NO. 03-14-00585--CR

IN THE COURT OF APPEALS

FOR THE

THIRD SUPREME JUDICIAL DISTRICT OF TEXAS

AT AUSTIN

__________________________________________________________________

NO. 13-2081-K277

IN THE 277TH DISTRICT COURT

OF WILLIAMSON COUNTY, TEXAS

__________________________________________________________________

LEOVARDO CANTOS, 

APPELLANT

V.

STATE OF TEXAS,

APPELLEE

__________________________________________________________________

APPELLANT’S BRIEF

__________________________________________________________________

ORAL ARGUMENT REQUESTED

 

 LINDA ICENHAUER-RAMIREZ

 ATTORNEY AT LAW

 1103 NUECES

AUSTIN, TEXAS 78701

TELEPHONE: 512-477-7991 FACSIMILE 512-477-3580 EMAIL: LJIR@AOL.COM

 SBN: 10382944

 ATTORNEY FOR APPELLANT 

 

ACCEPTED

03-14-00585-CR

5991802

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/9/2015 9:31:15 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/9/2015 9:31:15 AM JEFFREY D. KYLE Clerk
2 

TABLE OF CONTENTS

 

 PAGE

Parties to Trial Court’s Final Judgment......................................................3 

Index of Authorities....................................................................................4 

Statement of the Nature of the Case ...........................................................5 

Statement of the Point of Error...................................................................6 

Statement of Facts.......................................................................................7 

Summary of the Argument .........................................................................19

Point of Error Number One ........................................................................21

Prayer for Relief .........................................................................................29

Certificate of Service ..................................................................................29

Certificate of Compliance...........................................................................30
3 

PARTIES TO TRIAL COURT’S FINAL JUDGMENT

 In accordance with Tex.R.App.Proc. 38.1(a), Appellant certifies 

that the following is a complete list of the parties and their counsel:

 (a) the State of Texas represented by:

Mr. Josh Reno, Assistant District Attorney 

 Williamson County District Attorney’s Office

405 Martin Luther King, Suite 1

Georgetown, Texas 78626 

Ms. Jackie Borcherding, Assistant District Attorney

Williamson County District Attorney’s Office

405 Martin Luther King, Suite 1

Georgetown, Texas 78626 

 (b) Mr. Leovardo Cantos represented by:

Mr. Alfonso C. Hernandez – trial attorney

Attorney at Law 

507 W. 10th Street

Austin, Texas 78701

 

Mr. Rene Vargas – trial attorney

Attorney at Law

507 W. 10th Street

Austin, Texas 78701

Ms. Linda Icenhauer-Ramirez - appellate attorney

Attorney at Law

 1103 Nueces

Austin, Texas 78701
4 

INDEX OF AUTHORITIES

CASES PAGE

Albrecht v. State, 486 S.W.2d 97, 100-101 (Tex.Cr.App. 1972) ...............24

Carter v. State, 145 S.W.3d 702 (Tex.App.-Dallas 2004, pet. ref.)............23

Dekneef v. State, 379 S.W.3d 423, 433 (Tex.App.-Amarillo 2012,

 pet. ref.)...........................................................................................26

Elkins v. State, 647 S.W.2d 663 (Tex.Cr.App. 1983) ......................... 23, 24

Escort v. State, 713 S.W.2d 733 (Tex.App.-Corpus Christi 1986,

 no pet.)....................................................................................... 25, 28

Gigliobianco v. State, 210 S.W.3d 637, 641-641 (Tex.Cr.App.

 2006).................................................................................................26

Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Cr.App. 1991)

 (opinion on rehearing) ........................................................................24 

Powell v. State, 63 S.W.3d 435, 438 (Tex.Cr.App. 2001) .........................24

 

Williams v. State, 662 S.W.2d 344, 346 (Tex.Cr.App. 1983)...............23, 24

STATUTES

V.T.C.A. Penal Code, Sec. 22.02(a)(1) ......................................................7 

COURT RULES

Tex.R.App.Proc. 38.1(a).............................................................................3 

Tex.R.Ev. 403 ................................................................................. 24, 26, 28

Tex.R.Ev. 404(b) .......................................................................21, 22, 23, 24
5 

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW Leovardo Cantos, appellant in this cause, by and 

through his attorney and files this his brief on original appeal.

