i 

NO. 01-17-00732-CR

IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS

DONALD FOSTER

Appellant 

v. 

THE STATE OF TEXAS

Appellee 

On Appeal from Cause Number 1470046 

From the 178th District Court of Harris County, Texas 

BRIEF FOR APPELLANT

ORAL ARGUMENT REQUESTED ALEXANDER BUNIN

 Chief Public Defender 

Harris County, Texas 

 MELISSA MARTIN

 Assistant Public Defender 

 Harris County, Texas 

TBN. 24002532 

1201 Franklin, 13th floor 

Houston, Texas 77002 

Phone: (713) 368-0016 

Fax: (713) 437-4319 

 

Counsel for Appellant 

ACCEPTED

01-17-00732-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

3/20/2018 10:09 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 3/20/2018 10:09:07 AM CHRISTOPHER A. PRINE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Donald Foster 

TDCJ# 02155379

Clements Unit, TDCJ

9601 Spur 591

Amarillo, TX 79107

TRIAL PROSECUTORS: Amanda Benavides

Assistant District Attorney

 Harris County, Texas

 1201 Franklin Avenue, 6th Fl

Houston, TX 77002

DEFENSE COUNSEL AT TRIAL: Mario Madrid 

Attorney at Law

440 Louisiana Ste 1225

Houston, TX 77002

PRESIDING JUDGE: Hon. Leslie Yates 

 176th District Court

Harris County, Texas

1201 Franklin St

Houston, TX 77002

APPELLATE COUNSEL: Melissa Martin

 Assistant Public Defender

 Harris County, Texas

 1201 Franklin Avenue, 13th Fl

Houston, TX 77002
iii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii

TABLE OF CONTENTS .............................................................................................................iii

INDEX OF AUTHORITIES ....................................................................................................... vi

STATEMENT OF THE CASE...................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................ 1

A. BACKGROUND........................................................................................................... 1

B. HEARING ON MOTION FOR NEW TRIAL................................................................ 5

 

ISSUES PRESENTED ................................................................................................................. 6

ONE: THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURORS SUA 

SPONTE THAT LORIE ANN’S HEARSAY TESTIMONY OF THE ALLEGED 

THREAT--WHICH WENT DIRECTLY TO THE SPECIAL ISSUE ON SUDDEN 

PASSION--COULD ONLY BE CONSIDERED AS EVIDENCE IF THEY FOUND 

BEYOND A REASONABLE DOUBT THAT APPELLANT ACTUALLY MADE IT.

THE OMISSION OF THE INSTRUCTION CAUSED APPELLANT EGREGIOUS 

HARM. SEE ART. 37.07 (A)(1) & ALMANZA V. STATE, 686 S.W.2D 157

(TEX. CRIM. APP. 1984).

TWO: THE TRIAL COURT’S DENIAL OF APPELLANT’S MOTION FOR NEW 

TRIAL WAS ARBITRARY AND UNREASONABLE. NO REASONABLE REVIEW OF 

THE RECORD COULD RESULT IN A FINDING THAT TRIAL COUNSEL 

ADEQUATELY INVESTIGATED OR PRESENTED MITIGATION EVIDENCE.

THE FAILURE OF TRIAL COUNSEL TO DO SO PREJUDICED APPELLANT TO 

THE EXTENT THAT THERE CAN BE NO CONFIDENCE IN THE OUTCOME OF

THE TRIAL. SEE STRICKLAND V. WASHINGTON, 466 U.S. 668, 687-84, 694

(1984); WIGGINS V. SMITH, 539 U.S. 510, 527 (2003); AND ANDREWS V.

STATE, 159 S.W.3D 98, 101-02 (TEX. CRIM. APP. 2005).

THREE: THE TRIAL COURT ERRED AT TRIAL IN ADMITTING HEARSAY 

EVIDENCE FROM LORIE ANN FOSTER THAT HER MOTHER HAD TOLD HER 

APPELLANT HAD THREATENED TO KILL HER IF SHE LEFT HIM WHEN THE 
iv

STATE PROVIDED NO NOTICE OF ITS INTENT TO INTRODUCE IT AND 

APPELLANT HAD NOT “OPENED THE DOOR” TO THE EVIDENCE.

SUMMARY OF ARGUMENTS..................................................................................................... 6

ARGUMENT ONE .................................................................................................................... 8

A. STANDARD OF REVIEW AND APPLICABLE LAW ....................................................... 9

B. APPELLANT WAS ENTITLED TO A SUA SPONTE REASONABLE DOUBT 

INSTRUCTION............................................................................................................... 9

C. THE OMISSION OF THE REASONABLE DOUBT INSTRUCTION WAS EGREGIOUS 

ERROR......................................................................................................................... 10

1. THE ENTIRE CHARGE.......................................................................................... 10

2. THE STATE OF THE EVIDENCE........................................................................... 11

3. ARGUMENT OF COUNSEL .................................................................................... 11

4. OTHER RELEVANT INFORMATION FROM THE RECORDS................................... 12

D. CONCLUSION ......................................................................................................... 12

ARGUMENT TWO................................................................................................................... 13

A. STANDARD OF REVIEW AND APPLICABLE LAW ..................................................... 13

B. APPOINTED DEFENSE COUNSEL AT PUNISHMENT RENDERED DEFICIENT 

REPRESENTATION THAT PREJUDICED APPELLANT............................................... 16

1. FAILURE IN DUTY TO MAKE INDEPENDENT INVESTIGATION INTO MITIGATION 

EVIDENCE................................................................................................................... 16

2. IRRATIONAL “STRATEGY” RELYING ON CROSS-EXAMINATION OF STATE’S 

WITNESSES TO MITIGATE APPELLANT’S ACTIONS RATHER THAN ACTIVELY 

SEEKING OUT AND PRESENTING PUNISHMENT WITNESSES AND OTHER 

MITIGATING EVIDENCE ............................................................................................ 19

3. FAILURE TO OBJECT ON CONFRONTATION GROUNDS TO THE THREAT LORIE 

ANN STATED HER MOTHER ALLEGEDLY TOLD HER ABOUT A WEEK BEFORE HE 

KILLED HER................................................................................................................ 23

4. TOTALITY OF REPRESENTATION.......................................................................... 25

C. TRIAL COUNSEL’S DEFICIENT PERFORMANCE PREJUDICED APPELLANT......... 26
v

1. DEFICIENT PERFORMANCE AFFECTED “SUDDEN PASSION” FINDING........... 26

2. DEFICIENT PERFORMANCE NEGATIVELY AFFECTED JURORS’ IMPRESSION OF 

APPELLANT’S CHARACTER IN GENERAL .................................................................. 30

D. THE TRIAL COURT’S DENIAL OF THE MOTION FOR NEW TRIAL WAS ARBITRARY 

AND UNREASONABLE ............................................................................................... 31

ARGUMENT THREE............................................................................................................... 34

A. STANDARD OF REVIEW AND APPLICABLE LAW ..................................................... 34

B. TRIAL COURT ERRED IN FINDING DEFENSE COUNSEL “OPENED THE 

DOOR”........................................................................................................................ 35

C. BECAUSE THE DOOR WAS NOT OPENED, NOTICE REQUIREMENTS APPLIED ... 38

PRAYER .................................................................................................................................. 42

CERTIFICATE OF SERVICE .................................................................................................... 42

CERTIFICATE OF COMPLIANCE............................................................................................ 43
vi

INDEX OF AUTHORITIES

Cases

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) ..................................6, 8, 9, 10

Andrews v. State, 159 S.W. 3d 98, 101 (citations omitted)..........................................passim

Charles v. State, 146 S.W.3d 204, 208(Tex. Crim. App. 2004) .......................................... 15

Compton v. State, 202 S.W. 3d 416, 422 (Tex. App.—Tyler 2006, no pet.)...............20, 31

Crawford v. Washington, 541 U.S. 36, 59; 124 S.Ct. 1354 (2004)........................................ 24

Davis v. State, 315 S.W. 3d 908, 913 (Tex. App.—Houston [14th Dist.] 2010 ............... 34

De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008)................................... 24

Ex parte Duffy, 607 S.W.2d 507, 526 (Tex.Crim.App.1980)............................................. 19

Ex Parte Felton, 815 S.W.2d 733, 735 (Tex.Crim.App.1991............................................. 15

Ex parte Wellborn, 785 S.W.2d 393 (Tex. Crim. App 1990) ............................................. 19

Frangias v. State, 450 S.W.3d 125, 127 (Tex. Crim. App. 2013......................................... 19

Graves v. State, 176 S.W. 3d 422, 435 (Tex. App.—Houston [1st Dist.] 2004, pet. struck)

........................................................................................................................................... 7, 9

Haley v. State, 173 S.W.3d 510, 513 (Tex. Crim. App. 2003)............................................ 34

Hayden v. State, 66 S.W. 3d 269, 272 (Tex. Crim. App. 2001)....................................38, 39

Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005)................. 13, 25, 38, 39

Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App.2000); ......................................... 7, 9

Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)........................................... 12

Jaubert v. State, 74 S.W.3 1 (Tex. Crim. App. 2000)..............................8, 12, 25, 39, 40, 41
vii

Lair v. State, 265 S.W.3d 580, 595 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).. 17

Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) ....................................... 9

Milburn v. State, 15 S.W.3d 267 (Tex. App.—Houston [14th Dist.] 2000, no pet.)..17, 31

Ngo v. State, 715 S.W.3d 738, 750, n. 48 (Tex. Crim. App. 2005). .................................. 10

Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065 (1965).................................................. 24

Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012).......................................15, 32

Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.--Houston [1st Dist.] 2005................ 35

Starz v. State, 309 S.W.3d 110, 113 (Tex. App.—Houston [1st. Dist.] 2009, pet. ref’d)15

Strickland v. Washington, 466 U.S. (1984) .....................................................................passim

Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007).......................................... 12

Vela v. Estelle, 708 F.2d 954, 964 (5th Cir. 1983)................................................................ 16

Wall v. State, 184 S.W.3d 730, 734-35 (Tex. Crim. App. 2006) ....................................... 24

Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007)............................................ 16

Weisinger v. State, 775 S.W.2d 424, 427 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d.)

