ACCEPTED
07-14-00353-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
2/6/2015 9:21:24 AM
Vivian Long, Clerk
THE APPELLANT WAIVES ORAL
ARGUMENT
FILED IN
7th COURT OF APPEALS
NO. 07-14-00353-CR AMARILLO, TEXAS
2/6/2015 9:21:24 AM
VIVIAN LONG
IN THE COURT OF APPEALS CLERK
FOR THE SEVENTH SUPREME JUDICIAL DISTRICT
AT AMARILLO, TEXAS
MICHAEL RAY KENNEDY,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
Appeal in Cause No. 67,789-E
In the 108th District Court
of Potter County, Texas
APPELLANT’S BRIEF
DONALD F. SCHOFIELD
ATTORNEY FOR APPELLANT
112 West 8th Avenue, Suite 530
Amarillo, Texas 79101
State Bar No. 17800500
Telephone No. (806) 373-0030
FAX No. (806) 379-6760
E-Mail: dsatty1@att.net
Office of RANDALL C. SIMS
47th District Attorney
ATTORNEY FOR STATE
501 S. Fillmore, Suite 5A
Amarillo, Texas 79101
NO. 07-14-00353CR
MICHAEL RAY KENNEDY,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
NAMES OF ALL PARTIES
JUDGE PRESIDING: APPELLANT:
HONORABLE DOUGLAS WOODBURN MICHAEL RAY KENNEDY
108th Judicial District Court TDCJ NO. 01968578
Amarillo, Texas 79101 Byrd Unit
21 FM 247
Huntsville, Texas 77320
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLANT
AT TRIAL: ON APPEAL:
DAVID MARTINEZ DONALD F. SCHOFIELD
1663 Broadway Street 112 West 8th Avenue, Suite 530
Lubbock, Texas 79401 Amarillo, Texas 79101
E-Mail: dsatty1@att.net
ATTORNEY FOR STATE AT TRIAL
AND ON APPEAL:
RANDALL C. SIMS
Potter County District Attorney
501 S. Fillmore, Suite 5A
Amarillo, Texas 79101
JASON HORN,
Assistant District Attorney
JOHN (JACK) OWEN,
Assistant District Attorney
i
TABLE OF CONTENTS
NAMES OF ALL PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii-iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
APPELLANT’S BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-20
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issue One
The trial court abused its discretion and thereby deprived
the Appellant of both due process and equal protection of
law when it denied the Defense petition to allow the im-
preachment of two witnesses with evidence of a prior crime
or crimes of moral turpitude as permitted by Rule 609(a),
Tex. Rules of Evidence.
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-8
ISSUE ONE (RESTATED). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-15
CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ii
APPENDICES
APPENDIX A – Section 12.42, Tex. Penal Code. . . . . . . . . . . . . . . . . . . . 18
APPENDIX B – Section 22.02, Tex. Penal Code. . . . . . . . . . . . . . . . . . . . 19
APPENDIX C – Rule 609, Tex. Rules of Evidence. . . . . . . . . . . . . . . . . . 20
iii
INDEX OF AUTHORITIES
Cases Page
Bensaw v. State,
88 S. W. 2d 495 (Tex. Crim. App. 1935). . . . . . . . . . . . . . . . . . . . . 13
Bryant v. State,
997 S. W. 2d 673 (Tex. App. – Texarkana 1999). . . . . . . . . . . . . . 13
Dallas County Bail Bond Bd. v. Mason,
773 S. W. 2d 586 (Tex. App. – Dallas 1989, no writ). . . . . . . . . . 15
Hardeman v. State,.
868 S. W. 2d 404 (Tex. App. – Austin 1993). . . . . . . . . . . . . . . . . 12,13
Lester v. State,
366 S. W. 3d 214 (Tex. App. – Waco 2011). . . . . . . . . . . . . . . . . 14
Schmidt v. State,
373 S. W. 3d 856 (Tex. App. – Amarillo 2012). . . . . . . . . . . . . . . 12,15
Sherman v. State,
62 S. W. 2d 146 (Tex. Crim. App. 1933). . . . . . . . . . . . . . . . . . . . 13
Theus v. State,
845 S. W. 2d 874 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . 12,13,
14
Texas Statutes and Code
Texas Penal Code
Section 22.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 12.42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Texas Rules of Evidence
Rule 609(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,9,11
iv
NO. 07-14-00353-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH SUPREME JUDICIAL DISTRICT
AT AMARILLO, TEXAS
MICHAEL RAY KENNEDY,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
TO THE HONORABLE COURT OF APPEALS:
COMES NOW MICHAEL RAY KENNEDY, Appellant in Cause No.
