1 NO. 13-14- 00 457- CR
IN THE COURT OF APPEALS
THIRTEENTH JUDICIAL DISTRICT AT CORPUS CHRISTI/EDINBURG, TEXAS

...................................................................................................

VICTOR HERNANDEZ

Appellant,

Vs.

THE STATE OF TEXAS

Appellee.

...................................................................................................

ON APPEAL FROM THE 357 TH DISTRICT COURT OF CAMERON COUNTY, T E X A S
CAUSE NUMBER 2013 DCR 1953-E

...................................................................................................

BRIEF FOR APPELLANT

..........................................................................................

DOUGLAS H. PETTIT
680 East St. Suite 600 Brownsville, Texas 78521 (956) 243-6455 PHONE (888) 770-2904 FAX
DPETTITLAW@HOTMAIL.COM

COUNSEL FOR APPELLANT ACCEPTED
13-14-00457-CR
THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS
5/15/2015 10:31:57 AM
DORIAN RAMIREZ

CLERK2 

### IDENTIFICATIONOF THE PARTIES

Pursuant to Tex. R. App. P. 38.1(a ) a complete list of the names and

addresses of all interested parties is provided so the members of this Honorable

Court may determine whether they are disqualified to serve or should recuse

themselves from participating in the decision of this case.

Complaints or aggrieved parties : Yazmin Reyes

Appellant or criminal D efendant : Victor Manuel Hernandez

Trial counsel for Appellant : Hon

. Ed Stapleton Stapleton and Stapleton 2401 Wild Flower, Suite C Brownsville, Texas 785 2 0

Counsel on a ppeal for the Appellant: Hon

. Douglas H. Pettit

680 East St . Charles
Suite 600 Brownsville, Texas 78520

Counsel for the State: Hon

. Oscar Guzman and Luis Antonio De La Garza, Assistant
District A torney964 East Harrison St. Brownsville, Texas 78520

Trial Judge: Hon

. Oscar Garcia Presiding Judge
357 th District Court Cameron County, Texas3 

### TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES..

. . . . . 2

TABLE OF CONTENTS.

. . . . . . . 3

- 10

INDEX OF AUTHORITIES

. . . . . . . 11

- 17

STATEMENT OF THE CASE.

. . . . . . 18

STATEMENT REGARDING ORAL ARGUMENT.

. . . 19

SUMMARY OF THE ARGUMENT

. . . . . . 19

- 22

STATEMENT OF FACTS

. . . . . . . 23

- 27

POINT OF ERROR NUMBER ONE

. . . . . . 28

Statement of Facts

. . . . . . . 31

Argumen t and Authorities

. . . . . 40

POINT OF ERROR NUMBER TWO

. . . . . 28

Statement of Facts

. . . . . . . 31

Argument and Authorities

. . . . . 40

POINT OF ERROR NUMBER THREE

. . . . . 28

Statement of Facts

. . . . . . 31

Argument and Authorities

. . . . . 40

POINT OF ERROR NUMBER FOUR

. . . . . 28

Statement of Facts

. . . . . . . 314 Argument and Authorities

. . . . . 40

POINT OF ERROR NUMBER FIVE

. . . . . . 28

Statement of Facts

. . . . . . . 31

Argument and Authorities

. . . . . 40

POINT OF ERROR NUMBER SIX

. . . . . . 29

Statement of Facts

. . . . . . . 31

Argument and Authorities

. . . . . 40

POINT OF ERROR NUMBER SEVEN

. . . . . 29

Statement of Facts

. . . . . . . 31

Argument and Authorities

. . . . . 40

POINT OF ERROR NUMBER EIGHT

. . . . . 29

Statement of Facts

. . . . . . . 31

Argument and Authorities

. . . . . 41

POINT OF ERROR NUMBER NINE

. . . . . .. 29

Statement of Facts

. . . . . . 3 1

Argument and Authorities

. . . . . 40

POINT OF ERROR NU MBER TEN

. . . . . . . 29

Statement of Facts

. . . . . . 31

Argument and Authorities

. . . . 40

POINT OF ERROR NUMBER ELEVEN

. . . . . . 3 05 Statement of Facts

. . . . . . . 3 1

Argument and Authorities

. . . . 40

POINT OF ERROR NUMBER TWELV E

. . . . . . 3 0

Statement of Facts

. . . . . . 3 1

Argument and Authorities

. . . . 40

POINT OF ERROR NUMBER THIRTEEN

. . . . . . 30

Statement of Facts

. . . . . . 3 1

POINT OF ERROR NUMBER FOURTEEN

. . . . . 30

Statement of Facts

. . . . . . 3 1

Argume nt and Authorities

. . . . . 40

POINT OF ERROR NUMBER FIFTEEN

. . . . . 30

Statement of Facts

. . . . . . 3 1

Argument and Authorities

. . . . 40

POINT OF ERROR NUMBER SIXTEEN

. . . . . . 3 0

Statement of Facts

. . . . . . 3 1

Argument and Authoriti es

. . . . 40

POINT OF ERROR NUMBER SEVENTEEN

. . . . . 3 1

Statement of Facts

. . . . . . 3 1

Argument and Authorities

. . . . 40

POINT OF ERROR NUMBER EIGHTTEEN

. . . . 3 16 Statement of Facts

. . . . . . 3 1

Argument and Authorities

. . . . 40

POINT OF ERROR NUMBER NINETEEN

. . . . . 48

Statement of Facts

. . . . . . 49

Argument and Authorities

. . . . 50

POINT OF ERROR NUMBER TWENTY

. . . . . . 48

Statement of Facts

. . . . . . . 49

Argument and Authorities

. . . . 50

POINT OF ERROR NUMBER TWENTY ONE

. . . . . 48

Statement of Facts

. . . . . . . 49

Argument and Authorities

. . . . . 50

POINT OF ERROR NUMBER TWENTY TWO

. . . . . 48

Statement of Facts

. . . . . . 49

Argument and Authorities

. . . . 50

POINT OF ERR OR NUMBER TWENTY THREE

. . . 48

Statement of Facts

. . . . . . 49

Argument and Authorities

. . . . 50

POINT OF ERROR NUMBER TWENTY FOUR

. . . . . 49

Statement of Facts

. . . . . . . 49

Argument and Authorities

. . . . . 507

POINT OF ERROR NUMBER TWENTY FIVE

. . . . . 49

Statement of Facts

. . . . . . . 49

Argument and Authorities

. . . . 50

POINT OF ERROR NUMBER TWENTY SIX

. . . . . 49

Statement of Facts

. . . . . . 49

Argument and Authorities

. . . . 50

POINT OF ERROR NUMBER TWENTY SEV EN

. . . . 54

Statement of Facts

. . . . . . . 58

Argument and Authorities

. . . . 58

POINT OF ERROR NUMBER TWENTY EIGHT

. . . . 54

Statement of Facts

. . . . . . . 58

Argument and Authorities

. . . . 58

POINT OF ERROR NUMBER TWENTY NINE

. . . . . 55

Statement of Facts

. . . . . . . 58

Argument and Authorities

. . . . . 58

POINT OF ERROR NUMBER THIRTY

. . . . . 55

Statement of Facts

. . . . . . . 58

Argument and Authorities

. . . . 58

POINT OF ERROR NUMBER THIRTY ONE

. . . . . 55

Statem ent of Facts

. . . . . . 588 Argument and Authorities

. . . . 58

POINT OF ERROR NUMBER THIRTY TWO

. . . . . 55

Statement of Facts

. . . . . . . 58

Argument and Authorities

. . . . . 58

POINT OF ERROR NUMBER THIRTY THREE

. . . . . 55

Statement of F acts

. . . . . . . 58

Argument and Authorities

. . . . . 58

POINT OF ERROR NUMBER THIRTY FOUR

. . . . . 56

Statement of Facts

. . . . . . . 58

Argument and Authorities

. . . . . 58

POINT OF ERROR NUMBER THIRTY FIVE

. . . . . 56

Statement of Facts

. . . . . . . 58

Argument and Authorities

. . . . . . 58

POINT OF ERROR NUMBER THIRTY SIX

. . . . . 56

Statement of Facts

. . . . . . . 58

Argument and Authorities

. . . . . 58

POINT OF ERROR NUMBER THIRTY SEVEN

. . . . . 56

Statement of Facts

. . . . . . . 58

Argument and Authorities

. . . . . 58

POINT OF ERROR NUMBER THIRTY EIGHT

. . . . 569 Statement of Facts

. . . . . . . 58

Argument and Authorities

. . . . . 58

POINT OF ERROR NUMBER THIRTY NINE

. . . . . 57

Statement of Facts

. . . . . . . 58

Argument and Authorities

. . . . . 58

POINT OF ERROR NUMBER FOURTY

. . . . . . 57

Statement of Facts

. . . . . . . 58

Argument and Authorities

. . . . . 58

POINT OF ERROR NUMBER FOURTY ONE

. . . . . 57

Statement of Facts

. . . . . . . 58

Ar gument and Authorities

. . . . . 58

POINT OF ERROR NUMBER FOURTY TWO

. . . . . 57

Statement of Facts

. . . . . . . 58

Argument and Authorities

. . . . . 58

POINT OF ERROR NUMBER FOURTY THREE

. . . . . 57

Statement of Facts

. . . . . . . 58

Argument a nd Authorities

. . . . . 58

POINT OF ERROR NUMBER FOURTY FOUR

. . . . . 58

Statement of Facts

. . . . . . . 58

Argument and Authorities

. . . . . 5810

POINT OF ERROR NUMBER FOURTY FIVE

. . . . 6 2

Statement of Facts

. . . . . . . 62

Argument and Authorities

. . . . . 64

POINT OF ERROR NUMBER FOURTY SIX

. . . . . 69

Statement of Facts

. . . . . . . 69

Argument and Authorities

. . . . . 69

POINT OF ERROR NUMBER FOURTY SEVEN

. . . . . 71

Statement of Facts

. . . . . . . 71

Argument and Authorities

. . . . . 72

POINT OF ERROR NUMBER FOURTY EIGHT

. . . . 71

Statement of Facts

. . . . . . . 71

Argument and Authorities

. . . . . 72

POINT OF ERROR NUMBER FOURTY NINE

. . . . . 74

Statement of Facts

. . . . . . . 75

Argument and Author ities

. . . . . 76

POINT OF ERROR NUMBER FIFTY

. . . . . . 74

Statement of Facts

. . . . . . . 75

Argument and Authorities

. . . . . 76

POINT OF ERROR NUMBER FIFTY ONE

. . . . . 80

Statement of Facts

. . . . . . . 8011 Argument and Authorities

. . . . . . 81

P RAYER FOR RELIEF

. . . . . . . 85

CERTIFICATE OF SERVICE

. . . . . . . 86

CERTIFICATE OF COMPLIANCE

. . . . . . 8612 

### INDEX OF AUTHORITIES

UNITED STATE CONSTITUTION

United States Constitution 6 th amendment

.. . . 19,20,51,54,62

United States Constitu tion 14 th amendment

. 19,20,21,22,58,62,79

TEXAS CONSTITUTION

Tex. Constitution Article One Section 10

. . . . . 21,63,72,79

TEXAS STATUES

Penal Code 22.02(b)(1 )18

. . . . . . . . 18

Texas Family Code71.0021(b)

. . . . . . . 18

Tex.Code Crim.Proc.Ann. art. 35.16(c)(2) (c) (2 )

. . . 20 ,41,50,51

Texas Code of Crim. Proc 56.03

. . . . . . . 79

Tex.Code Crim. Proc 37.07

. . . . . . . . 79

Texas Code of Criminal Procedure 38.08

. . . . . 21,71,72

COURT RULES

Tex Rules of Appellate Procedure 33.1(a).

. . . . . 40

T ex Rules of Appellate Procedure 38.1(a)

. . . . . 27

Tex Rules of Appellate Procedure 38.11

. . . . . 2

Tex Rules of Appellate Procedure 39.1

. . . . . 19

Tex Rules of Appellate Procedure 44.2(a)

. . . , . 85

Tex Rules of Appellate Procedure 44.2(b)

. . . . . . 64.13

Texas Rules of Evidence 401

. . . . . . . 21, 77

Texas Rules of Evidence 802.

. . . . . . . 22,81

Tex. R. Evid. 803 (24)

. . . . . . . . . 83

FEDERAL CASE LAW

Adams v. Texas 448 U.S. 38; 412 S.Ct. 2521 (1980)

. . . 59

Booth v. Maryland

, 482 U .S. 496, 107 S.Ct. 2529 (1987

. . . 78

Chapman v. California , 386 U.S. 18, 87 S.Ct. 824, (1967)

. . . 7 2,78

Darden v. Wainwright , 477 U.S. 168 ; 106 S.Ct 2464 (1986)

. . . 70,78

Davis v. Zant , 36 F.3d 1538, 1546 (11th Cir.1994)

. . . . 70

Duncan v. Louisiana

, 391 U.S. 145, 88 S.Ct. 1444,(1968)

. . 51

Gordon v. Kelly , 205 F.3d 1340 (6th Cir. 2000)

. . . . 70

Griffin v. California , 380 U.S. 609, 85 S.Ct. 1229 (1965)

. . 73

Morgan v. Illinois , 504 U.S. 719, 112 S. Ct. 2222 (1992.

. . . 58

Payne v. Tennessee
, 501 U.S. 808,111 S. Ct. 2597(1991

. . . 78

Ross v Oklahoma 487 U.S. 81, 108 S.Ct. 2273 (1988).