............................................................................................................................................. 17

Wiggins v. Smith. 539 U.S. 510, 527 (2003)...................................................................passim

Statutes

Tex. Code Crim. Proc. Art. 37.07....................................................................................... 21

Tex. Code Crim. Proc. Art. 37.07(a)(1)........................................................................6, 8, 9

Tex. Code Crim. Proc. Art. 37.07 §3(g).................................................................12, 34, 38

Tex. Code Crim. Proc. Art. 37.07, §3 (a)(1) ........................................................................ 9
viii

Tex. Code Crim. Proc. Art. 38.37......................................................................................... 1

Tex. Penal Code §19.2 (c).................................................................................................... 16

Tex. Penal Code §19.2 (d) ................................................................................................... 16

Other Authorities

ABA Standards for Criminal Justice 4-4.1, commentary pp. 4-5 ................................... 14

Rules

Tex. R. Evid. 404(b)......................................................................................................passim

Tex. R. Evid. 404(b)(2) ........................................................................................................ 38

Constitutional Provisions

Tex. Const. Art. 1 §10.......................................................................................................... 33

U.S. Const. Amend. V.......................................................................................................... 33

U.S. Const. Amend. VI..................................................................................................24, 33

U.S. Const. Amend. XIV..................................................................................................... 33
1

Statement of the Case

On August 17, 2015 appellant was indicted on an allegation of murder that took 

place on May 29, 2015 (C.R. at 17). Appellant entered a plea of guilty to a jury on August 

22, 2017 and proceeded to a punishment hearing before the jury (C.R. at 73). The jury 

found appellant guilty of murder and found he did not act under the influence of sudden 

passion (C.R. at 80-7). He was sentenced to life in prison (C.R. at 88).

Appellant’s trial attorney filed a notice of appeal and withdrew from the case on 

August 24, 2017 (C.R. at 95). The trial court certified appellant’s right to appeal the 

same day (C.R. at 94).

On September 25, 2017 appellant filed a motion for new trial and a hearing was 

held on November 6, 2017 (C.R. at 100-06 & 2 R.R. 1-36). The trial court denied the 

motion on the following day (3 R.R. at 7).

Statement of Facts

It is undisputed that appellant killed the complainant—his wife (2 R.R. at 16). It 

is also undisputed that after he had done so he threw himself in front of an 18-wheeler 

truck on the feeder to I-45 North in an attempt at suicide (3 R.R. at 80-1).

A. Background

Donald Foster and his wife met in 1984; they married and raised their two 

children in Jamaica (3 R.R. at 19). Both parents were college graduates and both worked 

(3 R.R. at 19). Appellant worked in the sugar industry for 25 years and was slated to 

assume his supervisor’s job on that person’s retirement (4 Supp. R.R. at Def. Ex. 6, *1). 
2

When their children approached college age, the Fosters decided to move to the 

United States to assure them a better future than they could have in Jamaica (3 R.R. at 

19). Both young people earned degrees in this country (3 R.R. at 19). In order that one 

parent would be sure of employment during the transition, appellant remained in 

Jamaica at his job for about two years, sending money and visiting every few months (4

R.R. at 139). He relocated to the United States about a year before the incident took 

place where he lived again with his wife while the children attended college (3 R.R. at 

20). Appellant had no history of violence or any criminal history prior to the incident 

leading to this case (3 R.R. at 20).

The Fosters’ daughter Lorie Ann moved to Houston after graduating from the 

University of North Texas to begin a job less than a week before her mother was killed 

and was staying with her older brother (4 R.R. at 186). She testified she was speaking to 

her mother on the morning she was to begin her new position and the call was 

dropped—she made several attempts to call back and eventually her father answered 

and told her mother was fine (4 R.R. at 36-7). She said she heard nothing besides some 

rustling just before the call cut off (4 R.R. at 36). Lorie Ann said she was concerned 

because it was not like her mother not to answer her phone and her father sounded 

“Jittery,” so she called 911 asking for a welfare check (4 R.R. at 37).

The complainant’s body was found by the EMT making the welfare check (3 

R.R. at 26). She had multiple stab wounds and a skull fracture (4 R.R. at 124).
3

Anthony Thomas was the lead homicide detective on the case for the Harris County 

Sheriff’s Office (4 R.R. at 78). On direct, Thomas testified when he interviewed 

appellant at the hospital where he was taken after being hit by the 18-wheeler appellant 

told him his wife had called him “the trash man” and that she had been having an affair 

with a Dr. Harris (4 R.R. at 92-5). Appellant told him she pushed him away when he 

tried to show her affection and that he could not live without her (4 R.R. at 96-8).

Appellant testified that after the call between Lorie Ann and his wife ended he 

pressed his wife for an answer to whether she was having an affair with Harris. 

Appellant said she replied: “She said, Yes, I’m having an affair with him in his pants 

and we are, the F-word,, and she went on to say that the reason she had fibroids was 

because I was not sexing her properly” (4 R.R. at 146). After some more questions 

about what she said, defense counsel asked appellant what went through his mind and 

he answered, “At that point in time I just lost everything. Everything” (4 R.R. at 147).

During cross-examination, Thomas said he spoke with Dr. Harris and that he 

confirmed he and complainant were having an affair (4 R.R. at 104). Thomas said the 

family referred to Harris as a “witch doctor” or “spirit doctor” (4 R.R. at 104). The 

detective said the killing must have happened very fast—between the end of the call 

between complainant and Lorie Ann and when appellant answered Lorie Ann’s call--

and the stab wounds indicated it was “personal” and the product of a lot of rage (4 R.R. 

at 106-7). During Lorie Ann’s testimony on redirect the state asked her if anything had 

happened prior to the incident “that would give you cause to think it was planned?”
4

and she responded: “Yes. There were two – two separate events. One was –“ (4 R.R. at 

53). Trial counsel then objected and the lawyers approached the bench, at which time 

trial counsel objected to any extraneous act that the state did not give notice of. The 

state said complainant told Lorie Ann a week prior to the incident that “defendant 

threatened to kill her if she ever decided to leave” (4 R.R. at 53). Trial counsel objected 

to the admission of this testimony by Lorie Ann because he received no notice and the 

prosecutor said she had only found out about it the morning before (4 R.R. at 55).

The trial court and the state expressed their opinion trial counsel had opened the 

door to this late-breaking evidence because they both claimed he asked Lorie Ann “why 

she thought [the murder] was planned” (4 R.R. at 54-5). Then the following exchange 

took place outside the presence of the jury:

The Court: So your specific objection is that this is an extraneous 

offense that you weren’t noticed on?

Mr. Madrid: Yes.

The Court: The prosecutor’s response is that she just found out last 

night.

Ms. Benavides: Or this morning actually when we met, she flew in 

last night.

The Court: But regardless, I don’t think – some things they 

obviously can’t anticipate, and so if you – my feeling about it is your 

question opened the door to it and notice requirements don’t apply. So I 

guess the question is whether or not you opened the door. And the truth 

of the matter is, whether it’s coming in now or later, I think it’s coming 

in.

(4 R.R. at 55-6).
5

Lorie Ann testified to the alleged threat during rebuttal with no further objection 

by trial counsel (4 R.R. at 185). On cross-examination, defense counsel elicited 

testimony from her that she had failed to tell anyone from law enforcement or the state 

about this conversation with her mother (4 R.R. at 191-96).

B. Hearing on Motion for New Trial

The hearing comprised argument of counsel, excerpts from the record, affidavits, 

and appellant’s medical and other documents from his time at Harris County Jail (4 

Supp. R.R.). Appellant argued his counsel at trial failed to render effective assistance by 

failing to seek out or present any mitigation evidence (2 Supp. R.R. at 6).

Trial counsel submitted an affidavit and addressed the mitigation issue as follows:

In preparation to present mitigation evidence, I inquired of Mr. Foster, 

whether he could provide me with any friends or relatives that could 

testify on his behalf. Mr. Foster did not provide any names or information 

or possible witnesses. Mr. Foster is from Jamaica and he informed me that 

he did not have anyone that could come or anyone in Texas that he knew 

could testify on his behalf. I spoke with his brother, Delroy Foster on 

many occasions as well as his niece Chantal (sic) Foster. I asked both if 

they could or anyone else could testify for Mr. Foster. They were not able 

to testify or provide names.