67,789-E of the 108th Judicial District Court of Potter County, Texas, and submits
this brief in the trial, judgment and sentence of the Appellant, and in support thereof,
would respectfully show as follows:
1
STATEMENT OF THE CASE
On October 30, 2013, the Appellant was indicted for the second-degree felony
offense of “Aggravated Assault with a Deadly Weapon” which case was twice
enhanced by prior felony convictions; therefore, the punishment range for the
offense as indicted and enhanced is 25 years to life/99 years imprisonment and a fine
of up to $10,000. (CR:7; for statue governing the offense see Section 22.02(a)(c),
Tex. Penal Code; for statute governing the punishment range see Sec. 12.42(d), Tex.
Penal Code.) The Appellant was appointed counsel on November 21, 2013 (CR:9)
which attorney was removed by substitution of retained counsel on February 6, 2014
(CR:11-14); then, on March 21, 2014, the Appellant retained another attorney
(CR:18, 22-23) which attorney remained with the Appellant throughout all
proceedings.
A trial on all issues was conducted before a jury on September 2 through
September 3, 2014 (Reporters Records). After hearing all evidence (the Appellant
electing not to testify), and with no objections by either party to the court’s charge
(RR3:8), the panel was instructed as to the law by the trial judge. Then, after
deliberation, a verdict of “guilty” was returned “as charged in the indictment.”
(RR3:52; CR:65) With the Appellant electing to have the jury assess punishment
(CR:74), after the reading of the two enhancement paragraphs and the Appellant’s
2
entry of pleas of “not true” to each, the panel heard evidence on the issues.
(RR3:54-58; Note: The Appellant did not testify during this portion of the
proceeding.) Again, with no objection to the charge, the trial court instructed the
panel as to the law on punishment; the jury then retired to deliberate and
subsequently returned a verdict of “29 years imprisonment” with a finding of “true”
as to each enhancement paragraph. (RR3:59, 75) The trial judge sentenced the
Appellant to the same term of imprisonment as assessed by the jury. (RR3:76; It
should be noted that the court’s Nunc Pro Tunc Judgment reflects a finding of a
“deadly weapon” -- as indicted – CR:78.)
On September 29, 2014, the Appellant filed a Motion for New Trial
(CR:90-91) with an Amended Motion for New Trial filed on October 2, 2014
(CR:92-133); the Amended Motion was denied by the trial court on October 8, 2014
(CR:138). A Notice of Appeal was filed by the Appellant on September 29, 2014,
2014 (CR:87-89) with the trial court certifying to the Appellant’s “right to appeal”
on September 5, 2014 (CR:60).
3
ISSUES PRESENTED
Issue One
The trial court abused its discretion and thereby deprived the Appellant
of both due process and equal protection of law when it denied the Defense
petition to allow the impeachment of two witnesses with evidence of a prior
crime or crimes of moral turpitude as permitted by Rule 609(a), Tex. Rules of
Evidence.
STATEMENT OF FACTS
The State began its presentation of evidence by tendering an eye-witness to
the event who testified that she was in her yard with her husband and grandchildren
when she heard “yelling and arguing”. (RR2:112-113) She witnessed a male get
into a silver pick-up and drive off; the witness also testified that she observed the
male put what looked like a gun to a female’s head and threaten an assault.
(RR2:114) The State introduced the 911 call made by the witness (RR2:117;
RR4:St.Ex.No.1); the witness also testified that she did not want to testify as she was
“afraid” (RR2:121). On cross-examination the witness admitted to a prior theft
conviction (RR2:122) and agreed that she told the 911 operator that she, “did not see
the girl”. (RR2:122). This person also stated that the assailant shot the gun as he
drove off. (RR2:1223, 130) The Appellant was identified as the assailant.
4
(RR2:131)
The next witness to testify for the State was the husband of the previous
witness who stated that he “saw nothing”. (RR(134) This witness testified that
although he never saw a man or woman at the scene; he did, however, hear two
adults arguing. (RR2:137) The State’s next witness was a police officer who
investigated an incident between the Appellant and the alleged victim which witness
stated that the alleged victim appeared “upset, shaken and afraid” and believed that
the victim “had a small cut below the right eye”. (RR2:144) The witness
explained how he went to an address he was told the Appellant would be located but
only found the Appellant’s mother at the site. (RR2:149-150) The witness also
used photographs to point out a motor vehicle identified by the victim as belonging
to her which vehicle was damaged and had what appeared to be a bullet hole in the
headrest. (RR2:147-148, 152-153)
The alleged victim to the assault next testified and admitted to multiple
criminal convictions. (RR2:174-175) This witness testified that she was
dating the Appellant (RR2:176) and broke-up the relationship which upset the
Appellant. (RR2:177) The witness stated that the Appellant drove to the residence
that she and the Appellant occupied ; the Appellant damaged her vehicle and then
“pointed a gun at her and said he was doing to shoot”. (RR2:183-186) The
5
witness admitted that both she and the Appellant were “high” at the time of the
assault. (RR2:189) On cross-examination the witness admitted to other prior
convictions; however, the trial judge disallowed evidence of two prior misdemea-
nor offenses, one including an allegation of “possession of prohibited weapon”.
