The State does not request oral argument. 

NO. 06-14-00228-CR

IN THE COURT OF APPEALS 

FOR THE SIXTH DISTRICT 

OF TEXAS AT DALLAS 

 

DAVID GARCIA REYES, 

 APPELLANT 

v.

THE STATE OF TEXAS, 

 APPELLEE 

 

On appeal from Criminal District Court No. 3 of Dallas County 

In Cause Number F13-61746-J 

 

STATE’S BRIEF

 

 Counsel of Record:

SUSAN HAWK GRACE E. SHIN 

CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY 

DALLAS COUNTY, TEXAS STATE BAR NO. 24033062 

 FRANK CROWLEY COURTS BLDG. 

 133 N. RIVERFRONT BLVD., LB-19 

 DALLAS, TEXAS 75207-4399 

 (214) 653-3631 

(214) 653-3643 fax

gshin@dallascounty.org

ACCEPTED

06-14-00228-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

7/20/2015 2:44:22 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 7/20/2015 2:44:22 PM DEBBIE AUTREY Clerk
i

TABLE OF CONTENTS

TABLE OF CONTENTS........................................................................................... i

INDEX OF AUTHORITIES..................................................................................... ii

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF ARGUMENT.................................................................................5

ARGUMENT.............................................................................................................6

RESPONSE TO ISSUE ONE: APPELLANT FAILED TO PRESERVE HIS 

CONSTITUTIONAL COMPLAINT ABOUT THE CONFRONTATION CLAUSE. 

EVEN ASSUMING APPELLANT PRESERVED ERROR, THE RECORD SHOWS 

NO VIOLATION OF THE CONFRONTATION CLAUSE. ....................................................... 6

A. Appellant forfeited his complaint about the Confrontation 

Clause............................................................................................................... 8

B. The trial court’s exclusion of irrelevant evidence did not violate 

the Confrontation Clause... .............................................................................. 9

RESPONSE TO ISSUE TWO: THE JUDGMENT SHOULD BE REFORMED TO 

CORRECTLY REFLECT THE OFFENSE OF WHICH APPELLANT WAS 

CONVICTED.................................................................................................................. 19

PRAYER..................................................................................................................20

CERTIFICATE OF COMPLIANCE.......................................................................21

CERTIFICATE OF SERVICE ................................................................................21
ii

INDEX OF AUTHORITIES

Cases

Abron v. State, 

997 S.W.2d 281 (Tex. App.—Dallas 1998, pet. ref’d) .................................20

Arroyo v. State, 

259 S.W.3d 831 (Tex. App.—2008 Tyler, pet. ref’d)...................................12

Asberry v. State, 

813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref’d) .................................20

Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993) .........................................19

Billodeau v. State, 

277 S.W.3d 34 (Tex. Crim. App. 2009)........................................................10

Carpenter v. State, 

979 S.W.2d 633 (Tex. Crim. App. 1998)......................................................10

Davis v. Alaska, 

415 U.S. 308 (1974).........................................................................................9

Dewberry v. State ̧ 

4 S.W.3d 735 (Tex. Crim. App. 1999)............................................................8

Garcia v. State, 

149 S.W.3d 135 (Tex. Crim. App. 2004)........................................................9

Gordillo v. State, 

No. 01-13-00477-CR, 2015 Tex. App. LEXIS 1643 (Tex. 

App.—Houston [1st Dist.] Feb. 19, 2015, no pet.) (mem. 

op., not designated for publication).................................................................8

Haley v. State, 

173 S.W.3d 510 (Tex. Crim. App. 2005)........................................................8

Irby v. State, 

327 S.W.3d 138 (Tex. Crim. App. 2010)..................................................9, 10
iii

Johnson v. State, 

433 S.W.3d 546 (Tex. Crim. App. 2014)........................................................9

McCullough v. State, 

No. 05-09-00201-CR, 2010 Tex. App. LEXIS 9059 (Tex. 