I spoke with Mr. Foster’s son Antonio Foster and attempted to contact 

his daughter, Carrie (sic) Ann Foster. Antonio came to my office and I 

spoke with him on a number of occasions on the phone. From these 

conversations and conversations with Mr. Foster, I formulated the 

strategy to present evidence of mitigation through Antonio and Carrie 

(sic) Ann. The trial transcript will show that through my questioning, 

evidence was presented to the jury, that Mr. Foster was an integral part of 

his family’s life, that he graduated from college, that he met his wife in 

college, that he attended his children’s extracurricular activities, that he 

tutored in (sic) children, that he was a hard and reliable worker, that he 
6

provided for his family and that he was a part of his children’s life until he 

was incarcerated.

(4 Supp. R.R. at Def. Ex. 2 at 40).

The trial court denied the motion after hearing both appellant’s and the state’s

arguments and reviewing their respective exhibits. The substance of pertinent exhibits 

will be set out in argument.

Issues Presented

One: The trial court erred in failing to instruct the jurors sua sponte that 

Lorie Ann’s hearsay testimony of the alleged threat--which went directly 

to the special issue on sudden passion--could only be considered as 

evidence if they found beyond a reasonable doubt that appellant actually 

made it. The omission of the instruction caused appellant egregious harm. 

See Art. 37.07 (a)(1) & Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 

1984).

Two: The trial court’s denial of appellant’s motion for new trial was 

arbitrary and unreasonable. No reasonable review of the record could 

result in a finding that trial counsel adequately investigated or presented

mitigation evidence. The failure of trial counsel to do so prejudiced 

appellant to the extent that there can be no confidence in the outcome of 

the trial. See Strickland v. Washington, 466 U.S. 668, 687-84, 694 (1984); 

Wiggins v. Smith, 539 U.S. 510, 527 (2003); and Andrews v. State, 159 S.W.3d 

98, 101-02 (Tex. Crim. App. 2005).

Three: The trial court erred at trial in admitting hearsay evidence from 

Lorie Ann Foster that her mother had told her appellant had threatened 

to kill her if she left him when the state provided no notice of its intent to 

introduce it and appellant had not “opened the door” to the evidence.

Summary of Arguments

The trial court erred in omitting a reasonable doubt instruction regarding the 

alleged threat appellant supposedly made to complainant, who subsequently allegedly 
7

revealed it to her daughter. Tex. Code Crim. Proc. Art. 37.07, §3(a)(1); Huizar v. State, 

12 S.W.3d 479, 484 (Tex. Crim. App.2000); & Graves v. State, 176 S.W. 3d 422, 435 (Tex. 

App.—Houston [1st Dist.] 2004, pet. struck).

Appellant was able to present to the trial court for the hearing on the motion for 

new trial several affidavits from relatives and a former supervisor testifying to his many 

positive attributes, including his even, easy-going temperament and love of his family. 

These affidavits came from people in Jamaica and the United States whom this office 

had no difficulty finding within the limited time the defense is given to prepare for and 

present a motion for new trial. 

Further, the only mitigation strategy trial counsel claimed to have chosen for a 

trial consisting only of a punishment phase was irrational, given that the two witnesses 

he relied on testified against their father for the state and exhibited great hostility toward 

their father, which, as trial counsel himself pointed out was predictable and 

understandable. Trial counsel stated in his affidavit he never had spoken to the daughter 

prior to trial--her testimony was particularly damning to her father’s only punishment 

theory—that he acted under the influence of sudden passion.

The effect of trial counsel’s failure to adequately seek out and present mitigation 

evidence gave the jury nothing against which to balance the actions for which he took 

responsibility and demonstrate the aspects of his humanity and temperament that 

militated for a finding of sudden passion. The trial court’s finding that trial counsel was 

constitutionally effective arbitrary and unreasonable.
8

The trial court’s ruling on admissibility of Lorie Ann’s last-minute memory that her 

mother had told her appellant threatened her life if she ever left him that appellant’s 

counsel had opened the door to the evidence coming in during the state’s redirect exam 

despite the state’s failure to comply with notice requirements was error. Counsel did 

not open the door and the state mischaracterized his question to Lorie Ann about 

appellant having planned the murder both before the jury and to the judge at the bench.

The trial court opined counsel had opened the door, that the state could not be 

expected to anticipate everything, and that she thought the evidence was coming in 

“whether now or later.” The state chose to wait until its rebuttal case, taking advantage 

of a questionable holding by the Court of Criminal Appeals that interprets Art. 37.07, 

§3 (g) to mean notice requirements only apply to the state’s case in chief—language 

stemming from Rule 404(b). Jaubert v. State, 74 S.W.3 1 (Tex. Crim. App. 2000). In her 

concurrence, Justice Cochran warned that interpretation of the statute potentially could 

allow the state to simply defer extraneous acts until their rebuttal to circumvent notice 

requirements, which exist to prevent ambush with surprise evidence. The evidence 

should not have come in during the redirect or rebuttal.

Argument

One: The trial court erred in failing to instruct the jurors sua sponte that 

Lorie Ann’s hearsay testimony of the alleged threat--which went directly 

to the special issue on sudden passion--could only be considered as 

evidence if they found beyond a reasonable doubt that appellant actually 

made it. The omission of the instruction caused appellant egregious harm. 

See Art. 37.07 (a)(1) & Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 

1984).
9

A. Standard of Review and Applicable Law

To determine whether there is reversible error, appellate courts first decide 

whether error exists and, if so, whether the error harmed appellant. Middleton v. State, 

125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If trial counsel failed to object to the 

erroneous charge, the appellate court applies the egregious harm standard set out in 

Almanza, and appellant will only obtain a reversal if the error was so egregiously harmful 

that he has not had a fair and impartial trial. Id at 171.

B. Appellant was entitled to a Sua Sponte Reasonable Doubt Instruction

Defense counsel at trial failed to request the trial court include an instruction that 

the jurors must find beyond a reasonable doubt appellant made the threat to kill his 

wife prior to considering it in coming to a verdict on punishment.

Art. 37.07 (a)(1) requires the state to prove beyond a reasonable doubt that 

appellant committed a prior extraneous crime or bad act before evidence of the act is 

admissible. Tex. Code Crim. Proc. Art. 37.07, §3 (a)(1).

When defense counsel fails to object to the trial court’s omission of the 

reasonable doubt instruction on extraneous evidence admitted during punishment, the 

error is not waived; the trial court must include the instruction sua sponte as to the law 

of the case. Huizar v. State, 12, S.W.3d 479, 484 (Tex. Crim. App. 2000); Graves v. State, 

176 S.W.3d 422, 435 (Tex. App.—Houston [1st Dist.] 2004, pet. struck). This Court, 

therefore, must conduct an egregious harm analysis.
10

C. The Omission of the Reasonable Doubt Instruction was Egregious Error

The harm inflicted by the erroneous omission of the reasonable doubt 

instruction must be “assayed in light of (1) the entire jury charge, (2) the state of the 

evidence, (3) the argument of counsel and (4) any other relevant information revealed 

by the record of the trial as a whole.” Almanza, 686 S.W.2d at 71; Ngo v. State, 715 

S.W.3d 738, 750, n. 48 (Tex. Crim. App. 2005).

1. The Entire Charge

The application paragraph in the murder charge instructed the jury to find the 

defendant guilty of “murder as charged in the indictment, and assess the punishment in 

this cause”. (C.R. at 81). The instruction was based on appellant’s plea of guilt and the 

court’s assessment of his mental competence and the voluntariness of his plea (C.R. at 

81). 

The murder charge was followed by the charge on the “Special Issue” of sudden 

passion. The abstract correctly states the burden was on appellant to show by a 

preponderance of the evidence he was under the influence of sudden passion (C.R. at 

86). Neither the abstract nor the application paragraph mentioned the extraneous act 

or the burden on the state to prove beyond a reasonable doubt that the appellant 

committed it. Since the evidence was offered to show there was reason to show 

appellant acted in a calculated manner, the reasonable doubt was a critical issue for the 

jury’s deliberation.
11

Because the entire jury charge in this case neglected to mention the extraneous 

evidence of appellant’s alleged prior to threat to his wife and the requirement that the 

jurors could only consider that evidence if it found the state proved it beyond a 

reasonable doubt, the charge does nothing to mitigate the omission.

2. The State of the Evidence

Appellant plead guilty to the murder—the burden was entirely on appellant to 

demonstrate mitigation, including but not limited to sudden passion. The defense 

“mitigation” case consisted solely of appellant’s testimony—the jury heard nothing 

about appellant’s character and background from anyone other than Lorie Ann and 

Antonio Foster—the state’s witnesses. Defense counsel’s cross-examination of them 

elicited far more damning than mitigating evidence. 

The morning-of-trial revelation Lorie Ann announced to the state certainly 

leaves a great deal of room for reasonable doubt, given she told Thomas the day of the 

murder she had no idea who killed her mother.

