CASE NO. 05-15-00112-CR



### IN TIE COURT OF APPEALS FORTIE FIFTIIJUDICIALDISTRICT OF TEXAS, AT DALLAS 

### NICHAEL SIIAFm CARACHO

Appellant
V. 

### THE STATE OF TEXAS Appellee 

### Fromthe County Court at LawNo. 6 ofCollin County, State ofTexas, in Cause No. 006-80675-2014, the Honorable Judge Jay Bender Presiding



## Briefon Appeal Subnrittedby: 

### Karen Chesley Chesley & Perales, PC 1415 Harroun Avenue 

### McKinney, Texas 75069 Office: 972-292-7130 Fax: 888-400-0214 Emai1: karen@chesleyperaleslaw.com State Bar ofTexas No. 24036361 

### Attomey forAppellant, Mchael Camacho 

### Oral ArgumentNot Requested ACCEPTED 05-15-00112-CR FIFTH COURT OF APPEALS

DALLAS, TEXAS 6/25/2015 5:28:59 PM

LISA MATZ CLERK

### Trial Counsel 

### DENTITY OF PARTIES AI`D COUNSEL_ Appellant Michael Shame Camacho 1605 N. College Street McKirmey, Texas 75069



### Appellate Counsel 

### Darmy Ray McDaniel SBOT: 24065710 

### Law Office OfDennyMcDaniel SBOT: 24065710 6675 Mediterranean Dr, Suite 405 McKinney, Texas 75070 

### Katherine Gore SBOT: 24007640 

### Law Offices OfKatherine Gore 1415 HarrounAvenue 

### McELey, Texas 75069 Wesley WilliamDesmond "SBOT: 24087410 2770 W. Main Street, Suite 216 Frisco, Texas 75033



### Trial Counsel Jackson Da,vidh4chAInn SBOT: 24080023 

### ChristianDrake SBOT: 24071494 

### Karen Chesley SBOT: 24036361 Chesley & Perales, PC -SBOT: 24036361 1415 Harroun Avenue McKirmey, Texas 75069 

### PiperMcCraw SBOT: 24045261 

### Piper McCraw, PC 1504 First Avenue McKirmey, Texas 75069



### State ofTexas Eon. Greg Willis Criminal District Attomey Collin County, Texas 2100 Bloomdale Road, Suite 100 

### McKimey, Texas 75071

### Appellate Counsel 

### John Rolater SBOT: 00791565

Appellant9s Briefon Appeal Michael Shame Camacho, Appellantv. The State ofTexas, Appellee Case No. 05-15-00112-CR

### TABLE OF CONTENTS

IdentityofPartiesandCounse1...........................i

TableofContents....... ....... ........ .. ........ ..ii
IndexofAuthorities. . .-. . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii StatementRegardingOralArgument....................... iv

StatementoftheCase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

IssuesPresented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v
StatementoftheFacts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 SummaryoftheArguments...........................-..4 ArgumentsandAuthorities.............................4 PointofErrorNumberOne. . . . . . . . . . , . . . . . . . . . . . . . . 4
PointofErrorNumberTwo. . . . . . . . . . . . . . . . . . . . . . . .10 PrayerforRelief..................................14

CertificateofService.................. .............15

AppellantJs BriefonAppeal Michael Share Camacho, Appellant v. The State ofTexas, Appellee case No. 05-15-00112-CR

### rmEX OFAUTHORITIES

Cases: Ccz7¬Zz,v.S£czfe,842S.W,2d667(Tex.Crim.App.1992)..............6 Co#7CV.SfCZ¢e,855S.W.2d140(Tex.Crim.App.1994)............. 5 Coodsv.Sfcz,e,844S.W.2d697(Tex.Grim.App.1992)............13 Dz-xo73 V. Sficzfe, 940 S.W.2d 192 (Tex. App. -SanAntonio,1996) . . . . . . . . 7 frcz7lfZryv. S#czfe, 71 S.W.3d535 (Tex. App.-Amarillo,2002) . . . . . . . . . . 7 Hz,Jrv. S£czfe, 897 S.W.2d 829 (Tex. App.-Dallas,1995) . . . . . . . . . .ll,13 Kz-7¬gV.S¢czfe,953S.W.2d266(Tex.Crim.App.1997).............. 6 A4lc,c}#e72V. S,CZfe, 721 S.W.2d 859 (Tex. Crim. App.1986) . . . . . . . . . . . ll 