(RR2:192-200) The witness also testified that she was not injured on the date of the
alleged aggravated assault. (RR2:200-201)
The next witness was another investigating police officer who stated that he
responded to an “assault call” which, when he arrived at the scene of the reported
incident, he found the alleged victim “frantic and scared”. (RR2:206, 208) He
attempted to locate the Appellant and drove to a residence occupied by the
Appellant’s mother; however, the Appellant was not at the scene. (RR2:209-210)
The witness insisted that the place of the alleged aggravated assault could be seen
from the residence of the female eye-witness. (RR2:214, 216, 218) Another
police officer also testified and stated that the victim at first did not desire to talk as
she was “afraid of retaliation”. (RR2:223-224) This same witness also spoke with
the Appellant which interview was received into evidence without objection.
(RR2:226; RR4:St.Ex.No. 19) The witness recollected that the Appellant admitted
to an encounter with the alleged victim and admitted to jumping on the hood of the
victim’s motor vehicle. (RR2:226-227) The Appellant stated he may have
6
“pointed a finger at the victim”; however, he denied having a gun. (RR2:228)
The State then rested its case. (RR2:233)
The Defense began its presentation with the testimony of a female who stated
that she was with the Appellant on the day of the alleged assault and drove with him
to the site where the alleged victim was located. (RR2:234-236) This witness
stated that when she and the Appellant arrived at the scene the alleged victim
approached their truck screaming at the Appellant. (RR2:235-237) The alleged
victim attempted to spit on the witness at which time the witness “lost it” and “went
at her” (RR2:237) The witness testified that the only confrontation between the
Appellant and the alleged victim was the Appellant attempting to keep the witness
and victim apart from each other. (RR2:238) The witness admitted to being on
felony parole at the time of the incident. (RR2:239) She did not observe the
Appellant “pull a gun” on the victim. (RR2:242) The witness denied that the
Appellant told her to lie for him. (RR2:264)
The next witness to testify for the Appellant was the Appellant’s mother who
testified that on the date of the alleged offense the Appellant was working on the
repair of houses for her. (RR2:267) Again, the witness denied that the Appellant
asked her to falsify her testimony. (RR2:281, 284) Four photographs of the scene
of the incident were admitted through the testimony of this witness. (RR3:16-19;
7
RR4:Def.Ex.Nos.13, 14, 15, 16)
The Defense then rested its cases. (RR3:30)
After charging the jury as to the law, the parties gave argument and the panel
retired to deliberate. (RR3:21-51) A verdict of “guilty as charged in the
indictment” was subsequently returned by the jury. (RR3:52)
The trial court immediately began a Punishment Hearing at which two
enhancement paragraphs were read and to which the Appellant entered pleas of “not
true”. (RR3:54-55) The State then introduced without objection ten prior
conviction packets including evidence of the two offenses used to enhance the
indictment. (RR3:56-58; RR4:St.Ex.Nos.24-33) The State then rested its case as
did the Defense. (RR3:58) Then, after charging the jury as to the law, both
parties again argued their positions and the panel retired to deliberate. A verdict of
“true” to each enhancement paragraph was returned as was a judgment of
twenty-nine (29) years imprisonment in the Institutional Division, Texas
Department of Criminal Justice. (RR3:75)
8
ISSUE ONE (RESTATED)
Issue One
The trial court abused its discretion and thereby deprived the Appellant
of both due process and equal protection of law when it denied the Defense
petition to allow the impeachment of two witnesses with evidence of a prior
crime or crimes of moral turpitude as permitted by Rule 609(a), Tex. Rules of
Evidence.
SUMMARY OF THE ARGUMENT
The trial court improperly excluded from evidence prior misdemeanor
convictions of two material witnesses although the convictions met the criteria for
admission as set-out by Rule 609(a), Tex. Rules of Evidence.
ARGUMENT AND AUTHORITIES
At a pre-trial hearing the trial judge heard from both the State and the
Defense on the issue of prior convictions relative to anticipated witnesses.
Relevant to the Appellant’s Point of Error, the State pointed out that an eye-witness
to the alleged offense, “has been previously arrested in the past several times for
Misdemeanor Class B theft by check; however, none of those were theft
convictions. All of those were actually reduced down to Class C, Issuance of a
Bad Check. . . .” (RR2:10)
9
The State objected to the use of the convictions as “not (being) a crime of moral
turpitude, and, therefore, would not be admissible” (RR2:10); the Defense argued
that, “I think issues of bad checks are crimes of moral turpitude. . . (RR2:11).” The
trial court agreed with the State and ruled that, “I’m not going to let them in. . .
