CASE NO. 12

- 14 -00080-CR
IN THE TWELFTH COURT OF APPEALS T YLER , TEXAS

STATE OF TEXAS V. FELIPE CASTRO
On Appeal from the
3 49 TH District Court, Houston County, Texas (Trial Court No. 13 CR -058) Hon. Pam Foster Fletcher, Judge Presiding

BRIEF OF APPELLANT
WILLIAM M. CURLEY TBC #05257100 507 N. Church St. Palestine, Texas 75801 (903) 723-6757
COUNSEL FOR APPELLANT

BRIEF OF APPELLANT

TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Felipe Castro, the Appellant, and files this his Brief of Appeal in the above entitled and numbered cause. ACCEPTED 12-14-00080-CR TWELFTH COURT OF APPEALS

TYLER, TEXAS 4/20/2015 1:20:22 AM CATHY LUSK CLERK2 IDENTITY OF PARTIES AND COUNSEL

Trial Parties and Counsel Felipe Castro , Defendant William Curley Attorney for Defendant 507 N. Church St. Palestine, Texas 75801 State of Texas Donna Gordon Kaspar Houston County District Attorney Trial Counsel for the State 401 East Houston Ave. Crockett, Texas 75835

Appellate Parties and Counsel Felipe Castro , Appellant William M. Curley Attorney for Appellant 507 N. Church St. Palestine, Texas 75801 State of Texas, Appellee Donna Gordon Kaspar Houston County District Attorney Appellate Counsel for the State 401 East Houston Ave. Crockett, Texas 758353 TABLE OF CONTENTS Page Table of Contents....................................

...................................... ... 3
Index of A uthorities........................................................................... 6 Statement of the Case ......................................................................... 7 Issues Presented Point of Error Number One........

................................................. 8 The trial court erred in overruling Appellant’s Motion to Suppress the oral recorded statement that Appellant gave to police. Point of Error Number Two....................................................... 8 The evid ence is legally insufficient to sustain a conviction for Aggravated Kidnapping. Point of Error Number Three

....................................................... 8 The evidence is legally insufficient to sustain a conviction for Aggravated Sexual Assault. Poi nt of Error Number Four

....................................................... 8 The trial court erred in failing to instruct the jury on the lesser included offense of Sexual Assault.
Point of Error Number Five

....................................................... 8 During final argument in the punishment phase of the trial, the prosecutor made improper jury arguments that were outside the record.4

Point of Error Number Six..

....................................................... 8 During final argument in the punishme nt phase of the trial, the prosecutor misstated the law. Statement of Facts ................................................................. 9 Point of Error Number One R estated

... ................................... ...... 1 4 Summary of the Argument................................................ 1 4 Argument................................................................... 1 5 Point of Error Number Two R estated

... .................................... 1 8 Summary of the Argument................................................ 1 8 Argument................................................................... 1 8 Point of Error Number Three R estated

... .................................... 2 0 Summary of the Argument..................

.............................. 2 0 Argument................................................................... 2 0 Point of Error Number Four R estated

... .................................... 2 2 Summary of the Argument................................................ 2 2 Argument................................................................... 2 2 Point of Error Number Five R estated

... .................................... 2 3 Summary of the Argument................................................ 2 4 Argument................................................................... 2 45

Point of Error Number Six R estated

........ .................................... 2 5 Summary of the Argument................................................ 2 5 Argument.............................................

...................... 2 6 Prayer...........................................................................................

...... 2 7 Certificate of Compliance

.. .................................................................... .. 2 8 Certificate of Service

.. ..................................................... ............... ..... 2 86 INDEX OF AUTHORITIES
CASES PAGE
Hernandez v. State , 13 S.W.3d 78 (Tex. App.

– Texarkana 2000, no pet) 1 5
Nonn v. State , 69 S.W. 3d (Tex . App.

– Corpus Christi 2001) 16 Dowthitt v. State , 931 S.W.2d 24 4 (Tex. Crim. App.

– 1996) 1 6 Romero v. State , 800 S.W.2 d 539 (Tex. Crim. App.