### Statutes and Rules:
TEx.CoDECRIM.PROC.ART.42.12,SEC.4.......................12

TEX.CoDECRIM.PROC.ART.62.102...........................12

TEX.PENALCoDESEC.15.031...............................12

TEX.PENALCoDESEC.22.021...............................12

TEX.PENALCoDESEC.31.03................................9

TEx.R.EvID.R.802................................. ....5 TEX.R.EvID.R.803(6)................................5,7,8,9 TEX.R.App.PROC.44.2(b).....................,...... 6

Appe11ant9s Briefon Appeal rmchael Share Camacho, Appellantv. The State ofTexas, Appellee Case No. 05-15-00112-CR HEIEl

### STATERENT REGARDING ORAL ARGUMENT

Oral argument is not requested. The dispositive issues have been / 

### authoritatively decided, and the facts and legal arguments are adequately presented 

### in the brief and record. As such, oral argument would not aid this Court's decisional process.



### STATEMEr`IT OF THE CASE Mcinael Camacho (hereinafter referred to as ccCamacho") was charged by Information on January 24, 2014 for the offense ofTheft ofProperty over $501ess than $500. (CR Vo1. 1: P. 8). Camacho pleaded not guilty, and a jury trial was held January 5, 2015, before Judge Jay Bender. (RR Vo1. 2: P. 99). The jury found Appellant guilty on January 5, 2015 and the jury sentenced him to 180 days injail and a $2000 fine. (RRVo1. 2: P.196); (RRVo1. 3: P.12); (CR Voll: P. 47). 

### Camacho timely filednotice ofappeal on January 27, 2015, and a motion for a new trial on January 27, 2015. (CR Vo1.1: Pgs. 58, 60-61). The court neither 

### granted nor denied the motion, instead allowing it to be overruled by operation of law after 75 days.

Appellant9s BriefonAppeal Michael Share Camacho, Appellantv. The State ofTexas, Appellee Case No. 05-15-00112-CR 1V

### ISSUES PRESENTED

1. The trial court erred in admitting an ffincident Reporting" report, marked as StateJs Exhibit No. 1 as a business records exception to hearsay under Rule 

### 803(6) ofthe Texas Rules ofEvidence. 

### 2. The prosecutor for the State made an improper argument to the jury during closing arguments of the punishment phase at trial. The prosecutor remarked 

### that Appellant was probation eligible and failed to submit an application for probation in order to avoid supervision while on probation. However, 

### Appellant was legally ineligible to receive probation from the jury because of 

### one or more prior felony conviction.

Appellant9s BriefonAppeal Michael Share Camacho, Appellantv. The State ofTexas, Appellee Case No. 05-15-00112-CR VCASE NO. 05-15-00112-CR



### IN TIRE COURT OF APPEALS FORTIE FIFTII JUDICIAL DISTRICT OF 

### TEXAS, ATI)AILAS Michael Shame Camacho 

### Appellant

V. 

### The State ofTexas 

### Appellee 

## APPELLANT9S BRIEF ON APPEAL

STATERENT OF FACTS Charles Addison Robertson works as an Asset Protection employee for Sam's clubs and Walmat Stores. QR Vo1. 2: P.107-108). The job consists of 

### walking the store floors and investigating suspicious behavior, particularly theft incidents. QR Vo1. 2: Pgs. 108-109). On November 12, 2013, Robertson 

### observed a subject approach the special edition blu-ray DVD movies featured on an end-cap by the registers. (RR Vo1. 2: P. 109). Robertson observed the subject 

### take two ofthe same titled DVDs (Man of Steel) and place them into a skopping basket. QR Vo1. 2: Pgs.109,111). This appeared suspicious to Robertson. (RR Vo1. 2: P. 109). Thereafter, Robertson continued surveillance ofthe subject. QR Vo1. 2: P.110).