(RR2:11; For copies of the three charging instruments and judgments disallowed by
the trial court see Appellant’s “Motion for New Trial”, CR:92-133 with attached
sworn affidavit of the trial attorney and exhibit nos. B, C, and D, respectively ).”
Then, during trial and on cross-examination of the alleged victim to the
assault the following exchange took place:
Q (by Defense attorney). Did you also get convicted of
carrying a prohibited weapon in - -
MR. HORN (State’s Attorney): Objection, Your Honor.
may we approach?
THE COURT: Sure.
MR. MARTINEZ (Defense Attorney): Judge, this girl
has two - - this young lady has two more - -
THE COURT: Well, we talked about this before this
ever started and you said those are the only ones that you had.
MR. MARTINEZ: Right. And I found out she has
two more; possession of prohibited weapon and substance
- - prohibited weapon convictions in misdemeanor court
and County Court at Law.
THE COURT: Okay. I’m not going to allow it.
You’ve already said what you said. I’ll instruct the Jury
10
to disregard.
(Open court)
THE COURT: Ladies and Gentlemen, you’re
instructed to disregard that last question.
(RR2:200; For a copy of the charging instrument and judgment addressed by the
trial court see Appellant’s “Amended Motion for New Trial”, CR:92-133 with
attached sworn affidavit by the trial attorney and attached exhibit no. E).
The Appellant asserts that the trial judge abused his discretion in both
instances when he sustained the State’s objection to the use of the prior convictions
(i.e., three “theft by check” convictions” of a material witness; and, the conviction
of “theft of property”, count II of a judgment against the alleged victim to the
assault) and thereby deprived the Appellant of both due process and equal
protection of law. Therefore, the Appellant’s conviction and sentence should be
overturned and the case remanded to the lower court for a new hearing.
* * *
Rule 609(a), Tex. Rules of Evidence, reads, in part, as follows:
Rule 609. Impeachment by Evidence of Conviction of
Crime
(a) General Rule. For the purpose of attacking the credibility
of a witness, evidence that the witness has been convicted of a
crime shall be admitted if elicited from the witness or established
by public record but only if the crime was a felony or involved
moral turpitude, regardless of punishment, and the court deter-
11
mines that the probative value of the conviction supported by
specific facts and circumstances substantially outweighs its
prejudicial effect.
(b) Time Limit. Evidence of a conviction under this rule
is not admissible if a period of more than ten years has elapsed
since the date of the conviction or of the release of the witness
from the confinement imposed for that conviction, whichever is
the later date, unless the court determines, in the interest
of justice, that the probative value of the conviction sup-
ported by specific facts and circumstances substantially
outweighs its prejudicial effect.
Of course, critical to the application of the above statute is an understanding
of what constitutes a “crime of moral turpitude”. In this regard, “ ‘Moral
turpitude’ has been defined as ‘the quality of a crime involving grave infringement
of the moral sentiment of the community as distinguished from statutory mala
prohibita’.” Hardeman v. State, 868 S. W. 2d 404, 405 (Tex. App. – Austin
1993). Further refining this definition the Court of Criminal Appeals wrote, “The
impeachment value of crimes that involve deception is higher than crimes that
involve violence, as the latter have a higher potential for prejudice. Therefore,
when a party seeks to impeach a witness with evidence of a crime that relates more
to deception than not, the first factor weighs in favor of admission.” Theus v.
State, 845 S. W. 2d 874, 881 (Tex. Crim. App. 1992); see also this Court’s
discussion of the application of the Theus criteria at Schmidt v. State, 373 S. W. 3d
856, 862-863 (Tex. App. – Amarillo 2012). And “theft” has been held to be a
12
crime of moral turpitude. See Hardeman, ibid., citing Bensaw v. State, 88 S. W.
2d 495 (Tex. Crim. App. 1935); and, Bryant v. State, 997 S. W. 2d 673 Z(Tex. App.
– Texarkana 1999), citing Sherman v. State, 62 S. W. 2d 146, 150 (Tex. Crim. App.
1933). Considering the latter, what is the consequence to this Appellant.
Addressing first the alleged victim to the aggravated assault (i.e., the trial
court’s refusal to allow the questioning of the witness with a prior conviction for a
misdemeanor “theft of property” – see outline above and RR2:200, and, “Judgment
(count II)” at “Motion for New Trial”, pp. 116-118, CR:92-133, exhibit no.E),
clearly “count II” of the Judgment is a conviction for “theft of property”; therefore,
it is a “crime of moral turpitude” as defined by the Courts, above. Furthermore, the
conviction is within the ten-year prohibition outlined by the statute. Then,
applying the balance of the five-prong Theus test to the admission of the this
offense--in particular “no. 5 the importance of the credibility issue”--Theus 845 S.