– 1990) 1 7 Jackson v. Virginia , 443 U.S. 307 (1979) 18 , 19 ,20 Santella v. State , 939 S.W. 2d 155 (Tex. Crim. App. 1997) 1 8 ,20 Fuller v. State , 73 S. W. 3d 250 (Tex. Crim. App. 2002) ) 19 ,20 Laster v. State , 275 S.W.2d 512 (Tex. Crim. App.

– 2009) 19 Moore v. State , 802 S.W.2d 367 (Tex. A pp.

– Dallas 1990, pet. ref’d) 21
Webb v. State , 801 S.W.2d 529 (Tex. Crim. App.

– 1990) 21 Ex Parte Watson , 306 S.W.3d 259 (Tex. Crim. App.

– 2010) 23 Hall v. State , 225 S.W.3d 524 (Tex. Crim. App.

– 2007) 23 Person v. State , 706 S.W.2d 153 (Tex. App.

– Houston [1 st Dist.] 1986, no pet.) 24 ,26 See, Prado v. State , 626 S.W.2d 775 (Tex. Crim. App.

– 1982) 24 ,2 5 Peak v. State, 57 S.W.3d 14, 19

- 21 (Tex. App.

– Houston [14 th Dist.] 2001, no pet.) 25 ,26

CODES PAGE T ex. Code Crim. Pro. Art. 38.2 2 1 5 , 1 6 , 17 Tex. Pen. Code §22.021 2 1 Tex. Pen. Code §1.07 2 1 Tex. Code Crim. Pro. Article 37.09 2 37 STATEMENT OF THE CASE
On March 25, 2013 , Appellant was indicted by a Houston County grand jury for the followi ng felony offense s: two counts of Aggravated Sexual Assault, on e count of Assault by Strangulation and one count of Aggravated Kidnapping

. (C.R. p. 25). A jury was selected on March 17, 2014. ( R.R. Vol. 1 ). Presentation of evidence began on March 18, 2 014 . (R.R. Vol. 3 ). The jury found Appellant guilty of one count of Aggravated Sexual Assault, Assault by Strangulation and Aggravated Kidnapping. The jury acquitted Appellant on one count of Aggravated Sexual Assault. (C.R. p p . 120

- 124 ). The same jury sentenced Appellant on the count of Aggravated Sexual Assault to 40 years in the Texas Department of Criminal Justice

– Institutional Division ; on the count of Assault by Strangulation to 10 years in the Texas Department of Criminal Justice

– Institution al Divis ion; and on the count of Aggravated Kidnapping to 40 years in the Texas Department of Criminal Justice

– Institutional Division. (C.R. p. 149

- 151 ). For convenience sake, volumes cited from the reporter’s record will be referred to as (R.R.). Th e clerk’s record will be referred to as (C.R.).8 ISSUES PRESENTED
POINT OF ERROR NUMBER ONE The trial court erred in overruling Appellant’s Motion to Suppress the oral recorded statement that Appellant gave to police.

POINT OF ERROR NUMBER TWO The ev idence is legally insufficient to sustain a conviction for Aggravated Kidnapping.
POINT OF ERROR NUMBER THREE The evidence is legally insufficient to sustain a conviction for Aggravated Sexual Assault.
POINT OF ERROR NUMBER FOUR The trial court erred in failing to instruct the jury on the lesser included offense of Sexual Assault.

POINT OF ERROR NUMBER FIVE During final argument in the punishment phase of the trial, the prosecutor made improper jury arguments that were outside the record.

POINT OF ERR OR NUMBER SIX During final argument in the punishment phase of the trial, the prosecutor9

misstated the law. STATEMENT OF FACTS On Thursday morning, February 7 , 2013, Vashae Means returned to her home in Crockett after working the 5 p.m. to 2 a.m. shift at Pilgrim’s Pride in Lufkin. She arrived at her home at approximately 4 a.m. Means lived with Appellant, their two minor children and Appellant’s adult sister, Gloria Castro. (R.R. Vol. 7, pp. 117

- 29, 50

- 53). After arriving home, Appellant accused Means of smelling like a condom. After arguing with her and confirming that Means was having an affair with another man , Appellant began beating Means . Over the next several days until early the following Tuesday morning , Appellant beat Means with his fists , a belt , brooms, a vacuum cleaner, bathroom rod, a chair and broken pieces of the foregoing