Appe11ant9s Briefon Appeal Michael Shame Camacho, Appellantv. The State ofTexas, Appellee Case No. 05-15-00354-CR pg.1

### Robertson observed the subject wak across the center sectiontoward the dry



### grocery section where the subject took the DVDs and placed them inside the subjectJsjacket. QR Vo1. 2: P.117-118). The subject left the cart on the aisle and walked toward the front ofthe store to the exit doors. QR Vo1. 2: P.118). The 

### subject exiled the store when Robertson, along with a trainee, approached the subject and asked the subject to come back inside the store. (RR Vo1. 2: P. 119). 

### Robertson had a bit ofa physical altercation with the subject and discontinued the surveillance because ofsafety reasons. QRVo1. 2: P.119). Robertson obtained the license plate number ofthe subject's vehicle. (RRVo1. 2: P. 120). 

### After discontinuing the surveillance, Robertson contacted the McKinney Police. (RR Vo1. 2: P. 120). Robertson made contact with Officer Jenkins and reported the theft incident. (RR Vo1. 2: P. 120). 

### At trial, the State offered into evidence, StateJs Exhibit No. 1, which was titled fThcident Reporting" report. aiR Vo1. 2: P.113); QR Vo1. 4: StateJs Exhibit 1). Robertson prepared the report after the police responded to the incident. (RR Vo1. 2: Pgs.112,115). The "Incident Reporting" report was a 4- 

### page report that contained factual details ofthe alleged theft offense committed by Appellant on November 12, 2013. (RR Vo1. 4: StateJs Exhibit 1). The report was

Appellant9s Briefon Appeal Michael Shame Camacho, Appellantv. The State ofTexas, Appellee Case No. 05-15-00354-CR pg. 2made for the theft incident and given to Officer Jenkins. (RR Vo1. 4: StateJs

Exhibit 1 ®g. 4 of4)). 

### Robertson did not have personal knowledge ofthe value ofthe stolen DVDs from the theft incident. (RRVo1. 2: P.115). During trial, Robertsontestifiedthat the total value ofthe stolen DVDs was $59.56 only after reviewing StateJs Exhibit No.1. (RRVo1. 2: P.116). 

### After the close of evidence and jury deliberations, the jury found Appellantguilty.ofthe theft offense as charged. QR Vo1. 2: P.196). in the StateJs case-in

### chiefofthe punishment phase, the State offered into evidence StateJs exhibits Nos. 

### 3 and 4. State's exhibit No. 3 was ajudgment ofconviction against the Appellant 

### for the offenses of Aggravated Sexual Assault of a Child and Solicitation of a Minor. (RR Vo1. 2: P. 201); (RR Vo1. 4: StateJs exhibit No. 3). StateJs Exhibit 

### No. 4 was a judgment of conviction against Appellant for the offense ofDuty to Register as a Sex Offender. (RR Vo1. 2: P. 201); aiR Vo1. 4: StateJs Exhibit No. 

### 4). During closing arguments to thejury, the prosecutor for the State stated, ''This man is a criminal. ThatJs what he does. He deserves the maximum 

### amount offme. Believe it or not, this is a probation-eligible case. Ifhe had 

### submitted the proper documentation to the Judge, youJd be considering probation. But he didnJt submit that because he doesnJt want to be on probation. Because he doesnJt want to have someone looking over his shoulder. Hejust wants punishment." (RR Vo1. 3: P.10):

Appe11ant9s BriefonAppeal Michael Shame Camacho, Appellantv. The State ofTexas, Appellee Case No. 05-15-00354-CR pg. 3

### At the conclusion ofthe punishment phase andjury deliberations, thejury assessed

punishment at 180 days confinement in the county jail and. a fine of $2,000.00. quVo1. 3: P.12).

### SImmflARY OF THE ARGUMENTS 

### Point ofError Number One: The trial court erred in admitting an coincident Reporting99 report (marked as State9s Exhibit 1) as a business records exception to hearsay under Rule 803 (6) of 

### the Texas Rules of Evidence. Said cclncident Reporting" report was prepared in anticipation oflitigation, and it was not kept in the ordinary course ofbusiness. 