3. Argument of Counsel

Defense counsel’s argument addressed the credibility of Lorie Ann’s testimony 

that her mother had told her appellant had threatened her life if she left him (5 R.R. at 

13-14). He explained to the jury why the burden on appellant to prove sudden passion 

was lower than the state’s burden to prove murder—precluded in this case by his plea 

of guilty (5 R.R. at 11-13). Never, however, did he mention it was the state’s burden to 
12

prove beyond a reasonable doubt that the complainant told Lorie Ann of the alleged 

threat.

4. Other relevant information from the record

The state initially attempted to bring in Lorie Ann’s surprise testimony during its 

redirect examination but was interrupted by defense counsel’s objection regarding lack 

of notice. The state mischaracterized a question asked by defense counsel during crossexamination of Lorie Ann with the aim of showing he “opened the door” to the 

evidence. The trial court was supportive of this theory—this episode will be more 

thoroughly discussed in Issue Three, infra, but it is relevant for the purpose of this 

argument to show the state attempted to bypass the need for the notice provision of 

Art. 37.07, § g (3). Ultimately, the state chose to defer presenting the evidence for its 

rebuttal of the defense case, during which there is case law supporting the proposition 

that notice is not required. See Jaubert v. State, 74 S.W. 3d 1. This choice circumvented 

the purpose of notice provisions under both Art. 37.07 and Rule 404(b), namely to 

avoid “spring[ing] evidentiary surprises.” Id at 5; Tex. Code Crim. Proc. Art. 37.07, 

§3(g); and Tex. R. Evid. 404(b).

D. Conclusion

Jury charge error is egregiously harmful if “it affects the very basis of the 

case, deprives defendant of a valuable right, or vitally affects a defensive 

theory.”

Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007) (citing Hutch v. State, 922 

S.W.2d 166, 171 (Tex. Crim. App. 1996)).
13

The evidence apparently remembered the evening before trial by Lorie Ann to 

support her theory that her mother’s murder was the result of a calculating man taking 

his revenge on his unfaithful wife had everything to do with whether he committed the 

offense--for which he took responsibility--under the influence of sudden passion. The 

jurors hearing it without a caution from the trial court regarding the reasonable doubt 

requirement affected the very basis of the case and most certainly affected the only real 

defensive theory appellant had. Appellant was egregiously harmed and the trial court 

committed reversible error.

Two: The trial court’s denial of appellant’s motion for new trial was 

arbitrary and unreasonable. No reasonable review of the record could 

result in a finding that trial counsel adequately investigated or presented 

mitigation evidence. The failure of trial counsel to do so prejudiced 

appellant to the extent that there can be no confidence in the outcome of 

the trial. See Strickland v. Washington, 466 U.S. 668, 687-84, 694 (1984); 

Wiggins v. Smith, 539 U.S. 510, 527 (2003); and Andrews v. State, 159 S.W.3d 

98, 101-02 (Tex. Crim. App. 2005). 

A. Standard of Review and Applicable Law

The Court of Criminal Appeals in Hernandez v. State, 726 S.W. 2d 53 (Tex. App. 

1986), adopted the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 

694 (1984) to determine whether counsel has been constitutionally ineffective. To have 

a conviction reversed on the grounds of ineffective assistance of counsel an appellant 

must show that (1) counsel’s representation fell below an objective standard of 

reasonableness and (2) a reasonable probability exists that, but for counsel’s 

unprofessional errors, the result of the proceedings would have been different. 
14

Strickland, 466 U.S. 668, 687 (1984); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. 

App. 2005). “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Strickland, 466 U.S. at 694; Andrews, 159 S.W.3d at 102).

The benchmark for judging any claim of ineffectiveness must be whether 

counsel’s conduct so undermined the proper functioning of the adversarial process that 

the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.

Appellate courts’ review of counsel’s performance must be highly deferential. Id. 

“There is a strong presumption that counsel’s conduct falls within a wide range of 

reasonable professional assistance, and the defendant must overcome the presumption. 

We determine the reasonableness of counsel’s challenged conduct in context, and view 

it as of the time of counsel’s conduct.” Andrews v. State, 159 S.W. 3d 98, 101 (Tex. Crim. 

App. 2005)(citations omitted). 

“Prevailing norms of practice as reflected in the American Bar Association 

standards and the like ... are guides to what is reasonable.” Wiggins, 539 U.S. at 527 

(2003) “It is the duty of the lawyer to conduct a prompt investigation of the 

circumstances of the case and to explore all avenues leading to facts relevant to the 

merits of the case...” 1 ABA Standards for Criminal Justice 4-4.1, commentary pp. 4-5 

Appellant must then prove that counsel's deficient conduct was prejudicial, in that, but 

for counsel's errors, there is a reasonable probability that the outcome of the trial would 

have been different. Strickland. 466 U.S. at 692.
15

Whether the challenged conduct of counsel was strategic is a question of fact; 

whether counsel’s conduct was objectively reasonable however is not. Strickland, 466 

U.S. at 698. Both the performance and prejudice parts of an ineffectiveness inquiry are 

mixed questions of law and fact. Even a single error on counsel’s part may be sufficient 

to warrant a finding of ineffective assistance. Andrews v. State, 159 S.W.3d 98, 103 (Tex. 

Crim. App.--2005). Appellate courts look to the totality of the representation and the 

particular circumstances of each case in evaluating the effectiveness of counsel. Ex Parte 

Felton, 815 S.W.2d 733, 735 (Tex.Crim.App.1991).

[S]trategic choices made after thorough investigation of law and facts 

relevant to plausible options are virtually unchallengeable; and strategic 

choices made after less than complete investigation are reasonable 

precisely to the extent that reasonable professional judgments support the 

limitations on investigation. In other words, counsel has a duty to make 

reasonable investigations or to make a reasonable decision that makes 

particular investigations unnecessary. In any ineffectiveness case, a 

particular decision not to investigate must be directly assessed for 

reasonableness in all the circumstances, applying a heavy measure of 

deference to counsel's judgments.

Strickland, 466 U.S. at 690-91.

When ineffective assistance of counsel is raised in a motion for new trial, courts 

of appeal review denial under an abuse-of-discretion-standard. Charles v. State, 146 

S.W.3d 204, 208(Tex. Crim. App. 2004); Starz v. State, 309 S.W.3d 110, 113 (Tex. App.—

Houston [1st. Dist.] 2009, pet. ref’d). Reversal is required only if the trial court’s decision 

to deny the motion for new trial was arbitrary or unreasonable, viewing the evidence in 

the light most favorable to the trial court’s ruling. Riley v. State, 378 S.W.3d 453, 457 
16

(Tex. Crim. App. 2012 . A decision is arbitrary or unreasonable if no reasonable view 

of the record could support the trial court’s ruling. Webb v. State, 232 S.W.3d 109, 112 

(Tex. Crim. App. 2007 . 

B. Appointed Defense Counsel at Punishment Rendered Deficient 

Representation that Prejudiced Appellant

The sentencing phase of any case, regardless of the potential punishment, 

is the time at which for many defendants the most important services of 

the entire proceeding can be performed .... 

Vela v. Estelle, 708 F.2d 954, 964 (5th Cir. 1983).

In this case, other than appellant’s plea of guilty to the jury at the beginning of 

the trial, sentencing was the only phase of the trial. The consequences of less than 

zealous preparation for that phase could not be starker considering the potentially vast 

difference in punishment range a finding of sudden passion would have brought 

about—two to 20 years versus five to 99 or life in prison. Tex. Penal Code §19.2 (c) &

(d).

1. Failure in duty to make independent investigation into mitigation 

evidence

The trial court, in denying appellant’s motion for new trial stated:

[T]he Court having carefully considered the arguments of counsel all the 

affidavits, I have to say you guys have done an excellent job. However, I 

was there and present during the trial. I thought [trial counsel] did an 

excellent job and seemed very well-prepared (sic). I have given his affidavit 

high credibility in regards to the witnesses, that (sic) he was not given the 

names of witnesses, and the ones that he did speak with were not able to 

testify.

(3 Supp. R.R. at 7-8).
17

That trial counsel was “not given the names of witnesses” is not the standard by 

which to test the adequacy of a mitigation investigation. Mitigation investigation is not 

the client’s responsibility.

[A] failure to uncover and present mitigating evidence cannot be justified 

as a tactical decision when defense counsel has not conducted a thorough 

investigation of the defendant’s background. Counsel is ineffective when 

he fails to investigate and interview potential punishment witnesses, 

despite their availability and willingness to testify on appellant’s behalf and 

counsel can only make a reasonable decision to forgo presentation of 

mitigating evidence after evaluating available testimony and determining 

it would not be helpful.

Lair v. State, 265 S.W.3d 580, 595 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)(citing 

Weisinger v. State, 775 S.W.2d 424, 427 (Tex. App.—Houston [14th Dist.] 1989, pet. 

ref’d.)(citing Wiggins, 539 U.S. at 521); Milburn v. State, 15 S.W. 3d267, 270 (Tex. App.—

Houston [14th Dist.] 2000, pet. ref’d). Trial counsel stated in his affidavit he spoke

“on many occasions” with appellant’s brother and with his niece Chantal (sic) Foster;

but he neither said what he asked nor why “they were not able to testify or provide 

names”--in fact, he did not claim either actually said they were unable to do so (4 Supp. 