. Appellant cho ked Means. He burned her with an electric heater. He cut her with a knife. Appellant carved the name of the man, Reko , with whom Means was having an affair, into her back. Ap pellant sodomized Means

. (R.R. Vol. 7, pp. 31

- 38, 63, 162

- 169, 174

- 177). Their residence did not have running water. So, the household bathed and did their laundr y at the house of Appellant ’ s fathe r. Means did not go over to the house of Appellant ’ s father after the beatings began. Appellant, however, went over on Saturday , Sunday and Mon day. While at his father ’ s house on Satu rday,10

Appellant was able to access the internet and read th e Facebook postings by Reko concerning the affair with Means. This enraged Appellant and he returned home
and assaulted Me ans again. (R.R. Vol. 7, pp. 76

- 77, 174

- 177). Means was unable to go back to work. On Thursday and Friday, the lady

w ho gave her a ride to work came by the house. Means did not speak to her. Means was alone in the house at the time. Means said she did not leave because she was afraid. (R.R. Vol. 7, pp. 5 8, 64

- 66 ). On Friday, everyone in the house
went to the zoo in Lufkin. (R.R. Vol. 7, p. 171). On Friday, the entire household went to the zoo in Lufkin. (Vol. 7, p. 171)

. On Sunday, Appellant went to his father ’ s house an d fell asleep. (Vol. 7, pp. 80,
181

- 182). On Monday Appellant went to obtain his income tax refund of $4500.00. (R.R. Vol. 7, pp. 184

- 186). The entire household then went to Radio Shack and WalMart . These outings were recorded on security cameras. Appellant initially went in to Radio Shack alone. Appellant then returned with Means and went into Radio Shack and purchased smart phone s. Gloria and the children remained in the van. Appellant and Means were in Radio Shack for over an hour. While in the
store, Appellant and Means were apart at various times. (R.R. Vol. 6, pp. 9

- 16 ).11

They purchased three phones, one each for Appellant, Means and Gloria. (R.R. Vol. 7, pp. 60

- 61.) The store employees were concerned about Means because of her
appearance . One of the employees was alone with Means for a brief time . When Means failed to ask for help or talk to her, the employ ee left it alone. Means said she said nothing because her lip was busted and bleeding. (R.R. Vol. 7, pp. 9

- 12, 43). After leaving Radio Shack, Appellant and his two sons went into WalMart for about 20 minutes while Gloria and Means stayed in the van. (R.R. Vol

. 6, pp.22). After going home, Appellant r ead more messages on Facebook from Reko.

. That night he again confronted Means. Means stated he began hitting her aga in. Later that night, early Tuesday morning, Means ran from the house. Appellant chased after her, but was unable to catch Means. A neighbor called the police after Means came knocking on her door. (R.R. Vol. 7, pp. 44

- 45, 191

- 192). Means told the police at the scene that Appellant had beaten her , had used various items including an electric heater. The officers could not recall what the items were. (R.R. Vol . 2, pp. 9

- 11, Vol. 3 p

. 7 ) . The police located Appellant at his father’s house at 3:30 a.m. The police informed Appellant they were12

investigating the assault on Means. Appellant was handcuffed, taken into custody

an d transported to the Sheriff’s office. (R.R. Vol. 2, pp. 18

- 25). Investigators interviewed Means at 5 a.m. at the hospital. Means told the investigators that Appellant had beaten her with a chair, broom s , sticks, a vacuum cleaner, burned her with a heater, and had sodomized her. (R.R. Vol

. 3 , p. 30. ) The investigators then went to the Sheriff’s office where they interviewed Appellant. Prior to the interview, they photographed Appellant ’ s clothes and
person. An audio recording was made of the interview. The investigators g a ve Appellant his “Miranda” rights, however, they d id not warn Appellant he ha d the rig ht to terminate the interview at any time. Appellant admit ted to beating Means but denied having anything but consensual sex with her