W. 2d at 880--the impeachment is directed at the critical witness of the State’s case:
the alleged victim. If, as written in Theus, ibid. at 881, “As the importance of the
defendant’s credibility escalates, so will the need to allow the State an opportunity
to impeach the defendant’s credibility”, then why should this standard not also
apply to State’s witnesses, in particular to the alleged victim of an assaultive
13
Crime. To allow only the State to impeach would manifest lack of due process and
equal protection of law. Furthermore, there appears to be no reason for the trial
court to have denied the Defense its opportunity to impeach the witness with this
crime of theft other than that stated: “ we talked about this before this ever
started and you said those are the only ones (three other, prior convictions) that you
had.” (RR2:200) Considering the importance of the witness and that the
impeachable offense is “theft,” the Appellant urges that the trial court’s ruling is
outside “a zone of reasonable disagreement” and unsustainable. See discussion of
review issue at Theus, 845 S. W. 2d at 881.
As pertains to the State’s eye-witness to the alleged indicted offense, as
stated in the record by the State’s attorney, there is no State case known to the
Appellant that specifically classifies “issuance of a bad check” as a “crime of moral
turpitude.” (Note: Trial Defense counsel argued that the three contested offenses
alleged “intent to deprive” another of property; however, the each judgment waived
the count alleging this element and convicted the witness for the offense of
“issuance of a bad check,” only. See “Amended Motion for New Trial”,
CR:92-133, exhibit nos. B, C, and D.) However, if, “Offenses involving
‘dishonesty or false statement’ are crimes involving moral turpitude” as
acknowledged by the Court in Lester v. State, 366 S. W. 3d 214, 215 (Tex. App. –
14
Waco 2011) citing Dallas County Bail Bond Bd. V. Mason, 773 S. W. 2d 586, 589
(Tex. App. – Dallas 1989, no writ), do not dishonored checks fall within this
definition? Has not the person who issued the instrument acted “dishonestly” and
with “false intent”? Further, although one of the three convictions is outside the
10-year rule (i.e., the Judgment entered April 20, 2004, Exhibit No. E to
Appellant’s “Amended Motion for New Trial”), do not, “… intervening
subsequent convictions (attributable to this witness – i.e., other “bad check”
convictions) remove the taint of remoteness”. See Schmidt, 373 S. W. 3d at 863)?
The Appellant would answer in the affirmative.
The Appellant argues that for the above outlined reasons the trial court
abused its discretion when it failed to allow counsel to impeach two material State
witnesses with crimes of moral turpitude as understood by Rule 609(a), Tex. Rules
of Evidence. Therefore, the Appellant’s conviction should be reversed and a new
trial granted to the Appellant in all matters.
CONCLUSION and PRAYER
WHEREFORE, PREMISES CONSIDERED, the Appellant prays that this
Honorable Court find that the Trial Court erred as aforesaid argued by the Appellant
and that his conviction and sentence be vacated and that a judgment of acquittal be
15
entered, or, in the alternative, that this cause be remanded to the Trial Court for a
new hearing.
Respectfully submitted,
/s/ Donald F. Schofield
DONALD F. SCHOFIELD
SBN: 17800500
112 West 8th, Suite 530
Amarillo, Texas 79101
Telephone: (806) 373-0030
FAX: (806) 379-6760
E-Mail: dsatty1@att.net
ATTORNEY FOR APPELLANT
16
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing Brief was both E-Mailed and
hand-delivered to:
OFFICE OF RANDALL C. SIMS,
47th District Attorney, Potter County
Attn: JOHN (JACK) OWEN,
Asst. District Attorney
501 S. Fillmore, Suite 5A
Amarillo, Texas 79101
and mailed by Certified Mail to:
MICHAEL RAY KENNEDY
TDCJ No. 01968578
Byrd Unit
21 FM 247
Huntsville, Texas 77320
Certified Mail No. 7014 1820 0001 1872 1779
on this 6th day of February , 2015.
/s/ Donald F. Schofield
DONALD F. SCHOFIELD
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4, Tex. Rules of Appellant Procedure, I, DONALD F.
SCHOFIELD, Attorney to the Appellant, Michael Ray Kennedy, do hereby certify
that the Appellant’s Brief is a computer generated document that contains the
following number of words: 3,091 words.