STATEMENT OF THE NATURE OF THE CASE

 Appellant was charged by indictment in this cause on February 18, 

2014. The indictment alleged that appellant committed the offense of 

aggravated assault with serious bodily injury. It also contained a deadly 

weapon allegation. (C.R. 11) Jury selection occurred on July 28, 2014. 

(R.R. V, pp. 24-215) On July 29, 2014, appellant entered a plea of not 

guilty. (R.R. VI, p. 16) On July 31, 2014, after hearing the evidence and 

the argument from counsel, the jury deliberated and returned a verdict of 

guilty of the offense of aggravated assault. The jury also made an 

affirmative finding that appellant used a deadly weapon. (R.R. X, pp. 

122-123; C.R. 58-68) Appellant elected to go to the trial court for 

sentencing. On August 11, 2014, after hearing the evidence and argument 

from counsel, the trial court assessed appellant’s punishment at fifteen (15) 

years imprisonment. (R.R. XII, pp. 50; C.R. 79-82) A motion for new 

trial was filed on September 10, 2014. (C.R. 76-77) Notice of appeal was 

filed on September 10, 2014. (C.R. 78) The trial court’s certification of 

defendant’s right to appeal was filed on November 6, 2014. (C.R. 86) 
6 

STATEMENT OF THE POINT OF ERROR

POINT OF ERROR NUMBER ONE

THE TRIAL COURT ABUSED ITS DISCRETION IN 

ADMITTING INTO EVIDENCE THE EXTRANEOUS 

OFFENSE WHEN THE RECORD CLEARLY SHOWED THAT 

THE PREJUDICIAL EFFECT OF THE EVIDENCE FAR 

OUTWEIGHED ITS PROBATIVE VALUE.
7 

STATEMENT OF FACTS

The indictment in this case alleged that appellant committed the 

offense of aggravated assault with a deadly weapon and specifically alleged 

that appellant:

“on or about the 14th day of November, 2013, . . . intentionally, 

knowingly, or recklessly caused serious bodily injury to Juan 

Davila, by kicking or stomping Juan Davila with the 

defendant’s feet,” (C.R. 11) 

V.T.C.A. Penal Code, Sec. 22.02(a)(1). The indictment also contained 

notice that the State would be seeking an affirmative finding of a deadly 

weapon. (C.R. 11)

The evidence showed that both appellant and the complainant played 

in a competitive amateur softball league in Round Rock, Texas. 

Appellant had a reputation among softball players as being a very aggressive 

and competitive player. Appellant played for a team called FYC and the 

complainant played for a team called TKO. The two teams played each 

other on the evening of November 14, 2013. (R.R. VI, pp. 33-39, 115, 

242; R.R. VIII, pp. 47-50) Towards the end of the game, appellant and 

the complainant were involved in a play at second base. Appellant was 

playing second base and the complainant was a base runner on first base. 

Witnesses testified that when the batter hit the ball, the complainant ran 
8 

towards second base, rounded second base and then fell down somewhere 

between second and third base. In an effort to get back to second base the 

complainant dove back into second base headfirst. In the process of diving 

back into second base, the complainant’s shoulder made contact with 

appellant’s knee. (R.R. VI, pp. 42-48, 119-122, 242-244; R.R. VII, pp. 7, 

33; R.R. VIII, pp. 51-54; 99-102; R.R. IX, pp. 35-36, 75-76; R.R. X, pp. 

20-23) One witness, Danny Teller, a player from appellant’s team 

testified that after the complainant slid into appellant, appellant fell to the 

ground and complained that his knee had been hurt in the collision. He 

testified that appellant got back to his feet and pushed the complainant down 

as he was trying to get to his feet. (R.R. VI, p. 48) Umpire Gary 

Clements described the play at second base as “incidental contact.” He 

testified that appellant was upset at the complainant after the play because 

his knee had been hurt. (R.R. VI, pp. 122-123) All of the witnesses 

testified that words were exchanged between appellant and the complainant. 

Play resumed after the umpires admonished the two men. (R.R. VI, pp. 

49, 123-124, 161-163, 244; R.R. VII, p. 7) 

During the next half inning, the complainant’s team, TKO, took the 

field with the complainant playing first base. Danny Teller, appellant’s 

teammate, testified that while his team was in the first base dug-out waiting 
9 

to bat, he heard appellant say, “Yes, you have something coming to you.” 

Teller testified that he batted and got on second base. Appellant was the 

next batter and hit the ball to the pitcher. The pitcher fielded the ball and 

made an under-handed throw to the complainant who was playing first base. 