. (R.R. Vol. 2, pp. 55

- 56,
State ’ s Exhibit 201, Defendant ’ s Exhibit 1). Appellant was never told he was free to leave. (R.R. Vol. 2, pp. 38, 69). Appellant was booked into jail after the interview. ( R.R. Vol. 2, p. 66) Means was suffering from renal failure when she was brought to the Emergency Room in Crockett. This was treated by hydration via an intravenous tube. After being transported to the Tyler hospital, Appellant underwent surgery for the puncture wound to her elbow and her orbital fracture. The last progress note from the Tyler hospital states “no visual problems or difficulties”, her elbow13

has “full range of motion” and “no pain”, “renal failure improving”, and “no other problems or difficulties”. No physician testified regarding long

- term medical issues relating to the assault. (R.R. Vol. 6, p. 59, State ’ s Exhibit 205)

. Later that morning, the police obtain ed and execute d a search warrant for Appellant ’ s residence. At the residence, the police recover the electric heater, the broken chair, pieces of the broom and rake. The trial court denied Appellant’s Motion to Suppress the statement he gave to police . (R.R. Vol. 4, p. 4). Appellant requested a jury charge on the lesser included offense of Sexual Assault. The trial court denied this request. (R.R. Vol. 7, p. 222). During the punishment phase of the trial, the prosecutor made the following statements in closing arguments:

“ We see people that have assaulted their spouse or significant other, we have even seen them shoot them, but that’s about where the similarities stop in this case. There’s a whole lot more that is not typical about this case”. (R.R. Vol. 9, p. 59).
“I m ean, he did it multiple times he used multiple implements he did multiple things to her you don’t usually see sexual assault when somebody just belows [sic] up over something you don’t usually see kidnapping when somebody blows up....”. (R.R. Vol. 9, p. 60 ).14

“He says he is remorseful. It is typical to have people say they are remorseful.” (R.R. Vol. 9, p. 61). “There are plenty of people in prison today doing a whole bunch of time that I suspect would look at this kind of case and go, I cannot believe he did that.” (R.R. Vol. 9, p. 62). “...if you separated these three offenses if he committed one and was
convicted of it and committed the next one and convicted and committed the next one and convicted he wouldn’t be probation there’s no way forgiving [sic ] him probation then AND the minimum would be a whole lot higher be more like 25 to 99 or life...”. (R.R. Vol. 9, pp. 62

- 63). All objections to these arguments were overruled other than the first one. POINT OF ERROR NUMBER ONE RESTATED The trial court er red in overruling Appellant’s Motion to Suppress the oral recorded statement that Appellant gave to police.

SUMMARY OF THE ARGUMENT Appellant’s statement was a product of custodial interrogation. Appellant was not advised that he had the right to termina te the interview at any time. Tex. Code Crim. Pro. Art. 38.22 states that for a statement to be admissible, this warning must be given.15 ARGUMENT
Tex. Code Crim. Pro. Art. 38.22 states: “Sec. 3.(a) No oral or sign language statement of an accused made a s a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless...

“(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused
kno wingly, intelligently, and voluntarily waives any rights set out in the warning.” Subsection (a) of Section 2 requires that the accused be given the following warning: “(5) he has the right to terminate the interview at any time...”

. In the present case i t is undisputed that Appellant was not given the above warning. Although the courts have held that “substantial compliance” is sufficient to meet the requirements of Art. 38.22, the courts have held that the complete omission of the above warning renders the statement inadmissible at trial. Hernandez v. State , 13 S.W.3d 78 (Tex. App.

– Texarkana 2000, no pet),16

Nonn v. State , 69 S.W. 3d (Tex . App.

– Corpus Christi 2001), aff'd 117 S.W.3d 874 (Tex. Crim. App. 2003)

. At the trial level, the State advanced t he following theories to circumvent the requirements of Art. 38.22: 1. Appellant was not in custody

2

. The exception in Art. 38.22 §3(c) applies in that the statement contained assertions of facts which were found to be true and conduced to
establish t he guilt of Appellant. The Court of Criminal Appeals has outlined 4 general situations which may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that he cannot leave, (3) when law enforcement officers create a situation that woul d lead a reasonable person to believe that his freedom of movement has be e n significantly restricted, and (4) when there is probable cause to arrest and law enforce ment officers do not tell the suspect that he is free to leave. Dowthitt v.
State , 931 S.W.2d 244, 255 (Tex. Crim. App.