R.R. Def. Ex. 2). The niece, as well as all the other affiants, contradicted trial counsel’s 

assertion they were “unable” to provide testimony or contact information.

The niece, Roxanne Shantal Foster, provided an affidavit to appellant’s attorneys 

for the motion for new trial in which she stated she had researched the internet to find 

defense counsel for her uncle and provided trial counsel’s information to appellant’s 

brother Delroy Foster, who retained him (4 Supp. R.R. at Def Ex. 7).
18

Roxane Shantal Foster stated at the end of her affidavit:

I think [we] spoke on the phone twice. [Trial counsel] never asked me any 

questions about Donald or his background or said anything about 

testifying or coming to trial. I would have traveled to Houston to testify. 

If I had known that I could have provided a deposition or been 

reimbursed for travel, I also would have gladly done so.

Id.

Roxane Shantal Foster was living in Ohio at the time she provided the affidavit 

to counsel for the motion for new trial, and she indicates in the affidavit she was living 

in the United States at the time of the incident. Trial counsel presented no evidence that 

he made any attempt to obtain depositions or affidavits from her or that he indicated 

funds might be obtained for her to travel to Houston to testify.

Elaine Foster, appellant’s older sister, averred defense counsel also failed to 

contact her—“I would have been more than willing to provide testimony by a 

deposition and I would have made every effort to come to the United States for the 

trial. Our brother Delroy and I came to America to see Donald and attend his wife’s 

funeral; we waited for hours in the jail before being turned away” (4 R.R. at Def. Ex. 

5). Trial counsel said he spoke several times with Delroy Foster—the fact that Delroy 

traveled with his sister to the United States demonstrates Delroy knew her contact 

information and could have provided it had he been asked.

Appellant’s counsel for the motion for new trial also presented the affidavit of 

his former supervisor from Jamaica, Ludlow Brown, who also said he never heard from 

appellant’s lawyer—
19

When I heard what happened, I was compelled to write a character 

reference letter on Donald’s behalf. The letter is on the letterhead for the 

Sugar Industry Authority and is dated June 11, 2015. Donald’s brother 

Delroy Foster provided it to Donald’s lawyer. I never heard from the 

lawyer even though it had all of my contact information. If I had been 

asked to come testify or to provide a deposition, I would have been more 

than willing.

(4 R.R. at Def. Ex. 6).

Neither did appellant’s aunt, Beverly Brown, hear from trial counsel—Ms. 

Brown’s affidavit stated she too would have been glad to provide a deposition or to 

travel to testify had she been asked and told her travel could be reimbursed (4 R.R. Def. 

Ex. 2).

As pointed out by appellate counsel at the motion for new trial hearing, the Court 

of Criminal Appeals has held that an attorney’s failure to pursue deposition testimony 

of a potential defense witness was deficient performance. Frangias v. State, 450 S.W.3d 

125, 127 (Tex. Crim. App. 2013). The trial court failed to address this issue in her 

conclusions of law delivered after having heard arguments at the hearing on the motion 

for new trial (4 R.R. at 7-8).

2. Irrational “Strategy” relying on cross-examination of state’s 

witnesses to mitigate appellant’s actions rather than actively 

seeking out and presenting punishment witnesses and other 

mitigating evidence.

“It may not be argued that a given course of conduct was within the realm 

of trial strategy unless and until the trial attorney has conducted the 

necessary legal and factual investigation which would enable him to make 

an informed rational decision.” Wellborn, 785 S.W.2d at 393 (citing Ex parte 

Duffy, 607 S.W.2d 507, 526 (Tex.Crim.App.1980)).
20

Compton v. State, 202 S.W.3d 416, 420 (Tex. App.—Tyler 2006, no pet.); See Strickland, 

466 U.S. at 690-92 & Wiggins, 539 U.S. at 521.

Trial counsel states in his affidavit that he met with and spoke to Antonio Foster 

prior to trial and “attempted” to speak with Lorie Ann by telephone twice—apparently 

she chose not to speak with him.

During his cross-examination of appellant’s daughter, trial counsel and Lorie 

Ann had the following exchange:

Q. [Y]ou had great love for your mother and obviously you have a 

great anger for your father for taking her from you, correct?

A. That’s logical.

Q. And that’s very, very understandable....

(4 R.R. at 47).

Counsel’s question came after about six pages of questioning, in which the 

daughter’s hostility toward her father was intense (4 R.R. at 41-47). The hostility of both 

Lorie Ann and her brother Antonio was indeed “very, very understandable” and 

predictable, therefore the strategy to present their testimony as the attempt to show

“mitigation” evidence via cross-examining them was irrational in the extreme. 

The picture of appellant painted by his daughter Lorie Ann at trial was of a 

distant father who offered no emotional support to his wife and family, offered little 

financial support, left most family things, such as moving, to his wife, and was merely 

an intellectual “resource” (3 R.R. at 26-30, 48-49, & passim). On direct, the prosecutor 
21

asked her to describe “the dynamic that you saw between your parents even growing 

up?” and she responded:

The dynamic was one, on the outside it seemed like it was a happy family, 

but on the inside there was more to it than you could see from the outside. 

My father was not helpful emotionally or, you know, financially”

(4 R.R. at 28).

Later during direct, Lorie Ann testified her father had not worked once he made 

the move to the United States and that her mother was primarily responsible for the 

rent on the Houston apartment (4 R.R. at 34). Her older brother, Antonio, testified on 

cross-examination that his father could have lived off the pension from the job he had 

in Jamaica when he came to the United States but that his father found work when he 

arrived in Houston and was laid off (4 R.R. at 73-74). Appellant testified the layoff 

occurred in February 2015, about three months prior to the incident (4 R.R. at 142).

On cross-examination, defense counsel managed to draw from Lori Ann the 

following grudging admissions of appellant’s participation in the family’s life:

Q. You talked about your dad helping you with a math problem. 

Isn’t it true helped you with your homework when you were a child?

A. Yes.

Q. So he was there helping you with your homework and doing things 

that fathers do, but I guess what you’re saying is, you didn’t feel the kind 

of love that your mother had for you. Would that be fair to say?

A. There’s a difference between being a parent, a father, and being a 

resource. I could have had a tutor in his place.
22

Q. But to be fair, he helped, as you say, at least as a tutor throughout 

your life doing your homework?

A. Correct.

Q. And when you went to track and field, I think you competed in the 

100 and 300 in primary school and later in 400 in long jump. He went to 

your track meets didn’t he?

A. He was there, correct.

Q. He was there with his camcorder and videotaping the way a father 

would do?

A. Not that I can recall all that, I’m sorry.

(4 R.R. at 47-48).

Lorie Ann agreed with defense counsel her father had worked at the Sugar 

Industry Authority in Jamaica for 25 years—this was not brought out during the state’s 

questioning, which focused on the complainant’s having always worked (4 R.R. at 49).

The affidavit from appellant’s niece Roxane Foster submitted for the motion for

new trial describes appellant very differently: a warm and loving man to whom family 

was very important—“[He] was always there for us. When I moved to the United States, 

he was my main support system. He was the person I would call for help with any family 

or financial issue and [he] never failed to make sure I got whatever assistance I needed. 

I knew I could count on him” (4 Supp. R.R. at Def. Ex. 7 & 7A).

Much was made during the state’s direct examination of appellant’s children that 

appellant was unenthusiastic about moving from their first home in Jamaica to another 

location closer to the children’s school and that he was unhelpful with the logistics of 
23

the move and financing the new house purchase of the new house (4 R.R. at 27-8 &

62-6). Antonio testified his father “didn’t put any financials up to it and my mom had 

to beg him and he didn’t put any sort of financial support towards the move. He didn’t 

help pay for the house at all (4 R.R. at 63). However, he then said that when his mother 

expressed her disappointment to appellant that he didn’t want to pay for a new house, 

he agreed to sell the other house to help finance the move (4 R.R. at 63).

The affidavit from appellant’s older sister Elaine Foster stated:

Donald is a very generous man. When he sold a house, a large portion of 

the proceeds were given to another member of the family who needed 

funds to open a restaurant. He always provided financially for his family 

and shared in the work for the household. For example, I know that he 

was in charge of going to the supermarket and working with the kids on 

their schoolwork.

(4 R.R. at Def. Ex. 5).

Trial counsel’s affidavit does not claim he made any independent effort to find 

these people other than to ask a man that was in custody for contact information—

contact information is generally kept in our cell phones now, to which appellant had no 

access in jail. Even if he kept the information written in an address book or on a 

computer; given the attitudes of his children, they certainly would not have been willing 

to find it for him.

3. Failure to object on Confrontation grounds to the threat Lorie Ann

stated her mother allegedly told her about a week before he killed 

her.
24

The Confrontation Clause of the Sixth Amendment grants the accused in a 

criminal prosecution “the right ... to be confronted with the witnesses against him.” 