However, because the throw was short, the complainant had to take a step or 

two in front of the first base bag in order to catch the ball. Witnesses

testified that as appellant ran towards first base, he threw his hands up into 

the complainant’s face and ran the complainant over. Umpire Gary 

Clements said that appellant was initially jogging towards first based and 

then within his last four or five steps accelerated as he charged the 

complainant. The complainant was knocked down and after appellant 

knocked the complainant down, he turned out towards the fence. 

Witnesses testified that the complainant got to his feet, still holding the 

softball. It appeared as if the complainant was going to throw the softball 

at appellant but then the complainant apparently changed his mind and threw 

the ball towards the appellant’s foot. Danny Teller, Umpire Clements and 

Marty Jenkins testified that the ball hit the ground and never hit the 

appellant. Two other players, John Crowder and Karl Holdren, testified 

that the ball ricocheted off of appellant and when that occurred, appellant 

turned around and went back towards the complainant. Gabriel Orozco, a 
10

defense witness, testified that the complainant threw the ball and it hit 

appellant in the thigh. Teller and Clements testified that the two men then 

came together and began “jawing” at each other. Both men were agitated. 

Teller and Orozco testified that the two men began throwing punches. 

Clements testified that the complainant never swung at appellant. 

Clements and Jackson testified that appellant struck the complainant and 

knocked him to the ground. Teller testified that by this time other players 

had run up to the two men and blocked Teller’s view, but he did see that the 

complainant was on the ground and he saw someone kicking the 

complainant. Umpire Clements testified that he saw appellant kick the 

complainant in the head. He also testified that he never saw the 

complainant swing at appellant or pull out any kind of weapon before he was 

kicked. Douglas Peterson, who played on the complainant’s team echoed 

the testimony of Teller and Clements. He testified that the complainant

never made a move towards appellant. After appellant shoved the 

complainant to the ground the last time, he saw appellant kick the 

complainant in the face and shoulder area with a hard kick. Then appellant 

jumped on top of the complainant. Peterson testified that he ran over and 

knocked appellant off of the complainant. Peterson testified that appellant 

was the aggressor. Karl Holdren also testified that appellant tackled the 
11

complainant and then got up and kicked the complainant hard in the face two

times. Marty Jackson, another softball player told the jury that he did not 

see appellant kick the complainant in the head but afterwards he saw red 

marks on the complainant’s head. Off duty police officer Brian 

Hollywood, who was a pick up player in the game, also testified that he saw 

appellant kick the complainant “unbelievably hard.” (R.R. VI, pp. 49-59, 

128-148, 245-252; R.R. VII, pp. 8-20, 35-43; R.R. VIII, pp. 55-61; 102-106; 

R.R. IX, pp. 36-39, 78-83; R.R. X, pp. 24-35) 

Both men were ejected from the game for fighting and appellant was 

told to leave the area, which he did. The complainant, although ejected 

from the game, stayed outside the fence and watched the conclusion of the 

game. (R.R. VI, pp. 60-61, 253; R.R. IX, pp. 40-42, 84-85) 

 Witnesses testified that it is against the rules to make contact with 

another player in amateur softball. (R.R. VI, pp. 56, 92-93, 113-114; 

R.R. VIII, p. 84, 98) All but one witness, defense witness Andria White,

testified that appellant was the aggressor and that the complainant did 

nothing to provoke appellant’s attack. (R.R. VI, p. 73; R.R. VIII, pp. 

85-87; 107) White, who was watching the game, testified that the 

complainant’s slide into second base was a very aggressive slide and she 

considered it a dirty play. (R.R. X, p. 43) Brian Hollywood, the police 
12

officer who was playing in the game and who was off duty at the time 

testified that he believed appellant had assaulted the complainant and so he 

called the Round Rock police and an officer responded to the softball field. 

Hollywood also testified that a foot can be a deadly weapon if it causes 

serious bodily injury. (R.R. VIII, pp. 110-113)

Danny Teller, Karl Holdren and Marty Jackson all testified that 

shortly after the game, they looked at appellant’s Facebook account and saw 

appellant had posted the following: 

“I guess next time you will think twice about taking out 

someone’s knee in softball. Haha! How’s your face? 

