CAUSE NO. 01-14-00700CR 

IN THE COURT OF APPEALS FOR 

THE FIRST JUDICIAL DISTRICT OF TEXAS 

HOUSTON 

THERRELL DEWAYNE FELDER, SR., 

Appellant 

Vs. 

THE STATE OF TEXAS, 

Appellee 

APPEALING THE TRIAL COURT’S JUDGMENT 

ON VERDICT OF GUILY IN 

CAUSE NO. 14CR0283 

IN THE 122nd DISTRICT COURT 

OF GALVESTON COUNTY, TEXAS 

HONORABLE JOHN ELISOR, PRESIDING 

APPELLANT’S BRIEF 

ZACHARY MALONEY 

SBN 24030761 

MALONEY & PARKS, L.L.P. 

2925 GULF FREEWAY S. STE. B #295 

LEAGUE CITY, TEXAS 77573 

(713) 228-2277 Ofc. 

(866) 838-5656 Fax. 

ZACHMALONEY@GMAIL.COM 

ORAL ARGUMENT IS REQUESTED ATTORNEY FOR APPELLANT 

ACCEPTED

01-14-00700-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

8/12/2015 12:17:42 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 8/12/2015 12:17:42 AM CHRISTOPHER A. PRINE Clerk
 i 

IDENTITY OF PARTIES AND COUNSEL 

Matthew Michael Shawhan 

SBOT NO. 24061342 

Joseph Chicherio “Joe” Frank 

SBOT NO. 24058444 

Galveston County District Attorney’s Office 

600 59th Street, Suite 3305 

Galveston, Texas 77511 

(409) 766-2355 phone 

(409) 766-2290 fax 

ATTORNEYS FOR THE STATE OF TEXAS 

Michael Anthony Abner, Jr. 

Attorney at Law 

SBOT NO. 24061347 

16324 Brookforest Drive 

Houston, Texas 77059 

(281) 221-1026 

ATTORNEY FOR THE DEFENDANT AT TRIAL 

Attorney for Appellant on Appeal 

ZACHARY MALONEY 

SBN 24030761 

MALONEY & PARKS, L.L.P. 

2925 GULF FREEWAY S. STE. B #295 

LEAGUE CITY, TEXAS 77573 

(713) 228-2277 Ofc. 

(866) 838-5656 Fax. 

ZACHMALONEY@GMAIL.COM 
 ii 

TABLE OF CONTENTS 

Identity of Parties and Counsel i 

Index of Authorities iii 

Statement of the Case v 

Statement of Facts v 

Summary of the Arguments 1 

Arguments and Authorities 2 

Prayer 8 

Certificate of Service 9 
 iii 

INDEX OF AUTHORITIES

Cases

Albrecht v. State, 486 S.W.2d 97, 99 (Tex.Cr.App.1972).

Bates v. State, 643 S.W.2d 939, 944 (Tex.Cr.App.1982); 

Boutwell v. State, 719 S.W.2d 164 (Tex.Cr.App.1985)

Elkins v. State, 647 S.W.2d 663, 665 (Tex.Cr.App.1983)

Harris v. State, 169 Tex.Cr.R. 143, 333 S.W.2d 142, 144 (1960)

Hernandez v. State, 484 S.W.2d 754, 755 (Tex.Cr.App.1972) 

Murphy v. State, 587 S.W.2d 718, 722 (Tex.Cr.App.1979)

Parks v. State, 746 SW2d 738, (Tex. Crt Crim. App. 1987). 

Plante v. State, 692 S.W.2d 487, 491 (Tex.Cr.App.1985)

Robledo v. State, 480 S.W.2d 401, 402 (Tex.Cr.App.1972)

Rubio v. State, 607 S.W.2d 498, 499 (Tex.Cr.App.1980)

Velu v. State, 2009 WL 471344 (Waco. Pet. Denied 2009) 

Verner v. State, 117 Tex.Cr.R. 112, 35 S.W.2d 428, 429 (1931). 

Williams v. State, 662 S.W.2d 344, 346 (Tex.Cr.App.1984). 