### Point ofError Number Two: During closing argument during the punishment phase of trial, the prosecutor stated that the Appellant was probation eligible and failed to submit an application for probation. However, Appellant was legally ineligible to receive 

### probation from a jury because of one or more prior felony convictions. The prosecutor's argument was manifestly improper. The argument also injected new and harmful facts into evidence, which amounts to reversible error.



### ARGUMENTS Anun AUTHORITHS I. Point ofError Number One aiestated):

Appellant9s BriefonAppeal Michael Shame Camacho, Appellantv. The State ofTckas, Appellee case No. 05-15-6o354-CR pg. 4

### The trial court erred in admitting an cclncident Reporting" report (marked as

State's ExhibitNo. 1) as a business record exception to hearsay under Rule 803 (6) 

### ofthe Texas Rules ofEvidence. 

### A. Standard ofReviewi and Applicable Law: Under Rule 802 ofthe Texas Rules ofEvidence, ccHearsay is not admissible 

### except as provided by statute or these rules prescribed pursuant to statutory authority." TEX. R. EvID., Rule 802. Rule 803 (6) ofthe Texas Rules ofEvidence

states:ccthe following are not excluded from the hearsay rule . . . Records of 

### Regularly Conducted Activity. A memorandum, report, or data compilation, in any form, ofacts, events, conditions, opinions, or diagnoses, 

### made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the 

### testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of the information or the 

### method of circumstances of preparation indicate a lack of trustworthiness. ccBusiness" as used in this paragraph includes any and every kind ofregular organized activity whether conducted forprofit OfnOt." TEX. R. EvID. , Rule 803(6).


### The trial court is the arbiter on whether hearsay is admissible as an exception to the rules on hearsay. Co/f7e 1,. S#czfe, 855 S.W.2d 140, 149 (Tex. Crim. App. 1994). As such, a trial court9s error in admitting evidence under a hearsay 

### exception rule is reviewable only by an appellate court under an abuse ofdiscretion
Appellant3s Briefon Appeal Michael Shame Camacho, Appellantv. The State ofTexas, Appellee Case No. 05-15-00354-CR pg. 5standard. I:d. An abuse ofdiscretion occurs when the trial court9s ¢¢decision was so



### cleady wrong as to lie outside that zone within which reasonable persons might disagree." Ccz7¬Zz,1,. Sftzfe, 842 S.W.2d 667, 682 (Tex. Grim. App. 1992).

### Under Rule 44.2(b), Texas Rules of Appellate Procedure, any non

### Constitutional error that does not affect substantial ristts ofthe appellant is to be disregarded. See TEX. R. App. PROC. Rule 44.2(b). A ccsubstantial right is affected 

### when the errorhad a substantial and injurious effect or influence in determining the jury's verdict.39 Kz-jog 1,. ££tZfe, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). B. Analysis: in the instant case, State9s Exhibit 1 was admitted into evidence as a business record exception to the hearsay rule over objections by Appe11ant's trial counsel. (RR Vo1. 2: Pgs.115-116). State's Exhibit 1 is labeled as coincident 

### Reporting" report, and consists ofa 4-page report prepared by Charles Robertson, an asset proteofion employee for Sam9s Club, regarding the theft incident against Appellant on November 12, 2013. (RR Vo1. 4: State9s Exhibit 1). The c¬Incident 

### Reporting" report contained a narrative of the facts ofthe incident and details of the stolen merchandise, including the value. I:d. The cclncident Reporting" report 

### was provided to Officer Jenkins ofthe McKinneyPolice Department. JJ.

Appellant9s Briefon Appeal Michael Shame Camacho, Appellantv. The State ofTexas, Appellee Case No. 05-15-00354-CR pg. 6Rule 803(6), Texas Rules of Evidence, indicates that the business records

rule exception to hearsay applies to reports that are cckept in the course of a 

### regulady conducted business activity, and if it was the regular practice of that business activity to make the . . . report . . ." See TEX. R. EvID. Rule 803(6). As 

### such, a business record or report falls outside the scope ofRule 803(6) when it is 

### not kept in the course ofa regularly conducted business activity, and it was not the regular practice ofthatbusiness to make such report. 