App.—Dallas Nov. 16, 2010, pet. ref’d) (mem. op., not 

designated for publication)..............................................................................9

Nolan v. State, 

39 S.W.3d 697 (Tex. App.—Houston [1st Dist.] 2001, no 

pet.)................................................................................................................20

Statutes

Tex. Penal Code Ann. § 22.011(a)(2) (West 2011).................................................19

Other Authorities

Ryan M. Gibson, What is the difference between the DREAM Act 

and DACA (Deferred Action for Childhood Arrivals)? (June 

12, 2013), http://ryangibsonlaw.com/what-is-the-differencebetween-dream-act-and-daca-deffered-action-for-childhoodarrivals ...........................................................................................................15

TRIBPEDIA: Dream Act, THE TEXAS TRIBUNE (April 19, 2015), 

http://www.texastribune.org/tribpedia/dream-act/about ...............................15

U.S. Citizenship and Immigration Services, 

http://www.uscis.gov/humanitarian/consideration-deferredaction-childhood-arrivals-daca ......................................................................15

U.S. Const. amend. VI ...............................................................................................9

Rules

Tex. R. App. P. 33.1(a) ..............................................................................................8

Tex. R. App. P. 43.2(b)............................................................................................19
1

TO THE HONORABLE COURT OF APPEALS:

The State of Texas submits this brief in response to the brief of appellant, 

David Garcia Reyes.

STATEMENT OF THE CASE

Appellant was charged by indictment with the offense of sexual assault of a 

child. (CR: 15). Following a trial on his plea of “not guilty,” a jury found 

appellant guilty of sexual assault as charged and sentenced him to fifteen years’ 

confinement. (CR: 125).

STATEMENT OF FACTS

When complainant Andrew Ramirez1 was fifteen years old, he began 

working as a volunteer in the recording room of Templo Betania, the church he and 

his family attended. (RR8: 17-20). Appellant, who was one of the leaders at the 

church, was in charge of the recording room during that time. (RR8: 20-22). Over 

time, appellant began to give the complainant spending money and rides home 

from church. (RR8: 24-25). The complainant grew to trust appellant and began to 

confide in him about “crushes,” his grades at school, and “just everything in 

general.” (RR8: 25).

 

1

“Andrew Ramirez” was the pseudonym used at trial. (RR8: 14 -15).
2

The complainant celebrated his sixteenth birthday on July 19, 2013. (RR8: 

25-26). About a week later, the complainant had an encounter with a police officer 

while skateboarding on church grounds with a friend during service. (RR8: 27). 

The complainant fled from the officer into the church and found appellant. (RR8: 

27). Appellant took the complainant into the conference room next to the 

recording room and, there, the complainant told appellant about his encounter with 

the officer. (RR8: 28). The complainant was afraid he would get into trouble with 

his parents, but appellant told him he would take care of it and not to worry. (RR8: 

28). Appellant then hugged the complainant and tried to touch the complainant’s 

genitals over his shorts. (RR8: 29). The complainant stopped him, but appellant 

told him they would not get out of there unless “it happened.” (RR8: 29). The 

complainant relented and appellant touched his genitals over his shorts. (RR8: 30). 

Appellant then slid his hand inside the complainant’s shorts and grabbed his penis. 

(RR8: 30). The complainant pulled away after several seconds and appellant left 

the room, saying he would find the complainant’s mother and explain the 

skateboarding situation to her. (RR8: 30-31). 

Appellant returned with the complainant’s mother and the three discussed 

the situation. (RR8: 31-32). In the course of the conversation, appellant obtained 
3

consent from the complainant’s mother to have the complainant spend the night at 

his house the following Thursday or weekend. (RR8: 32). 

Appellant picked the complainant up from his home the following Thursday 

evening in the church’s truck. (RR8: 32-33). Appellant drove to a field where the 

church was planning to build its new facility and parked the truck. (RR8: 33). 