. . . 59

U S v. Burr , 25 F. Cas. 49, 50 (C.C.D. Va. 1807)

. . . . 50

United States v. Carroll

, 26 F.3d 1380 (6th Cir.1994)

. . . 69

United States v. Wood , 299 U.S. 123, 133, 57 S. Ct. 177, 179, (1936)

. 51

STATE CASE LAW

Alcala v. State , WL 6053837 (Tex. App. Nov. 14, 2013)

. . . 8214

Anderson v. State

, 633 S. W.2d 851, 854 (Tex.Cr.App.1982)

. . 43

Banda v. State

, 890 S.W.2d 42, 53

– 54 (Tex.Crim.App.1994)

. . 44

Banks v. State

, 643 S.W.2d 129 (Tex.Crim.App.1982)

. . . 73,74

Barber v. State , 628 S.W.2d 104 (Tex. App. 1981)

. . . . 73

Bigby v. State , 892 S.W.2d 864 (Tex. Crim. App. 1994)

. . . 81

Borjan v. State

, 787 S.W.2d 53(Tex.Crim.App.1990)

. . . 66

Brandley v. State

, 6 91 S.W.2d 699 (Tex.Cr.App.1985)

. . . . 68

Brown v. State

, 270 S.W.3d 564 (Tex.Crim.App.2008)

. . . 63,65

Burks v. State , 876 S.W.2d 877 (Tex. Crim. App. 1994)

. . . 68

Cain v. State

, 549 S.W.2d 707(Tex.Crim.App.1977 )

. . . 67

Caldwell v. State

, 818 S.W.2d 790 (Tex.Cr.App.1991 )

. . . 74

Cantu v. State, 939 S.W.2d 627 T ex. Crim. App. 1997)

. . . 65,66

Cardenas v. State
, 305 S.W.3rd 773 (Tex. Ct. App. [Ft. Worth] 2009 writ granted 2010)

. . . . . . 42

Chambers v. State

, 866 S.W.2d 9, 23 (Tex.Crim.App.1993)

. . 52

Clark v. State , 717 S.W.2d 910, 915

- 17 (Tex. Crim. App. 1986 )

. 45

Cofield v. State

, 891 S.W.2d 952 (Tex.Crim.App.1994)

. . . 84

Cortez v. State , 683 S.W.2d 419 (Tex. C rim. App. 1984)

. . . 66

Cumbo v. State, 760 S.W.2d 251 (Tex.Crim.App.1988)

. . . 41

Curtis v. State , 385 S.W. 3rd. 636 (Tex Ct. App. [Amarillo] 2012 )

. . . . . . . . . 43,4415

Davis v. State

, 872 S.W.2d 743 (Tex.Crim.App.1994)

. . . 84

Dickinson v. State

, 685 S.W.2d 320 (Tex.Crim.App.1984)

. . . 73,74

Drakes v. State, 505 S.W.2d 892 (Tex.Cr.App.1974)

. . . . 67

Feldman v. State, 71 S.W.3d 738, 747 (Tex.Crim.App.2002)

. . 47,52

Ford v. State , 919 S.W.2d 107 (Tex. Crim. App. 1996 )

. . . 77

Fuller v. State

, 829 S.W.2d 191 (Tex.Crim.App.1992)

. . . 42,52

Gaddis v. State

, 753 S.W.2d 396 (Tex.Crim.App.1988 )

. . . . 65

Gonzalez v. State, 296 S.W.3d 620 (Tex. App. 2009)

. . . 84

Green v. State , 2012 WL 4673756 (Tex. Crim. App. 2012)

. . 65

Hammond v. State

, 799 S.W.2d 741 (Tex.Cr.App.1990)

. . . 67

Harris v. State

, 790 S.W.2d 568 (Tex.Crim.App.1989)

. . . 41

Hathorn v. State

, 848 S.W.2d 101 (Tex.Crim.App.1992)

. . 65

Head v. State , 4 S.W.3d 258 (Tex. Crim. App. 1999)

. . . 82,83

Jacobs v. State

, 787 S.W.2d 397, 405 (Tex.Crim.App.1990)

. . 41

Johnson v. Sta te

, 43 S.W.3d 1 Tex. Crim. App.( 2001 )

. . .41,45,46

Johnson v. State , 982 S.W.2d 403 (Tex. Crim. App. 1998)

. . 52

Jones v. State

, 982 S.W.2d 386, 390 (Tex.Crim.App.1998)

. . 44

Jones v. State 693 S.W.2d 40 6 (Tex. Crim

. App. 1985)

. . . 73

Kerns v. State, 550 S.W.2d 91 (Tex.Cr.App.1977)

. . . . 66

Koller v. State , 518 S.W.2d 373 (Tex.Cr.App.1975)

. . . 7216

Kunkle v. State

, 771 S.W.2d 435 (Tex.Cr.App.1986 )

. . . 67

Ladd v. State, 3 S.W.3 d 547, 559 (Tex.Crim.App.1999)

. . . 44

Lawton v. State, 913 S.W.2d 542(Tex.Crim.App.1995)

. . . 82

McKay v. State

, 707 S.W.2d 23 (Tex.Cr.App.1985)

. . . 65

Miller

- El v. State, 782 S.W. 2nd 892 (Tex. Crim. App. 1990)

. . 78

Montgomery v. State

, 810 S.W.2d 372 (Tex.Cr.App.1990)

. . 77,81

Moreno v. State, 858 S.W.2d 453 (Tex.Cr.App.1993)

. . . 76

Mosley v. State

, 983 S.W.2d 249 (Tex.Crim.App.1998)

. . 63,65,84

Myers v. State

, 573 S.W.2d 19(Tex.Crim.App.1978)

. . . 73

N ewbury v. State, 135 S.W.3d 22, 30

– 31 (Tex.Crim.App.2004)

. 46,47

Owen v. State 656 S.W.2d 458 (Tex. Crim App 1983)

. . . 73

Pena v. State

, 353 S.W.3d 797 (Tex.Crim.App.2011)

. . . 82

Pierce v. State

, 696 S.W.2d 899, 902

– 03 (Tex.Crim.App.1985)

. . 46

Pyles v. State, 755 S.W.2d 98 (Tex.Cr.App.1988)

. . . . 67

Raby v. State , 970 S.W.2d 1 (Tex. Crim. App. 1998)

. . . 61

Salazar v. State

, 38 S.W.3d 141, 151 (Tex.Crim.App.2001)

. . 82

Sanders v. State
, 422 S.W.3d 809 (Tex. App. 2014)

. . . 85

Snowden v. State

, 353 S.W.3d 815 (Tex.Crim.App.2011)

. . 84

Stavinoha v. State
, 808 S.W.2d 76, 80 (Tex. Crim. App. 1991 )

. . 78

Smith v. State

, 573 S.W.2d 763 (Tex.Crim.App.1977)

. . . 5117

State v. Morales , 253 S.W.3d 686, 694 (Tex. Crim. App. 2008 )

. 51

Taylor v. State

, 268 S.W.3d 571 (Tex.Crim.App.2008)

. . . 82

Tejerina v. State , 786 S.W.2d 508(Tex. App. 1990)

. . . 67

Thomas v. Sta te

, 519 S.W.2d 430 (Tex.Cr.App.1975)

. . . 66

Todd v. State

, 598 S.W.2d 28 6, 294 (Tex.Crim.App.1980 )

. . 73

Weatherred v. State , 15 S.W.3d 540 (Tex.Crim.App.2000)

. . 77,81

Weaver v. State

, 476 S.W.2d 326 (Tex.Crim.App.1972)

. . 51

Wesbrook v. State, 29 S.W.3d 103(Tex.Crim.App.2000 )

. . . 84

Wolf v. State, 147 Tex. Crim. App. 62, 278 S.W. 2d. 274 (1944)

. 45

Woodkins v. State, 542 S.W.2d 855 (Tex.Crim.App.1976)

. . 51

Von Byrd v. State

, 569 S.W.2d 883, 891 (Tex.Crim.App.1978)

. . 46

OTHER JURIDICTIONS

Morgan vs. Illinois 142 Ill2d. 410, 568 N.E.2 nd

. 755 (1991 )

. . 5918 

### STATEMENT OF THE CASE

Appellant, VICTOR MANUEL HERNANDEZ was charged by

indictment with the offense of aggravated assault against a person whom he had a

dating relationship. Texas Penal Code 22.02(b)(1) (C.R. Vol 1 p. 5 ) The

indictment alleged on or about May 11, 2012 the Appellant did then and there

intentionally, knowingly or recklessly cause serious bodily injury to Yazmin Reyes

by shooting her with a firearm. The indictment further alleged that the Appellant

and Yasmin Re yes had a dating relationship as defined by section 71.0021(b). of

the Texas Family Code

.

The Appellant entered a plea of guilty to the Court and requested that the

jury asses sentence. (R.R. Vol 2 p. 10 ) The Court after admonishing the Appellant

found the Appellant guilty and a jury was selected for punishment. A fter hearing

the evidence from both the s tate and the defense, a jury assessed punishment at

(50) fifty years in the Texas Department of Corrections.

Appellant filed motion for new trial on June 30, 2014 which was heard and

overruled on August 13, 2014 (C.R. Vol 1 p. 691 ) this appeal follows.19



### STATEMENT REGARDING ORAL ARGUMENT

Only if requested by Appellee or the Court. Tex R.App. Proc. 39.1

S UMMUARY OF THE ARGUMENTS

1

- 18 : The Trial Cour t erred denying the Appellant‘s challenges for cause. After

voire dire exanimation was complete

, Appellant's attorney requested 35 potential

jurors be struck for c a use. The Court brought up in three groups the jurors and

inquired if they could be fair and impartial regarding the full range of punishment.

Appellant had requested that venire persons‘ numbers 1 Randy Villarreal, 11

Raymond Robles Jimenez, 13 Ruth Camins Faustino, 23 Baldemar, Cortez, 26

Miriam Micheel Avalos, 27 Luis Antonio Deleon, 28 Victor Manuel Pardo, Jr.,

35 Sandra Alaniz, 38 Orfalinda Hernandez 7 Esmeralda Valdez, 8 Eddie Jaimes,

12 Myrna Stockton, 17, Roman Torres, 18 Eduardo Gonzalez, 25 Maria

Delourdes Liendo, 30 Norberto Flores, Jr., 33 Belinda H. Zavala and numb er 40,

Abel Villalpando, be stricken for cause under Texas Code of Criminal

Procedure 35.16(c)(2) in that they could not consider the full range of

punishment. Appellant exercised peremptory challenges against these individuals

and objected to specific individuals serving on the jury who he would have struck,

asked for additional strikes

.

19

- 26 Appellant was denied a fair and impartial trial as guaranteed by the 6 th and

14 th amendment to the United States Constitution when the trial court denied20

perem ptory challenges for cause agains t eigh t venire members who ult imately sat

on the jury and assessed punishment. After voire dire exanimation was complete

Appellant's atto rney requested that venire number s 7 Esmeralda Valdez, 8 Eddie

Jaimes, 12 Myrna Sto ckton, 17, Roman Torres, 18 Eduardo Gonzalez, 25 Maria

Delourdes Liendo, 30 Norberto Flores, Jr., 33 Belinda H. Zavala be stricken for

cause under Texas Code of Criminal Procedure 35.16(c)(2) in that they could not

consider the full range of punishment. Appellant objected to these individuals

serving on the jury and it denied the Appellant a fair and impartial trial as

guaranteed by the United States Constitution 6 th amendment

.

2 7

- 4 4

. The Appellant was denied a fair and impartial trial as guaranteed by the 6 th

and 14 th amendment to the United States Constitution

. T he trial improperly re

qualified the prospect ive venire individuals who could not consider the full range

of punishment. Appellant's attorn ey requested that juror numbers 1 Randy

Villarreal, 11 Raymond Robles Jimenez, 13 Ruth Camins Faustino, 23 Baldemar,

Cortez, 26 Miriam Micheel Avalos, 27 Luis Antonio Deleon, 28 Victor Manuel

Pardo, Jr., 35 Sandra Alaniz, 38 Orfalinda Hernandez 7 Esmeralda Valdez, 8

Eddie Jaimes, 12 Myrna Stockto n, 17, Roman Torres, 18 Eduardo Gonzalez, 25

Maria Delourdes Liendo, 30 Norberto Flores, Jr., 33 Belinda H. Zavala and

number 40, Abel Villalpando, be stricken for cause under Texas Code of

Criminal Procedure 35.16(c)(2) they could not consider the fu ll range of21

punishment. 4 5

. The Appellant was denied a fair and impartial trial under the

United States Constitution 14 th Amendment due process when the Trial Court

erred by not granting a mistrial when the prosecutor in his final argument argued

for comm unity standards.

4 6

. The Appellant was denied a fair and impartial trial in violation of his Due

Process rights under the United States Constitution 14 th Amendment when the

States Attorney argued to the jury outside the record.

4 7

. Appellant was denied th e protection of the Texas Constitution article one

section 10 when the State‘s Attorney commented on the Appellant‘s right to

remain silent in front of the jury by stating ―you never gave a statement when you

were arrested.‖

48

. Appellant was denied the protection of the Texas Code of Criminal

Procedure 38.08 right to remain silent when the prosecutor commented in front of

the jury ―you never gave a statement when you were arrested. ―

49

. The trial court erred allowing the victim ‘s father, Mr. Reyes

, to testify

regarding matters that were not relevant under Texas Rules of Evidence 401 and

that amounted to victim impact statements to prejudice the jury,

5 0

. The trial court erred allowing the victim‘s father, Mr. Reyes to testify

re garding matters that not relevant under Texas Rules of Evidence 401 and

amounted to a victim impact statement prejudicing the jury and denying the22

appellant due process as required in the 14 th Amendment United States

Constitution.

5 1

. Trial Court allowed hearsay evidence that the Appellant‘s mother had

committed the offense of hindering Apprehension in violation of Texas Rules of

Evidence 802.23 STATEMENT OF FACTS

Prior to the jury entering the courtroom the Appellant entered a plea of

guilty to the indict ment. (R.R. Vol 2 p. 10) A jury was s eated and the trial on

punishment began.

Yazmin Reyes

, the victim

, in this case testified that on May 11, 2012 she

had been at work during the day and was headed home around 5 p.m. (R.R. Vol 2

p. 122). She did not notice anything unusual at first, but after arriving at her home

and exiting her car she saw the Appellant

.

She first heard him calling out her name and she ignored him . (R.R. Vol 2 p.