Cause my foot is killing me!!! Not to mention how far u flew 

when u were “standing your ground.” Lmao. U picked the 

wrong Mexican homeboy!!!” (R.R. VI, p. 68) (State’s 

Exhibit 2)

This posting was introduced into evidence by the State as State’s Exhibit 2 

over appellant’s objection. (R.R. VI, pp. 65-68; R.R. VII, pp. 44- 45; 

R.R. VIII, pp. 62, 76) 

The complainant, Juan Davila, testified and told the jury that he 

remembered playing in the softball game that night. He testified that 

when he dove back into second base, his shoulder collided with appellant’s 

knee. He told the jury that he did not know appellant and was not 

intentionally trying to hurt him. Davila testified about the play at first base. 

He testified that after he caught the ball from the pitcher, he had his right 
13

foot on the first base bag. He told the jury that he then stepped off the bag 

and threw the ball to the shortstop. He told the jury that he remembered 

having words with appellant and he remembered throwing the ball down in 

front of appellant. Davila told the jury that he thought the ball hit appellant 

after it bounced. He testified that he did not remember hitting appellant. 

The last thing he remembered was being on the ground. Appellant told 

the jury that he has no memory of the incident after that point. (R.R. VI, 

pp. 195-206) The evidence showed that the complainant spent that night at 

his girlfriend’s house. The next morning the complainant’s sister 

persuaded him to go the emergency room. (R.R. VI, pp. 207-211) At 

the emergency room, doctors discovered that the complainant had suffered a 

serious brain injury. The complainant had to undergo major brain surgery 

and was hospitalized for approximately one week. He was then released 

to a rehabilitation facility where he stayed for one month, followed by 

months of outpatient therapy. The evidence showed that he was not able 

to return to work until May of 2014, some six months after the incident. 

Appellant testified that as a result of his brain injury, he has memory issues, 

his temper and impulsiveness is bad in that he overreacts to situations. He 

also has trouble navigating around town or even remembering where he has 

parked his car. Finally, the complainant told the jury that he has a blind 
14

spot in his peripheral vision. (R.R. VI, pp. 214-226) The complainant’s 

friend and fellow ball-player, Doug Peterson testified that as a result of his 

brain injury, the complainant’s personality is totally different and he has a 

very bad memory. (R.R. VI, pp. 254-255) The complainant’s best 

friend Karl Holdren testified that as a result of his injury, the complainant 

has become angry, short-tempered and has memory issues. (R.R. VII, p. 

54) Marty Jackson, another friend of the complainant also testified that the 

complainant’s personality is different and that it takes him longer to react to 

things like joking and teasing. (R.R. VIII, p. 65)

Dr. Ernest Gonzalez, a trauma surgeon, testified that on November 15, 

2013, he was working at St. David’s Hospital in Round Rock when the 

complainant came to the emergency room. Dr. Gonzalez testified that 

initially appellant was awake and able to converse although he said he was 

not feeling well. He was placed in ICU so that doctors could monitor his 

condition overnight. Dr. Gonzalez also had the complainant undergo a 

CT scan. This scan showed that the complainant had multiple fractures of 

his foreface, his orbital roof, with bleeding in the subdural, as well as 

bruising on the right frontal lobe of his brain tissue. Dr. Gonzalez told the 

jury that these injuries were caused by blunt force trauma. Dr. Gonzalez 

testified that as they monitored the complainant, his condition worsened and 
15

he had to undergo emergency brain surgery in order to evacuate the blood 

from his brain. He testified that the complainant probably would have 

died without the surgery. The complainant was discharged from the 

hospital on November 22, 2013 and was put in inpatient rehabilitation 

followed by outpatient rehabilitation. Dr. Gonzalez testified that the 

complainant’s injuries constituted serious bodily injury in that he faced a 

substantial risk of death due to the injury to his brain. The doctor also 

testified that a foot used to kick someone in the head with the same resulting 

injuries could be a deadly weapon. (R.R. VIII, pp. 13-40)

Rosie Hernandez, the complainant’s girlfriend, testified that the 

complainant came home the night of the incident and seemed disoriented 

and upset. He told her that he had gotten into a fight and she could see 

marks on his forehead. Hernandez testified that the complainant 

complained of a headache and he was up and down all night. He also 

began vomiting. Hernandez told the jury that the next morning she saw 

that the complainant’s right eye was turning purple. Hernandez told the 

jury that she left for work and later in the morning when the complainant 

would not respond to her texts, she called his sister and asked her to check 

on him. They were able to persuade the complainant to go to the hospital 

later in the day. Hernandez testified that the complainant had to have brain 
16

surgery and was hospitalized for one week. After being discharged from 

the hospital, he spent about a month in a rehabilitation facility. (R.R. VIII, 

pp. 183-206) Hernandez testified as to the changes in the complainant 

after the incident. She told the jury that it was as if he had lost his filter. 