After talking for a while, appellant stepped out of the truck and walked over to the 

complainant’s side of the truck. (RR8: 34). Appellant coaxed the complainant into 

pulling down his pants and “draws,” fondled the complainant’s penis, and then put 

the complainant’s penis into his mouth. (RR8: 34-35). Appellant stopped after the 

complainant ejaculated, and drove them to Sonic for food. (RR8: 36). 

The next day, appellant took the complainant to his house for a sleepover. 

(RR8: 38). Appellant’s wife and three children were home that night, as well as 

eighteen-year-old Danny, who was another church volunteer spending the night 

there. (RR8: 38-39). The complainant and Danny shared appellant’s daughter’s 

bedroom that night. (RR8: 40). At some point before going to bed, however, 

appellant sent Danny to the shower and performed oral sex on the complainant. 

(RR8: 40). 

Thereafter, appellant took the complainant to the field or to his home about

once a week and performed oral sex on him. (RR8: 41). Throughout this period, 
4

appellant bought the complainant a cell phone, gave him spending money, and 

bought him clothes. (RR8: 42). 

One night in October, the complainant finally told his friend, Karla Delgado,

what appellant was doing to him. (RR8: 44-45). Karla and the complainant had 

met when Karla was a senior and the complainant was a sophomore at their high 

school. (RR8: 49-50). At the time of this outcry, Karla was a freshman at 

Eastfield Community College. (RR8: 184-185, 199-200). Shortly after their 

conversation, Karla reported the matter to a professor at Eastfield whose husband 

was a sergeant in the Dallas Police Department. (RR8: 184, 199-200).

A detective soon came to the complainant’s school and interviewed him. 

(RR8: 54). The complainant also gave a written statement to the detective. (RR8: 

54). The detective returned to the school the next day and had the complainant 

take her to the field where appellant had repeatedly performed oral sex on him. 

(RR8: 55). They then went to police headquarters, where the complainant made a 

recorded one-party consent call to appellant. (RR8: 55-56). Appellant was 

arrested later that day. (RR8: 227; RR9: 7-8). An indictment for sexual assault of 

a child subsequently issued. (CR: 15). 

At appellant’s trial, the State’s witnesses included the complainant, Karla

Delgado, the community college professor to whom Karla had confided, the 
5

detective assigned to the case, and the counselor from the Dallas Children’s 

Advocacy Center who had treated the complainant. A transcript of the one-party 

consent call was among the items admitted into evidence. (RR8: 95-100; State’s 

Ex. 50).

2

 The defense witnesses included a number of church members, 

appellant’s wife, the complainant’s mother, and appellant himself. Appellant 

denied ever touching the complainant’s genitals or performing oral sex on him. 

(RR10: 29, 32-33, 36). The defense theory at trial was that the complainant lied 

about the abuse. The defense attempted to introduce evidence of the complainant’s 

undocumented-immigrant status in an attempt to bolster this theory, but the trial 

court excluded such evidence. (RR8: 144-148; RR9: 142-150; RR10: 7-11). The 

jury ultimately found appellant guilty as charged in the indictment. (RR10: 88).

SUMMARY OF ARGUMENT

Response to Issue One: Appellant failed to preserve his complaint about a 

Confrontation-Clause violation for appeal. Even assuming appellant preserved this 

issue for appeal, the record shows appellant sought to offer evidence of the 

complainant’s illegal-immigrant status and desire for legal status without any 

 

2

State’s Exhibit 49, which was the actual recording of the call, was also admitted. (RR8: 95-

100). The recording, however, was in Spanish and a certified translation of the recording was 

admitted as State’s Exhibit 50. (RR8: 95-100). 
6

evidence connecting it to the complainant’s alleged motive in this case. The record 

shows no violation of the Confrontation Clause and no abuse of discretion in the 

trial court’s decision to exclude this evidence 

Response to Issue Two: The written judgment should be reformed to 

correctly reflect the offense of which appellant was convicted. 

ARGUMENT

RESPONSE TO ISSUE ONE: APPELLANT FAILED TO PRESERVE HIS 

CONSTITUTIONAL COMPLAINT ABOUT THE CONFRONTATION CLAUSE. EVEN 

ASSUMING APPELLANT PRESERVED ERROR, THE RECORD SHOWS NO VIOLATION OF 

THE CONFRONTATION CLAUSE.