U.S. Const., Am. VI. “This bedrock procedural guarantee applies to both federal and 

state prosecutions. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008), 

citing Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065 (1965).

A testimonial hearsay statement is admissible against a defendant only if the 

declarant is unavailable and the defendant has had an opportunity to cross-examine him 

or her. Crawford v. Washington, 541 U.S. 36, 59; 124 S.Ct. 1354 (2004). A testimonial 

statement is inadmissible “absent a showing that the declarant is presently unavailable 

and the defendant had a prior opportunity for cross-examination, even if the statement 

falls under a firmly rooted hearsay exception or bears particularized guarantees of 

trustworthiness.” Wall v. State, 184 S.W.3d 730, 734-35 (Tex. Crim. App. 2006).

Lorie Ann’s testimony about the alleged threat was hearsay, the declarant was 

unavailable—she was dead--there was no prior opportunity to cross-examine the 

declarant.

Defense counsel waived error by failing to object on this constitutional ground.

Instead, counsel objected to the state’s failure to notify the defense of its intention to 

introduce the evidence. The trial court’s assertion that defense had “opened the door” 

to the evidence was highly questionable and neither Rule 404(b) nor Art. 37.07, §3 (g)

excuse the state from the notice requirements just because it only found out about it 

the morning Lorie Ann testified. Tex. R. Evid. 404(b); Tex. Code Crim. Proc. Art. 37.07
25

§3 (g); & Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005). The state, 

however, managed to moot the notice issue by choosing, despite the trial court’s 

apparent ruling admitting the evidence in its case-in-chief, by waiting until its rebuttal 

of the defense case. See Jaubert v. State, 74 S.W.3d 1, 3-4 (Tex. Crim. App. 2002)(state’s 

presentation of extraneous evidence on rebuttal required no notice).

4. Totality of representation

A review of the totality of representation demonstrated appellant received 

deficient representation in that he:

▪ failed to inform the two relatives with whom he was in contact that they 

could provide deposition testimony for appellant’s trial and/or testify at 

his trial. Further, he failed to undertake reasonable steps to find people to 

speak for appellant punishment to show both his humanity and that his 

temperament was such that he only could have killed his wife while 

overcome by sudden passion, when such people were willing and readily 

available;

▪ had an irrational “strategy” in choosing not to confine his mitigation 

investigation to asking defendant for contact information and to instead 

rely on his cross-examination of defendant’s hostile children, who testified 

for the state, rather than seeking out others who knew him well;

▪ failed to examine records from the jail showing appellant’s clean 

disciplinary history and his mental and physical health problems, which 

demonstrate his characteristic evenness of temper and his human 

suffering after having killed his wife;

▪ failed to present evidence supporting defendant’s testimony that after he 

was laid off from his medical coding job he took continuing education 

classes to maintain and improve his coding credential while looking for a 

new job. This evidence contradicts appellant’s children’s testimony that 

appellant spent the time he was unemployed lying around and playing 

games on his phone.
26

C. Trial Counsel’s Deficient Performance Prejudiced Appellant

This Court has held that “When counsel presents ‘no evidence of mitigating 

factors ... to balance against the aggravating factors presented by the state’ and fails to 

do so because he did not investigate mitigating factors or contact potential mitigation 

witnesses, there is prejudice.” Lopez, 462 S.W 3d at 189, citing Shanklin v. State, 190 

S.W.3d 154, 165 (Tex. App.--Houston [1st Dist.] 2005, pet. granted and withdrawn as 

improvidently granted).

1. Deficient performance affected “Sudden Passion” finding

The jurors heard evidence from Jesus Ortiz, the crime scene unit deputy from 

Harris County Sheriff’s Office, the number and nature of stab wound he saw on the 

complainant indicated, in his experience, occurs in “a form of domestic violence. When 

we have violence, we’ll have multiple gunshot wounds or suffers a fatal wounds or 

multiple stab wounds even though one suffers a fatal wound, and that’s just sheer anger, 

or you know, shooting to – to – to get rid of the anger” (3 R.R. at 76). They heard from 

Detective Thompson what complainant said to appellant about her affair with Harris 

(4 R.R. at 92-6). And Thompson, too, said the wounds suggested that what happened 

was “fast and happened with a lot of rage” (4 R.R. at 107). They heard appellant went 

straight from the home after the killing and threw himself in front of an 18-wheeler. 

The jurors heard all that yet decided this was not a case of a killing under the 

influence of sudden passion—that there was less than a 51% likelihood appellant’s mind 

had been rendered incapable of cool reflection in the very short time period it took him 
27

to kill his wife and decide to commit suicide. They heard the testimony of appellant’s 

two children whose mother he took from them. But apart from the testimony of 

appellant himself, which they could have dismissed as self-serving, they heard from no 

one with anything good to say about him.

The jurors heard Lorie Ann testify on cross-examination she thought her father 

had planned to kill his wife some time prior to when he actually killed her.

Q. [Y]ou had said something, that this was a thoughtless act, correct?

A. Yes.

Q. I mean, what your father did was without thought?

A. Not like that. It was senseless, meaning that it did not have to occur.

Q. What was senseless?

A. On his part, he’s a methodical thinker and I think that he planned 

what he was going to do, and it shows in his actions by trying to attempt 

to commit suicide post that.

Q. Do you think he thought that through when he jumped out into 

the road?

A. I have no idea what was going on in his head when he jumped out 

into the road.

Q. Well, you would agree with me that if he was really thinking about 

this, he could have thought of a better method to kill himself, would you 

agree with that, to complete the act? 

A. It’s not my job to think about how a killer thinks, so I don’t know.

Q. And, so the truth is, you can’t say or tell this jury that this is 

something that what planned out or something that was spur of the 

moment?
28

A. It was more planned out in his head, because the fact there was no 

argument, it was not sporadic, it was not emotional-fact or based. It was 

something that he sat down and thought about. There was no argument. 

There was no argument. There was no argument and then there was 

(snapping fingers) a commotion. There was – I had no idea.

(4 R.R. at 50-51).

There is nothing mitigating about that testimony, which the trial lawyer elicited 

during cross-examination in an attempt to use Lorie Ann’s statement that appellant’s 

actions were thoughtless—that he had not thought about the effect killing their mother 

would have on his children (4 R.R. at 39-40). Lorie Ann’s rebuttal testimony that 

complainant told her appellant threated to kill her if she left him—even through 

remembered three years after the fact—further created for the jurors a picture of a 

resentful man capable of premeditating the killing of his wife. The absence of testimony 

from people other than his devastated and angry children—people who knew the whole 

man and were capable of looking beyond the immediate loss of a beloved parent--could 

only have reinforced the ad hoc characterizations of appellant by Lorie Ann and her 

brother. 

Here are excerpts from the affidavits of appellant’s family members and his 

friend and former employer about appellant—the jurors heard nothing from them:

▪ From appellant’s aunt Beverly Brown:

When I heard what happened to his wife, I found it unbelievable 

because Donald is always such a nice and calm person. He never 

loses his temper and will not even shout or raise his voice. 
29

Donald loves his wife and his children very much. He worked hard 

his whole life to provide for them. I know he made countless 

sacrifices including leaving behind his country of Jamaica and 

everything he knows to move to the United States. Moving to 

America was extremely difficult for Donald but he did it for his 

wife and children.

It is completely understandable that his children are angry with him. 

But it does not change the fact that he was always a loving dad and 

a good provider.... This could not have been planned because he 

devoted his whole life to building his family.

▪ From his older sister Elaine Foster, who helped raise him:

I have followed Donald’s life closely and he has always been calm 

and stable.... [He had] a successful, permanent career with 

Jamaica’s Sugar Industry Authority and he bought his family a 

home in a gated community. Donald sent his children to good 

private schools.... When our mother was sick and Donald came to 

be with her, I noticed that he still would spend a lot of time on the 

phone with his family. He was always very good at math and science 

and I saw him sit and help his daughter with her homework over 

the phone. I always admired that.... He was always trying to bond 

and he was very gentle and polite; never have I heard him raise his 

voice to his family.

▪ From his former employer and “friend for over twenty-seven 

years”:

As the Development and Training Office of the Sugar Industry 

Authority of Jamaica, I supervised Donald and had chosen him 

from among many candidate to be promoted to my position when 

I retired. In addition to his knowledge and expertise, one of the 

main reasons I believed Donald was perfect to take over for me 

was because he always kept his cool and had a warm and friendly 

nature.

AS part of the job, we had critique sessions with management 

where people had to criticize each other, sometimes harshly. 

Donald stood out because he never lost his cool. I would even try 

to test him by playing the devil’s advocate, but he always remained 
30

clam. I knew he was right for the job because it requires exactly that 

personality.

It was totally shocking to learn what happened to his wife because 

it was so out of character of Donald. In twenty seven years of 

knowing and working closely with him, I have never seen Donald 

lose his temper or act aggressively.

(4 Supp. R.R. at Def. Exs. 4, 5, & 6).

