CAUSE NO. 04-14-00915-CR 

IN THE COURT OF APPEALS 

FOURTH COURT OF APPEALS DISTRICT 

SAN ANTONIO, TEXAS 

ADAN FLORES 

 Appellant 

vs. 

THE STATE OF TEXAS, 

 Appellee 

APPEALED FROM THE 49th DISTRICT COURT OF WEBB COUNTY 

TRIAL COURT NO. 2014-CRS-000311-D1 

HONORABLE MONICA NOTZON, JUDGE PRESIDING 

APPELLANT’S REPLY BRIEF 

 ARMANDO TREVINO 

ORAL ARGUMENT REQUESTED State Bar No. 20211100 

 1519 Washington St., Suite One 

 Laredo, Texas 78040 

 Tel: (956) 726-1638 

 Email: armandotrevinolaw@gmail.com

 Attorney for Appellant 

ACCEPTED

04-14-00915-cr

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

7/22/2015 3:04:30 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 7/22/2015 3:04:30 PM KEITH E. HOTTLE Clerk
ii 

CAUSE NO. 04-14-00915-CR 

IN THE COURT OF APPEALS 

FOURTH COURT OF APPEALS DISTRICT 

SAN ANTONIO, TEXAS 

ADAN FLORES 

 Appellant 

vs. 

THE STATE OF TEXAS, 

 Appellee 

APPEALED FROM THE 49th DISTRICT COURT OF WEBB COUNTY 

TRIAL COURT NO. 2014-CRS-000311-D1 

HONORABLE MONICA NOTZON, JUDGE PRESIDING 

APPELLANT’S REPLY BRIEF 

 ARMANDO TREVINO 

ORAL ARGUMENT REQUESTED State Bar No. 20211100 

 1519 Washington St., Suite One 

 Laredo, Texas 78040 

 Tel: (956) 726-1638 

 Email: armandotrevinolaw@gmail.com

 Attorney for Appellant 
iii 

TABLE OF CONTENTS

 

I. Cover Page ................................................................. 

II. Table of Contents .......................................................... 

III. Index of Authorities ......................................................

 

IV. Introductory Statement ................................................... 

 

V. Statement Regarding Oral Argument................................... 

VI. Argument .................................................................. 

Reply Issue Number One . The Court violated Defendant’s right to due 

process and to be heard when the Court granted the State’s motion to amend 

the indictment at an ex parte hearing. 

 Reply Issue Number Two. Defendant’s objection to the qualification of 

 VERONICA VALDEZ as the outcry witness should have been sustained. 

Reply Issue Number Three. The Trial Court committed reversible error 

when it instructed the jury that Counts I, II, III, IV, and V were first-degree 

felonies. 

 

VII. Prayer .......................................................................... 

VIII. Certificate of Service ......................................................... 

IX. Certificate Regarding Word Count ......................................... 
iv 

INDEX OF AUTHORITIES

 Page(s)

Cases

Carmell v. Texas, 529 U.S. 513 (2000)........................................ 5 

Garza v. State, 129 S.W. 3rd 79 (Tex. Cr. App. 2001) ...................... 5 

Jennings v. State, 302 S.W. 3rd 306 (Tex.Cr..App. 2010).................. 3, 4 

Nino v. State, 223 S.W. 3rd 749 (Tex.App.-Houston [14th Dist.] 2007, no pet).3, 4 

Norris v. State, 788 S.W. 2d 65 (Tex.App.-Dallas 1990, pet, ref’d) ......... 4 

 

Robinett v. State, 383 S.W. 3rd 758 (Tex.App.-Amarillo 2012, no pet.)...... 3, 4 

Sanchez v. State, 354 S.W. 3rd 476 (Tex.Cr.App. 2011) ........................ 3, 4 

Scott v. State, 227 S.W. 3rd 670 (Tex.Cr.App. 2007) ........................... 5 

Snowden v. State, 353 S.W. 3rd 85 (Tex.Cr.App. 2011) ........................ 5 

Young v. State, 137 S.W. 3rd 65 (Tex.Cr.App. 2004) ........................... 5 

Constitutions, Statutes and Rules

Texas Constitution, Article 1, Section 16................. ........................... 6 

U.S. Constitution Article 1, Section 10.1............................................6 

 
v 

INDEX OF AUTHORITIES

 Page(s)

Constitutions, Statutes and Rules

Code of Criminal Procedure 

 Art. 28.01 (6)............................................................ 3, 4 

 

28.10 ............................................................... 2 

 

 38.07.. .............................................................. 3, 4 

 

 38.072 .............................................................. 3, 4 

Government Code 

 Art. 311.011............................................................... 2 

 

 311.016(4) ........................................................... 2 

 311.023 ................................................................ 2 

Texas Penal Code 

§12.01 (b)............................................................... 5 

 

 §22.011(a) (1)(B)...................................................... 5 

 §22.011(a) (2)(A) ...................................................... 5 

 §22.011(a) (2)(C)....................................................... 5 

 §22.011(a) (2)(E) ...................................................... 5 

Texas Rules of Appellate Procedure 

 33.1 (a).................................................................. 5 

 

 44.2(a) .................................................................. 5 
Page | 1 

CAUSE NO. 04-14-00915-CR 

IN THE COURT OF APPEALS 

FOURTH COURT OF APPEALS DISTRICT 

SAN ANTONIO, TEXAS 

ADAN FLORES 

 Appellant 

vs. 