In issue one, appellant contends the trial court violated his rights under the 

Confrontation Clause of the United States Constitution when it “refused to allow 

[him] to cross-examine the complainant and present evidence pertaining to the 

complainant’s immigration status and his desire to become a U.S. citizen.” 

(Appellant’s Brief, p. 23). 

The record shows the State first raised the issue of the complainant’s 

immigration status by a pretrial oral motion in limine. (RR4: 9). The prosecutor 

asserted that the complainant was currently on the Dream Act,3and had inquired 

about a U Visa when they met with him. (RR4: 9-10). The prosecutor was 

 

3 No explanation of the Dream Act appears in the record.
7

uncertain of appellant’s immigration status, and asked the court for a motion in 

limine regarding “immigration issues for everyone.” (RR4: 10). The defense 

countered that the complainant’s immigration status was relevant to establish 

motive. (RR4: 11). When asked by the court for evidence connecting the 

complainant’s immigration status to motive, defense counsel simply reiterated her 

belief that the complainant’s interest in obtaining a U Visa went “directly to his 

motive.” (RR4: 12). The court stated it would consider the matter and ruled, “At 

this time I’m gonna grant the motions in limine that the State is requesting or you 

can have me address that issue before trial starts.” (RR4: 12). 

The defense subsequently tried to introduce evidence of the complainant’s 

immigration status on three separate occasions: (1) during cross-examination of the 

complainant; (2) through its proffer of witness Jonathan Landeros; and (3) through 

its proffer of photographs of the complainant’s Twitter pages. (RR8: 144-148; 

RR9: 142-150; RR10: 7-11). The trial court excluded the evidence on each 

occasion. Appellant appears to be claiming that the trial court’s ruling in each 

instance violated his right of confrontation. His argument about the Confrontation 

Clause, however, is raised for the first time on appeal. 
8

A. Appellant forfeited his complaint about the Confrontation Clause.

To preserve error for appellate review, the record must show the following: 

(1) a timely and specific objection, request, or motion by the complaining party; 

and (2) a ruling on the request, objection, or motion; or the complaining party’s 

objection to the trial court’s refusal to rule. See Tex. R. App. P. 33.1(a); Haley v. 

State, 173 S.W.3d 510, 516 (Tex. Crim. App. 2005). Complaints about a violation 

of the Confrontation Clause may be forfeited by a failure to comply with rule 

33.1(a). See, e.g., Dewberry v. State ̧ 4 S.W.3d 735, 752 (Tex. Crim. App. 1999)

(holding defendant waived potential error under the Confrontation Clause by 

failing to comply with rule 33.1(a))

Appellant made no reference to the Confrontation Clause at trial. In each 

instance in which appellant sought to introduce evidence of the complainant’s 

immigration status, he merely claimed it was necessary to establish the 

complainant’s motive. (RR4: 11; RR8: 47-48; RR9: 148-150; RR10: 7-11). 

Appellant has, therefore, forfeited his right to complain on appeal about the 

violation of the Confrontation Clause. Compare Gordillo v. State, No. 01-13-

00477-CR, 2015 Tex. App. LEXIS 1643, at *9-10 (Tex. App.—Houston [1st Dist.] 

Feb. 19, 2015, no pet.) (mem. op., not designated for publication) (holding 

defendant’s argument that the complainant’s immigration status was relevant to 

credibility did not preserve his complaint about the Confrontation Clause); 
9

McCullough v. State, No. 05-09-00201-CR, 2010 Tex. App. LEXIS 9059, *7-8 

(Tex. App.—Dallas Nov. 16, 2010, pet. ref’d) (mem. op., not designated for 

publication) (holding defendant’s objection that the evidence was relevant to 

motive did not preserve his complaint about the violation of the Confrontation 

Clause). 