The people speaking up for appellant have known him for all or a great part of 

his life. Each testified under oath. Each was eloquent in their description of his 

personality. Appellant’s aunt and his sister make clear he grew up in an educated family 

and that he was a gentle, warm, even-tempered person. His friend and former boss took 

pains to illustrate with examples of appellant’s working style and steadily calm and 

thoughtful personality. No one ever saw him lose his temper. All were shocked to hear 

what he had done because it was so entirely out of character for the man they knew.

Had the jurors heard from these people in person or on a videotaped deposition, 

they likely would have experienced the warmth they tried to express in their affidavits, 

there is a reasonable probability that they would have found defendant acted in sudden 

passion. 

2. Deficient performance negatively affected jurors’ impression of 

appellant’s character in general

As demonstrated in Subsection B, supra, the direct examinations of Lorie Ann 

and Antonio Foster were carefully orchestrated not only to defeat the sudden passion 

issue but also to make appellant look like a generally uncaring and lazy freeloader—an 
31

impression trial counsel’s cross-examination did very little to mitigate. The affidavits 

provided for the motion for new trial spoke of a man bearing little resemblance to the 

one Lorie Ann and Antonio Foster described three years after the fact.

To show prejudice, appellant is not required to show that but for counsel’s 

deficient conduct in failing to offer any mitigation evidence, his sentence would have 

been lighter. The Fourteenth Court of Appeals stated:

[E]ven though it is sheer speculation that [mitigation evidence] would 

have in fact favorably influenced the [factfinder’s] assessment of 

punishment. Counsel’s lack of effort at the punishment phase of the trial 

deprived appellant of the possibility of bringing out even a single 

mitigating factor. Mitigating evidence clearly would have been admissible. 

The [factfinder] would have considered it and possibly been influenced by 

it.

Milburn v. State, 15 S.W.3d 267 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

The record on its face demonstrates trial counsel failed in his duty “to conduct a 

reasonably substantial and ‘independent examination of the facts, circumstances, 

pleadings and laws involved.’” Compton v. State, 202 S.W. 3d 416, 422 (Tex. App.—Tyler 

2006, no pet.), citing Strickland, 466 U.S. at 680. As a result, appellant was prejudiced.

D. The Trial Court’s Denial of the Motion for New Trial was Arbitrary and 

Unreasonable

The trial court’s finding that appellant’s trial lawyer’s performance was effective

was arbitrary and unreasonable; no reasonable view of the record, even seen in the light 

most favorable to the ruling, would support it. The finding explained nothing about 

why the court discounted “the witnesses” in the face of the trial counsel’s assertion that 
32

the two potential witnesses he spoke to were “unable to testify.” Trial counsel did not 

say he actually asked them to, or offered to arrange for deposition testimony if they 

could not travel to testify at trial. He did not even say he asked them for contact 

information.

The predictable hostility of appellant’s children testifying against him at trial—

Lorie Ann had never spoken to trial counsel prior to trial—made the “strategy” of 

relying on cross-examining them in an attempt to mitigate appellant’s killing of their 

mother one no reasonable attorney would follow. This is particularly true given that no 

one that knew defendant testified on his behalf.

In assessing the reasonableness of an attorney's investigation, however, a 

court must consider not only the quantum of evidence already known to 

counsel, but also whether the known evidence would lead a reasonable 

attorney to investigate further. Even assuming [appellant’s attorneys] 

limited the scope of their investigation for strategic 

reasons, Strickland does not establish that a cursory investigation 

automatically justifies a tactical decision with respect to sentencing 

strategy. Rather, a reviewing court must consider the reasonableness of 

the investigation said to support that strategy. 

Wiggins, 539 U.S. at 527.

The state will doubtless argue that because the trial court stated her decision was 

based on credibility it be honored. Deference to the trial court, however, is not absolute-

-reversal is required only if the trial court’s decision to deny the motion for new trial 

was arbitrary or unreasonable, viewing the evidence in the light most favorable to the 

trial court’s ruling. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). That 

means reversal is required if the trial court’s decision to deny a motion for new trial was 
33

arbitrary or unreasonable—if no reasonable view of the record even in the light most 

favorable to the ruling could support the ruling. That is the case here.

The trial court’s addressed her credibility assessment by saying she gave defense 

counsel’s affidavit “high credibility in regards to the witnesses, at he was not given the 

names of witnesses, and the ones that he did speak with were not able to testify” (3 

Supp. R.R. at 7-8). Only one of the two witnesses to whom counsel spoke directly 

contradicted his assertion in his affidavit that she “was not able to testify” by saying he 

never asked her to.

Even giving credibility to counsel’s insinuation that he had asked her and she 

said she could not—he did not actually say he had—the trial court had no reason to 

summarily dismiss all the other affidavits from people appellant’s motion for new trial 

lawyers managed to find in the short time period provided for prosecuting a motion for 

new trial. These people all said they would have been willing and able to either provide 

deposition testimony or travel to Houston for the trial to testify in support of the man 

they knew well. Unlike the defendant’s two children, none of these people had reason 

to be vengeful against appellant—the trial court simply chose to assume their affidavits 

were untruthful.

The denial of the motion for new trial, viewed in any light, was arbitrary and 

unreasonable and harmed appellant’s substantial rights, including those under United 

States Const., Ams. V, VI, and XIV; Tex. Const., Art. 1 §10; Strickland v. Washington, 

466 U.S. 668, 687-84, 694 (1984); Wiggins v. Smith, 539 U.S. 510, 527 (2003); and Andrews 
34

v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005). This Court should vacate his 

sentence and remand to the trial court for a new punishment trial.

Three: The trial court erred at trial in admitting hearsay evidence from 

Lorie Ann Foster that her mother had told her appellant had threatened 

to kill her if she left him when the state provided no notice of its intent to 

introduce it and appellant had not “opened the door” to the evidence.

A. Standard of Review and Applicable Law

Courts of appeal review the admission of evidence of extraneous misconduct or 

bad acts under an abuse of discretion standard. Davis v. State, 315 S.W. 3d 908, 913 (Tex. 

App.—Houston [14th Dist.] 2010, rev’d on other grounds).

The admissibility of evidence at punishment is largely guided by article 37.07 of 

the Texas Code of Criminal Procedure. Id (citing Haley v. State, 173 S.W.3d 510, 513 

(Tex. Crim. App. 2003)). Section 3 of the article provides the state may introduce 

evidence of an extraneous act provided that it is proved beyond a reasonable doubt that 

defendant committed the act. Tex. Code Crim. Proc. Art. 37.07, §3. Section 3(g) of the 

article provides:

On timely request of the defendant, notice of intent to introduce evidence 

under this article shall be given in the same manner required by Rule 

404(b) of the Texas Rules of Evidence. If the attorney representing the 

state intends to introduce an extraneous crime or bad act that has not 

resulted in a final conviction in a court of record or a probated or 

suspended sentence, notice of that intent is reasonable only if the notice 

includes the date on which and the county in which the alleged crime or 

bad act occurred and the name of the alleged victim of the crime or bad 

act.
35

B. Trial Court Erred in Finding Defense Counsel “Opened the Door”

On redirect, the following exchange took place between the state and Lorie Ann:

Q. Now, you just stated -- you were asked, you had no reason to think 

that this was planned, right? Defense just asked you that question, right?

A. Right.

Q. However, was there anything that happened prior to the day that 

would give you cause to think it was planned?

(4 R.R. at 53).

When defense counsel then interrupted with his objection and asked to approach 

he denied he asked “[Y]ou had no reason to think that this was planned, right?.” The 

prosecutor responded, “You asked about, I mean anything that day that led you to 

believing it was planned”—defense counsel again said he did not ask that question and 

the trial court said “I heard what you asked and I believe you opened the door to an 

earlier objection” (4 R.R. at 54). Defense counsel reasserted he did not ask Lorie Ann 

the question the state claimed he asked and requested a playback but the court declined 

the request. 

The trial court’s response to counsel’s objection to admission of Lorie Ann’s 

testimony regarding the alleged threat is repeated here from the Statement of Facts for 

this Court’s convenience:

The Court: So your specific objection is that this is an extraneous offense 

that you weren’t noticed on?

Mr. Madrid: Yes.
36

The Court: The prosecutor’s response is that she just found out last 

night.

Ms. Benavides: Or this morning actually when we met, she flew in 

last night.

The Court: But regardless, I don’t think – some things they 

obviously can’t anticipate, and so if you – my feeling about it is your 

question opened the door to it and notice requirements don’t apply. So I 

guess the question is whether or not you opened the door. And the truth 

of the matter is, whether it’s coming in now or later, I think it’s coming 

in.

(4 R.R. at 55-6).

Prior to the above response, the trial court stated she “had it written down” that 

trial counsel asked Lorie Ann on cross-examination “why she thought it was planned” 

(4 R.R. at 54). The prosecutor claimed her notes said “You have no reason to think this 

was planned. That was question number one” and the court said, “That’s what I recall” 

(4 R.R. at 55). 