Statutes and Rules

Tex.Cr.R. 143, 333 S.W.2d 142, 144 (1960) 

CITATIONS TO THE RECORD 

Reporter’s Record: volume, page no. 

 (Rr #p #) 
 iv 

Clerk’s Record: volume, page no. 

 (Cr # p #) 
 v 

STATEMENT OF THE CASE 

 The transcript begins with Felder (Appellant) asking for a severance of two 

cases. Rr 2 p 4. Cause numbers 14CR0282 and 14CR0283 where both for the 

offense of forgery. Severance was granted and trial began in cause number 

14CR0283. On July 1st, 2014, the Jury found Appellant “Guilty” and both of his 

habitual enhancements “true”. The indictment charged Appellant for passing a 

counterfeit $100 bill on December 26th, 2014. CR. 1 p 52. The Appellant went to 

the court for punishment and was awarded 25 years confinement in the 

Institutional Division of the Texas Department of Criminal Justice. July 18th, 

2014. Motion for new trial was heard and denied on September 26th, 2014. Cr 1 p 

75. Appellant presents his direct appeal. 

STATEMENT OF FACTS

 On December 26, 2013, Appellant allegedly passed a counterfeit $100 bill 

to Crystal Morris the clerk at Food King, in Texas City, Galveston County. The 

clerk, noticing the fake bill called her Manager, Anthony Melchor. Manger 

Melchor, meet with Morris and the Appellant. The Appellant asked for the bill 

back and left when denied its’ return. Appellant was later identified through instore video and photo line-ups. Appellant was later arrested on an arrest warrant. 
 vi 

 During trial, for the December offense, the State argued that since identity 

and intent where issues the State was allowed to enter the indicted October offense 

as proof of identity and intent. Rr 4 p 6&7. However, there was no evidence. 

(short of Defense counsel stating it could have been the Appellant), offered at the 

time of this introduction in the record, that Appellant was identified as committing 

the October offense; nor, any evidence to support intent of the October offense. 

 The State’s liberal interpretation of the case law to sway the court is 

concerning. Rr 4. p 7&8. Defense counsel objected. To no avail the trial court 

allowed testimony of the October offense. Trial resumed with the Jury hearing 

testimony for a forgery offense allegedly committed by the Appellant on October 

10, 2013 for a passing a counterfeit $20 dollar bill to a different clerk at the same 

Food King. 

 There are similarities in both cases. However, in the October offense, the 

clerk did not realize the bill was counterfeit until after the Appellant left and the 

bill had been deposited in the register. The October offense also dealt with the 

same issues of identity and intent. The Jury decided to believe the State’s offer of 

proof and found the Appellant “Guilty”. 

 

 
 1 

SUMMARY OF THE ARGUMENTS 

Point of Error One (1): The trial court erred allowing evidence of an indicted 

extraneous offense, (hereinafter the “October offense”) where the prejudicial 

effect outweighed the probative value. 
 2 

APPELLANT'S POINT OF ERROR

ARGUMENT I

Point of Error One (1): The trial court erred allowing evidence of an indicted 

extraneous offense, (hereinafter the “October offense”) where the prejudicial 

effect outweighed the probative value.

The State and Appellant rely heavily on Parks v. State, 746 SW2d 738, 

(Tex. Crt Crim. App. 1987). In Parks, that Appellant was convicted for forgery 

involving the filing of forged real property documents. Id at 739. During the 

course of the Parks trial other similarly illegal transactions were introduced into 

evidence. Id. at 740. 

Appellant, to paraphrase Parks’ argument, contends that there is other 

evidence sufficient to show the Appellant's intent to defraud. Intent is at issue in 

the instant case, evidence of the October extraneous offense remains extremely 

prejudicial and has no probative value. Appellant argues the trial court failed, in 

determining the admissibility of this evidence, in applying the Williams balancing 

test as explained Parks and in Albrecht v. State, 486 S.W.2d 97, 99 
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(Tex.Cr.App.1972). See also, Hernandez v. State, 484 S.W.2d 754, 755 

(Tex.Cr.App.1972). 

“This test requires that a determination be made as to whether the 

prejudicial effects of admitting this evidence are outweighed by the probative 

value this evidence may have in aiding the trier of fact in reaching a verdict. 