B. The trial court’s exclusion of irrelevant evidence did not violate the 

Confrontation Clause.

Even assuming no procedural bar, appellant fails to show a violation of the 

Confrontation Clause. The Confrontation Clause, found in the Sixth Amendment 

of the United States Constitution, guarantees a criminal defendant the right to be 

confronted with the witnesses against him. See U.S. Const. amend. VI; Garcia v. 

State, 149 S.W.3d 135, 140 (Tex. Crim. App. 2004). This includes the right to 

cross-examine the witnesses and the opportunity to show that their testimony is 

exaggerated or unbelievable. Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 

2010). The exposure of a witness’s motivation in testifying is a proper and 

important function of the right of cross-examination, and is “always relevant as 

discrediting the witness and affecting the weight of his testimony.” Johnson v. 

State, 433 S.W.3d 546, 551 (Tex. Crim. App. 2014) (quoting Davis v. Alaska, 415 

U.S. 308, 316-17 (1974)). 
10

This does not mean, however, that a defendant has free rein on crossexamination. As in other contexts, a defendant who wishes to introduce evidence 

of a potential bias must first establish its relevance. See generally Carpenter v. 

State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998) (discussing relevance 

requirement for admitting evidence of a pending criminal action against the 

defendant). Specifically, a defendant who wishes to introduce evidence of a 

witness’s immigration status must first establish “some causal connection or 

logical relationship” between the immigration matter and the witness’s potential 

bias. See id.; see also Irby, 327 S.W.3d at 151 (discussing how Carpenter and 

other cases require “some logical relevance of the pending charge, probation or 

immigration status, or other alleged source of bias to the witness’s testimony.”). A 

trial court’s decision to limit cross-examination is reviewed under an abuse-ofdiscretion standard. See Billodeau v. State, 277 S.W.3d 34, 43 (Tex. Crim. App. 

2009). 

On Cross-Examination of the Complainant

The defense first attempted to introduce the immigration issue during its 

cross-examination of the complainant. Defense counsel argued that the 

complainant’s sole purpose for staying at appellant’s house on one of the nights

was so appellant could take him to the Social Security Administration Office the 
11

next day. (RR4: 144-145). Although not entirely clear, defense counsel seemed to 

suggest that the complainant needed to go to the Social Security Administration 

Office in connection with his attempts to obtain DACA, which stands for Deferred 

Action for early Childhood Arrivals. (RR4: 145). Defense counsel argued that the 

complainant did not obtain his DACA until appellant helped him. (RR4: 145). 

According to defense counsel, a non-citizen under DACA received work 

authorization and a valid social security card, which allowed the non-citizen to 

obtain a driver’s license and possibly continue school. (RR8: 145). Defense 

counsel also claimed the complainant was “real interested in the U Visa.” (RR8: 

145). 

When the court asked how the defense planned to present this evidence,

defense counsel stated she had witnesses who could testify that the complainant 

was asking about U Visas prior to “this incident” and that he was “real interested in 

getting some type of legal status.” (RR8: 145). Defense counsel also explained 

why the complainant might want a U Visa: “The difference between a U Visa and 

a DACA, a U Visa actually gives you permanent residency. You - - five years, you 

become a permanent resident - - you become a citizen, then you can apply for 

everyone.” (RR8: 145-146).
12

After hearing all arguments, the trial court ruled that the defense could not 

ask the complainant about his immigration status at that time. (RR8: 147). The 

trial court’s ruling was not categorical. If the defense later presented a witness to 

testify to these issues, the defense would then be permitted to recall the 

complainant to question him about motive, since the defense’s position was that 

“these things are reasons why he would have lied on the defendant.” (RR8: 147-

148). At the time of this ruling, the defense had not yet presented any witnesses to 

establish the relevance of the complainant’s immigration status to motive. The 

trial court’s ruling was, therefore, not an abuse of discretion. Cf. Arroyo v. State, 

259 S.W.3d 831, 835-36 (Tex. App.—2008 Tyler, pet. ref’d) (holding the trial 

court did not abuse its discretion in excluding evidence of witness’s immigration 

status because defendant failed to establish its relevance). 