/s/ Donald F. Schofield
DONALD F. SCHOFIELD
17
APPENDIX A
18
PUNISHME~TS l'!JNISHMENTS
§ 12.35 Title 3 THk 3
Note 9
asked if he understood that trial court had essarily use or exhibit a deadly weapon with- a felony described by Su:
found enhancement allegations true. Sea- in the scope of the deadly weapon , 273.1(4) (App. 3 Dist. 2012) 368 S.W.3d 785, petition (i) under Section 4a.2;
12. Punishment for discretionary review granted, affirmed 43.23, Penal Code, punisl
Person who commits criminally negligent 411 S.W.3d 498. Sentencing and Punishment
(ii) under Section 20A
homicide through an omission would not nee- '2:=o 80
Penal Code;
(iii) under Section 20.(
SUBCHAPTER D. EXCEPTIONAL SENTENCES
offense \¥ith the intent tc
§ 12.41. Classification of Offenses Outside this Code (iv) under Section 30.r
that section, if the defem
Research References a felony described by Su
Charlton, 6 Tex. Prac. Series App. A, Pe- (v) under the laws of
ALR Library
nal Code. tially similar to the elem
14 ALR 4th 227, Adequacy of Defense or (iv).
Counsel's Representation of Criminal 50 Tex. Prac. Series § 1:11, Enhanced Of-
fenses and Penalties for Dwi Con\·ic- (3) Notwithstanding Sub di
Client Regarding Prior Convictions.
tions. capital felony if it is show:r
Encyclopedias 50 Tex. Prac. Series § 15:5, Evidence to otherwise punishable under ~
TX Juris, 3rd Criminal Law: Offenses Enhance Punishment. previously been finally convic.
Against Public Health, Safety and Mor- DLx and Dawson, ,13A Tex. Prar. Series (A) an offense under S
als § 130, Enhancement for Prior Con- § 116:79, Enhancement Under the Con- described bv Section 22.02
viction, Generally. trolled Substances Act. by Section Z2.02l(f)(2) and
Treatises and Practice Aids Dix and Dawson, 43A Tex. Prac. Series (B) an offense that was (
Charlton, 6 Tex. Prac. Series § 8.2, Excep- § 46:95, Convictions for Offenses Out-
(i) contains elements
tional Sentences. side the Penal Code.
offense under Section 22
(ii) was committed ag1
§ 12.42. Penalties for Repeat and Habitual Felony Offenders on Trial committed against a vict
for First, Second, or Third Degree Felony substantially similar to a
(a) Except as provided by Subsection (c)(2), if it is shown on the trial of a felony (4) Notwithstanding Subdi
of the third degree that the defendant has previously been finally convicted of a sion (3) for the trial of an
felony other than a state jail felony punishable under Section l2,35(a), on conviction subdivision, a defendant shal
the defendant shall be punished for a felony of the second degree. ment of Criminal Justice for
(b) Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a offense under Section 20A.o:
felony of the second degree that the defendant has previously been finally convicted defendant on or after the
of a felony other than a state jail felony punishable under Section 12.35(a), on previously been finally convic
conviction the defendant ,;;hall be punished for a felony of the first degree. (A) an offense under Se1
(c)(l) If it is shovvn on the trial of a felony of the first degree that the defendant (B) an offense that was
has previously been finally convicted of a felony other than a state jail felony contains elements that an
punishable under Section 12.35(a), on conviction the defendant shall be punished by under Section 20A.03 or of
imprisonment in the Texas Department of Criminal ,Justice for life, or for any terrn (5) A previous conviction
of not more than 99 years or less than 15 years. In addition to imprisonment, an 12.35(a) may not be used
individual may be punished by a fine not to exceed $10,000, (d) Except as provided by St
(2) Notwithstanding Subdivision (1), a defendant shall be punished by imprison- felony offense other than a sta
ment in the Texas Department of Criminal Justice for life if: t.he defendant has previously t
(A) the defendant is convicted of an offense: second previous felony convicti
(i) under Section 20A.02(a)(7) or (8), 21.ll(a)(l), 22.021, or 22.011, Penal first previous conviction havirn
Code; rnmished by imp1isonment in t
(ii) under Section 20.04(a)(4), Penal Code, if the defendant committed the l'ur anv term of not more than '
offense with the intent to violate or abuse the victim sexually; or for a· state jail felony punisl:
(iii) under Section 30.02, Penal Code, punishable under Subsection (d) of finhancement purposes under t:
that section, if the defendant committed the offense >vith the intent to commit (1') Repealed by Acts 2011, 8
40
PUNISHMENTS l'L'NISHMENTS
Title 3 Tille ;3
exhibit a deadly weapon ~ith a felony described by Subparagraph (i) or (ii) or a felony under Section 21.11,
the deadly V.'eapon sentencing Penal Code; and
rovision. Chambless v. State (B) the defendant has been previously convicted of an offense:
012) 368 S.W.3d 785, petition (i) under Section 43.25 or 43.26, Penal Code, or an offense under Section
ry review granted, affirmed 43.2:3, Penal Code, punishable under Subsection (h) of that section;
. Sentencing and Punishment
(ii) under Section 20A.02(a)(7) or (8), 21.02, 21.11, 22.011, 22.021, or 25.02,
Penal Code;
\fTENCES (iii) under Section 20.04(a)(4), Penal Code, if the defendant committed the
offense vvith the intent to violate or abuse the victim sexually;
Code (iv) under Section 30.02, Penal Code, punishable under Subsection (d) of
that section, if the defendant committed the offense with the intent to commit
a felony described by Subparagraph (ii) or (iii); or
Tex. Prac. Series App. A, Pe- (v) under the laws of another state containing elements that are substan-
tially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii),
:. Series § 1:11, Enhanced Of- or (iv).