Albrecht v. State, supra. See also Boutwell v. State, 719 S.W.2d 164 

(Tex.Cr.App.1985); Williams v. State, 662 S.W.2d 344, 346 (Tex.Cr.App.1984). 

This “test” is really nothing more than a statement of a fundamental principle of 

evidence. The “test” has been further developed in the Williams case. For the sake 

of convenience it will be referred to in this opinion as the “Williams” test.” Parks 

at 739 &740. 

In the instant case (the December offense), the State introduced direct 

evidence in the testimony of the Clerk, the Manager, the photo line up, the video 

of the Appellant, and testimony as to the flaws in the counterfeit bill. Evidence, 

suffice enough to not warrant the “booting strapping” of the October offense. 

 “[A]n accused person may not be tried for collateral criminal offenses or for 

being a criminal generally. Williams v. State, supra; Albrecht v. State, supra; Rubio 

v. State, 607 S.W.2d 498, 499 (Tex.Cr.App.1980). Evidence of extraneous 

offenses is of an inherently prejudicial nature and may tend to confuse the issues 

of the case. Albrecht v. State, supra. Such evidence carries with it the additional 
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danger that an accused person may be called upon to defend himself against an 

implied charge of having a propensity to commit crimes rather than the specific 

offense for which he is on trial. Williams v. State, supra; Elkins v. State, 647 

S.W.2d 663, 665 (Tex.Cr.App.1983); Bates v. State, 643 S.W.2d 939, 944 

(Tex.Cr.App.1982); Albrecht v. State, supra. “Parks at 740. 

 There are exceptions to the rule, In Albrecht, “Evidence of extraneous 

offenses committed by the accused has been held admissible: 

(1) To show the context in which the criminal act occurred—what has been termed 

the ‘res gestae’—under the reasoning that events do not occur in a vacuum and 

that the jury has a right to hear what occurred immediately prior to and subsequent 

to the commission of that act so that they may realistically evaluate the evidence. 

(2) To circumstantially prove identity where the state lacks direct evidence on this 

issue. 

(3) To prove scienter, where intent or guilty knowledge is an essential element of 

the state's case and cannot be inferred from the act itself. 

 (4) To prove malice or state of mind, when malice is an essential element of the 

state's case and cannot be inferred from the criminal act. 

(5) To show the accused's motive, particularly where the commission of the 

offense at bar is either conditioned upon the commission of the extraneous offense 
 5 

or is a part of a continuing plan or scheme of which the crime on trial is also a 

part. 

(6) To refute a defense theory raised by the accused.” (footnotes omitted). 486 

S.W.2d at 100–101. 

 Parks states that such evidence is clearly admissible when the prosecution 

can show both that the offense or transaction is relevant to a material issue in the 

case, and the probative value of the evidence to the trier of fact is not outweighed 

by its prejudicial or inflammatory nature. Boutwell v. State, supra; Plante v. State,

692 S.W.2d 487, 491 (Tex.Cr.App.1985); Williams v. State, supra, at 346; Elkins 

v. State, supra, at 665; Murphy v. State, 587 S.W.2d 718, 722 (Tex.Cr.App.1979). 

Rubio v. State, supra, (concurring opinion). That is not what occurred in the instant 

case. Evidence of identity and intent for the October offense was not sufficient to 

warrant inclusion into the December trial case. It fails to meet the Williams test. 

 The Williams test has two prongs, first if the evidence of extraneous 

offenses is relevant to a material issue in dispute in the case, and second, if the 

probative value of such evidence outweighs its prejudicial effect. 

 In the instant case the State relies on the misinterpretation of Parks where, 

“cases of forgery and fraud, it is difficult to prove intent. Robledo v. State, 480 

S.W.2d 401, 402 (Tex.Cr.App.1972); Harris v. State, 169 Tex.Cr.R. 143, 333 

S.W.2d 142, 144 (1960); Verner v. State, 117 Tex.Cr.R. 112, 35 S.W.2d 428, 429 
 6 

(1931). [Court of Criminal Appeals has] held that intent or guilty knowledge 

cannot be inferred from the mere passing of a forged instrument. Albrecht v. State.