126) She continued to proceed into her yard still ignoring the Appellant

. (R.R. Vol

2 126) She open ed the gate to the cyclone fence surrounding her house

. T he

Appellant approached the fence and shot her numerous times. (State‘s Exhibit 82) 1

After the shooting the Appellant fled and Ms. Reyes lay on the ground unti l

her brother and other family members came from inside the house to assist her.

(State‘s Exhibit 82) An ambulance arrived and Ms. Reyes was taken to the

hospital

. (R.R. Vol 2. P. 129) She remained in the hospital for a week and a half.

(R.R. Vol 2 p. 13 1)

1 State‘s Exhibit 82 is a video of the actual shooting.24

Ms. Reyes lost a significant amount of her intestine, stomach was stapled,

her right arm shot and pins inserted, she suffered two major surgeries, and an

enormous amount of pain and discomfort. (R.R. Vol 2 p. 136,137). She also spent

time in Houston u ndergoing a bone graft on her middle finger. (R.R. Vol 2 p 139)

She testified that she moved to Los Fresno because she was fearful that the

Appellant would come back (R.R. Vol. 2. p 138).

Ms. Reyes testified that she and the Appellant met when she was 1 9 years

old (R.R. Vol 2. 152) She was also dating two other men while dating the

Appellant in the beginning of their relationship . ( R.R. Vol 2 p. 155) E ventually

however, she and the Appellant became exclusive as boyfriend and girlfriend for

around two years beginning in November of 2009 . ( R.R. Vol 2 109, 163) They

broke up January of 2012. She stated that the Appellant had become possessive

and would not let her see her friends. (R.R. Vol 2 p. 114)

All though the relationship had ended in January of 2 012, she continued to

see him at her classes in college

, or at the parking lot at her work

. (R.R. Vol 2 p.

117) she stated the Appellant was trying to get back together with her but she

refused. (R.R. Vol 2 p. 117)

M r . Reyes , the victim‘s f

ather

, testifie d that his daughter was a good person.

(R.R

. Vol 2 p.184 ) He also testified about the injuries Ms. Reyes suffered as a25

result of the Appellant‘s actions . (R.R. Vol. 2 p. 197) He explained to the jury the

effect the shooting had on him as the father of Ms. Reyes

. (R.R. Vol 3 p. 8,21,22)

Do ctor Reece, the surgeon who attended Ms. Reyes t estified as to the extent

of Ms. Reyes i njuries . This includ ed the loss of a kidney , part of her intestine and

the general condition she was in when she arrived at the emer gency room. (R.R.

Vol 3 p. 38)

Detective s‘ Hernandez and Briones both testified as to their actions at the

scene. Police O fficer Jose Garcia testified that he was sent to the Appellant‘s house

where he retrieved a note written by the Appellant . The note was written prior to

the shooting indicating to Appellant‘s family that he would be leaving on a

business trip and would see them soon (R.R. Vol 3 p.130.)

Detective Clipper from the Brownsville Police Department testified that he

was the investigating off

icer and recovered evidence from the scene

. He also went

to the downtown area close to the border bridge to Mexico and discovered the

Appellant‘s vehicle abandoned. (R.R. Vol 3 p. 151)Detective Clipper also t estified

that on July 15, 2013 he was present wh en the Appellant turned himself into

authorities at the bridge. (R.R.Vol 3 p. 163)

The State also called additional family members of Ms. Reyes and police

offices. The family members each describ ed the events on May 11, 2013 and Ms.

Reyes relationship with the A ppellant. All consistent with previous testimony.26

The Appellant called family members, priest and friends to testify to the

Appellant‘s character. The Appellant testified that on May 11, 201 2 the day of the

shooting he followed Ms. Reyes to her house. (R.R Vol 4. P 142 ) He got out of

his car and he called her name and she ignored him

. He stated he yelled Yazmin

. ‖

He told the jury that he had the pistol with him and ― I started shooting. I s tarted

shooting. I just don't know how many times. It was until you showed me the video

that I saw how many times I shot her. (R.R. Vol 4 p. 148)

After shooting Ms. Reyes

, the Appellant left his car in downtown

Brownsville and went to Mexico where he rema ined for over 14 months. (R.R.

Vol 4. P. 151)27 NO. 13

- 14

- 00457

- CR

IN THE COURT OF APPEALS
FOR THE THIRTEENTH JUDICIAL DISTRICT
AT CORPUS CHRISTI

– EDINBURG

VICTOR HERNANDEZ Appellant
VS.
THE STATE OF TEXAS Appellee

On Appeal from the 357 TH Judicial District

of Cameron County, Texas

Trial Court Cause Number 1 3

- DCR

- 2237

- E

TO THE HONORABLE COURT OF APPEALS :

COMES NOW, the APPELLANT, herein, VICTOR HERNANDEZ
, and

pursuant to Tex. R . App. P. 38.1 files this Appellant‘s Brief requesting that the

Court reverse the j ury‘ s verdict and trial court‘s sentence and render a judg ment of

acquittal or grant a new trial

. VICTOR HERNANDEZ respectfully would show

the Honorable Court the following:28 APPELLANT’S POINT OF ERROR NUMBER ONE 2

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S

CHALLENGE FOR CAUSE TO VENIRE PERSON RANDY VILLARREAL
WHO COULD NOT CONSIDER THE FULL RANGE OF PUNISHEMNT IN
VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL PROCEDURE

APPELLANT’S POINT OF ERROR NUMBER TWO

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S
CHALLENGE FOR CAUSE TO VENIRE PERSON RAYMOND ROBLES

JIMENEZ WHO COULD NOT CONSIDER THE FULL RANGE OF
PUNISHEMNT IN VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL
PROCEDURE

APPELLANT’S POINT OF ERROR NUMBER THREE

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S
CH ALLENGE FOR CAUSE TO VENIRE PERSON BALDEMAR CORTEZ
WHO COULD NOT CONSIDER THE FULL RANGE OF PUNISHEMNT IN
VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL PROCEDURE

APPELLANT’S POINT OF ERROR NUMBER FOUR

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S
CHA LLENGE FOR CAUSE TO VENIRE PERSON MIRIAM MICHELL
AVALOS WHO COULD NOT CONSIDER THE FULL RANGE OF
PUNISHEMNT IN VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL
PROCEDURE

APPELLANT’S POINT OF ERROR NUMBER FIVE

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S
CHALLENGE FOR CAUSE TO VENIRE PERSON LUIS ANTONIO DELEON

2 Appellant would request that in that the challenges for cause should have been granted against each of the above individuals and that the Honorable Court considers the Statement of Facts and Argument of Authorities in Points of Error number One through 18 under the same Argument and Authorities.29

WHO COULD NOT CONSIDER THE FULL RANGE OF PUNISHEMNT IN
VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL PROCEDURE

APPELLANT’S POINT OF ERROR NUMBER SIX

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S
CHA LLENGE FOR CAUSE TO VENIRE PERSON VICTOR MANUEL PARDO, JR WHO COULD NOT CONSIDER THE FULL RANGE OF
PUNISHEMNT IN VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL
PROCEDURE

APPELLANT’S POINT OF ERROR NUMBER SE VEN

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S
CHALLENGE FOR CAUSE TO VENIRE PERSON SANDRA ALANIZ WHO
COULD NOT CONSIDER THE FULL RANGE OF PUNISHEMNT IN
VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL PROCEDURE

APPELLANT’S POINT OF ERROR NUMBER EIGHT

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S
CH ALLENGE FOR CAUSE TO VENIRE PERSON OFRALINDA
HERNANDEZ WHO COULD NOT CONSIDER THE FULL RANGE OF
PUNISHEMNT IN VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL
PROCEDURE

APPELLANT’S POINT OF ERROR NUMBER NINE

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S

CHAL LENGE FOR CAUSE TO VENIRE PERSON A B EL VILLALPANO WHO
COULD NOT CONSIDER THE FULL RANGE OF PUNISHEMNT IN
VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL PROCEDURE

APPELLANT’S POINT OF ERROR NUMBER TEN

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S

CHALLENGE FOR CAUSE TO VENIRE PERSON RUTH CAMINS
FAUSTINO WHO COULD NOT CONSIDER THE FULL RANGE OF
PUNISHEMNT IN VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL
PROCEDURE30

APPELLANT’S POINT OF ERROR NUMBER ELEVEN

T HE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S
CHALLENGE FOR CAUSE TO VENIRE PERSON NORA LEE GARZA WHO
COULD NOT CONSIDER THE FULL RANGE OF PUNISHEMNT IN
VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL PROCEDURE

APPELLANT’S POINT OF ERROR NUMBER TWELVE

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S

CHALLENGE FOR CAUSE TO VENIRE PERSON ESMERALDA VALDEZ
WHO COULD NOT CONSIDER THE FULL RANGE OF PUNISHEMNT IN
VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL PROCEDURE

APPELLANT’S POINT OF ERROR NUMBER THIRTEEN

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S

CHALLENGE FOR CAUSE TO VENIRE PERSON MYRNA STOCKTON
WHO COULD NOT CONSIDER THE FULL RANGE OF PUNISHEMNT IN
VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL PROCEDURE

APPELLANT’S POINT OF ERROR NUMBER FOURTEEN

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S
CHALLENGE FOR CAUSE TO VENIRE PERSON MARIA DELOURDES
LIENDO WHO COULD NOT CONSIDER THE FULL RANGE OF
PUNISHEMNT IN VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL
PROCEDURE

APPELLANT’S POINT OF ERROR NUMBER FIF ETEEN

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S CHALLENGE FOR CAUSE TO VENIRE PERSON NORBERTO FLORES, JR.,
WHO COULD NOT CONSIDER THE FULL RANGE OF PUNISHEMNT IN
VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL PROCEDURE

APPELLANT’S POINT OF ERROR NUMB ER SIXTEEN

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S
CHALLENGE FOR CAUSE TO VENIRE PERSON BELINDA H. ZAVALA31

WHO COULD NOT CONSIDER THE FULL RANGE OF PUNISHEMNT IN
VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL PROCEDURE

APPELLANT’S POINT OF ERROR NUM BER SEVENTEEN

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S
CHALLENGE FOR CAUSE TO VENIRE PERSON ALBERTO JAVIER
GARCIA WHO COULD NOT CONSIDER THE FULL RANGE OF
PUNISHEMNT IN VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL
PROCEDURE

APPELLANT’S POINT OF ER ROR NUMBER EIGHTEEN

THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S
CHALLENGE FOR CAUSE TO VENIRE PERSON EDDIE JAIMES WHO
COULD NOT CONSIDER THE FULL RANGE OF PUNISHEMNT IN
VIOLATION OF 35.16(c)(2) TEXAS CODE CRIMINAL PROCEDURE

STATEMENT OF FACTS

Appellant would rely on the previously written statement of facts and assert

the following:

During voire dire the Appellant‘s trial attorney inquired regarding whether

the prospective members of the jury could consider the entire range of punishment

,

inc luding probation

, for the offense of a ggravated a ssault. Trial Counsel was able

to identify the following numbered jurors as not being able to grant probation for

the offense of aggravated assault

.

MR. STAPLETON: Thank you. Three, four, five , seven, one, eight, nine, 10,

11, 12, 13, 14, 15, 16,17, 18, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32,33,

34, 35, 37, 38, 40. (R.R. Vol 2 p. 46)32

After each side had conducted voir dire the trial court brought back each of

the above listed indivi duals in groups to determine if they had biases or prejudice

,

and could consider the full range of punishment.

The Court on its own motion brought back venire men and women in groups

and inquired of the first panel members that included venire persons nu mber one

through 1 2 including, Randy Villarreal, Rigoberto Tovar, Jr., Rosen Jasso Salazar,

Manuel B o tello, Nora Lee Garza, Esmeralda Valdez, Eddie Jaimes, Leticia Tapia,

Juan Miguel Hernandez, Raymond Robles Jimenez, Myrna Stockton.

THE COURT: All right . There was a question posed to you very early in Mr. Stapleton's presentation as to whether or not you could consider the full range of punishment, which includes probation. And I think all of you
indicated that you would have difficulty considering the f ull range of punishment; is that correct? (R.R. Vol 2 p. 70)

THE PANEL MEMBER: Yes.

THE COURT: Now, if the Court instructs you that you're obligated to

c onsider the full range of punishment, that's the law, which would include probation, will you set asi de your feelings and be fair to both sides?
Mr.Villarreal? (R.R. Vol 2 p. 7 0 )

Appellant‘s counsel objected to the wording the trial judge us ed, specifically

the words ― fair and impartial trial to both sides .‖ Appellant‘s counsel objected and

indicat ed to the Court that the State is not entitled to a fair trial only the defendant

based on the 5 th amendment and due process . Counsel o bjected to the rehabilitation

as being improper

.33

THE COURT: All right. Mr. Botello, can you consider the full range of

p unishment? Will you? Which includes probation.

THE PANEL MEMBER: I was thinking about rehabilitation.

THE COURT: No, but will you consider the whole range? All I'm trying to get at is will you set aside your feelings and follow the law and consider the
f ull range of punishment, which includes probation? Yes?

THE PANEL MEMBER: Yes.

THE COURT: Ms. Valdez? Where is Ms. Valdez? Will you consider the full range of punishment?

THE PANEL MEMBER: Yes, sir.

THE COURT: Mr. James, will you consider the full range of punishment?

THE PANEL MEMBER: Yes, I can.

THE COURT: Ms. Tapia.

THE PANEL MEMBER: Yes.

THE COURT: Mr. Hernandez.

THE PANEL MEMBER: Being the father of fo ur daughters, I cannot.

THE COURT: Cannot? Mr. Jimenez, will you consider the full range of punishment?

THE PANEL MEMBER: Me having three daughters, I can't consider the full range of punishment.

THE COURT: All right. Ms. Stockton.

THE PANEL MEMBER: Yes, I could.34

Venire persons number 7, Valdez, number 8, Jaimes, and number 13 Ms.

Stockton were on the jury. Appellant exercised strikes against venire persons

number 1 Randy Villarreal

, and number 11, Raymond Robles Jimenez.