d Penalties for D"'i Comic- (3) N ohvithstanding Subdivision (1) or (2), a defendant shall be punished for a
capital felony if it is shown on the trial of an offense under Section 22.021
ic. Series § 15:5, Evidence to otherwise punishable under Subsection CD of that section that the defendant has
Punishment. previously been finally convicted of:
lWson, 43A Tex. Prac. Series (A) an offense under Section 22.021 that was committed against a victim
!Jnhancement Under the Con- described by Section 22,021(f)(l) or was committed against a victim described
bstances Act. by Section 22.021(f)(2) and in a manner described by Section 22.021(a)(2)(A); or
nvson, 43A Tex. Prac. Series (B) an offense that was committed under the laws of another state that:
Convictions for Offenses Out-
(i) contains elements that are substantially similar to the elements of an
'enal Code.
offense under Section 22.021; and
(ii) was committed against a victim described by Section 22.021(f)(l) or was
lony Offenders on Trial committed against a victim described by Section 22.021(f)(2) and in a manner
~lony
substantially similar to a manner described by Section 22.021(a)(2)(A).
10wn on the trial of a felony (4) Notwithstanding Subdivision (1) or (2), and except as provided by Subdivi-
been finally convicted of a sion (3) for the trial of an offense under Section 22.021 as described by that
3ction 12.35(a), on conviction subdivision, a defendant shall be punished by imprisonment in the Texas Depart-
td degree. ment of Criminal Justice for life vvithout parole if it is shown on the trial of an
f it is sho"'11 on the trial of a offense under Section 20A.03 or of a sexually violent offense, committed by the
iously been finally convicted defendant on or after the defendant's 18th birthday, that the defendant has
under Section 12.:35(a), on previously been finally convicted of:
1f the first degree. (A) an offense under Section 20A.03 or of a sexually violent offense; or
st degree that the defendant CB) an offense that was committed under the laws of another state and that
ier than a state jail felony contains elements that are substantially similar to the elements of an offense
fendant shall be punished by under Section 20A.03 or of a sexually violent offense.
3tice for life, or for any term (5) A previous conviction for a state jail felony punishable under Section
1ddition to imprisonment, an 12.35(a) may not be used for enhancement purposes under Subdivision (2).
)00.
(d) Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial of a
rnll be punished by imprison- felony offense other than a state jail felony punishable under Section 12.35(a) that
r life if: the defendant has previously been finally convicted of two felony offenses, and the
second pre\ious felony conviction is for an offense that occurred subsequent to the
J(l), 22.021, or 22.011, Penal first previous conviction having become final, on conviction the defendant shall be
punished by imprisonment in the Texas Department of Criminal Justice for life, or
the defendant committed the for any term of not more than 99 years or less than 25 years. A previous conviction
~timsexually; or for a state jail felony punishable under Section 12.35(a) may not be used for
able under Subsection (d) of 1mhancement purposes under this subsection.
nse with the intent to commit (e) Repealed by Acts 2011, 82nd Leg., ch. 834 (H.B. 3384), § 6.
41
§ 12.42 PUNISHMENTS PUNISHMENTS
Title 3 Title 3
(f) For the purposes of Subsections (a), (b), and (c)(l), an adjudication by a an offense was C'Ommitted before the
juvenile court under Section 54.03, Family Code, that a child engaged in delinquent tive date of thi:; Act if any element
conduct on or after January 1, 1996, constituting a felony offense for which the child offense occurred before that date."
is committed to the Texas Juvenile Justice Department under Section 54.04(d)(2), Acts 2011. 82nd Leg., ch. 834 (H.B
(d)(3), or (m), Family Code, or Section 54.05(f), Family Code, or to a post- in the second heading added "on Tr
adjudication secure correctional facility under Section 54.04011, Family Code, is a First, Second, or Third Degree Felo
final felony conviction. the end; rewrote subsecs. (a) and (i
(c)(l); added subsec. (c)(5); and in t
(g) For the purposes of Subsection (c)(2): (cl) in the first sentence substituted "t
(1) a defendant has been previously convicted of an offense listed under fendant" for "he''. and added the secor
Subsection (c)(2)(E) if the defendant was adjudged guilty of the offense or entered tence; and repealed subsec. (e). Prior
a plea of guilty or nolo contendere in return for a grant of deferred adjudication, to, subsecs. (a), (b), (c)(ll and (e) read:
regardless of whether the sentence for the offense was ever imposed or whether "(a)(l) If it is sho'W11 on the trial of;
the sentence was probated and the defendant was subsequently discharged from jail felony punishable under Seetion 1
community supervision; and that the defendant has pre;-iously beer
ly convicted of two state jail feloni1
(2) a conviction under the laws of another state for an offense containing conviction the defendant shall be pu
elements that are substantially similar to the elements of an offense listed under for a third-degree felony.