She testified that the complainant now says inappropriate things. He has 

lost his sense of direction. He is forgetful. His mood fluctuates and he 

often is sad and cries. She also told the jury that he has a blind spot in his 

eye and cannot see things, causing him to bump into things. (R.R. VIII, 

pp. 207-213) The complainant’s sister, Patricia Cortez, told the jury 

how she went to check on the complainant the morning after the incident. 

He was disoriented and vomiting. She testified that she drove him to the 

hospital where doctors discovered that his brain was swelling and he had to 

undergo emergency brain surgery. She described the complainant as an 

angry person since his brain injury. (R.R. VIII, pp. 217-224)

After both sides rested and closed, the State made an oral motion to 

strike the “or stomping” language from the indictment. The trial court 

granted that request. (R.R. X, p. 65) The jury heard argument from 

both sides, deliberated and then announced its verdict. The jury found

appellant guilty of the offense of aggravated assault as alleged in the 

indictment. The jury also made an affirmative finding of a deadly weapon. 
17

(R.R. X, pp. 122-123; C.R. 58-68 ) 

Appellant elected to go to the trial court for punishment. The State 

introduced into evidence various State’s Exhibits showing some of 

appellant’s prior convictions: State’s Exhibit 24 – a conviction for evading 

arrest in Cause No. 08-07320-1 in County Court at Law No. 1 of Williamson 

County on February 12, 2009; State’s Exhibit 25 – a conviction for felony 

DWI in Cause No. D1-DC-09-907397 in the 331st District Court of Travis 

County on July 26, 2010; State’s Exhibit 26 – a conviction for another 

felony DWI in Cause No. D1-DC-10-201406 in the 331st District Court of 

Travis County on July 26, 2010 and State’s Exhibit 27 – a conviction for 

assault on a public servant in Cause No. D1-DC-10-201407 in the 331st

District Court of Travis County, Texas on July 26, 2010. (R.R. XI, pp. 

15-16) The State also introduced State’s Exhibits 28, 29, 30 and 31 – 

recordings of some of appellant’s phone calls from the Williamson County 

Jail. (R.R. XI, pp. 16-19) The State then rested.

Dr. Matthew Ferrara, a psychologist, testified for the defense. He 

told the court that he had evaluated appellant and found six mitigating 

factors to consider when assessing punishment: (1) he suffered

post-traumatic stress disorder that had occurred during his military service; 

(2) his loss of a paternal figure as a child (his father had died when he was 
18

in fifth grade); (3) his mother never showed him love; (4) he saw domestic 

violence in his home between his parents; (5) he was a victim of sexual 

abuse as a child; and (6) he has a substance abuse problem. Dr. Ferrara 

testified that there is treatment available for each one of these factors. He 

also testified that appellant will become less aggressive as he ages. 

(R.R. XI, pp. 21-36) 

Appellant’s wife also testified and told the court that appellant was a 

great husband and father and a good man. She also testified that after the 

incident when he learned how serious the complainant’s injuries were, he 

was remorseful. (R.R. XII pp. 6-9) Appellant’s two sons and one of 

their friends also testified as character witnesses for appellant. (R.R. 

