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

 FILED IN 5th 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

V
CASE 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. 2
made 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 Appellant

guilty.ofthe theft offense as charged. QR Vo1. 2: P.196). in the StateJs case-inchiefofthe 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. 5
standard. 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 nonConstitutional 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. 6
Rule 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. 7
In 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. 8
More 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. 10
enforcement. 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