Through Proffer of Jonathan Landeros’s Testimony

The second time the defense attempted to introduce the complainant’s 

immigration status was early in the presentation of its case on guilt/innocence. In a 

hearing outside the jury’s presence, the defense presented the testimony of 

nineteen-year-old Jonathan Landeros, who had known the complainant since 

Landeros was eleven. (RR9: 142). The two had grown up in the same church. 

(RR9: 143). Landeros testified that the complainant was an illegal immigrant. 
13

(RR9: 143). When asked whether this concerned the complainant, Landeros 

replied, “Yes. Yeah, it did, because he would struggle to do everything. His 

parents never really - - when the DACA came out, he couldn’t get that right when 

it got out and he was kind of like - - he was struggling with that and he was kind 

of, like, scared about not getting it.” (RR9: 143). Landeros testified that the 

complainant’s immigration status was “very important” to him and that he had 

difficulty obtaining his DACA. (RR9: 144). When asked how the complainant 

finally obtained his DACA, Landeros was not certain: “I’m not quite sure how, but 

I’m pretty sure not through his parents, because they had no money. He ended up 

getting - - he told me he had to go get his fingerprints on June 13th from last year 

and then somewhere around early October, he told me - - he asked me where he 

could get his social security.” (RR9: 144). 

The defense then inquired into whether the complainant was interested in 

obtaining “more status” in addition to the DACA:

Q. Did he talk about other ways of getting more status than just the 

- - just the DACA?

A. He never mentioned anything, but he was always asking me and 

some other people from church, talking about it.

Q. The immigration status?

A. Yeah, about the immigration status.
14

Q. Now, did he do a lot of research on - - on immigration?

A. Yes. He would always be sending me links about where –

where to go start off with DACA and stuff. He was the one that 

was always on top of that.

Q. So he was - - he was finding different ways that he could get 

some type of documentation?

A. Yes, he was exploring different ways on how to attain it.

Q. Now, is he the only one of the siblings that don’t have any 

immigration status?

A. The only ones that are legal are his two little sisters; his parents 

are illegal as well.

Q. And you know all of this based on information that he gave you 

directly?

A. Yeah. Well, I - - yeah, he - - he told me. I know. My parents 

know. 

(RR9: 144-145).4

Upon conclusion of Landeros’s proffered testimony, the State argued that 

the complainant’s interest in immigration, alone, was insufficient to tie it to motive 

and that the complainant’s illegal-immigrant status was highly prejudicial. (RR9: 

146-147). In response, defense counsel claimed she could develop motive “based 

 

4After completing its questioning on immigration, defense counsel also briefly questioned 

Landeros about his knowledge of allegations that the complainant used church computers to 

access porn. (RR9: 145-146). Landeros testified he had no knowledge of this allegation. (RR9: 

145-146). 
15

on better immigration status.” (RR9: 148). Defense counsel argued that the 

complainant’s delay in getting the Dream Act5and his recent inquiries into a U 

Visa was relevant to his motive in this case. (RR9: 148). Counsel elaborated in

the following way:

Oh. He asked the State, he asked the police officer, he’s asking 

people, he’s doing research on how to get a - - how to get a U Visa. 

The bottom line is if he gets a U Visa, you can get a U Visa in a 

month if you demonstrate that you’re a sex crime victim.

Moreover, you could lose your DACA if you get found of a - - guilty 

of a Class A misdemeanor, which involves moral turpitude, which 

would be entering someone’s, you know WIFI.

I think in terms of, like, developing our motive, I think, you know, the 

fact that he’s doing things that could cause him to lose what status he 

has and we have information that he could get better status if he’s a 

sex crime victim and it all happens around the same time that he 

makes these allegations - -

(RR9: 148). 