XII, pp. 14-20) The defense then rested and the State called Officer 

Andrew McRae in rebuttal. McRae testified that he had arrested appellant 

twice for the offense of driving while intoxicated – once on April 21, 2009 

and again on March 12, 2010. He gave the details of each arrest to the 

court. (R.R. XII, pp. 22-33) After McRae’s testimony, the State rested 

and both sides closed. (R.R. XII, pp. 33-35) After hearing the 

argument of counsel from both sides, the trial court assessed appellant’s 

punishment at fifteen years imprisonment. (R.R. XII, p. 50; C.R. 79-81) 
19

SUMMARY OF THE ARGUMENT

In his sole point of error, appellant argues that the trial court abused 

its discretion when it allowed the State to introduce an extraneous offense 

into evidence because the prejudicial effect of that evidence far outweighed 

any probative value that the evidence had. As its last witness during the 

guilt-innocence phase of the trial, the State brought in APD Officer Andrew 

McRae who testified that while appellant was in his custody on another 

charge, appellant threatened him with physical harm and in fact did kick the 

police car door as the officer was opening it to remove appellant from the 

vehicle. As a consequence the officer sustained a sprained wrist because he 

was holding onto the door handle when appellant kicked the car door. The 

State argued that they needed to use this extraneous offense to rebut 

appellant’s theory of self-defense, to show his intent and to show his lack of 

mistake. Appellant asserts that the relevance of the extraneous offense 

testimony did not outweigh the inherent prejudicial and inflammatory effect 

of the testimony. The prosecution put on overwhelming evidence of 

appellant’s guilt. Not only were there numerous eyewitnesses who 

testified that it was appellant who kicked the complainant in the head, the 

State introduced State’s Exhibit 2, a Facebook entry, appellant posted some 

ten minutes after the attack, boasting of kicking the complainant in the face. 
20

The State did not need the extraneous offense at all. The prejudicial and 

inflammatory effect of the admission of the extraneous offense into evidence 

was far greater than any probative effect. The trial court abused its 

discretion in allowing the extraneous offense into evidence. 
21

POINT OF ERROR NUMBER ONE

THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING 

INTO EVIDENCE THE EXTRANEOUS OFFENSE WHEN THE 

RECORD CLEARLY SHOWED THAT THE PREJUDICIAL 

EFFECT OF THE EVIDENCE FAR OUTWEIGHED ITS 

PROBATIVE VALUE.

During his opening argument defense counsel argued that appellant 

was acting in self-defense when the complainant was injured. (R.R. VI, 

pp. 25-31) On the second day of the evidence, the State announced that

because appellant had argued self-defense in his opening statement, he had 

opened the door and thus the State should be allowed to introduce evidence 

of appellant’s prior conviction for assault on a public servant. The State 

argued that appellant was not acting in self-defense but rather his motive 

was to hurt the complainant after the incident at second base. The State 

argued that the extraneous offense should be admissible under Tex.R.Ev. 

404(b) to show appellant’s intent and lack of mistake. Appellant objected 

on the basis that a theory of self-defense did not open the door to other 

violent acts and even if it did, this evidence would be far more prejudicial 

than probative. The trial court asked the parties to provide her case law 

and took the matter under advisement. (R.R. VIII, pp. 5-11) Later after 

reading the case law, the trial court informed the parties that she would 

allow the State to put on evidence regarding the actual incident but would 
22

not allow the jury to know that appellant had been convicted for that offense. 

(R.R. VIII, pp. 126-128) Immediately before the extraneous offense was 

put before the jury, the defense renewed its objection to the admissibility of 

the extraneous offense under Tex.R.Ev. 404(b) and also argued that 

admission of this evidence would be more prejudicial than probative. The 

court after hearing the witness testify outside the presence of the jury 

overruled appellant’s objection and ruled that she was admitting the 

extraneous offense to rebut a defensive theory of self-defense. She ruled 

that the State could use the evidence to show lack of mistake and intent. 

She did however restrict the State from introducing evidence as to why the 

officer was arresting appellant or the fact that appellant had been convicted 

of assaulting a public servant because of the this incident. (R.R. IX, pp. 

4-18)

Immediately thereafter, Officer Andrew McRae of the Austin Police 

Department was allowed to testify in front of the jury. He told the jury that 

on March 12, 2010, while on patrol, he arrested appellant. Appellant was 

put in the back of the patrol car. McRae testified that while he was 

transporting appellant, appellant threatened him:

“Q. . . . Can you tell the jury what statements the 

defendant was making to you?

“A. He made several statements. “Open these doors. 
23

See if I don’t punch you in the face. Get someone else to 

open up this door. I swear to God you open this door, I’m 

going to fuck you up. I’m not even playing. Seriously, bro, 

when we get to the fucking station, get somebody else to open 

the fucking door because if you’re anywhere near me, ooh.” 

(R.R. IX, pp. 28-29)

McRae went on to testify that when they reached their destination, the 

appellant had turned so that his back was facing away from the door. 

When McRae opened the back door of the police car, appellant kicked the 

door very hard causing McRae, who was holding the door handle to sprain 

his wrist. McRae told the jury that appellant’s action caused him pain in 

his wrist that lasted for one or two days. (R.R. IX, p. 29) On cross, 

defense counsel established that appellant had been asking Officer McRae to 

be allowed to use the restroom and the officer had not allowed him to do so. 

As a consequence, appellant had urinated all over himself. (R.R. IX, pp. 