The next group was brought in and questioned by the Court :

THE COURT: Ms. Flores, Ms. Cisneros, Ms. Martinez , Roman Torres, Eduardo Gonzalez, Mr. Godinez, Ms. Garcia, Mr. Cortez, and Ms. Fuller. Early in the presentation Mr. Stapleton asked you if you could consider the full range of punishment. All of you raised your hand and indicated that you
could not. If I instruct you that you are to

-- you are by law to consider the full range of punishment, can you set aside your personal feelings and set

– and consider the full range of punishment? Ms. Faustino?

THE PANEL MEMBER: Yes.

MS. STAPLETON: Judge, I will impose an objection that does not inquire about probation in specific.

THE COURT: The full range of punishment includes probation; and by law I am instructing you that you will have to consider the full range of punishment. Can you do that, Ms. Faustino?

THE P ANEL MEMBER: Yes, Your Honor.

THE COURT: Ms. Flores?

THE PANEL MEMBER: I don't think so. By full range, you mean from probation

–

THE COURT: From probation all the way to

–

THE PANEL MEMBER: Either?

THE COURT: Up to five to life. Can you consider the full range of punishment, Ms. Cisneros?35

THE PANEL MEMBER: Yes.

THE COURT: Ms. Martinez?

THE PANEL MEMBER: Yes, sir.

THE COURT: Mr. Torres?

THE PANEL MEMBER: Yes, sir.

THE COURT: Mr. Gonzalez?

THE PANEL MEMBER: Yes, sir.

THE COURT: Mr. Godinez?

THE PANEL MEMBER: Yes, Your Honor.

THE COURT: Ms. Garcia?

THE PANEL MEMBER: Yes, sir.

THE COURT: Mr. Cortez?

THE PANEL MEMBER: Yes, sir.

THE COURT: And Ms. Fuller?

THE PANEL MEMBER: No.

Venire persons number 17, Roman Torres, nu mber 18 Eduardo Gonzalez,

were seated on the jury. The Appellant struck venire person number 13 Ruth

Camins Faustino and number 23 Baldemar Cortez.

The last group was brought into the courtroom:

THE COURT: If I could have Mr. Liendo, Ms.Avalos, Mr. DeLeon, Mr. Pardo, Ms. Killpack, Mr. Flores, Ms. Cavazos, Mr. Medina, Ms. Zavala, Ms.36

Carlos

, Ms. Alaniz, Ms. Gonzalez, Ms. Hernandez, Mr. Villapando. Earlier in the presentation Mr. Stapleton asked you if you could consider the full range of punishment, and all of you raised y our card indicating that you
could not. I am instructing you that the law is that you must consider the full range of punishment, which comes from probation all the way to 99 or life. Having made that instruction to you, can you set aside your personal bel iefs and consider the full range of punishment ? Ms. Liendo?

THE PANEL MEMBER: Yes.

THE COURT: Ms. Avalos?

THE PANEL MEMBER: Yes.

THE COURT: Mr. DeLeon?

THE PANEL MEMBER: Yes.

THE COURT: Mr. Pardo?

THE PANEL MEMBER: Yes, sir.

THE COURT: Ms. Killp ack?

THE PANEL MEMBER: Yes.

THE COURT: Mr. Flores?

THE PANEL MEMBER: Yes.

THE COURT: Yes? Ms. Cavazos?

THE PANEL MEMBER: Yes.

THE COURT: Mr. Medina?

THE PANEL MEMBER: Yes.

THE COURT: Ms. Zavala?37

THE PANEL MEMBER: Yes.

THE COURT: Ms. Carlos?

THE PANEL MEMBER: I feel very nervous, very

-- it's very hard for me to
make a decision.

THE COURT: You feel very nervous?

THE PANEL MEMBER: Yes.

THE COURT: Do you feel so nervous that you cannot answer my question?

THE PANEL MEMBER: (Nodding.) When I heard that it was a criminal

case

–

THE COURT: You have to speak up, ma'am.

THE PANEL MEMBER: When I heard that it was a criminal case I was

-- I
got very nervous.

THE COURT: You don't believe you could be fair to both sides?

THE PANEL MEMBER: No.

THE COURT: Ms. Alaniz, can you consider the full range of punishment, which includes probation?

THE PANEL MEMBER: Yes.

THE COURT: Ms. Gonzalez?

THE PANEL MEMBER: No.

MR. STAPLETON: What number I Ms. Gonzalez, Your Honor?

THE PANEL MEMBER: Thirty

- seven.

THE COURT: Ms. Hernandez?38

THE PANEL MEMBER: Yes, sir.

THE COURT: Mr. Villapando?

THE PANEL MEMBER: Yes.

Venire persons number 25 Maria Delourdes Liendo, Norberto Flores, Jr.,

Belinda H. Zavala, served on the jury. Appellant struck venire persons number 26

Miriam Micheel Avalos, number 27, Luis Antonio DeLeon, number 28 Victor

Manuel Pardo, Jr., number 35 Sandra Alaniz, number 38 O r falinda Hernandez

and number 40 Abel Villalpando.

The jurors were excused and the Court ruled that the following were struck

for cause.

THE COURT: All right. The Court is going to strike the following persons
for cause: Number three, number four, number 10, number 14, number 24,
number 34 and number 37.

MR. STAPLETON : I didn't

-- we have no further objections, reserving our objections to those ones previously objected to.

After the strikes had been made Appellant‘s trial counsel objected to the

panel under Morgan vs. Illinois, stating that they were improperly rehabilitated.

And specifically objected to Ofelia O. Espinoza, who was not able to consider

probation, which she is number one; Nora L. Garza, wh o is unable to consider

probation, who is number two; Esmeralda Valdez, unable to consider probation,

number three; Eddie Jaimes, number four, unable to consider probation; Myrna39

Stockton, number five, unable to consider probation. The Trial court overrul ed his

objections

The jury lists in the Clerks record indicates that Appellant‘s trial attorney

numbered his strikes 1through 10. (Clerks Record P. 653

- 654) The first person

he strike as indicated on the document was juror number one Randy Villarreal.

Appellant‘s attorney skipped over number 7 and 8 and next strike was for juror

number 11, Raymond Robles Jimenez . Counsel continued down the list and

reaching number 40 Able Villapando numbered his strike as number 9. (C. R. p.

654 )

It appears from the list that counsel worked his way back up the list and

struck juror number 13 as his tenth peremptory strike. This left jury number 12

Myrna Stockman,8 , Eddie Jaimes, 7, Esmeralda Valdez, 6 Nora Lee Garza, and 2

Ofilia Espinosa as members of the jury he would have struck had he been provided

the additional strikes. (R.R. Vol 2 p. 79)

The record confirms that appellant‘s trial attorney ‘s main concern was

having a jury that could consider the full range of punishment including probation

.

Ten of the Appell ant‘s ten strikes were those individuals that had raised their hands40

indicating that they could not consider probation as the full range of punishment.

(R.R. Vol. 2 p. 70 ) and compared to Jury list (C.R. Vol. 1 p. 650,651,652). 3

STANDARD OF REVIEW AND
AR GUMENTS AND AUTHORITIES

An appellant must properly preserve any issue for which he wants appellate

review. Tex.R.App.P. 33.1. The following steps must be taken to preserve error

following the erroneous denial of a challenge for cause:

(1) the voire dire of the challenged venire member(s) must be

recorded and transcribed;

(2) the challenge(s) must be clear and specific;

(3) following the denial of the challenge(s) for cause, the defendant

must peremptorily strike the venire member(s);

(4) all perempt ory strikes must be exhausted;

(5) after the peremptory strikes are exhausted, the defendant must

request additional peremptory strikes to cure the error from the

erroneous denial of the challenge(s) for cause;

3 From the calculations of the strikes and the jury list 40 individuals were brought to the court, 10 individuals were struck for cause; each side exercised 10 peremptory challenges. With the 10 individuals remov ed for because this left 30 individuals allowing for 12 jurors, and each side exercised 10 challenges, there was insufficient number of jurors to fulfill the jury. No one recognized this but with one double strike (juror number 11) there was an
insufficie nt number of jurors to proceed.41 (6) the request for sufficient additional p eremptory strikes to cure the

error from the erroneous denial of the challenge(s) for cause must be

denied; and

7) finally

, the defendant must identify at least one member who was

selected to serve on the jury as objectionable, the significance being

that the objectionable juror(s) would have been peremptorily struck

had the trial court not erred in denying the challenge(s) for cause.

Jacobs v. State

, 787S.W.2d 397, 405 (Tex.Crim.App.1990); Harris

v. State

, 790 S.W.2d 568,581 (Tex.Crim.App.1989) ; Johnson v

.

Sta te

, 43 S.W.3d at 5, 2001 Tex.Crim.App. LEXIS 23 (holding that,

if these preservation requirements are met, any error in the denial of a

challenge for cause is reversible error .)

The Appellant's trial attorney preserved error as required. He numbered his

strikes on the jury list

. He did not go straight down the list but clearly indicated by

the numbering process the weight he placed on the strikes.

Tex. Code Criminal Procedure Article 35.16(c)(2) enables the defense to

challenge a venire member for cause if the venire member has a bias or prejudice

against any of the law applicable to the case. Tex.Code Crim.Proc.Ann. art.

35.16(c)(2) Therefore, once a prospective juror admits an inability to cons ider the

full range of punishment, including community supervision, a sufficient foundation42

has been laid to support a challenge for cause. Cumbo v. State, 760 S.W.2d 251,

255

– 56 (Tex.Crim.App.1988). Prospective jurors ―must be able, in a sense, to

conceiv e both of a situation in which the minimum penalty would be appropriate

and of a situation in which the maximum penalty would be appropriate.‖ Fuller v.

St ate

, 829 S.W.2d 191, 200 (Tex.Crim.App.1992), cert. denied, *406 508 U.S.

941, 113 S.Ct. 2418, 124 L. Ed.2d 640 (1993).

The prospective jurors must be able to accept that, for the offense in

question, the minimum legal punishment will be appropriate in some

circumstances and the maximum legal punishment will be appropriate in some

circumstances Fuller v. State.

Defendant's Counsel would specifically direct the court‘s attention to the

case Cardenas v. State
, 305 S.W.3rd 773 (Tex. Ct. App. [Ft. Worth] 2009 writ

granted 2010). This case is analogous to the Defendant's case now before the

Honorable Court. Th e Defendant is entitled to jurors who can consider the entire

range of punishment. Once a prospective juror admits his inability to consider the

full range of punishment a sufficient foundation has been laid to support a

challenge for cause. Cardenas v. St ate id at 179.

At this point either the opposing party or trial court may examine the

individual to verify the nature or extent of the panel member's position, but unless

these inquiries ameliorate the unequivocal nature of the prior response, the trial43

court must grant the challenge. Curtis v. State , 385 S.W. 3rd. 636 (Tex Ct. App.

[Amarillo] 2012 citing Cardenas. Here the court failed to adequately question the

venire as to why they felt that they could not consider the full range of punishment

only th at the law required them to do so.

In deciding whether a particular venire person is subject to a challenge for

cause, it is always first a factual question for the trial judge to resolve whether a

challenge for cause was factually good or bad. When a pro spective juror is shown

to be biased against the law, as a matter of law, he must be excused when

challenged, even if he states that he can set his bias aside and be a fair and

impartial juror. Anderson v. State

, 633 S.W.2d 851, 854 (Tex.Cr.App.1982).

In Appellant‘s case the jurors listed above during clearly indicated that they

could not consider the full range of punishment, this was acknowledged by the trial

court when he brought the venire members up to the bench

.

The trial court could have excused th ose members of the panel at that point

in the voire dire and brought in another panel with additional jurors. T he trial court

acknowledges that the jurors brought back could not consider the full range of

punishment and his attempt to incorrectly voire dir e the individuals into accepting

the full range of punishment for the offense of aggravated assault was improper.

Case law explains that fi rst t he law must be exp lained to the prospective

juror and he must be asked whether he can follow that law regardless of his44

personal views.‖ Id. at 744; Jones v. State

, 982 S.W.2d 386, 390

(Tex.Crim.App.1998), cert. denied, 528 U.S. 985, 120 S.Ct. 444, 145 L.Ed.2d 362

(1999); Curtis v. State

, 205 S.W.3d 656, 659 (Tex.App.

- Fort Worth 2006, pet.

ref'd). Here the emphasis was you must follow the law and can you be fair and

impartial to both sides. ― I am instructing you that the law is that you must consider

the full range of punishment, which comes from probation all the way to 99 or

life. ‖ Having made that instruction to you, can you set aside your personal beliefs

and consider the full range of punishment? The questions were improper.

In Texas, the trial court has discretion in ruling on challenges for cause, and

its rulings will not be upset on appeal absent an abuse of discretion. An appellate

court must examine the record as a whole to determine whether there is support for

the trial court's rulings, and in doing so, the appellate court must give deference to

the trial court, which was in a position to actually see and hear the venire man

.

Ladd v. State, 3 S.W.3d 547, 559 (Tex.Crim.App.1999); Banda v. State

, 890

S.W.2d 42, 53

– 54 (Tex.Crim.App.1994). Here the Appellate court must look at the

statement made by the trial court to determine if the Court adequately informed the

35 jurors of the law.

If the law is adequately and correctly explained and the trial court does not

abuse its discretion the and juror states that he believes that he can set aside any

biases he may have, and the tria l court overrules a challenge for cause, its decision45

will be reviewed in light of all of the answers the prospective juror gives Clark v.

State
, 717 S.W.2d 910, 917 (Tex. Crim. App. 1986)

Appellant asserts that th e challenge for cause should have been gr anted

when requested by the Appellant‘s trial attorney . The court did not adequately

inform the jurors as to the proper issue and at most the jurors acquiesced to the trial

court‘s statement regarding the ―law is that you must consider the full range of

p unishment.‖

In Johnson v. State 43 S.W. 3 rd . 1 ( Tex.Crim.App . App. 2001) the court

reiterates the position as expressed in 1944 case Wolf v

. State, 147 Tex. Crim.