Indeed, to hold otherwise would create the danger that the unknowing and 

accidental passing of a forged instrument could effectively become a strict liability 

offense. The issue of intent is of such overriding importance in a case of forgery 

that it effectively becomes the focus of the State's case. Establishing intent in such 

cases is so crucial and so difficult to do that, as a practical matter, evidence of 

extraneous offenses is nearly always admissible. Robledo v. State, supra; Harris v. 

State, supra; Vernon v. State, supra. While it is hypothetically possible that a case 

of forgery could be established by direct evidence, such as eyewitness testimony, 

most cases of forgery rest on circumstantial evidence. In the vast majority of such 

cases, the probative value of evidence of extraneous offenses will inevitably 

outweigh its prejudicial effect.” Parks, 741. 

 As stated before, in the instant case the State had a wealth of evidence to 

present to the jury to show identity, intent and guilt without the use of the October 

offense. 

 In applying the first prong of the Williams test, the extraneous offense 

alleged was not relevant to a material element of the State's case. True the alleged 
 7 

transactions involved were nearly identical. However, the October offense had the 

issues of identity as well as the fact that the counterfeit bill was not discovered 

until after the Appellant had left and the bill was examined later. In the instant 

case the State could rely upon the conversations of the witnesses and the defendant 

and the testimony as to the authenticity of the counterfeit bill. Given, that the jury 

had other evidence to consider the October extraneous offense was not to a 

material element of the State's case. 

The second prong of Williams test is the balance between the probative and the 

prejudicial aspects of the evidence in question. In assessing this balance between 

the probative values of the evidence versus its prejudicial effect, it is necessary to 

view the nature of the State's case. The State's case consisted of evidence that 

appellant had passed the counterfeit $100.00 dollar bill, opinion testimony as to 

the flaws in the bill, the photo line up, the testimony of two eyewitnesses as to the 

Appellant’s demeanor, actions and conversations with the Appellant. The addition 

of the October offense was purely to inflame the jury and sway the jury and not for 

probative value. 

 The second prong of the Williams test, as established in Albrecht, is not 

satisfied. The evidence was improperly admitted. 

The State’s use of the unpublished opinion, Velu v. State, 2009 WL 471344 

(Waco. Pet. Denied 2009) is factually disguisable and wrong to use in the instant 
 8 

case. Velu confessed that he had passed forged checks; Velu gave conflicting 

statements implicating his guilt. Identity and intent was not at issue an either 

Velu’s trial case nor the extraneous offenses. In the Instant case Appellant gave 

neither statement nor was his identity known till after the completion of the 

offense. The State’s use of Velu to redefine Parks is flawed and the prejudicial 

harm caused to the Appellant outweighs the probative value of the October 

offense. 

CONCLUSION

 The State relies upon the allegation that Appellant was the culprit in both 

cases. In both cases identity and intent are at issue. In the caselaw relied upon by 

the State, identity was not an issue, nor was the actions of those defendants. In the 

instant case, the state glazes over the fact that the discovery of the counterfeit 

$20.00 dollar bill was not discovered till after the appellant left and the bill 

removed from the till. There was ample evidence in the instant case for the State 

to use without the October offense. Under the Williams test, as summarized in 

Parks, the October offense as evidence in guilt innocence was improperly 

admitted. 
 9 

PRAYER

WHEREFORE, should the Honorable Court of Appeals find error in the 

record on appeal, Appellant prays the Court reverse and remand this cause for new 

trial, remand for new trial on punishment or, in the alternative, reverse and render 

with instruction to enter a judgment of acquittal. 

CERTIFICATE OF COMPLIANCE

 I hereby certify pursuant to TRAP 9.4(i) that the preceding document 

contains 2,492 words as determined by the word count of the computer program 

used to prepare this document. 

/s/ Zachary S. Maloney

Zachary S. Maloney 

CERTIFICATE OF SERVICE

 This is to certify that a copy of the foregoing Appellant’s Original Brief has 

been sent to the Galveston County, District Attorney’s Office, Appeal Division, on 

this the 20th day of June, 2015. 

__/S/ Zachary S. Maloney 

ZACHARY MALONEY