THE STATE OF TEXAS, 

 Appellee 

INTRODUCTORY STATEMENT

TO THE HONORABLE COURT OF APPEALS: 

Comes now Appellant, ADAN FLORES, and files his Reply Brief on three 

issues without waiving the other issues in his original Appellant’s Brief. Appellant 

had previously filed a timely motion for extension of time to file his Reply Brief. 

STATEMENT REGARDING ORAL ARGUMENT 

 Appellee has requested oral argument Appellant requests oral argument in 

the event that the Court of Appeals grants Appellee’s request for oral argument. 

ARGUMENT AND AUTHORITIES
Page | 2 

 REPLY ISSUE NUMBER ONE. The Court violated Defendant’s right to 

due process and to be heard when the Court granted the State’s motion to amend 

the indictment at an ex parte hearing. 

Argument and Authorities 

 Notice and an opportunity to be heard are fundamental components of due 

process. A statute or rule that is clear and unambiguous must be enforced as 

written and is not subject to judicial discretion or interpretation. See Gov’t Code § 

311.011, 311.016(4), 311.023. 

 The state filed a motion to amend the indictment (CR67-76). Article 28.10 

of the Code of Criminal Procedure allows an amendment to an indictment after 

notice to the defendant. The Court granted the State’s motion at an ex parte hearing 

(CR 86-88) and without notice to Defendant (RR vol. 8 pp 6,7). Defendant’s 

conviction and sentence must be set aside because he was tried on an invalid 

amended indictment in violation of Art. 28.10 Texas Code of Criminal Procedure. 

 REPLY ISSUE NUMBER TWO. Defendant’s objection to the qualification 

of VERONICA VALDEZ as to outcry witness should have been sustained. 

Argument and Authorities 

 The State filed a motion to qualify VERONICA VALDEZ as the outcry 

witness and Defendant objected (CR 204-208). The Matter was heard in two 
Page | 3 

phases, the first one by Judge Lopez on June 25, 2014 (RR Vol. 7), and the second 

part by Judge Notzon on September 15, 2014 (RR Vol. 14). 

THE HEARING BEFORE JUDGE LOPEZ 

 ANA was the only witness to testify at the hearing (RR Vol.7 p.3). (1)She 

testified that she had been the subject of a video tape interview by VALDEZ, (2) 

that prior to the interview she had made outcries to ARTURO (her mother’s 

boyfriend, to her aunt JESSICA MORALES (pp. 42, 43, 54) and to her school 

counselor Ms. AYALA (pp. 30, 32), as well as to her grandmother (p. 34). Judge 

LOPEZ said he did not have to hear from ANA’s mother or from Ms. VALDEZ 

and that Ms. VALDEZ was qualified as the outcry witness (pp. 62, 63). The ruling 

by Judge LOPEZ will not withstand appellate review because he failed to consider 

and rule out the prior outcries made by ANA and his ruling violates the Texas 

Code of Criminal Procedure and decisions of the Court of Appeals and other 

Courts of Appeal. See Arts. of the Code of Criminal Procedure 28.01(6), 38.07, 

38.072; Jennings v. State, 302 S.W. 3rd 306, 311 (Tex.Cr.App. 2010) (all jury 

charge errors are cognizable on appeal if the Defendant failed to object); Sanchez 

v. State, 354 S.W. 3rd 476, 478 (Tex.Cr.App. 2011) (opportunity to cross-examine 

the outcry witness) Robinett v. State, 383 S.W. 3rd 758, 761 (Tex.App.-Amarillo 

2012, no pet.) (admissible outcry witness testimony is even-specific); Nino v. 

State, 223 S.W. 3rd 749, 752-53 (Tex.App.-Houston [14th Dist.] 2007, no pet.); 
Page | 4 

Norris v. State, 788 S.W. 2d 65 (Tex.App. Dallas 1990, pet. ref’d)( battery of 

requirements as a condition to the admission of outcry testimony). 

THE HEARING BEFORE JUDGE NOTZON 

 Without reviewing the transcript of the testimony of ANA at the hearing 

before Judge LOPEZ, Judge NOTZON announced at the commencement of her 

hearing and at the conclusion that she agreed with the ruling by Judge LOPEZ 

holding that VALDEZ was qualified to testify as the outcry witness (Vol. 14 p. 