App. 62, 278 S.W. 2d. 274 (1944). The Court explain ed that a ― right is violated

when the defendant is forced to use a peremptory challenge on a juror who should

have been removed for cause. And as a result the defendant is required to accept a

diff er ent juror who is objectionable to him. ‖

In Appellant‘s case he used each and every strike to e liminate potential

jurors that could not consider the full range of punishment and still was left with 8

members of the jurors identified as individuals that he would have stricken

.

Denial of a proper challenge for cause is error because the makeup of the

jury affects its decision. Johnson v. State 43 S.W. 3 rd 1 (Tex. Crim. App. 2001).

The Court in Johnson cites Wolfe v. State 147 Tex. Crim. 62, 178 S.W. 274

(1944) for the premise that in Texas the use of the peremptory challenge is to allow46

the accused or state to remove a venire member without stating a reason and If one

of the accused peremptory challenges could be taken away from him, why not five,

why not ten, leaving none, and all jurors be acceptable save unfair and partial

ones‖ citing Wolfe i d at 72, 178, S.W. 2 nd . At 279

— 280

. Pierce v. State

, 696

S.W.2d 899, 902

– 03 (Tex.Crim.App.1985) (holding that the trial court erroneously

denied the defendant's challenge for cause when a panel member said that he could

not consider granting probation in a murder case); Von Byrd v. State

, 569 S.W.2d

883, 89 1 (Tex.Crim.App.1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2418, 60

L.Ed.2d 1073 (1979).

The t rial court's rulings on Appellan t's challenges for cause harm Appellant

by effectively depriving him of one of his statutorily allotted peremptory

challenges T he Court in N ewbury v. State, 135 S.W.3d 22, 30

– 31

(Tex.Crim.App.2004) ; Johnson v. State , 43 S.W.3d 1, 6 (Tex.Crim.App.2001)

.

stated that the h arm from the erroneous denial of a def ense challe nge for cause

focused on whether a peremptory challenge ―was wrongfully taken from‖ the

defendant. Johnson , 43 S.W.3d at 6

. Such harm occurs ―(1) when a defendant

exercises a peremptory challenge on a venire member whom the t rial court should

have excused for cause at the defendant's request, (2) the defendant uses all of his

statutorily allotted peremptory challenges, and (3) the defendant unsuccessfully

requests an additional peremptory challenge which he claims he would use on47

another venire member whom the defendant identifies as  ̳objectionable‘ and who

sits on the jury.‖ Newbury , 135 S.W.3d at 31. When these conditions are met, we

have stated that the trial court's erroneous denial of a def ense challenge for cause

harms the defendant by effectively depriving him of one of his statutory

peremptory challenges because ―he had to use a peremptory challenge to remove a

venir e member who should have been removed for cause.‖

The Appellant‘s trial attorney correctly identified the individuals who stated

they could not consider the full range of punishment on voire dire. The trial court

in an attempt to rehabilitate the jurors brought the jurors back into the court room

and questioned them regardin g their ability to be fair and impartial. The Appellant

met his burden to establish that the challenge was proper. Feldman v.

State, 71 S.W.3d 738, 747 (Tex.Crim.App.2002).

T he State and Appellant‘s attorney had an opportunity to voire dire the

indivi duals regarding this issue and it was clear that those individuals that raised

their hands indicated they could not consider the full range of punishment. As the

proponent the Appellant has demonstrated that the pa nel member s understood the

requirements of the law and they were not able to overcome their prejudice s well

enough to follow them.

The trial court abused his discretion and was incorrect on the law. The

appellant was harmed

. Appellant would request that the Honorable Court grant48

th ese point s of e rror and reverse and remand the said cause for a new trial on

punishment.

APPELLANT’S POINT OF ERROR NUMBER NINETEEN

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
G UARANTEED BY THE UNITED STATES CONSITUTION 6 TH

AMENDMENT . THE JURY CONSISTED OF UNQUALIFIED JUROR
ESMERALDA VALDEZ.

APPELLANT’S POINT OF ERROR NUMBER TW ENTY

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE JURY CONSISTED OF UNQUALIFIED JUROR EDDIE
JAIMES

APPELLANT’S POINT OF ERROR NUMBER TWENTY ONE

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE JURY CONSISTED OF UNQUALIFIED JUROR MYRNA
STOCKTON

APPELLANT’S POINT OF ERROR NUMBER TWENTY TWO

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE JURY CONSISTED OF UNQUALIFIED JUROR ROMAN
TORRES.

APPELLANT’S POINT OF ERROR NUMBER TWENTY THREE

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JUR Y
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE JURY CONSISTED OF UNQUALIFIED JUROR
EDUARDO GONZALEZ.49

APPELLANT’S POINT OF ERROR NUMBER TWENTY FOUR

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE JURY CONSISTED OF UNQUALIFIED JUROR MARIA
DELOURDES LIENDO.

APPELLANT’S POINT OF ERROR NUMBER TWENTY FIVE

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH

AMENDM ENT. THE JURY CONSISTED OF UNQUALIFIED JUROR
NORBERTO FLORES JR.

APPELLANT’S POINT OF ERROR NUMBER TWENTY SIX

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE JURY CONSISTED OF UNQUALIFIED JUR OR
BELINDA H. ZAVALA. 4

STATEMENT OF FACTS

The Appellant would rely on the previously written statement of facts and

add the following:

As stated above the Appellant provided the Court with the adequate

information regarding those jurors that had indic ated that they could not consider

the full range of punishment including probation.

MR. STAPLETON: Your Honor, on behalf of Mr. Hernandez, we have a list
of 35 who are not able to consider the full range of punishment, and we will

4 In that each of the number points of error contain one juror that served on the jury and should have been struck for cause it is requested that each point of error be considered under the same Statement of Facts and Argum ent and
Authorities.50

move that they be stricken for cause. That would be, and to make the record clear, these 35 all said that they wouldn't

-- not be able to consider probation. And they include one, three, four, five, seven, eight, nine, 10, 11, 12, 13, 14, 15, 16, 17,18, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33,34, 35, 37, 38,
40. (R.R. Vol 2 p 70)

T he Court ended up excluding:

THE COURT: All right. The Court is going to strike the following persons for cause: Number three, number four, number 10, number 14, number 24,
number 34 a nd number 37.

The final jury consisted of venire person number s 2, Ofilia Espinoza, 6,

Nora Lee Garza, 7, Esmeralda Valdez, 8, Eddie Jaimes, 12, Myrna Stockton, 17,

Roman Torres, 18, Eduardo Gonzalez, 25, Maria Delourdes, Liendo, 30 Norberto

Flores Jr., 33 Belinda H. Zavala, 36 Jay Medina, and 39 Alberto Javier Garci a.

All but number 2, Ofilia Espinoza, 6 Nora Lee Garza , 36 Jay Medina and 39

Alberto Javier Garcia all but four had been brought up and allegedly rehabilitated

by the Court.

ARGUMENTS AND AUTHRORITIES

The great value of the trial by jury certainly consis ts in its fairness and

impartiality. Those who most prize the institution, prize it because it furnishes a

tribunal which may be expected to be uninfluenced by an undue bias of the mind ‖

U S v. Burr , 25 F. Cas. 49, 50 (C.C.D. Va. 1807)

The Sixth Amendment promise of ―an impartial jury‖ applies to the states.

Regardless of what Texas Code Criminal Procedure Article 35.16(c)(2 )51

provides, a state court would be bound to grant a challenge for cause if the failure

to do so would result in a biased jury. State v. Morales , 253 S.W.3d 686, 694

(Tex. Crim. App. 2008 ) U .S. Const. amend. VI & XIV, § 1; Duncan v. Louisiana

,

391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). State v. Morales , 253 S.W.3d

686, 694 (Tex. Crim. App. 2008)

.

The Sixth Amendment requires that  ̳in all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial, by an impartial jury.‘ The

Amendment prescribes no specific tests. The bias of a prospective juror may be

actual or implied; th at is, it may be bias in fact or bias conclusively presumed as

matter of law. All persons otherwise qualified for jury service are subject to

examination as to actual bias. United States v. Wood , 299 U.S. 123, 133, 57 S. Ct.

177, 179, 81 L. Ed. 78 (1936)

I n a criminal trial, ―both the [defendant] and the State ha [ve] the right to

have jurors who believe in the full range of punishment.‖ Woodkins v. State, 542

S.W.2d 855, 862 (Tex.Crim.App.1976). The right of the defendant arises from

Article 35.16(c)(2) (c ) ( 2), and the right of the State arises from Article

35.16(c)(2) (b ) ( 3). Smith v. State

, 573 S.W.2d 763, 764 (Tex.Crim.App.1977);

Weaver v. State

, 476 S.W.2d 326, 327 (Tex.Crim.App.1972).

Prospective jurors ―must be able, in a sense, to conceive both of a situation

in which the minimum penalty would be appropriate and of a situation in which the52

maximum penalty would be appropriate.‖ Fuller v. State

, 829 S.W.2d 191, 200

(Tex.Crim.App.1992), cert. denied, *406 508 U.S. 941, 113 S.Ct. 2418, 124

L.Ed.2d 640 ( 1993 ) ― J urors must be able to keep an open mind with respect to

punishment until they hear the evidence in the case being tried. ‖ Johnson v. State

,

982 S.W.2d 403, 405

- 06 (Tex. Crim. App. 1998)

If a trial judge errs in overruling a challenge for cause against a venire

member, then a defendant is harmed if he uses a peremptory strike to remove the

venire member and thereafter suffers a detriment from the loss of the strike.

Feldman v. State

, 71 S. W.3d 738, 744 (Tex.Crim.App.2002). Appellant was

denied any additional peremptory strikes.

To demonstrate harm, appellant must show that the trial court erroneously

denied one challenge for cause

. Chambers v. State

, 866 S.W.2d 9, 23

(Tex.Crim.App.1993). H ere appellant asserts that the trial court d enied eighteen

challenges for cause, not one but eighteen and eight of the jurors ended up deciding

the fate of the Appellant.

During the voire dire process each side inquired regarding the full range of

punishm ent. The State stated the following:

it's anywhere between five years in prison or up to 99 years o r life in prison.
So it's also

-- it's possible for a jury to consider probation. Now, of course, if
you want to give probation, then we go on into

-- you go onto the prison sentence, which would be anywhere from five years all the way up to 99 years or life Now, again, to be sitting on the jury you got to be able to be able to consider the full range of punishment, which is not only the prison53

part, which is five to 99 years or life, but also the possibility o f probation. ‖ R.R. Vol 2. p. 58 )

The Appellant‘s trial attorney stated:

You can give up to ten years probation n ow, the first area of inquiry is whether or not you can c onsider the full range of punis hment. And, of

course, that‘s important , because if there is anybody who said well, there is no case under which I would consider giving anybody more than twenty years, then they wouldn't be able to consider the full range of punishment.
And the other part of that is, under our law, if someone is eligible fo r probation, you all have to be able to consider probation, and you don't have to give it. As someone just mentioned, I'd like to see all the evidence and
find out what's there; but that would be the fir st inquiry that I would have of

you. Is there anybody here

-- and just understand that this is the offense. It is laid out, that there is an intention or knowing or reckless, serious bodily injury, with a shooting, a firearm, to a woman, Yazmin, and that i t was someone with whom Mr. Hernandez had a dating relationship. And I

-- we don't explore the facts any further than that, but that's what you begin within
the case. Is there anybody who says, all right, I've heard that? I know what he has pled guilty to, and really, truly, I cannot consider probation. That's just out of the question. If you feel that way, would you raise your card up? (R.R. Vol 2 p 45

- 46)

.

The following jurors rose up their cards and each one was of the venire were

brought back before the judge

.

MR. STAPLETON: Thank you. Three, four, five , seven, one, eight, nine, 10, 11, 12, 13, 14, 15, 16,17, 18, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32,33, 34, 35, 37, 38, 40. All right. Thank you very much. (R.R. Vol 2 p. 46)

The se jurors had al l ready disqualified themselves and nothing the court

could do would change that fact. The Appellant was left with using each one of his

ten strikes to eliminate as many of the individuals who had been re qualified . He

still did not have a sufficient numbe r of strikes. Eight members of the jury who54

had originally admitted that they could not consider probation as part of the full

range of punishment served on the jury.

The Appellant was denied a fair and impartial jury under the Sixth

Amendment to the Un ited States Constitution . It is clear if one unqualified juror

sits on the jury what would be the affect of eight jurors judging the fate of the

Appellant regarding punishment ?

Appellant would request that the Honorable Court grant the above listed

points of error number and order the Appellant a new trial on punishment.

APPELLANT’S POINT OF ERROR NUMBER TWENTY SEVEN 5

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH

AMENDMENT. THE TRIAL COURT IMPROPERL Y REQUALIFIED JURORS. THE JURY CONSISTED OF UNQUALIFIED JUROR ESMERALDA
VALDEZ.

APPELLANT’S POINT OF ERROR NUMBER TWENTY EIGHT

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH

AMENDMENT. THE TRIAL COURT IM PROPERLY REQUALIFIED JURORS. THE JURY CONSISTED OF UNQUALIFIED JUROR EDDIE
JAIMES

5 It is requested that the Honorable Court consider each of the above listed points of error under the same Statement of Facts and Arguments and Authorities.55

APPELLANT’S POINT OF ERROR NUMBER TWENTY NINE

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH

AMENDMENT. THE TRIAL COURT IMPROPERLY REQUALIFIED JURORS. THE JURY CONSISTED OF UNQUALIFIED JUROR MYRNA
STOCKTON

APPELLANT’S POINT OF ERROR NUMBER THIRTY

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH

AMENDMENT. THE TRIAL COURT IMP ROPERLY REQUALIFIED JURORS. THE JURY CONSISTED OF UNQUALIFIED JUROR ROMAN
TORRES.

APPELLANT’S POINT OF ERROR NUMBER THIRTY ONE

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE TRIAL COURT IMPROPERLY REQUALIFIED JURORS. THE JURY CONSISTED OF UNQUALIFIED JUROR EDUARDO
GONZALEZ.

APPELLANT’S POINT OF ERROR NUMBER THIRTY TWO

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE TRIAL COURT IMPROPERLY REQUALIFIED JURORS. THE JURY CONSISTED OF UNQUALIFIED JUROR MARIA
DELOURDES LIENDO.