– 1996). In the present case the facts show ing that Appellant was in custody at the
time he m ade his statement are as follows : the po lice had identified Appellant as17

having beaten Means; the police had chased down Appellant at his father’s house and had placed Appellant in handcuffs at his father’s house; the police had informed him they were investigating the assault of Means; the poli ce transported Appellant to the Sheriff’ s Office handcuffed in a patrol car; the police then went to the hospital and interviewed Means and obtained more specific facts concerning the assault on Means by Appellant ; hours after taking Ap pellant into custody, the police returned to the Sheriff’s Office and photographed Appellant ’ s clothes and person; the police then took the statement from Appellant and formally charged him immediately afterward. Regarding the exception found in Art. 38.2 2 §3 (c) , the Court of Criminal Appeals has held that the requirement contained therein of facts or circumstances “found to be true”, means facts or circumstances about which the police are
unaware at the time of the confession. Romero v. State , 800 S.W.2 d 539, 544

- 545 (Tex. Crim. App.

– 1990). The confession must reve al facts and circumstances which lead to the discovery of items previously unknown to the
State. Romero , at 545. In the present case, the police were aware of the various items that Appella nt had used during the assault on Means from the interviews with Means that had occurred prior to the taking of Appellant’s statement.18

Appellant requests that the Court sustain Point of Error Number One

.
POINT OF ERROR NUMBER TWO RESTATED The evidence i s legally insufficient to sustain a conviction for Aggravated Kidnapping. SUMMARY OF THE ARGUMENT Aggravated Kidnapping requires the State prove that Appellant had the specific intent to prevent Means’ liberation by secreting or holding her in a place
whe re she was not likely to be found. The evidence shows that during all relevant times, Appellant and Means were in public places together, or at Means’residence with other people present, or Means was alone at her residence with freedom to stay or leave.
A RGUMENT In reviewing a record for legal sufficiency, the court should view the evidence in the light most favorable to the verdict, and then determine whether any rational finder of fact could have found all of the evidential elements of the offense prove n beyond reasonable doubt. Jackson v. Virginia , 443 U.S. 307 (1979); Santella v. State , 939 S.W. 2d 155 (Tex. Crim. App. 1997). The Jackson standard measures evidentiary sufficiency against the “substantial”19

elements of the criminal offense as defined by state law. Jackson, at f.n. 16; Fuller v. State , 73 S. W. 3d 250, at 252 (Tex. Crim. App. 2002). To obtain a conviction for Aggravated Kidnapping, the State was required to prove that Appellant had the specific intent to prevent Means’ liberation by se creting or holding her in a place where she was not likely to be found. Laster v. State , 275 S.W.2d 512, 521 (Tex. Crim. App.

– 2009). During the entire 5 day period in which Appellant assaulted Means, there is no evidence that Appellant had the intent t o secret Means. Means was left at home alone during this time period on several occasions. A co

- worker came by to give Means a ride to work when Means was alone and indeed observed the co

worker. Appellant and Means went into Radio Shack where Means was left alone with the store personnel. Means was never bound or locked in at any location . Means purchased a cellphone for herself while she was with Appellant that gave her the opportunity to communicate with anyone and everyone. Although Appellant engaged in assaultive behavior toward Means, there is no evidence to support that he had the intent to hide or secret Means so that she could not be found. Appellant requests that the Court sustain Point of Error Number Two

.20 POINT OF ERROR NUMBER THREE RESTATED The evidence is legally insufficient to sustain a conviction for Aggravated Sexual Assault. SUMMARY OF THE ARGUMENT One of the required elements of Aggravated Sexual Assault is proof that Appellant caused serious bodily injury or attempted to cause the death of Means. Although, Appellant caused bodily injury, the evidence is insufficient to show serious bodily injury or an attempt to cause the death of Means. ARGUMENT In reviewing a record for legal sufficiency, the court should view the evidence in the light most favorable to the verdict, and then determine whether any rational finder of fact could have foun d all of the evidential elements of the offense proven beyond reasonable doubt. Jackson v. Virginia , 443 U.S. 307 (1979); Santella v. State , 939 S.W. 2d 155 (Tex. Crim. App. 1997). The Jackson standard measures evidentiary sufficiency against the “substa ntial” elements of the criminal offense as defined by state law. Jackson, at f.n. 16; Fuller v. State , 73 S. W. 3d 250, at 252 (Tex. Crim. App. 2002). A necessary element of Aggravated Sexual Assault as alleged in the
indictment is that Appellant caused s erious bodily injury or attempted to cause21

the death of Means. (C.R. p. 26 , Tex. Pen. Code §22.021(a)(2)(A)(i)). There is no evidence in the record that Appellant attempted to cause the death of Means.