202). Neither the State nor the Court called ANA’s mother, ANA’s aunt, the male 

friend of ANA’s mother, or ANA’s grandmother to inquire into the extent of 

ANA’s revelations to those witnesses at the outcries that preceded the interview by 

VERONICA VALDEZ (RR Vol. 14). The ruling by Judge NOTZON that 

VERONICA VALDEZ was qualified to testify as the outcry witness is legally and 

factually incorrect. See Arts. 28.01(6), 38.07, 38.072 of the Code of Criminal 

Procedure; Jennings v. State, 306 S.W. 3rd at 311; Sanchez v. State, 354 S.W. 3rd at 

478; Robinett v. State, 383 S.W. 3rd at 761-62; Nino v. State, 223 S.W. 3rd at 752-

53; and Norris v. State, 788 S.W. 2d 65. 

 The State’s contention that Defendant did not preserve error because he did 

not file a motion to suppress is meritless. A review of Defendant’s objections to 

VERONICA VALDEZ as the outcry witness makes it clear that Defendant sought 

to exclude/suppress her testimony as the outcry witness and that the preserved 
Page | 5 

error. See Rules 33.1(a), 44.2(a) Texas Rules of Appellate Procedure; Young v. 

State, 137 S.W. 3rd 65, 69-70 (Tex.Cr.App. 2004) (timely and specific objection); 

Garza v. State, 129 S.W. 3rd 79, 84-85 (Tex.Cr.App. 2004) (overruling of a pretrial 

motion to suppress; Snowden v. State, 353 S.W. 3rd 815, 821-22 (Tex.Crim.App. 

2011) (harmless error inquiry and analysis); Scott v. State, 227 S.W. 3rd 670, 690-

91) (Tex.Cr.App. 2007) (whether the constitutional error was a contributing factor 

in the jury’s deliberations in arriving at the verdict). 

 REPLY ISSUE NUMBER THREE. The Trial Court committed reversible 

error when it instructed the jury that Counts I, II, III, IV, and V were first degree 

felonies. 

Argument and Authorities 

 In the jury charge pertaining to guilt or innocence (CR 211) and in the 

punishment phase (CR 233-237), the Court instructed the jury that those counts 

were first-degree felonies, punishable by confinement of 5 years to life 

imprisonment. The offenses allegedly occurred prior to 2009, and were seconddegree felonies. Penal Code §12.01(b) says that Penal laws enacted after the 

effective date of the code are to be classified for punishment purposes in 

accordance with the laws in effect when the offenses occurred. When the alleged 

offenses occurred, they were second-degree felonies punishable by 2 to 20 years 

confinement. See Penal code Secs. 22.01(a)(2)(A), 22.011(a)(1)(B), 
Page | 6 

22.011(a)(2)(C), 22.011(a)(2)(E); Carmell v. Texas, 529 U.S. 513, 537 (2000) “It 

is settled by the decisions of this Court... that any statute which punishes as on act 

previously committed .... which makes more burdensome the punishment for a 

crime, after its commission ... is prohibited as ex post facto.” Because Defendant 

was tried, convicted and punished under ex post facto laws and such laws are 

prohibited by the Federal and Texas Constitutions, his conviction must be reversed. 

See Article 1, Section 10.1 of the United States Constitution and Article 1, section 

16 of the Texas Constitution. 

PRAYER. Premises considered, Appellant asks the Court to consider the 

Reply Brief in conjunction with his Brief and reverse his conviction or reverse and 

remand it to the trial court for a new trial. 

 Respectfully submitted, 

 /s/ Armando Treviño

 ARMANDO TREVINO 

 State Bar No. 20211100 

 1519 Washington St., Suite One 

 Laredo, Texas 78040 

 Tel: (956) 726-1638 

 Email: armandotrevinolaw@gmail.com

 Attorney for Appellant 
Page | 7 

CERTIFICATE OF SERVICE

 A true copy of the above document was served on the 22nd day of July, 2015, 

on David L. Reuthinger, Jr. Assistant District Attorney, Webb County District 

Attorney, via Prodoc e-service electronic filing at

dreuthinger@webbcountytx.gov., 1110 Victoria, Suite 401, Laredo, Texas 78040. 

 /s/ Armando Treviño 

 ARMANDO TREVINO 

 

 

 CERTIFICATE OF COMPLIANCE

Relying on the word count function in the word processing software used to 

produce this document, I certify that the number of words in this Reply Brief 

(excluding any caption, identity of parties and counsel, statement regarding oral 

argument, table of contents, index of authorities, statement of the case, statement 

of issues presented, statement of jurisdiction, statement of procedural history, 

signature, proof of service, certification, certificate of compliance and appendix) is 

1,321. 

 /s/ Armando Treviño

 ARMANDO TREVINO 

 Attorney for Appellant