### Texas Courts ofAppeals have held that documents made in anticipation of litigation do not fall within the category of a business record under Rule 803(6). See ZZlcz71C7y 1,. Sftzfe, 71 S.W.3d '535, 537 (Tex. App. - Amarillo, 2002) (cz-zz'72g Dz®#o# i,. S#czfe, 940 S.W.2d 192, 195 (Tex. App. - Sac Antonio, 1996)). hi Hcz7tCrry v. S,zzfe, 71 S.W.3d 535, the Court of Appeals in Amarillo held that a document 

### created solely for the purpose ofprosecuting criminal charges against the appellant was made {cin anticipation of litigation," and hence it does not fall within the business records exception to hearsay under Rule 803 (6). I:d. czf 537. In Dz'xo7¬ V. Sfczfe, 940 S.W.2d 192, the Court of Appeals in Sam Antonio found that a 

### company9s document prepared specifically for an investigation of the company9s loss, and not made in the course ofbusiness day-to-day activities, does not comply with Rule 803(6). I:d. czf J95.

Appellant9s BriefonAppeal Michael Shane Camacho, Appellantv. The State ofTexas, Appellee Case No. 05-15-00354-CR pg. 7In applying the Courts of Appeals cases ofHcz71CZry and Dz'xoJe, tO this Case,

Appellate argues that the c¬Incident Reporting" report (State7s Edlibit 1) does not fall within Rule 803(6). The alleged theft occured at a Sam9s Club store in McKinney, Texas. SamJs Club -is a retail store which is regularly involved in the business ofselling goods, including clothing, food, and electronics. 

### The cclncident Reporting" report was not made or kept in the regular course of business for Sam9s Club, and it was not the regular practice of Sam9s Club to 

### make such a report. Further, the cclncident Reporting" report was made solely for the purpose and anticipation of litigation, specifically for the criminal prosecution 

### ofAppellant forthe offense ofth'eft. The 6CIncident Reporting" report is a 4-page repch prepared by the Asset Protection Employee (herein after referred to as ccAPE99) for Sam's Club. QRVo1. 2: Pgs. 111-112); (RR, Vo1. 4: State9s Exhibit 1). The ctAPE9s" job 

### responsibilities and duties differ entirely from the vast majority of the other employees in the store. The ¢cAPE9s" primary responsibility involves monitoring 

### store activity in an attempt to thwat theft, and this activity by the CCAPE" is not the business activity that Sam9s Club is regularly involved in which is the sale ofretail goods.

Appellant9s BriefonAppeal Michael Shame Camacho, Appellantv. The State ofTexas, Appellee case No. 05-15-00354-CR pg. 8More importantly, the cclncident Reporting" report looks like and resembles

-a police report from an arresting police officer. QiR, Vo1. 4: StateJs Exhibit 1). in 

### the 4-page report, it discusses the narrative offacts like a police report and contains 

### all the information needed for subsequent prosecution of the theft offense. J]d. Further, the narrative ofthe report Gage 4 of 4) specifically states.that a ccreport 

### was made for theft and all information given to Officer Jenkins." JJ. For all purposes, the "APEJJ prepared the "Incident ReportingJJ report in order to assist the 

### police and the District AttomeyJs Office in Prosecution OfAppellant. The "APE" even testified that he Prepared the report after the POlice responded to the incident. QR Vo1. 2: P. 115). As such, the cclncident Reporting99 report was made in 

### anticipation oflitigation, e.g., criminal prosecution ofAppellant for theft, and does not fall within the business records exception to hearsay under Rule 803(6). On 

### these grounds, this Court should fmd that the trial court erred in admitting the cclncident Reporting" report marked as State9s Exhibit 1, and that the error was 

### outside the zone ofreasonable disagreement tantamountto an abuse ofdiscretion. 

### An essential element to the offense of theft requires proof of value of the stoleri property. See Thx. PENAL CoDE, SEC 31.03 (e). In this case, the State was 

### required to prove that Appellant stole property from SAM9s Club and that the value ofthe stolen property was $50 or more but less than $500. Jd czf SEC. 31.03

Appellant9s Briefon Appeal Michael Shame Camacho, Appellantv. The State ofTexas, Appellee Case No. 05-15-00354-CR pg. 9(e)(2). During trial, the State relied solely on the cclncident Reporting" report to

prove the value ofthe stolen property as $59.96. (RR Vo1.4: State9s Exhibit 1). 