“ Serious bodily injury ” is defined as bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Tex. Pen. Code §1.07(a)(46). The existence of serious bodily injury is dete rmined by the injury as inflicted. The State may not transform an injury into serious bodily injury through use of speculative testimony about what might have occurred had the injury not been medically treated. Moore v. State , 802 S.W.2d 367, 370 (Tex.
A pp.

– Dallas 1990, pet. ref’d). The State should provide medical evidence of the degree of injury; the victim’s testimony alone is genera ll y not sufficient to
prove this element. Webb v. State , 801 S.W.2d 529, 532

- 533 (Tex. Crim. App.

– 1990).

Means was suffering from renal failure when she was brought to the Emergency Room in Crockett. This was treated by hydration via an intravenous tube. After being transported to the Tyler hospital, Appellant underwent surgery for the puncture wound to her elbow an d her orbital fracture. The last progress note from the Tyler hospital states “no visual problems or difficulties”, her22

elbow has “full range of motion” and “no pain”, “renal failure improving”, and “no other problems or difficulties”. No physician testi fied regarding long

- term medical issues relating to the assault. Appellant requests that the Court sustain Point of Error Number Three

. POINT OF ERROR NUMBER FOUR RESTATED The trial court erred in failing to instruct the jury on the lesser included o ffense of Sexual Assault.

SUMMARY OF THE ARGUMENT Sexual Assault is a lesser included offense of Aggravated Sexual Assault. The jury could have rationally found that Means did not suffer serious bodily injury, so as to find Appellant was guilty only of t he lesser included offense of Sexual Assault. ARGUMENT The determination of whether a lesser included offense instruction must be given requires a two

- step analysis. First, it must be determined whether the requested offense has the relationship of a les ser includ e d offense to the offense charged in the indictment. Second, the evidence at trial must be considered to determine whether there is a basis for the jury to conclude that the defendant may be found guilty only of the charged offense, which means t hat there must be a23

reasonable view of the evidence from which the jury may conclude the defendant is not gui l ty of the charged offense but possibly g u ilty of the requested lesser
included offense. An offense is a lesser included offense of another offense, under Article 37.09(1) of the Code of Criminal Procedu re, if the indictment for the greater

inclusive offense alleges all of the elements of the lesser

- included offense

. Ex
Parte Watson , 306 S.W.3d 259, 273 (Tex. Crim. App.

– 2010). In the present case sexual assault is a lesser included offense of aggrava ted sexual assault in that the indictment alleges all of the elements of sexual assault. Anything more than a scintilla of evidence is sufficient to entitle the defendant to an instruction on the lesser included offense. Hall v. State , 225 S.W.3d 524, 5 35

- 536 (Tex. Crim. App.

– 2007). In the present case, there existed a fact question as to whether Appellant had caused seriously bodily injury or attempted to caused the death of Means. ( See Point of Error Number Three above). Appellant requests that th e Court sustain Point of Error Number Four

.

POINT OF ERROR NUMBER FIVE RESTATED During final argument in the punishment phase of the trial, the prosecutor made improper jury arguments that were outside the record

.24 SUMMARY OF THE ARGUMENT During final arg ument in the punishment phase of the trial, the pro s ecutor injected facts outside the record. The improper arguments were extreme and manifestly improper and injected new and harmful facts into the trial. ARGUMENT Jury arguments should be confined to the following areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Argument that falls outside these areas and that are extreme or manifestly improper or inject new and harmful
facts , and are reversible on appeal. Person v. State , 706 S.W.2d 153, 154 (Tex. App.