APPELLANT’S POINT OF ERROR NUMBER THIRTY THREE

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE TRIAL COURT IMPROPERLY REQUALIFIED JURORS. THE JURY CONSISTED OF UNQUALIFIED JUROR NORBERTO
FLORES JR.56

APPELLANT’S POINT OF ERROR NUMBER THIRT Y FOUR

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE TRIAL COURT IMPROPERLY REQUALIFIED JURORS. THE JURY CONSISTED OF UNQUALIFIED JUROR BELINDA H.
ZAVALA.

APPELLANT’S POINT OF ERROR NUMBER THIRTY FIVE

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE TRIAL COURT IMPROPERLY REQUALIFIED VENIRE
PERSON RANDY VILLARREAL AND THE APPELLANT WAS FORCED
TO USE A STRIKE ON THIS PERSON.

APPE LLANT’S POINT OF ERROR NUMBER THIRTY SIX

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE TRIAL COURT IMPROPERLY REQ UALIFIED VENIRE
PERSON RAYMOND ROBLES JIMENEZ AND THE APPELLANT WAS
FORCED TO USE A STRIKE ON THIS PERSON.

APPELLANT’S POINT OF ERROR NUMBER THIRTY SEVEN

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE TRIAL COURT IMPROPERLY REQ UALIFIED VENIRE
PERSON RUTH CAMINS FAUSTINO AND THE APPELLANT WAS
FORCED TO USE A STRIKE ON THIS PERSON.

APPELLANT’S POINT OF ERROR NUMBER THIRTY EIGHT

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH

AMENDMENT. THE TRIAL COURT IMPROPERLY REQ UALIFIED VENIRE
PERSON BALDEMAR CORTEZ AND THE APPELLANT WAS FORCED TO
USE A STRIKE ON THIS PERSON.57

APPELLANT’S POINT OF ERROR NUMBER THIRTY NINE

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE TRIAL COURT IMPROPERLY REQ UALIFIED VENIRE
PERSON MIRIAM MICHEEL AVALOS AND THE APPELLANT WAS
FORCED TO USE A STRIKE ON THIS PERSON.

APPELLANT’S POINT OF ERROR NUMBER FORTY

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUA RANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE TRIAL COURT IMPROPERLY REQUALIFIED VENIRE
PERSON LUIS ANTONIO DELEON AND THE APPELLANT WAS FORCED
TO USE A STRIKE ON THIS PERSON.

APPELLA NT’S POINT OF ERROR NUMBER FORTY ONE

APPELLANT WAS DENI ED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE TRIAL COURT IMPROPERLY REQ UALIFIED VENIRE
PERSON VICTOR MANUEL PARDO, JR

., AND THE APPELLANT WAS
FORCED TO USE A STRIKE ON THIS PERSON.

APPELLANT’S POINT OF ERROR NUMBER FORTY TWO

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE TRIAL COURT IMPROPERLY REQ UALIFIED VENIRE
PERSON SANDRA ALANIZ AND THE APPELLANT WAS FORCED TO USE
A STRIKE ON THIS PERSON.

APPELLANT’S POINT OF ERROR NUMBER FORTY THREE

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE TRIAL COURT IMPROPERLY REQ UALIFIED VENIRE
PERSON ORFALINDA HERNANDEZ AND THE APPELLANT WAS
FORCED TO USE A STRIKE ON THIS PERSON.58

APPELLANT’S POINT OF ERROR NUMBER FORTY FOUR

APPELLANT WAS DENIED A FAIR AND IMPARTIAL JURY
GUARANTEED BY THE UNITED STATES CONSITUTION 6 TH
AMENDMENT. THE TRIAL COURT IMPROPERLY REQ UALIFIED VENIRE
PERSON ABEL VILLAPANDO A ND THE APPELLANT WAS FORCED TO
USE A STRIKE ON THIS PERSON.

STATEMENT OF FACTS

Appellant would rely on the previously written statement of facts for judicial

economy.

ARGUMENT AND AUTHORITIES

A ppellant would assert that the inquiry by the trial court as to whet h er the

prospective jurors could cons i der the full range of punishment was a na logous to

the United States Supreme Court case Morgan v. Illinois , 504 U.S. 719, 719

- 20,

112 S. Ct. 2222, 2224

- 25, 119 L. Ed. 2d 492 (1992). In Morgan the Court was

asked to determine whether Morgan was entitled to relief under the 14 th

Amendment of the United States Constitution due process clause and dealt with

four issues.

1. Whether a jury provided to a capital defendant at the sentencing

p hase must be impartial

2. Whether such defendant is entitled to challenge for cause and have removed on the ground of bias a prospective juror who will automatically vote for death penalty irrespective of the facts or the
trial court‘s instructions of law.

3. Whether on voire dire the court must, on defendant‘s request,59 inquire into the prospective jurors‘ views on capital punishment

.

The trial judge in Morgan had brought panels of potential jurors and

inquired generally of the panels of the potential jurors

, ―would you follow my

instructions on the law even though you may not agree‖ Morgan at 112S.Ct 2224.

The trial judge in Morgan than brought forth every juror that was impaneled and

asked whet h er each could be ―fair and impartial.‖ The Illinois Supreme Co urt up

held the verdict saying ―nothing requires a trial court to question potential jurors so

as to identify and exclude any who would vote for the death penalty in every case

after conviction for a capital offense Morgan v. Illinois, 142 Ill2d. 410, 470; 154

Ill. Dec 534, 557; 568 N.E.2 nd . 755,778 (1991)

The United States Supreme Court in Morgan explained that as set out in

Adams v. Texas 448 U.S. 38; 412 S.Ct. 2521 (1980). That a juror who in no case

would vote for capital punishment regardless of his or her instructions, is not an

impartial juror and must be removed for cause. The Court continued and explained

in Ross v Oklahoma 487 U.S . 81, 108 S.Ct. 2273 (1988) that when a trial judge

fails to remove a potential juror for cause it was a constitutional error and ―denies

the defendant on trial for his life the right to an impartial jury‖ Morgan i d.

The Supreme Court reiterated this view in the Morgan decision. Stating:

―We reiterate that view today. A juror who will automatically vote for the death

penalty in every case will fail in good faith to consider the evidence of aggravating60

and mitigating circumstances as the instructions requ ire him to do, indeed because

such a juror has already formed an opinion on the merits, the presence or absence

of either aggravating or mitigating circumstances is entirely irrelevant to such a

such juror. Therefore based on the requirement of impartialit y embodied in the due

process clause of the fourteenth amendment, a capital defendant may challenge for

cause any prospective juror who maintains such views.‖ Morgan Id.

The court continued its decision stating that ―as with other trial situations

wher e an adversary wishes to exclude a j u ror because of bias, then, it the adversary

seeking exclusion who must demonstrate through questioning that the potential

juror lacks impartiality. It is then the judges duty to determine whether the

challenge is proper ‖ Morgan id. Appellant adequately demonstrated those jurors

that could not consider the full range of punishment.

The court in Morgan considered the questions posed by the trial judge and

made the determination that general question as to fairness and impartiality was

not sufficient. It left the specific concern unprobed. Morgan id.

United States Supreme Court in Morgan stated ― it is insufficient to only ask

venire members if they are law

- abiding citizens, whether they would be able to

follow the law as instructed, or if they would be able to listen to all evidence with

an open mind. ‖ Such questions invite an affirmative answer. ― Few venire members

will declare in open court that they refuse to follow the law or are narrow

- minded61

by nature or circumst ance. ‖ Therefore, further probing is necessary to remove

venire members who will not be able to evaluate all the evidence. Raby v. State

,

970 S.W.2d 1, 12

- 13 (Tex. Crim. App. 1998)

I n Appellant's case

, trial counsel challenge d for cause those prospective

jurors who would not consider the full range of punishment as they had stated

during Appellant‘s trial counsel voire dire. Counsel laid out some of the

requirements of probation and the jurors continued to indicate that they could not

consider the full range of punishment.

The trial court did nothing more than to scratch the surface of the issue by

asking if they could be fair and impartial. The trial court‘s denial and

requalification denied the Appellant , his right to be tried by those jur ors who could

consider the full range of punishment which included probation for the offense that

the Appellant was on trial.

The trial court explanation to the jury to be that they only had to be fair and

impartial to both sides w as not a complete or ad equate explanation regarding the

full range of punishment

. As stated in Morgan id

―As to general questions of fairness and impartiality, such jurors could in all

truth and candor respond affirmatively, personally confident that such dogmatic

views are fa ir and impartial, while leaving the specific concern unprobed.‖ Morgan

v. Illinois
, 504 U.S. 719, 735

- 36, 112 S. Ct. 2222, 2233, 119 L. Ed. 2d 492 (1992)62

The juror‘s were not adequately informed by the Trial Court in his

questioning regarding punishment. Th e inquiry was totally unsatisfactory and

calculated to place the juror‘s in a position of saying I can be fair and impartial

. It

is clear that the Court committed error w h en it denied the Appellant‘s challenges

for cause against juror ‘s , Esmeralda Val dez, 8, Eddie Jaimes, 12, Myrna

Stockton, 17, Roman Torres, 18, Eduardo Gonzalez, 25, Maria Delurdes, Liendo,

30 Norberto Flores Jr., 33 and Belinda H. Zavala, who served on the jury and

numbers 1 Randy Villarreal, 11 Raymond Robles Jimenez, 13, Ruth Camins

Faustino, 23 Baldemar Cortez, 26, Miriam Micheel Avalos, 27, Luis Antonio

Deleon, 28, Victor Manuel Pardo, JR., 35, Sandra Alaniz, 38, Orfalinda

Hern andez, and 40 Abel Villalpando w ho he was forced to exercise a peremptory

challenge. This constitutionally incorrect questioning den ied the Appellant a fair

and impartial jury as guaranteed under the 6 th amendment made applicable to the

States in the 14 th amendment due process clause. T he final jury that debated the

Appellant‘s fate only four had not expressed a concern regarding the full range of

punishment. The remaining 8 each had indicated that they could not initially

consider probation , the minim and should have been immediately d isqualified.

The inquiry by the trial judge was totally insufficient to rehabilitate the jurors and

was constitutionally unsound.63

Appellant would request that the Honorable Court grant the above point s of

error and reverse and remand the above cause for a new punishment hearing in

accordance with Texas Rules of Appellant Procedure.

APPELLANT’S POINT OF ERROR NUMBER FORTY FIVE

DEFENDANT WAS DENIED A FAIR AND IMPARTIAL TRIAL UNDER THE
TEXAS CONSTITUTION ARTICLE ONE SECTION 10 BY DENYING
APPELLANT'S MOTION FOR MISTRIAL AFTER THE STATE ATTORNEY
COMMITTED REVERSABLE ERROR IN FINAL ARGUMENT

STATEMENT OF FACTS

Appellant would rely on the previously written statement of facts and add the following which occurred during State's final argument.

A.

State ' s Attorney : Ladies and gentlemen, today you represent the citizens of Cameron County. Today you speak for all of us, and you can send a strong message. We are not going to tolerate this type of thing. Okay. When these sort of things happen

--

MR. STAPLETON: I will object to message

- setting arguments. They are

improper, Your Honor.

THE COURT: Sustained. (R.R. Vol 5 p. 100)

After being warned not to argue community standards the District Attorney

in the next breath stated:

. State's Attorney ladies and gentlemen, speak for us and send the message we're not going to tolerates people like this.64

MR. STAPLETON: I object to send a message argument , previously

objected, previously sustained.

THE COURT: That was sustained.

MR. GUZMAN: That is admissible, Your Honor.

THE COURT: I am sustaining the objection.

MR. STAPLETON: I'd ask the jury be instructed to disregard.

THE COURT: The jury is instructed to disregard send a message.

MR. STAPLETON: And move for a mistrial.

THE COURT: It's denied. (R.R.Vol 5 p. 100

- 101)

STANDARD OF REVIEW
ARGUMENT AND AUTHORITIES

The Appellant is guaranteed a fair and impartial trial under the Texas

Constitution Article One Section Ten. Brown v. Stat e
, 270 S.W.3d 564

( Tex.Crim.App.2008)

The question of whether a mistrial for improper argument should have been

granted involves most, if not all, of the same considerations that attend a harm

analysis. Tex.R.App. P. 44.2( b )

. Mosley v. State

, 983 S.W.2d 249, 259

(Tex.Crim.App.1998) (holding improper jury arguments are nonconstitutional

violations governed by Rule 44.2(b) of the Texas Rules of Appellate

Procedur e).65

To determine whether the trial court abused its discretion in denying

appellant 's motion, the Court must balance the following three factors: (1) the

severity of the misconduct; (2) any curative measures; and (3) the certainty of

conviction absent the misconduct Green v. State , No. AP

- 76,458, 2012 WL

4673756, at 27 (Tex. Crim. App. O ct. 3, 2012)

, Brown v. State

, 270 S.W.3d 564

( Tex.Crim.App.2008); Mosley, 983 S.W.2d at 259.

In evaluating the severity of the misconduct the Court must assess ―whether

the jury argument is extreme or manifestly improper, looking at the entire record of

final arguments to determine if there was a willful and calculated effort on the part

of the State to deprive the Appellant of a fair and impartial trial. ‖ Brown, 270

S.W.3d at 573 (quoting Cantu v. State, 939 S.W.2d 627, 633 T ex. Crim. App.

1997). McKa y v. State

, 707 S.W.2d 23, 37 (Tex.Cr.App.1985), cert. denied 479

U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986).

The purpose of closing argument is to assist the fact

- finder in drawing

proper conclusions and inferences from the evidence. Gaddis v. State

, 753 S.W.2d

396, 400 (Tex.Crim.App.1988 ) The approved general areas of argument are: (1)

summation of the evidence, (2) reasonable deduction from the evidence, (3) answer

to argument of opposing counsel, and (4) plea for law enforcement. Hathorn v.

State

, 848 S.W.2d 101, 117 (Tex.Crim.App.1992 ) The statement fell outside the66

reasonable zone for final argument and exceeded the permissible bounds of the

approved area stated above.

