Appellant's actions. The Trial Court's action excluding Appellant's 

evidence of prior misbehavior denied Appellant of due process and, as such, 

this Honorable Court of Appeals should reverse Appellant's conviction. 

WHEREFORE, PREMISES CONSIDERED, Appellant, FREDERICK 

O'NEAL SCOTT, prays that this Honorable Court reverse and render the 

19 
conviction and sentence, or in the alternative, reverse and remand this case for 

a new trial on guilt/innocence and sentencing, and for any further relief that 

Appellant is entitled to in law, or, in equity. 

Respectfully submitted, 

LUIS A. MARTINEZ 

P.O. Box410 

Victoria, Texas 77902-0410 

(361) 676-2750 (Cell Telephone) 

(361) 575-6764 (Office Telephone) 

(361) 575-8454 (Facsimile) 

lamvictoriacou mail.com 

By: 

Luis A. · rtinez 

State Bar No. 24010213 

ATTORNEY FOR THE APPELLANT, 

FREDERICK O'NEAL Scorr 

VIII. 

CERTIFICATE OF COMPLIANCE 

In accordance with Texas Rule of Appellate Procedure 9.4(i)(3), the 

undersigned, Luis A. Martinez, I hereby certify that the number of words in 

Appellant's First Amended Brief submitted on April 17, 2015, excluding 

those matters listed in Rule 9.4(i)(3), is 3, 453 words. 

f{J 

20 
IX. 

CERTIFICATE OF SERVICE 

I, hereby certify that a true, correct and complete copy of the 

foregoing First Amended Appellant's Brief has been served to those named 

below in the manner indicated on this the 17th day April, 2015. 

Via Email 

Mr. Robert Lassman 

DeWitt Co. Dist. Atty's Office 

De Witt County Courthouse 

307 N. Gonzalez 

Cuero, Texas 77954 

21