30-31) 

The general rule regarding the admissibility of extraneous offenses is 

that an accused may not be tried for a collateral crime or for being a criminal 

generally. Tex.R.Ev. 404(b); Williams v. State, 662 S.W.2d 344, 346 

(Tex.Cr.App. 1983); Elkins v. State, 647 S.W.2d 663, 665 (Tex.Cr.App. 

1983); Carter v. State, 145 S.W.3d 702, 707 (Tex.App.-Dallas 2004, pet. 

ref.). Introduction of an extraneous offense is inherently prejudicial, and a 

defendant’s “propensity to commit crimes” is not material to whether the 
24

defendant committed the specific offense charged. Williams v. State, 662 

S.W.2d at 346; Elkins v. State, 647 S.W.2d at 665.

There are exceptions to the general rule barring admission of 

extraneous offenses. An extraneous offense committed by the accused 

may be admissible “upon a showing by the prosecution both that the 

[extraneous offense] is relevant to a material issue in the case; and the 

relevancy value of the evidence outweighs its inflammatory or prejudicial 

potential.” (emphasis added). Williams v. State, 662 S.W.2d at 346. 

Thus an extraneous offense may be admissible to show the motive or intent 

of the accused or to refute a defense theory. See Tex.R.Ev. 404(b); see also 

Powell v. State, 63 S.W.3d 435, 438 (Tex.Cr.App. 2001); Montgomery v. 

State, 810 S.W.2d 372, 386 (Tex.Cr.App. 1991)(opinion on rehearing). 

Albrecht v. State, 486 S.W.2d 97, 100-101 (Tex.Cr.App. 1972). Even if it 

is admissible, however, its relevance and materiality must still be shown to

outweigh its prejudicial effect. See Tex.R.Ev. 403; Montgomery v. State, 

supra; Williams v. State, 662 S.W.2d at 346. A relationship must be shown 

between the extraneous offense “and the evidence necessary to prove the 

accused committed the crime for which he stands charged . . . .” Albrecht 

v. State, 486 S.W.2d at 100.

Appellant asserts that the relevance of the extraneous offense 
25

testimony did not outweigh the inherent prejudicial and inflammatory effect 

of the testimony. The prosecution put on overwhelming evidence of 

appellant’s guilt. All of the eyewitnesses testified that it was appellant 

who was involved in the altercation with the complainant. Several of the 

witnesses testified that they saw the appellant actually kick the complainant 

in the head and there was no evidence introduced which showed that it was 

anyone else or that appellant was justified in his action of kicking the 

complainant in the head. Furthermore, the State introduced into evidence 

State’s Exhibit 2, a Facebook post which appellant posted on his Facebook 

page some ten minutes after the incident. It read: 

“I guess next time you will think twice about taking out 

someone’s knee in softball. Haha! How’s your face? 

Cause my foot is killing me!!! Not to mention how far u flew 

when u were “standing your ground.” Lmao. U picked the 

wrong Mexican homeboy!!!” (R.R. VI, p. 68) (State’s 

Exhibit 2)

A review of all of the evidence shows that the State put on more than enough 

evidence about the incident alone to refute appellant’s self-defense theory. 

As the Corpus Christi Court of Appeals wrote in Escort v. State, 713 S.W.2d 

733 (Tex.App.-Corpus Christi 1986, no pet.), a case very similar to this in its 

procedural posture:

“The extraneous offense evidence was simply ‘overkill,’ and it 

went too far. 713 S.W.2d at 737.
26

Where all if not most of the direct evidence adduced during the trial rebuts 

the theory of self-defense and goes to prove an accused’s intent, the less 

relevant is evidence involving a collateral offense between the accused and a 

third party. Considering the overwhelming evidence of appellant’s guilt

both from eyewitness accounts and appellant’s Facebook post, the evidence 

regarding appellant’s unrelated act towards Officer McRae, could not have 

been that helpful to the jury in resolving the issue of self-defense. Thus 

the relevancy of the extraneous offense is questionable. Thus the 

prejudice emanating from the admission of the extraneous offense far 

outweighed any probative value that it could have had.

In assessing whether potentially relevant evidence should be excluded 

under Tex.R.Ev. 403 because its prejudicial nature substantially outweighs 

its probative value, the appellate court must consider 1) the probative force 

of the evidence, 2) the need for the evidence, 3) the tendency of the evidence

to suggest a decision on an improper basis, 4) the tendency of the evidence

to confuse or distract the jury, 5) the tendency of the evidence to be given 

undue weight, and 6) the likelihood that the presentation of the evidence will 

consume an inordinate amount of time or merely repeat evidence already 

admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-641 (Tex.Cr.App. 