Severity of The Misconduct

The remarks from the attorney must have been a willful and calculated effort

on the part of the State to deprive appellant of a fair and impartial trial Cantu v.

State, 939 S.W.2d 627, 633 (Tex.Crim.App.), cert. denied, 522 U.S. 994, 118 S.Ct.

557, 139 L.Ed.2d 399 (1997 ) Moreover, in order for an improper argument to rise

to a level mandating reversal, the argument must be ―extreme or manifestly

improper, or inject new and harmful facts into evidence.‖ Id., at 36, citing Kerns v.

State, 550 S.W.2d 91 (Tex.Cr.App.1977); Tho mas v. Sta te, 519 S.W.2d 430

(Tex.Cr.App.1975).

Clearly, it was improper to demand community expectations after being

advised not to use this tactic

. These were an o ffensive and flagrant error

.

The argument relating to community standards should be dis appr oved by this

Court

. T he effect of the language used ask s the jury to punish the defendant upon

public sentiment or desire

, rather than upon the evidence that the jury had receive d.

Cortez v. State , 683 S.W.2d 419, 421 (Tex. Crim. App. 1984)

I t is allowable for the State to make a proper plea for law enforcement. Borjan v.

State

, 787 S.W.2d 53, 55

– 56 (Tex.Crim.App.1990). This statement was not a plea

for law enforcement. "S end the message we're not going to tolerates people like67

this. "A sk s the jury to assess punishment based on se nt iment and not on the facts

heard during th e trial. The State may not suggest to the jury that the community at

large expects or requires a particular verdict or punishment in a particular case

.

Cain v. State

, 549 S.W.2d 707, 717 (T ex.Crim.App.1977), cert. denied, 434 U.S.

845, 98 S.Ct. 149, 54 L.Ed.2d 111 (1977). Tejerina v. State , 786 S.W.2d 508,

512

- 13 (Tex. App. 1990)

This was an o ffensive and flagrant error which warrants reversal

. In looking

at the entire argument the State w as told and admonished not to use this type of

argument

, but even after being warned continued to use this argument to increase

the Appellant's punishment. The conduct was willfully manipulation that was

calculated to deny the Appellant a fair and impartia l trial

Curative Measures

Where argument is improper because it is outside the record, the error may

be cured by a jury instruction to disregard the evidence. Hammond v. State

, 799

S.W.2d 741 (Tex.Cr.App.1990) (citations omitted); Pyles v. State, 755 S.W.2d 98,

at 118 (Tex.Cr.App.1988); Drakes v. State, 505 S.W.2d 892 (Tex.Cr.App.1974).

However, if such argument is manifestly improper or so extreme that an

instruction will not work to cure the error, reversal will be mandated. Kunkle v.

State

, 77 1 S.W.2d 435 (Tex.Cr.App.1986), cert. denied, 492 U.S. 925, 109 S.Ct.

3259, 106 L.Ed.2d 604 (1989), rehearing denied, 492 U.S. 937, 110 S.Ct. 21, 10668

L.Ed.2d 634 (1989); Brandley v. State

, 6 91 S.W.2d 699 (Tex.Cr.App.1985);

Burks v. State , 876 S.W.2d 877, 9 07 (Tex. Crim. App. 1994)

Here the Appellant asked the Court to instruct the jury to disregard the

statements of the prosecutor however the prosecutor continued the same argument

even after being admonished not to do so. This harm cannot be cured.

At some point the Courts must say that if the trial court is asking the jury to

disregard st atements something is not right. The Courts must question whether the

prosecutor is deceptively influencing or misleading the jury, thus denying the

appellant a fair trial . In reviewing the reco rd as a whole and in its entirety the

statements made by the State could not have been erased from the mind s of the

jury. The instruction s to disregard w ere not sufficient and the Appellant was denied

a fair and impartial trial.

Cer tainty of Conviction Absent The Misconduct

The entire range of punishment was available to the jury. The jury assessed

punishment 10 years less than what was asked by the District Attorney. The

Appellant's attorney asked for probation. Placing the issue o f community

standards in front of the jury could only have increased the Appellant's

punishment.

It is requested that the Court of Appeals grant Point of Error Number Forty

Four and reverse and remand this cause and the Appellant be granted a new trial.69

APPELLANT'S POINT OF ERROR NUMBER FORTY SIX

DEFENDANT WAS DENIED A FAIR AND IMPARTIAL TRIAL UNDER THE
UNITED STATES CONSTITUTION FOURTEENTH AMENDMENT DUE
PROCESS BY DENYING APPELLANT'S MOTION FOR MISTRIAL AFTER
THE STATE ATTORNEY COMMITTED REVERSABLE ERROR IN FINAL
ARGUMENT MAKING STATEMENTS NOT CONTAINED WITHIN THE
RECORD:

STATEMENT OF FACTS

The Appellant would rely on all previously written Statement of Facts and

requests that the Honorable Court consider all previously written Statement of

Facts.

STANDARD OF REVIEW AND

ARGUMENT AND AUTHORITIES

The Fourteenth Amendment guarantees a state criminal defendant due

process of law, including a fair trial. See U.S. Const. Amend. XIV (―No State shall

... deprive any person of life, liberty, or property, w ithout due process of law....‖).

In United States v. Carroll

, 26 F.3d 1380 (6th Cir.1994), The Carroll court

reiterated that t he court must first determine whether the challenged statements

were improper. If improper, the court must determine whether they were

sufficiently flagrant to warrant reversal.

I n determining the flagrancy of the misconduct, the court looks at a variety

of factors: (1) whether the remarks tended to mislead the jury or to prejudice the70

accused; (2) whether they were isolated or extensive; (3) whether they were

deliberately or accidentally presented before the jury; and (4) the strength of the

evidence against the accused. Carroll

, 26 F.3d at 1384, 1389

- 90. Gordon v. Kelly

,

205 F.3d 1340 (6th Cir. 2000)

The Supreme Court has held that a death sentence is unconstitutional only if

the prosecutor's comments ―so infected the trial with unfairness as to make the

resulting conviction a denial of due process.‖ Darden v. Wainwright , 477 U.S.

168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986 ) Due process is denied ― when

there is a reasonable probability,‖ or ―a probability sufficient to undermine

confidence in the outcome,‖ that, but for the offending remarks, ―the outcome of

the proceeding would have been different.‖ Davis v. Zant , 36 F.3d 1538, 1546

(11th Cir.1994). Thus, where the evidence of guilt is overwhelming, an improper

comment by a prosecutor usually does not render the trial fundamentally unfair in

violation of the Constitution. Here the comment was made during the punis hment

stage of the trial. The entire intent on the part of the prosecution was to obtain a

heavy sentence from the jury. Expressing the community expectation argument

was one way of obtaining sentiment in favor of the State's position.

Here, the comment s by the Prosecutor were totally calculated to render the

punishment phase of the trial fundamentally unfair. The total argument was to71

inflame the mind of the jury and to punish the Appellant based on community

expectations.

Appellant requests that the H onorable Court grant Point of Error N umber

Five and reverse and remand the above numbered and styled cause.

APPELLANT'S POINT OF ERROR NUMBER FORTY SEVEN

APPELLANT WAS DENIED THE PROTECTION OF THE TEXAS
CONSTITUTION ARTICLE ONE SECTION 10 THE RIGHT TO REM AIN
SILENT WHEN THE PROSECUTORASKED THE APPEALLANT "WHEN
YOU TURNED YOUR SELF OVER TO THE POLICE AT THE BRIDGE,
YOU NEVER GAVE A STATEMENT?"

APPELLANT'S POINT OF ERROR NUMBER FORTY EIGHT

APPELLANT WAS DENIED THE PROTECTION OF THE TEXAS CODE OF
CRIMINAL PROCEEDURE 38.08, THE RIGHT TO REMAIN SILENT, WHEN
THE PROSECUTOR ASKED THE APPEALLANT "WHEN YOU TURNED YOUR SELF OVER TO THE POLICE AT THE BRIDGE, YOU NEVER GAVE
A STATEMENT?"

STATEMENT OF FACTS

Appellant would rely on the previously written statement of facts and add

T he following: During the cross examination of the Appellant the following line of

question occurred:

State's Attorney: So, and just to be clear that when you and your
l awyer turned you over to the police at the bridge, you never gave a statement?

MR. STAPLETON I'll object, Your Honor. That's

-- we've previously
discussed that. It's a violation of 38.22, the right

not to testify. It's completely improper.72

MR. GUZMAN: I didn't make any comment on the fact that he is the reason why he did give a statement or not. I said did he give one or not.

THE COURT: I am sustaining the objection.

MR. STAPLETON: And I ask that the jury be instructed to disregard.

THE COURT: Jury is instructed to disregard.

MR. STAPLETON: And I move for a mistrial.

THE COURT: It's denied. (R.R. Vol 5 p. 13)

STANDARD OF REVIEW AND
ARGUMENT AND AUTHORITIES

It is fundamental law that the failure of an accused to testify may not be the

subject o f comment by the prosecution. Such a comment violates both the privilege

against self

- incrimination contained in Tex.Const. art. I, s 10 and the specific

mandate of Tex.Code Crim.Pro.Ann. art. 38.08 (Vernon 1979). The Code

provides in pertinent part:

(T)he failure of any defendant to ... testify shall not be taken as a

circumstance against him, nor shall the same be alluded to or commented on by

counsel in the cause. Koller v. State , 518 S.W.2d 373 (Tex.Cr.App.1975). Such a

comment has been also held in vio lation o f the Fifth Amendment to the United

States Constitution which is made applicable to the States by virtue of the

Fourteenth Amendment. See Chapman v. California , 386 U.S. 18, 87 S.Ct. 824,73

17 L.Ed.2d 705 (1967); Griffin v. California , 380 U.S. 609, 85 S.Ct. 1229, 14

L.Ed.2d 106 (1965). Barber v. State , 628 S.W.2d 104, 111 (Tex. App. 1981)

In evaluating a prosecutor's argument to determine if it was a comment on

the accused failure to testify, the language used must be viewed from the stand

point of t he jury. Jones v. State

, 693 S.W.2d 40 6 (Tex. Crim

. App. 1985) The

implication of the language used must be plain. It is not enough that it might be

construed as an indi rect reference to the accused silence. Banks v. State

, 643

S.W.2d 129, 134 (Tex.Crim.App.1982); Todd v. State

, 598 S.W.2d 286, 294

(Tex.Crim.App.1980).

The test to be employed is whether the language used was manifestly

intended or was of such a nature that the jury would naturally and necessarily take

it to be a comment on the accused failure to testify. Jones

, 693 S.W.2d at 407;

Banks 643 S.W.2d at 134. This test must be applied to the particular facts and

circumstances of each case. Jones

, 693 S.W.2d at 407; Dickinson v. State

, 685

S.W.2d 320, 323 (Tex.Cri m.App.1984). If the argument complained of called the

jury's attention to the absence of evidence which the appellant alone could have

supplied, error is shown. Owen v. State 656 S.W.2d 458 (Tex. Crim App 1983)

Myers v. State

, 573 S.W.2d 19, 21 (Tex.Crim.A pp.1978)

Argument will constitute a comment upon the defendant's failure to testify

if ―the language used [is] manifestly intended or [is] of such character that the jury74

would naturally and necessarily take it to be a comment on the accused failure to

t estify.‖ Caldwell v. State

, 818 S.W.2d 790, 800 (Tex.Cr.App.1991) Dickinson v.

State

, 685 S.W.2d 320, 323 (Tex.Cr.App.1984); Banks v. State, 643 S.W.2d 129,

134 (Tex.Cr.App.1982). The facts and circumstances of each case must be

analyzed to determine wheth er the language is of such a character as to direct the

jury to the defendant's failure to testify. Dickinson

, 685 S.W.2d at 323.

The question to the Appellant indicated to the jury that the Appellant only

now is coming forward with his version of the facts. This is a comment by the

district attorney on Appellant's right to remain silent. Th is question is improper in

that it directs the jury's attention to the absence of a statement by the Appellant at

the time of his arrest. It is a direct violation of the right to remain silent.

It is requested that the Honorable Court grant Point s of Error Number and

reverse and remand the above nu mbered and styled cause for a new trial on

punishemnt

.

APPELLANT’S POINT OF ERROR NUMBER FORTY NINE

THE TRIAL COURT ERRED ALLOWING THE VICTIMS FATHER, MR.
REYES TO TESTIFY REGARDING MATTERS THAT WERE NOT
RELEVANT UNDER TEXAS RULES OF EVIDENCE 401 AND A MOUNTED
TO VICTIM IMPACT STATEMENTS THAT PREJUDICED THE JURY

APPELLANT’S POINT OF ERROR NUMBER FIFTY

THE TRIAL COURT ERRED ALLOWING THE VICTIMS FATHER , MR

. REYES TO TESTIFY REGARDING MATTERS THAT WERE NOT
RELEVANT UNDER TEXAS RULES OF EVIDENCE 401 AND AMOUNTED75

TO VICTIM IMPACT STATEMENTS THAT PREJUDICED THE JURY IN
VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14 TH AMENDMENT
OF THE UNITED STATES CONSTITUTUON

STATEMENT OF FACTS

Appellant would request that the Honorable Court consider the previously

written statement of facts and consider the following:

Q. What about emotional scars? Are

-- do you have any still there?

MR. STAPLETON: I will

--

A. We got the flashbacks.

THE COURT: Hold on. Sir, when he makes an objection, you need to stop, okay?

THE WITNESS: Okay. I'm sorry. I'm sorry.

MR. STAPLETON: I will object to the relevance of that with this witness.

MR. DE LA GARZA: It's very relevant as to the issue that we are here for today, Your Honor.

THE COURT: All right. It's overruled. He can answer.

Q. (BY MR. DE LA GARZA) You can answer the question. Are there any
emotional scars that live with you today?

A. Yes, sir, they are. They will be there.

Q. Have you heard of the term cause and effect, for every action, there is a reaction? Have you heard that?

MR. STAPLETON: I will object to that. It's an improper question. It's basically an argument that's being made, and it's, therefore, leading.