– Houston [1 st Dist.] 1986, no pet.). There was no evidence in the record that the sexual assault and kidnapping

are “ not seen ” or “ not typica l ” in crimes involving family violence. Nor is there evidence that it is typical for a defendant to be remorseful. Nor is there evidence in the record that there are a whole lot of inmates in prison that would look at Appellant ’s conduct and find it so h einous as to recoil in disbelief

. The prosecutor’s arguments are similar to the improper arguments made in
Prado v. State , where the court held it was reversible error for the prosecutor to argue if the community knew what the defendant did, it would wan t the defendant25

to go to the penitentiary. See, Prado v. State , 626 S.W.2d 775 (Tex. Crim. App.

– 1982). There is no assurance the prosecutor’s improper argument had no effect on the jury’s assessment of punishment. Not only were new and harmful “facts” put before the jury, but the trial court compounded the error by overruling the objections. There is no certainty that the jury would have assessed the 40 years on the Aggravated Sexual Assault and Aggravated Kidnapping charges and 10 years on the Assaul t charge, absent the error. Peak v. State, 57 S.W.3d 14, 19

- 21 (Tex. App.

– Houston [14 th Dist.] 2001, no pet.).

. Appellant requests that the Court sustain Point of Error Number Five

. POINT OF ERROR NUMBER SIX RESTATED During final argument in the punishment phase of the trial, the prosecutor
misstated the l aw . SUMMARY OF THE ARGUMENT During final argument in the punishment the prosecutor misstated the law as it applied to this case. The improper arguments were extreme and manifestly improper in that the jury was essentially told that 25 years to life was the range of punishment

.26 ARGUMENT Jury arguments should be confined to the following areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Argument that falls outside these areas and that are extreme or manifestly improper or inject new and harmful facts, and are reversible on appeal. Person v. State , 706 S.W.2d 153, 154 (Tex. App.

– Houston [1 st Dist.] 1986, no pet.). The prosecutor told the jury t hat the law states that if Appellant had been tried separately for the three crimes for which he was convicted, he would be facing a minimum sentence of 25 years. This was misleading to the jury, in that Appellant’s range of punishment ranged from 2

- 10 y ears for the Assault by Strangulation , and 5

- 99 years or life for the Aggravated Kidnapping and Aggravated Sexual Assault. In addition, he was eligible for probation on each conviction. The prosecutor’s argument was a misstatement of the law and designed to confuse and mislead the jury. It is improper for the prosecutor to incorrectly state the law contrary to the trial court’s instruction. Peak v. State, 57 S.W.3d 14, 19 (Tex. App.

– Houston [14 th Dist.] 2001, no pet.). There is no assurance that this misstatement27

of the law had no effect on the jury’s assessment of punishment. Not only was the jury misled, but the trial court compounded the error by overruling the objection. There is no certainty that the jury would have assessed the 40 years on the Aggravated Sexual Assault and Aggravated Kidnapping charges and 10 years on the Assault charge, absent the error. See, Peak , supra at 19

– 21. Appellant requests that the Court sustain Point of Error Number Six

. PRAYER WHEREFORE, PREMISE CONSIDERED, Appellant s prays this Honorable Court to sustain the point of errors raised above, vacate the judgment and reverse and render an acquittal or remand the case for new trial.

Respectfully submitted, William M. Curley, P.C. 507 N. Church St. Palestine, Tx 75801 (903) 723

- 6757 (903) 727

- 0554

By: /s/ William M. Curley William M. Curley State Bar No. 05257100 Attorney for Appellant28 CERTIFICATE OF COMPLIANCE I certify that pursuant to Tex. R. App. Pro. 9.4(i)(3), in reliance on the word
count of the co mputer program used to prepare this document, the word count of this document is 4 , 936

. /s/ William M. Curley William M. Curley

CERTIFICATE OF SERVICE I certify that a true copy of Appellant’s Brief was served in accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each party or that party's lead counsel as follows: Party: State of Texas Lead attorney: Donna Gordon Kaspar Address: 401 East Houston Ave., Crockett, Tx 75835 Method of service: email to dgordon@co.houston.tx.us Date of service: April 20, 2015

/s/ William M. Curley William M. Curley