2006); Dekneef v. State, 379 S.W.3d 423, 433 (Tex.App.-Amarillo 2012, 
27

pet.ref.). The first four of those criteria clearly favored excluding the 

testimony at issue. Its probative value or relevance was marginal at best. 

The State had little need for it. Attributing to an accused prior criminal 

conduct is undoubtedly prejudicial and facilitates the jury's penchant to infer 

present guilt from prior criminal conduct. In appellant’s case, the prejudicial

testimony came from the State’s last witness at guilt-innocence, a police 

officer, called only for the purpose of soliciting that prejudicial testimony. 

As for the last indicia, not much time was spent on presenting the evidence,

but the potentially unacceptable impact it had due to its timing is evident. 

In addition both prosecutors emphasized the extraneous offense during their 

closing arguments at guilt-innocence. Prosecutor Jackie Borcherding 

argued the following:

“The defendant had the intent to assault Juan, and the 

reason why we know that is because he had statements made 

right before he assaulted Juan, and we know that in the past – 

You can consider an extraneous offense – the fact that he told 

Officer McRae in 2010 that essentially – the quote was, ‘I 

swear to God, you open this door, I’m going to fuck you up. 

I’m not even playing. When we get to the fucking station, 

get somebody else to open the fucking door because if you’re 

anywhere near me, oh.’ And he carried through with his 

threat, and he kicked the door open, and it hurt Officer McRae. 

That shows his intent to hurt Juan, and the reason why is 

because in our case, he made threatening statements. ‘You’ll 

get yours.’ ‘You’ll have what’s coming to you.’ And he 

carried through with that threat by kicking – kicking again, this 

time Juan. That extraneous offense is relevant to show you 

his intent, that he’s not defending himself. . . . “ R.R. X, pp. 
28

89-90. 

Prosecutor Josh Reno encouraged the jury not to consider the extraneous 

offense as a tool to consider appellant’s intent but rather he urged the jury to 

improperly consider the extraneous offense as evidence of appellant’s 

assaultive character:

“Yeah, we brought you an assaultive case that happened out of 

Austin. He’s assaultive. This defendant has an assaultive 

history, and you need to know that why? Because now that 

we’ve proven our case beyond a reasonable doubt, he’s 

claiming self-defense. He’s saying, ‘Yeah, I assaulted you, 

Juan, but I had to. I had to. I had to defend myself.’ 

Really? Really?” . . . This defendant makes threats, and 

then he makes good on them just like he did with Andrew 

McRae, the officer with the Austin Police Department.” (R.R. 

X, pp. 113-114)

Reasonable minds cannot disagree over the application of Tex.R.Ev. 

403 here; the prejudicial effect of disclosing that appellant had a prior arrest 

and during that arrest assaulted a police officer far outweighed any minimal 

probative value the evidence may have had.1

 The trial court clearly abused 

its discretion in admitting the extraneous offense. This point of error 

should be sustained.

 

1 Appellant acknowledges that the trial court did submit a limiting 

instruction regarding the extraneous offense testimony in its charge to the 

jury. (C.R. 58-68) However, appellant asserts that just as the Corpus 

Christi Court of Appeals found in Escort v. State, 713 S.W.2d 733, 737-738 

(Tex.App.-Corpus Christi 1986, no pet.), the instruction had no curative 

value “in obviating the inflammatory effect of the inadmissible evidence”.
29

PRAYER

Appellant respectfully requests that this Honorable Court sustain his 

point of error and reverse the trial court and remand the case for a new trial. 

 Respectfully submitted,

 /s/ Linda Icenhauer-Ramirez 

 LINDA ICENHAUER-RAMIREZ

 Attorney at Law

 1103 Nueces 

 Austin, Texas 78701

 (512) 477-7991 

 FAX: (512) 477-3580

 SBN: 10382944

 Email: ljir@aol.com

 ATTORNEY FOR APPELLANT 

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief was computer generated and contains 

5,834 words, as calculated by the word count function on my computer.

 /s/ Linda Icenhauer-Ramirez 

LINDA ICENHAUER-RAMIREZ
30

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Appellant’s Brief on 

Original Appeal served by e-service to John Prezas of the Williamson

County District Attorney’s Office on this the 9th day of July, 2015. 

 /s/ Linda Icenhauer-Ramirez 

 LINDA ICENHAUER-RAMIREZ