### The ''APE" testified that he did not have personal knowledge of the value of the stolen merchandise. (RR Vo1. 2: P.115). The prosecutor had to fumish StateJs 

### Exhibit No. 1 to the f'APE" in order for him to testify to the value of the stolen merchandise. (RR Vo1. 2: P. 116). But for the improper admission of the 

### cclncident Reporting" report, the State would have been unable to prove the 

### essential value element of the charged theft offense. In conclusion, Appellant asserts that the trial court9s error had an injurious effect and influence in thejury9s verdictthat affectedAppe11ant's substantial rights. 

### II. Point ofEI-rOr NumbeI-Two alestated) The prosecutor for the State made an improper jury argument stating that Appellant failed to ffle an application for probation and is probation eligible, when in fact, Appellant was legally ineligible to receive probation from the jury. Said 

### remarks were manifestly improper and injected new harmful facts to Appellant. 

### A. Standard ofReview and Applicable Law: A proper jury argument typically falls within one of the following categories: (1) summary of the evidence, (2) reasonable deduction from the 

### evidence, (3) response to argument from opposing counsel, or (4) plea for law

AppellantJs BriefonAppeal Michael Shame Camacho, Appellantv. The State ofTexas, Appellee case No. 05-15-00354-CR pg. 10enforcement. See A4czc}de7e V. S'ftzze, 721 S.W.2d 859, 862 (Tex. Crim. App. 1986);

He4J+Tv. Sftzfe, 897 S.W.2d 829, 835-836 (Tex. App. -Dallas, 1995). An argument outside of these permissible categories does not necessarily give grounds for reversal. fro,J7j7`v. Sfczfe, 897 S.W.2d at 836. However, error is reversible where, 

### even with an instruction to disregard, the improper argument tor remarks was extreme or manifestly improper, violated a mandatory statute, or injected new facts harmful to the accused. Jd. 

### B. Analysis: During the punishment phase of this case, the prosecutor stated in closing 

### argument: ccThis man is a criminal. That9s what he does. He deserves the maximum 

### amount offme. Believe it or not, this is a probation-eligible case. Ifhe had submitted the Proper documentation to the judge, you9d be considering 

### probation. But he didn't submit that because he didn9t want to be on probation. Because he doesn9t want to have someone looking over his shoulder. -Hejustwants punishment." (RRVo1. 3: P.10) Prior to the closing argument, the State introduced into evidence State9s Exhibits No. 3 and No. 4. QR Vo1. 2: P. 200-201). The said exhibits were 

### admitted into evidence by the trial court. JJ. State9s Exhibit No. 3 included a 

### Judgment Adjudicating Guilt of the Appellant and conviction for the offenses of Aggravated Sexual`Assault of a Child under Fourteen Years Old and Solicitation ofa Mnor. QiRVo1. 4-. State9s Exhfoit 3). State9s ErdibitNo. 4 was a Judgment
Appellant9s BriefonAppeal Michael Shame Camacho, Appellantv. The State ofTexas, Appellee case No. 05-15-00354-CR pg. ll

### of Conviction by Court for Appellant of the offense of Sex Offenders Duty to

Register 10 years. (RR Vo1. 4: State9s Exhibit 4). According to the Texas Penal Code, the said convictions are felony criminal convictions. See TEX._PENAL CoDE, SEC. 22.021 (Aggravated Sexual Assault); TEX. PENAL CoDE, SEC. 15.031 (Criminal Solicitation of a Minor); TEX. CoDE GRIM. PROC., ART. 62.102 (Failure 

### to complywinRegistration Requirements). Under Article 42.12, See. 4, Texas Code ofCriminal Procedure, a defendant 

### is not eligible to receive community supervision from ajury where the defendant is 

### unable to file a written swom motion prior to the beginning oftrial stating that the defendant has not previously been convicted of a felony in this state or any other state. See TEX. CoDE GRIM. PROC. ART. 42.12, SEC 4 (d) and (e). I In this case, the 

### Appellant had previously been convicted of one or more felony .offenses, and hence was unable to file a swom written motion per Article 42.12, See. 4(e). 

