1 NO. 01

- 14 -00606- CR

IN THE COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT OF TEXAS

AT HOUSTON, TEXAS

___________________________

TRIAL COURT NO. 1370103 IN THE 179 TH JUDICAL DISTRICT COURT KRISTIN M. GUINEY, PRESIDING JUDGE

OF HARRIS COUNTY, TEXAS

___________________________

WILLIAM DELACRUZ Appellant

V.

THE STATE OF TEXAS Appellee

APPELLANTS BRIEF

(a)(1) APPELLANT’S COUNSEL: PAUL DECUIR, JR. TBN: 05712500 P.O. BOX 9687 HOUSTON, TEXAS 77213 (281) 409-9692 (713) 450-2773 FAX E-MAIL: paul.decuir@yahoo.com

(2) APPELLEES COUNSEL: ALAN CURRY

HARRIS COUNTY ASSISTANT

DISTRICT ATTORNEY 1201 FRANKLIN, SUITE 600 HOUSTON, TX 77002

(b) Notice of Appeal filed on September 9, 2014

(c) Oral Argument is NOT Requested. ACCEPTED
01-14-00606-CR
FIRST COURT OF APPEALS HOUSTON, TEXAS
1/16/2015 1:37:10 PM
CHRISTOPHER PRINE

CLERK2 TABLE OF CONTENTS

1. COVER SHEET FOR APPELLANTS BRIEF

------------ 1

2. TABLE OF CONTENTS

-------------------------------------- 2

3. IDENTITIES OF PARTIES AND COUNSEL

------------ 3

4. INDEX OF AUTHORITIES

---------------------------------- 4

5 . STATEMENT OF CASE

--------------------------------------- 6

6 . ISSUES PRESENTED

----------------------------------------- 6

7 . ISSUE NUMBER ONE

----------------------------------------- 7

8 . ISSUE NUMBER TWO

------------------------------------- --- 10

10 . CONCLUSION AND PRAYER

------------------------------- 12

12. CERTIFIC

ATE OF SERVICE

- ------------------------------ 133 IDENTIES OF PARTIES AND COUNSELS

APPELLANT: WILL IAM Delacruz

HARRIS COUNTY JAIL

1200 BAKER STREET HOUSTON, TEXAS 77702

713

- 252

- 8157

ATTORNEY FOR APPELLANT:

PAUL DECUIR, JR. TBN: 05712500 P.O. BOX 9687 HOUSTON, TEXAS 77213

281

- 409

- 9692

713

- 450

- 2773

- FAX

e

- mai l: paul.decuir@yahoo.com

APPELLEE: STATE OF TEXAS

APPELLEES ATTORNEY:

ALAN CURRY

ASSISTANT DISTRICT ATTORNEY 1201 FRANKLIN, 6 TH FLOOR HOUSTON, TEXAS 770024 INDEX OF AUTHORITIE S

CASE S: PAG E DELK V. STATE, 85 5 S.W. 2d 700

------------------- 10

HERNANDEZ V. STATE, 351 S.W . 3d 156

----------- 10

RULES OF EVID ENCE

TEXAS RULES OF EVIDEN CE

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O. 01

- 14

- 00606

- CR5 IN THE COURT OF APPEALS
FOR THE FIRS T JUDICIAL DISTRICT OF TEXAS

AT HOUSTON, TEXAS

___________________________

TRIAL COURT NO. 1370103
IN THE 179 TH JUDICAL DISTRICT COURT KRISTIN M. GUINEY, PRESIDING JUDGE OF HARRIS COUNTY, TEXAS

___________________________

WILLIAM DELACRUZ Appellant

V.