 

5 Counsel likely meant to refer to DACA rather than the Dream Act. The record indicates that 

the parties confused DACA with the Dream Act and appellant makes the same mistake on 

appeal. (Appellant’s Brief, p. 26; RR9: 147). The two, however, are different acts. DACA

allows certain individuals who arrived in the United States as children to receive deferred action 

on removal, as well as work authorization, for a a two-year period. See U.S. Citizenship and 

Immigration Services, http://www.uscis.gov/humanitarian/consideration-deferred-actionchildhood-arrivals-daca. An individual under DACA may also obtain a driver’s license and 

social security number. See Ryan M. Gibson, What is the difference between the DREAM Act 

and DACA (Deferred Action for Childhood Arrivals)? (June 12, 2013), 

http://ryangibsonlaw.com/what-is-the-difference-between-dream-act-and-daca-deffered-actionfor-childhood-arrivals. The Texas Dream Act, in contrast, allows certain undocumented students 

to pay in-state college tuition. See TRIBPEDIA: Dream Act, THE TEXAS TRIBUNE (April 19, 

2015), http://www.texastribune.org/tribpedia/dream-act/about.
16

The trial court interrupted defense counsel at this time and stated, “Miss 

Kelly, even if that were true, the only person who could testify to this, that I’ve 

heard, is you, and you can’t testify.” (RR9: 148-149). The court correctly pointed 

out that Landeros did not testify to what defense counsel had just argued. (RR9: 

149). The following exchange then ensued between the court and defense counsel:

DEFENSE: Can the Court take judicial notice of what a U Visa - -

COURT: No.

DEFENSE: Or do I need to bring - - no?

COURT: Because you need to put it in front of the jury. How do 

you plan on doing that? You gonna testify to it?

DEFENSE: No, huh-uh.

COURT: I mean, what about this whole - - didn’t you say he’s

asking this person and this person and this person - - the 

only thing this young man can testify to is that we had 

discussions about his immigration status.

DEFENSE: Right.

COURT: And that’s all he can testify to.

DEFENSE: Correct. And I think he can testify, your Honor, to the 

fact that he’s been trying to get DACA. I think we can - -

COURT: But how does that tie to this allegation?

DEFENSE: The way that it ties to the allegation, your Honor, is 

DACA - - you could lose your DACA status if you have

a Class A misdemeanor. 
17

(RR9: 149-150). The trial court then ruled that Landeros’s testimony was 

inadmissible. (RR9: 150). 

In sum, Landeros’s testimony was that the complainant worried about 

obtaining DACA status, did “a lot of research” into DACA and immigration, and 

obtained DACA status. Landeros also testified that the complainant’s immigration 

status was very important to him. Landeros said nothing, however, to connect any 

of this to a possible motive on the part of the complainant. As pointed out by the 

court, the only “evidence” linking the immigration issue to motive was defense 

counsel’s arguments to the court. (RR9: 148-149). Under these circumstances, the 

trial court’s exclusion of Landeros’s testimony was not an abuse of discretion.

Through Proffer of Twitter Pages

The defense made a final attempt at establishing a link between the 

complainant’s immigration status and motive towards the end of the 

guilt/innocence phase. In a hearing outside the jury’s presence, the defense sought 

to introduce photographs of the complainant’s Twitter account through Jahaziel 

Benavides, a church member who had testified for the defense the previous day. 

(RR9: 198, 201; RR10: 7). Benavides has apparently provided the photographs of 

the complainant’s Twitter account to defense counsel. (RR10: 7). The court asked 

defense counsel what the photos would prove, and defense counsel replied, “I think 
18

there’s - - in this it would prove some elements of motive - - fact that it specifically 

talks about scholarship, wanting to go to college, and he can’t go to - - you know, 

he can’t go to college without - - it’s gonna be difficult to get any scholarship if 

you’re not a citizen.” (RR10: 7-8). The State pointed out that the majority of the 

twitter pages showed the use of inflammatory language by the complainant, was 

irrelevant to motive, and was an attempt by the defense to damage the 

complainant’s character. (RR10: 9-10). The court admitted the Twitter pages for 

record purposes only. (RR10: 10-11). 