### Given that Appellant cculd not file, and did not flle, a swom application for probation, thejury could not legally recommend community supervision. As such, the prosecutor9s statement during closing argument: ccBelieve it or not, this is a probation-eligible case. Ifhe had submitted the 

### proper documentation to the judge, you9d be considering probation, But he didn7t submit that because he didn9t want to be on probation. Because he 

### doesn7t want to have someone looking over his shoulder. He just wants punishment." aiRVo1. 3: P.10)

I)
Appellant9s BriefonAppeal Michael Shame Camacho, AppellantvI The State ofTexas, Appellee Case No. 05-15-00354-CR pg, 12

### was a gross misrepresentation ofthe law to thejury.



### The aforementioned statement was an improper jury argument outside the bounds of permissible jury argument because it was not within the range of punishment allowable by law from the jury. The statement was misleading to the jury, and left a false impression for Appe11ant9s motives for not filing an application for probation. Further, the prosecutor9s blatant and gross misstatement 

### that the Appellant was probation eligible, when in fact Appellant was not legally 

### eligible for probation from the jury, injected harmful and prejudicial facts into evidence forthejury to decide during its deliberations. Appellant acknowledges that trial counsel failed to object to the prosecutor7s 

### improper argument and that there was no curing instruction to the jury from the court. However, even if trial counsel had objected and the court gave a curing 

### instruction to the jury to disregard the improper argument, courts have held that reversible error ;an still occur despite the curing instruction. See H#JgrV. S1*tzfe, 897 s.w.2d at 836 (citing Coofr$ 1,. Sfczfe, 844 S.W.2d 697, 727 (Tex. Grim. App. 1992)). Courts have held that improper argument is reversible error, even with a trial court9s instruction to disregard, when, coin light ofthe record as a whole," the 

### improper argument is extreme or manifestly improper, violates mandatory statute, or injects new facts harmful to the accused. I;d.

/ Appe11ant9s Briefon Appeal Michael Shame Camacho, Appellantv. The State ofTexas, Appellee Case No. 05-15-00354-CR pg. 13

### In this case, even had the court instructed the jury to disregard the

prosecutor9s improper argument, the gross misrepresentation of the applicable 

### punishment range for the jury to consider and the improper comment as to Appellant9s motive for not filing an application for probation rises to the level of 

### being extreme and manifestly improper; and it injects harmful and prejudicial facts to the Appellant into evidence for thejury to consider. As such, this Court should 

### fmd that the prosecutor's improper argument to the jury constitutes reversible

error. 

### PRAYERFORRELIEF . WIEREFORE, PRENISES CONSIDERED, Appellant respectfully prays for this Court to reverse his conviction and remand this case to the trial court for a new trial. Altematively, Appellant respectfully prays this Corut remand the case 

### for a newpunishmenthearing. Reapectfully submitted, 

### /s/Karen Cheslev Karen Chesley, TX BarNo. 24036361 Chesley & Perales, P.C. 1415 HaITOun Avenue 

### McELey, TX 75069 (972) 292-7130 / Fax (888) 400-0214 

### karen@chesleyperaleslaw.com 

### ATTORNEY FORAPPELLANT
Appellant9s BriefonAppeal Michael Shame Camacho, Appellantv. The State ofTexas, Appellee Case No. 05-15-00354-CR pg. 14

### CERTIFICATE OF SERVICE FORAPPELLANT'S BRIEF ON APPEAL

I, the undersigned counsel, hereby certify that a true and correct copy ofthe foregoing Appe11ant9s Brief on Appeal was faxed to the Collin County District Attomey9s Office at (214) 491-4860 on the 25TH day ofJUNE, 2015.



### /s/ Karen Cheslev 

### +inen Chesley Texas BarNo. 24036361

Appellant3s BriefonAppeal Michael Shame Camacho, Appellantv. The State ofTexas, Appellee Case No. 05-15-00354-CR pg. 15