THE STATE OF TEXAS Appellee

APPELLANTS BRIEF6 STATEMENT OF THE CASE

Appellant was charged with a Second Degree Felony, AGGRAVATED

ASSAULT W/ DEADLY WEAPON. Trial was had to a jury of twelve and the

A p pellant was adjudged Guilty and sentenced to a term of Four (4) years in the

Texas Department of Criminal Justice, Institutional Division. N o fine was

accessed. The Appellant filed a Motion for New Trial based on the Discovery of

New Evidence and the denial of the trial Court to allow the Defendant to

introduce the criminal record of the Complainant once his character had been

placed in issue before t he jury. The character of the complainant had been placed

in issue by two of the prosecution’s witnesses and the jury was led to believe that

the complainant was a fine upstanding individual who would not intentionally

harm anyone

.

ISSUES PRESENTED

IS SUE ONE:

When the State presents witnesses who describe the

complainant as a helpful person who would never harm

anyone , leaving the Jury with the impression that the

complainant is an upstanding member of the community,

should the Defendant be allowed to p resent the prior bad7

acts of the complaintant to refute the claim of the State?

ISSUE TWO:

Does the discovery of records of the Defendants

WARRANT THE Court granting a new trial in order to

ascertain the Mental Competency of the Defendant at the

time of the offense and during the trial on the merits

ISSUE NO. ONE:

IS SUE ONE:

When the State presents witnesses who describe the

complainant as a helpful person who would never harm

anyone leaving the Jury with the impression that the

complainant is an upstanding member of the community,

should the Defendant be allowed to p resent the prior bad

acts of the complaintant to refute the claim of the State?

ARGUMENY AND AUTHORITIES:

When the State presents witnesses who describe the

complainant as a helpful per son who would never harm anyone

,

leaving the Jury with the impression that the complainant is an8

upstanding memb er of the community, should the Defendant be

allowed to present the prior bad acts of the complaintant to refute the

representation of the complainant and the claim by the State that the

Complainant was a nice, helpful person who would not h arm anyone

and that the s hooting of the Defendant, WILLIAM DELACRUZ was

an accident. (RR, Vo. 3, pgs. 25, line 19 thru page 26 line 25; Vol. 3,

page 109 thru page 113, line 25.) . These representations by the State

gave the jury the impressio n that ADAM ORTIZ was a helpful

, k ind

in dividual who was mentally challenged and would not shoot anyone.

According to the witnesses for the State, Adam Ortiz would not

i ntentionally harm anyone.

This representation by the State would lead a reasonable jury or

a jury made up of reason able individuals to believe the C omplaintant,

Adam Ortiz was a kind, helpful individual why would not

intentionally harm anyone t hus causing the jury to find the Defendant

guilty, as the jury did in this case. The Defendant attempted to

introduce evidence of the prior “ bad acts ” of the Complainant ADAM

ORTIZ . (RR. Vol. 3 page 7, Line 17 thru page 120, line 4; Vol. 3 pa g e

123 thru page 124, line 5; Vol. 4, page 2, line 2 thru page 6, line 12;

Vol. 4, page 76, line 16 ,thru page 79, line 22). On several occasions9

throughout the trial on the merits, the Defense sought to introduce

the criminal contacts with the polic e totaling 14 arrests, investigations

and contacts with the auth orities. Some of the criminal contacts were

for drug offenses, Fa mily Violence , Criminal Trespass

, etc. The record

was introduced as an a ttachment to the Bill of Exceptions in the

Reporters Record. (RR., V ol. 4, page 76, line 10 thru page 79, line 22

The Texas R

ules of evidence, specifically , Rule 4 o 5 prescribe s the

methods of attacking the credibility of a witness. ADAM ORTIZ

, even

though he is the complaintant, is s ubject to the same methods as

prescribed in the Rule. Once his character is placed before the jury,

his character is subject to attack by the opposing party. Here in the

testimony provided by the States witnesses, Mr. To l lett e and Mrs.