The reporter’s record belies the trial court’s and the state’s memories of what 

defense counsel had actually asked Lorie Ann; again that is repeated here from 

subsection C, subparagraph 1, supra:

Q. [Y]ou had said something, that this was a thoughtless act, correct?

A. Yes.

Q. I mean, what your father did was without thought?

A. Not like that. It was senseless, meaning that it did not have to occur.

Q. What was senseless?
37

A. On his part, he’s a methodical thinker and I think that he planned 

what he was going to do, and it shows in his actions by trying to attempt 

to commit suicide post that.

Q. Do you think he thought that through when he jumped out into 

the road?

A. I have no idea what was going on in his head when he jumped out 

into the road.

Q. Well, you would agree with me that if he was really thinking about 

this, he could have thought of a better method to kill himself, would you 

agree with that, to complete the act? 

A. It’s not my job to think about how a killer thinks, so I don’t know.

Q. And, so the truth is, you can’t say or tell this jury that this is 

something that what planned out or something that was spur of the 

moment?

A. It was more planned out in his head, because the fact there was no 

argument, it was not sporadic, it was not emotional-fact or based. It was 

something that he sat down and thought about. There was no argument. 

There was no argument. There was no argument and then there was 

(snapping fingers) a commotion. There was – I had no idea.

(4 R.R. at 50-51)(emphasis added).

The context of the highlighted question was timing between the phone call and 

the killing and the fact Lorie Ann previously testified she heard nothing to suggest 

anything abnormal was going on while she spoke with her mother (4 R.R. at __). 

Counsel did not suggest she had no reason generally to believe appellant planned to kill 

his wife—he asked whether she could have known the killing was preceded by an 

argument prior to or after the call with her mother was dropped. The prosecutor 
38

mischaracterized defense counsel’s question to Lorie Ann when she was setting the 

stage to elicit her testimony regarding the alleged threat and again when she read what 

she allegedly had written down. 

C. Because the Door was not Opened, Notice Requirements Applied

Defense counsel at trial filed a timely request for “Notice of State’s Intention to 

use Evidence of Extraneous Offenses at Trial on August 17, 2017 (C.R. at 42). The trial 

court signed a standard discovery order, including a requirement that the state provide 

notice of extraneous offenses “with date, time, and place, which may be admissible 

against Defendant” (C.R. at 59); see also Tex. Code Crim. Proc. 37.07 §3(g) & Tex. R. 

Evid (404(b)(2).

Consequently, the state was required to provide reasonable notice of its intent to 

offer Lorie Ann’s bombshell testimony. Tex. Code Crim. Proc. Art. 37.07 §3(g); Tex. 

R. Evid. 404(b)(2); Hernandez v. State, 176 S.W. 3d 821, 824 (Tex. Crim. App. 2005). In 

addition to the date, time, and place requirements for notice to “reasonable,” timing of 

the delivery is also a factor. Hayden v. State, 66 S.W. 3d 269, 272 (Tex. Crim. App. 2001). 

The trial court essentially dismissed the timing issue raised by defense counsel 

during his objection to the admission of Lorie Ann’s suddenly remembered evidence—

“[S]ome things they obviously can’t anticipate....” The prosecutor’s reason for the midtrial attempt to get the evidence admitted—that she had only heard about it that 

morning—is not “reasonable notice” that complies with 404(b) or 37.07 §3(g).
39

The Court of Criminal Appeals stated in Hernandez that the notice requirement 

“literally conditions the admissibility of other crimes evidence on the State’s compliance 

with the notice provision of Rule 404(b).” Hernandez, 176 S.W. 3d at 824. Whether the 

notice is reasonable is in part determined by the length of time between the defense 

request for the notice and the state’s compliance. Hayden, 66 S.W. 3d at 272. In 

Hernandez, supra, the Court qualified the literal compliance required by Rule 404(b) as 

follows: “This is not to say a trial court is without discretion to utilize its powers (such 

as granting continuances to reduce surprise) to permit the State to bring itself into 

compliance.... But, a trial court must use these powers to ensure compliance and not 

to excuse noncompliance.” Id at 824.

The state in this case very nearly elicited Lorie Ann’s testimony on the extraneous 

evidence with absolutely no notice to the defense during redirect (4 R.R. at 53). There 

is nothing in the record to suggest the state even told defense counsel of its intention 

to bring in the evidence before the start of the day’s proceedings. There was no attempt 

whatsoever at compliance with the notice provision. 

Appellant is aware of the holding in Jaubert v. State, wherein the Court of Criminal 

Appeals overruled the court of appeals’ reversal of the trial court’s admitting of 

unnoticed extraneous offenses during a punishment case. Jaubert v. State, 74 S.W.3d 1

(Tex. Crim. App. 2002). The Jaubert majority held that because the state did not 

introduce the extraneous offenses until their rebuttal of the defendant’s mitigation case, 

the notice provisions did not apply. Id at 4-5. 
40

The Jaubert opinion was based on the majority’s interpretation of Article 37.07 

§3(a)’s incorporation by reference to TRE 404(b): “On timely request of the defendant, 

notice of intent to introduce evidence under this article shall be given in the same 

manner required by Rule 404(b), Texas Rules of Criminal Evidence.” Id at 2. TRE 

404(b) states such evidence is admissible in the state’s case-in-chief provided reasonable 

notice is given to the defendant on timely request. See Id at 2-3. The Court reasoned 

that because the evidentiary rule limits the notice requirement to the “state’s case-inchief” and not to rebuttal of the defense case, that same limitation applies to the 

punishment statute.

In her concurrence, Justice Cochran pointed out that the notice requirement’s 

purpose is “to ensure that Texas criminal proceedings are not a contest of clever 

gamesmanship or trial by ambush.... This requirement of advance notice, upon timely 

request, applies only to the State’s case-in-chief because prosecutors are no more 

clairvoyant than the rest of the world. They cannot, and thus should not be required to, 

predict precisely what evidence the defense will introduce or what rebuttal evidence 

might be relevant as a result of a particular defense.” Id at 5.

Justice Cochran goes on to warn, however, that the limitation makes it “possible 

for prosecutors to manipulate the notice rule’s purpose and applicability simply be 

reserving all extraneous offense evidence until the rebuttal case, when notice is not 

required. Although this strategy conforms to the letter of the law, it clearly violates the 

spirit.” Id at 6. Because the facts in Jaubert made clear there was no such manipulation 
41

in that case, the Justice concurred with the majority’s holding, leaving open the 

possibility of other cases calling for a different one. Id at 8.1

Appellant’s case is one of those other cases. First, the state needed no powers of 

divination to predict sudden passion would be an issue for the defense at punishment. 

This was a domestic murder, following a revelation of infidelity, ending a 30-year 

relationship with a barrage of stab wounds that the arresting officer testified suggested 

to him a great deal of rage. The testimony of appellant’s children demonstrated they 

were prepared by the state to paint a picture of their father that would counter a “sudden 

passion” finding—Lorie Ann’s morning-of-trial recovered memory of her mother’s 

alleged report of appellant threatening her life.

Second, once the trial court made its somewhat vague “ruling” on the 

admissibility of the evidence—“feeling” the door was opened; “thinking” it was coming 

in “whether now or later”—the state took the hint and waited until its rebuttal (4 R.R. 

at 55-6). This was exactly the kind of action anticipated in Justice Cochran’s cautious 

concurrence, which she narrowed to the facts of Jaubert’s case—the state resorted the 

surprise tactics the notice provisions were designed to prevent and the trial court 

permitted them to succeed. 

 

1 The dissent goes much further, attacking the majority opinion’s legislative analysis and pointing out 

the legislature deliberately omitted the “case-in-chief” language from the punishment statute, which it 

did use in the notice provisions for extraneous evidence in Art. 38.37 of the Texas Code of Criminal 

Procedure. Justice Meyers also argued that the evidentiary rule and the punishment statute serve greatly 

different purposes.
42

Prayer

In view of the foregoing, this Court should reverse appellant’s case and remand 

to the trial for a new trial on the basis of any or all of the above issues presented.

Respectfully submitted,

ALEXANDER BUNIN

Chief Public Defender

Harris County Texas 

/s/Melissa Martin

______________________________

Melissa Martin

Assistant Public Defender 

Harris County Texas 

1201 Franklin 13th Floor

Houston Texas 77002

(713) 368-0016

(713) 437-4319 e-fax

TBA No. 24002532

CERTIFICATE OF SERVICE

I certify that I provided a copy of the foregoing brief to the Harris County 

District Attorney on the day the brief was electronically filed and accepted.

/s/ Melissa Martin

______________________________

MELISSA MARTIN

Assistant Public Defender
43

CERTIFICATE OF COMPLIANCE

 Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies 

with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief

contains 11,444 words printed in a proportionally spaced typeface.

2. This brief is printed in a proportionally spaced, serif typeface using Garamond 

14 point font in text and Garamond 12 point font in footnotes produced by Microsoft 

Word software.

3. Upon request, undersigned counsel will provide an electronic version of this brief 

and/or a copy of the word printout to the Court.

4. Undersigned counsel understands that a material misrepresentation in completing 

this certificate, or circumvention of the type-volume limits in Tex. R. App. 

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against 

the person who signed it.

/s/ Melissa Martin

______________________________

MELISSA MARTIN