Appellant complains on appeal of the exclusion of two particular Twitter 

pages. (Appellant’s Brief, p. 30). One page shows the following tweet: “[F]uck 

man looking for scholarships while not being a citizen and all that is the hardest 

shit ever.” (Defense Ex. 2; RR11: 176).6 Another tweet from that date reads, 

“[L]ike i gotta do community college because of the dream act.” (Defense Ex. 2; 

RR11: 177).7

The two foregoing Twitter photos show the complainant’s apparent 

frustration with planning for college as a non-citizen. Nothing in either photo 

 

6As pointed out in appellant’s brief, this page has a label, marking the exhibit as “Defendant’s 

Exhibit 67,” which has been crossed out. (Appellant’s Brief, p. 30). 

7Appellant refers to this particular page as the one marked with the crossed-out label of 

“Defendant’s Exhibit 68.” (Appellant’s Brief, p. 30). 
19

shows how the complainant’s non-citizen status somehow motivated him to make 

the allegations of sexual assault against appellant. Moreover, the two Twitter 

photos in question are both dated September 15, 2014. The complainant made his 

outcry to Delgado and spoke with police about the sexual assault in October of 

2013. There is no indication in the record of how these two tweets, posted almost 

a year after the complainant reported the sexual assault, are relevant to the 

complainant’s motive in this case. Under these circumstances, the trial court’s 

exclusion of the Twitter pages was not an abuse of discretion. 

For the foregoing reasons, issue one should be denied.

RESPONSE TO ISSUE TWO: THE JUDGMENT SHOULD BE REFORMED TO 

CORRECTLY REFLECT THE OFFENSE OF WHICH APPELLANT WAS CONVICTED.

In issue two, appellant asks that the judgment be reformed to correctly 

reflect the offense of which he was convicted. The State agrees. 

Appellant was charged with and convicted of the offense of sexual assault of 

a child. (CR: 15; RR10: 88). See Tex. Penal Code Ann. § 22.011(a)(2) (West 

2011). The written judgment, however, reflects that he was convicted of 

“SEXUAL CONTINUOUS ASSAULT OF A CHILD.” (CR: 125). Where, as 

here, the record contains the necessary information to do so, the court on appeal 

has the authority to modify the incorrect judgment. Tex. R. App. P. 43.2(b); Bigley 

v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Abron v. State, 997 S.W.2d 
20

281, 282 (Tex. App.—Dallas 1998, pet. ref’d). “An appellate court has the power 

to correct and reform a trial court judgment ‘to make the record speak the truth 

when it has the necessary data and information to do so, or make any appropriate 

order as the law and nature of the case may require.’” Nolan v. State, 39 S.W.3d 

697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (quoting Asberry v. State, 

813 S.W.2d 526, 526 (Tex. App.—Dallas 1991, pet. ref’d)). 

The State asks that this Court grant issue two and modify the written 

judgment to reflect that appellant was convicted of sexual assault of a child. 

PRAYER

The State prays that this Honorable Court modify the judgment of the trial 

court and affirm the judgment as modified. 

Respectfully submitted,

/s/ Grace E. Shin

Susan Hawk Grace E. Shin

Criminal District Attorney Assistant District Attorney

Dallas County, Texas State Bar No. 24033062

Frank Crowley Courts Bldg.

133 N. Riverfront Blvd., LB-19

Dallas, Texas 75207-4399

(214) 653-3631

(214) 653-3643 fax

gshin@dallascounty.org
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CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing brief, exclusive of the contents listed in 

rule 9.4(i), is 4,321 words in length according to Microsoft Word, which was used 

to prepare the brief. See Tex. R. App. P. 9.4(i). 

/s/ Grace E. Shin

______________________

Grace E. Shin

CERTIFICATE OF SERVICE

I hereby certify that, on July 20, 2015, a true copy of this Brief was served 

on appellant’s attorney, Kathleen A. Walsh, via eFile.TXCourts.gov.

/s/ Grace E. Shin

_______________________

Grace E. Shin