O r tiz who described Adam Ortiz AS A SLIGHTLY MENTALLY

RETARDED INDIVIDUAL WHO WOULD NE VER INTENTIONALLY

HARM ANYONE, the State placed the character in issue. The Defense

should have been allowed to p resent evidence of ADAM ORTIZ ’ s

prior bad acts and prior contacts with t he law. The representations of

the States witnesses describing ADAM ORTIZ could possibly

, and

probably had a cons iderable impact on t he twelve members of the

jury. The jury was left with the impression of a slightly mentally10

retarded individual who would never harm anyone . The testimony of

Adam Ortiz mother was intended to portray Adam O rt i z as a person

who was helpful and kind. The Defens e should have been allowed to

present evidence that Adam Ortiz activities over the past several years

were acts of violence, a dru g possessor, and a person capable of

committing violent acts upon others. The State puts before the jury

that ADAM Ortiz was slightly mentally challenged. That same jury

was entitled to know of Adam Ortiz past h istory of violence and drug

use

. This te stimony was introduced in order to establish a false

impression in the minds of the jury that Ortiz was a law abiding

citizen. The Defend a nt

, William Delacruz should have been all owed

to refute thi s impression. H ernandez v. State 351 S.W. 3 d, 156; Delk

v. State, 855 S.W. 2d 700

ISSUE NUMBER TWO:

ISSUE NUMBER TWO:

Does the discovery of records of the Defendants

WARRANT THE Court granting a new trial in order to

ascertain the Mental Competency of the Defendant at the

time of the offense and during the trial on the merits11

ARGUMENT AND AUTHORITIES :

Prior to the trial on the merits, Defense counsel had visited with

the Defe ndant on many occasions. A s none of these occasions play

any conduct which would have indicated that the Defendant had any

mental proble ms . During the trial on the merits, the Defendant

began displaying conduct which indicated that there was some defect

in his char acter. This became readily noticeable to the court staff as

well as the Judge and Prosecutors. His behavior got to the point that

the judge called for counsel to approach the bench and admonished

that if the Defendant continued his disruptive behavior he would be

removed from the courtroom and may be allowed to view the

proceedings via a video monitor . ( RR Vol. page 21, line 7 thru page 22

line 9) The Defendant continued to display these actions throughout

trial on the merits. After the trial the Defendants parents indicated

that he was off his m edication . After inquiry by Defense counsel, it

was discovered that the Defendant had been diagnosed as being

mentally deficient and pre scribed medication for William Delacruz.

Prior to th e trial, there was absolutely no indication that a mental

problem existed. In fa ct, there was an A rmed Security G uard l icense

issued by the State of Texas. One of the re q uirements is that the12

applicant be free from any mental deficiency

. William Delacruz had

such license. While we find no authority which addresses the

behavioral problem as in th is case, it is a compelling reason for the

Presid ing Judge who witnesses such behavior to inquire as to the

mental status of the Defendant . Such activity should have caused the

Presiding Judge to halt the proceedings and to continue the trial until

after a mental examination could be conducted . A re port as to the

mental status of the Defendant a year prior to the inc ident was

attached to the Motion for New Trial but was discounted by the

Presiding when she denied the Mot ion for New Trial. (Clerks

Transcript

- Vol. 1, pages 267 thru page 284 ).

.

WHEREFORE, PREMISES CONSIDERED, Appellant prays

that this Honorable Court reverse the decision of the Trial Court and

c a s e

.

Respectfully submitted

,

PAUL DECUIR, JR.13 __________________________ PAUL DECUIR, JR.

ATTORNEY FOR APPELLANT TBN: 05712500 P.O. BOX 9687 HOUSTON, TX 77213 (281) 409

- 9692 (713) 450

- 2773

- f

ax

e

- mail: paul.decuir@yahoo.com

CERTIFICATE OF SERVICE

II hereby certify that a true and correct copy of the foregoing Appellants Brief has been sent to the Attorney for the State of Texas, Harris County District Attorneys Office, Appellate Division 1201 Franklin Suite 600, Houston, TX 77002 on this 16 th day of J anuary , 201 5

.

PAUL DECUIR, JR.

___________________________