MR. DE LA GARZA: Your Honor, I am asking him a yes or no question.76

MR. STAPLETON: It's not relevant.

MR. DE LA GARZA: It is relevant as to the question I am about to develop following this.

THE COURT: All right. It's overruled.

MR. DE LA GARZA: Thank you, Your Honor.

Q. (BY MR. DE LA GARZA) Have you heard of those two things?

A. Yes, sir.

Q. You know the conduct

-- tell us the effect it ‘s had. Tell the jury. This is your opportunity to tell the jury.

A. Well, that changed our l ives forever. It was the effect of this cause. Like I said before, we were

-- we were a happy family. Trying to get there, okay?

You know, but it's

-- it hasn't been the same since then. Right now we're

-- we kind of know who, because we know where he is right now he can't
reach her. So, but the flashbacks are there every day personally. It's there

every day. And I saw the video and I don't want to see the video ever again.

MR. DE LA GARZA: Pass the witness, Your Honor.

STANDARD OF REVIEW AND
ARGUMENT AND AUTHORITIES

Questions of relevance should be left largely to the trial court, and will not

be reversed absent an abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463

(Tex.Cr.App.1993), cert. denied, 510 U.S. 966, 114 S.Ct. 445, 126 L.Ed. 2d 378

(1993) and

––– U.S.

–––– , 114 S.Ct. 1389, 128 L.Ed.2d 63 (1994). In reviewing a

trial court's relevancy decision via the abuse of discretion standard, as long as the77

trial court's ruling was at least within the zone of reasonable disagreement, we wi ll

not intercede. Montgomery v. State

, 810 S.W.2d 372, 391 (Tex.Cr.App.1990)

(op. on reh'g). We must determine whether in the instant cause, the trial court

abused its discretion in determining that the testimony of the decedent's mother,

father, and siste rs was ―relevant to sentence[.]‖ Ford v. State , 919 S.W.2d 107, 115

(Tex. Crim. App. 1996)

T he appellate court must uphold the Trial Court 's ruling if it is reasonably

supported by the record and is correct under any theory of law applicable to the

case. Th e appellate court must review the Trial Court 's ruling in light of what was

before the Trial Court at the time the ruling was made. Weatherred v. State , 15

S.W.3d 540, 542 (Tex.Crim.App.2000)

.

Relevant evidence‘ means evidence having any tendency to mak e the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.‖

Tex.R.Crim .Evid. 401

.

The greater part of Mr. Reyes testimony was devoted to a description of the

emotional trauma suffered by the family and himself

. The victim had testified as to

the emotional trauma she suffered , but the State of Texas continued to introduce

ev idence of the impact of the assault on the entire family including Mr. Reyes

.78

The Appellant's counsel objected under relevance (Texas Rules of Evidence

401). The United States Supreme Court originally prohibited the introduction of

evidence of impact on the victim's family in the punishment phase of capital trials

stating it was a violation of the Eight Amendment to the United States

Constitution

. Booth v. Maryland

, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440

(1987). The Supreme Court overruled this in Payne v. Tennessee
, 501 U.S. 808,

825, 111 S. Ct. 2597, 2608, 115 L. Ed. 2d 720 (1991) sta t ing " In the event that

evidence is introduced that is so unduly prejudicial that it renders the trial

fundamentally unfair, the Due Process Clause of the Fourteenth Amendment

provides a mechanism for relief. See Darden v. Wainwright

, 477 U.S. 168, 179

–

183, 106 S.Ct. 2464, 2470

– 2472, 91 L.Ed.2d 144 (1986). Payne v. Tennessee
, 501

U.S. 808, 825, 111 S. Ct. 2597, 2608, 115 L. Ed. 2d 720 (1991)

The Texas Courts have rendered opinions consistent with Booth and in

Stavinoha v. State
, 808 S.W.2d 76, 80 (Tex. Crim. App. 1991)

, Miller

- El v.

State, 782 S.W. 2nd 892 (Tex. Crim. App. 1990) outlined that evidence should not

be unduly prejudicial to deny the defendant's a fair and impartial trial.

In the instant case t he focus the State of Texas sought for this type of

testimony was not focused on the Appellant's past or history , but on the effect the

events had on the victim's family and Mr. Reyes , not the victim

. Similar to the

original opinion in Booth.79

Texas Code of Crim

. Proc 56.03 allows a judge to consider the Presentence

Investigation Report and has extended it to include similar evidence can be

presented to the jury to consider regardin g the p unishment to be assessed. The rule

does not allow or express and opinion as to whether the emotional impact of the

event or the affect it had on a family member could be admitted into evidence over

the relevancy objection of the Appellant.

Tex.Code Crim

. Proc 37.07 allows the State in the punishment phase of the

proceedings to bring before the jury the criminal history of the defendant. It does

not allow the State to overwhelm the jury with emotional testimony regarding how

the event has affected each in dividual family member.

Mr. Reyes was articulate and persuasive in expressing his grief and the

extent of the Appellant's actions had on the family as a whole. This emotional

evidence could not be rebutted by the Appellant and it focuse d the jury's atte ntion

away from sentencing t he Appellant on his actions and directed the attention to the

effect it had on individual family members.

In examining the record as a whole this Court should overturn the conviction

and reverse and remand this Cause for a ne w trial. The decision by the State to use

this testimony had a substantial influence on the outcome of the proceeding and

denied the Appellant due process of law under the 14th Amendment to the

United States Constitution and Article One Section 10 of the T exas80

Constitution and was harmful to the Appellant

. The Appellant would request that

the Honorable Court grant points of error Forty eight and Forty Nine and reverse

and remand this cause for a new trial on punishment

.

APPELLANT’S POINT OF ERROR NUMBER FI FTY ONE

THE TRIAL COURT ERRED ALLOWING OFFICER RAMIEZ HEARSAY
EVIDENCE THAT THE APPELLANT'S MOTHER COMMITTED THE
OFFENSE OF HINDERING APPREHENSION IN VIOLATION OF TEXAS
RULES OF EVIDENCE 802
STATEMENT OF FACTS

The Appellant would request that the Honorable Court consider each and

every previously written Statement of Facts and would add the following for

judicial economy:

The assistant district attorney asked questions of Officer Ramirez of the

Brownsville, Police Department questions concerning t he Appellant's mother. The

State over the Appellant's objection was able to solicit information that Appellant's

mother provided assistance to the Appellant while he was living in Mexico and

after the aggravated assault. (R.R. Vol. 3 p18

- 25)

He specifica lly asked " did you develop any probab l e cause for her hindering

the apprehe ns ion? She confirmed that he did cross into Matamoros in her statement

that she provided. She spoke with him there at an aunt's house and she also

confirmed that he t o ld her I shot her" (R.R. Vol 3 p. 24). When she was talking

with us

, she told us that she did talk to him about coming back and he refused to81

do so" (R.R. Vol 3 p. 26) The continued questions by asking Do you recall how

much money it was? $30. in U.S. currency and $ 150. to $170 in Mexican currency

(R.R. Vol 3 p. 26)

S TANDARD OF REVIEW AND

ARGUMENT AND AUTHORITIES

T he State's theory was that this testimony was admissible based on 803(24)

Texas Rules of Evidence statement against interest. Appellant objected under the

hearsay and relevance.

The standard for appellate review is abuse of discretion by the Trial Court.

Tex. R. App. Proc 44.2(b) under that analysis; the Cour t is to disregard the error if

it does not affect Appellant's substantial rights. Montgomery v. State, 810 S.W.2d

372 (Tex.Crim.App.1990) T he appellate court must uphold the Trial Court 's ruling

if it is reasonably supported by the record and is correct under any theory of law

applicable to the case. The appellate court must review the Trial Court 's ruling in

light of what was before the Trial Court at the time the ruling was made.

Weatherred v. State , 15 S.W.3d 540, 542 (Tex.Crim.App.2000)

.

Hearsay is a statement, other than one made by the de c larant while testi fying

a t the trial or hearing, offered into ev idence to prove the truth of the matter

asserted.‖ Tex.R.Crim.Evid. 802 . A statement includes written verbal expression.

Bigby v. State , 892 S.W.2d 864, 888 (Tex. Crim. App. 1994)82

The admissibility of an out

- of

- court statement under the exceptions to th e

general hearsay exclusion rule is within the Trial Court 's discretion.‖ Lawton v.

State, 913 S.W.2d 542, 553 (Tex.Crim.App.1995). The Trial Court will be

―reversed only if the decision is outside the zone of reasonable disagreement.‖

Salazar v. State

, 38 S.W.3d 141, 151 (Tex.Crim.App.2001). ― B efore the

reviewing court may reverse the Trial Court 's decision, it must find the Trial

Court 's ruling was so clearly wrong as to lie outside the zone within which

reasonable people might disagree.‖ Taylor v. State

, 268 S.W.3d 571

(Tex.Crim.App.2008 ) ; Pena v. Sta te

, 353 S.W.3d 797 (Tex.Crim.App.2011).

Furthermore, ―it is well settled that an out

- of

- court  ̳statement‘ need not be directly

quoted in order to run afoul of the hearsay rules.‖ Head v. State

, 4 S.W. 3d 258

(Tex.Crim.App.1999) ; Alcala v. State , 13

- 12

- 00173

- CR, 2013 WL 6053837 (Tex.

App. Nov. 14, 2013), petition for discretionary review refused (May 7, 2014)

It is clear that the statements made by Officer Ramirez were hearsay

statements and should not have b een admitted. The State's theory that the

statements were against the interest of the speaker may well have been admitted as

long as the State of Texas complied with the law and 803(24 ) ( B)

Statement Against Interest. A statement that:

(A) a reasonable person in the declarant position would have made only if the person believed it to be true because, when made, it was so contrary to
the declarant proprietary or pecuniary interest or had so great a tendency to
invalidate the declarant claim against someone else or to expose the83

declarant to civil or criminal liability or to make the declarant an object of hatred, ridicule, or disgrace; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. Tex. R. Evid. 803 (24)

" Where there is an inescapable conclusion that a piece of evidence is being

offered to prove statements made outside the courtroom, a party may not

circumvent the hearsay prohibition through artful questioning designed to elicit

hearsay indirectly. In short, ―statement‖ as defined in Rule 801 necessarily

includes proof of the statement whether the proof is direct or indirect " Head v.

S tate , 4 S.W.3d 258, 261 (Tex. Crim. App. 1999)

A statement against interest is a statement that tends to subject the declarant

to criminal liability. Tex.R.Evid. 803(24). A reasonable person in the declarant

position would not have made the statement unle ss he believed it to be true. Id. To

be admissible, the statement must subject the declarant to criminal liability and

corroborating circumstances must indicate the tr ustworthiness of the statement. In

deciding whether the corroboration is sufficiently con vincing to clearly indicate the

trustworthiness of a statement, a number of factors should be considered: (1)

whether guilt of the declarant is inconsistent with guilt of the accused; (2) whether

the declarant was so situated that he might have committed t he crime; (3) the

timing of the declaration; (4) the spontaneity of the declaration; (5) the relationship

between the declarant and the party to whom the statement is made; and (6) the84

existence of independent corroborative facts. Davis v. State

, 872 S.W.2 d 743,

748

– 49 (Tex.Crim.App.1994). The burden of producing corroborative evidence to

prove the trustworthiness of the statement falls on the party seeking admission.

Cofield v. State

, 891 S.W.2d 952, 955 (Tex.Crim.App.1994)

. Gonzalez v. State,

296 S.W.3d 620, 628 (Tex. App. 2009)

The rulings were out of the zone of reasonableness. In applying the

―harmless error‖ test for constitutional error, this Court‘s primary question is

whether there is a ―reasonable possibility‖ that the error might h ave contributed to

the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op.

on reh'g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

H armless error analysis should not focus on the propriety of the outcome of the

trial; instead, the court should calculate as much as possible the probable impact on

the jury in light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d

103, 119 (Tex.Crim.App.2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149

L.Ed.2d 349 (2001). The Court ―should take into account any and every

circumstance apparent in the record that logically informs an appellate

determination whether  ̳beyond a reasonable doubt that particular error did not

contribute to the conviction or punishment ,‘ ‖ and if applicable, consider the nature

of the error, the extent that it was emphasized by the State, it's probable collateral

implications, and the weight a juror would probably place on the error. Snowden8 5

v. State

, 353 S.W.3d 815, 822 (Tex.Crim.App.2 011) (quoting Tex.R.App. P.

44.2(a)
, Sanders v. State
, 422 S.W.3d 809, 817

- 18 (Tex. App. 2014), petition for

discretionary review refused (June 11, 2014)

After reviewing the record the error was not harmless. The decision by the

State to use this testimon y had a substantial influence on the outcome of the

proceeding and was harmful to the Appellant

. The Appellant would request that the

Honorable Court grant point of error number fifty one and reverse and re mand this

cause for a new trial on punishment.

P RAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, it is respectfully submitted

that each and every point of error be granted and the Appellant cause be reversed

and remanded for a new trial.

Respectfully submitted,
/s/ Douglas H. P etti t Douglas H. Pettit
680 East St. Charles St Brownsville, Texas 78520
Phone 956

- 243

- 6455
TBN 15861300 Dpettitlaw@hotmail.com
ATTORNEY FOR APPELLANT86 CERTIFICATE OF SERVICE

I Douglas H. Pettit hereby certify that a true and correct copy of the foregoing brief was hand delivered to the Cameron County District Attorney's office Appellate
Division on this the 15 th day of May 201 5.

/s/ Douglas H. Pettit Douglas H. Pettit

CERTIFICATE OF COMPLIANCE

Pursuant to TEX R. APP. P 9.4 (1)(i)(1), I certify that this document

complies with the type volume limitations of TEX. R. APP P 9.4(i)(2)(D):

Exclusive of the exempted portions set out in TEX R. APP P 9.4(i)(1) 13,309 words.are contained with those areas.

This document was prepared in proportionally spaced typeface using
MicroSoft Office New Times Roman 14 for Text and Times New Roman 12
for fo otnotes

/s/Douglas H. Pettit

Douglas H. Pettit