Subsection (c)(2)(B) is a conviction of an offense listed under Subsection (c)(2)(B). "(2) lf it is shown on the trial of a st:
(h) In this section, "sexually violent offense" means an offense: felony punishable under Section 12.35(:
(1) described by Article 62.001(6), Code of Criminal Procedure; and the defendant has previously b('en
convicted of two felonies, and the 1
(2) for which an affirmative finding has been entered under Article 42. 015(b) or previous felony conviction is for an o
Section 5(e)(2), Article 42.12, Code of Criminal Procedure, for an offense other that occurred subsequent t<1 the first
than an offense under Section 21.02 or 22.021. ous conviction having become final, on c
Acts 1973, fi3rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., tion the defendant shall be punished
p. 1750, ch. 339, § 1, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 582, § 1, eff. Sept. 1, 1985; second-degree felony.
Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 250, § 1, eff. "(3) Except as provided by Subs
Sept. 1, 1995; Acts 1995, 74th Leg., ch. 262, § 78, eff. Jan. 1, 1996; Acts 1995, 74th Leg., ch. (c)(2), if it is shovm on the trial of a sta
318, § 1, eff. Jan. 1, 1996; Acts 1997, 75th Leg., ch. 665, §§ 1, 2, eff. Sept. 1, 1997; Acts 1997, felony punishable under Section 12.85
75th Leg., ch. 667, § 4, eff. Sept. I, 1997; Acts 1999, 76th Leg., ch. 62, § 15.01, eff. Sept. 1, on the trial of a third-dl:!gree felony th
1999; Acts 2003, 78th Leg., ch. 283, § 53, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1005, defendant has been once before convic
§ 2, eff. Sept. 1, 2003; Acts 2007, 80th Leg., ch. 340, §§ 1 to 4, eff. Sept. 1, 2007; Acts 2007, a felony, on conviction he shall be pur
80th Leg., ch. 593, §§ 1.H to 1.16, eff. Sept. 1, 2007; Acts 2009, 8lst Leg., ch. 87, § 25.150, for a second-degree felony.
eff. Sept. 1, 2009; Acts 2011, 82nd Leg., ch. 1 (S.B. 24), § 6.02, eff. Sept. l, 2011; Acts 2011, "Cb) Except as provided by Sub&
82nd Leg., ch. 122 (H.B. 3000), § 14, eff. Sept. 1, 2011; Acts 2011, 82nd Leg., ch. 834, (H.B. (c)(2). if it is shown on the trial of a se
3384), §§ 1 to 4, 6, eff. Sept. 1, 2011; Acts 2011, 82nd Leg., ch. 1119 (H.B. 3), §§ 3, 4, eff. degree felony that the defendant has
Sept. 1, 2011; Acts 2013, &3rd Leg., ch. 161 (S.B. 1093), § 16.003, eff. Sept. 1, 2013; Acts 2013, once before convicted of a felonv. on c<
83rd Leg., ch. 668 (H.B. 1302), §§ 7 to 9, eff. Sept. 1, 2013; Acts 2013, 83rd Leg., ch. 1323 tion he shall be punished for a· flrst-d
(S.B. 511), § 11, eff. Dec. 1, 2013. felony.
"(c)(l) If it is shown on the trial of a
Historical and Statutory Notes degTee felony that the defendant has
2011 Legislation date of this Act if any element of the offense once before convicted of a felony, on er
Acts 2011, 82nd Leg., ch. 1 (S.B. 24) in occun·ed before that date." tion he shall be punished by imprisonmE
subsec. (c)(2)(A)(i) and (B)(ii), inserted Acts 2011, 82nd Leg., ch. 122 (H.B. 3000) the Texas Department of Criminal Ji
"20A.02(a)(7) or (8),". in subsecs. (c)(4)(intro.), (A) and (B) inserted for life, or for any term of not more th;
Section 7.01 of Acts 2011, 82nd Leg., ch. 1 "20A.03 or". years or less than 15 years. In additi1
(S.B. 24) provides: Section 15 of Acts 2011, 82nd Leg., ch. 122 imprisonment, an individual may be pun
"The change in law made by this Act ap- (H.B. 3000) pro;-ides: by a fine not to exceed $10,000."
plies only to an offense committed on or after "The change in law made by this Act ap- "(e) A previous conviction for a stat
the effective date [Sept. 1, 2011] of this Act. plies only to an offense committed on or after felony punished under Section 12.85(a)
An offense committed before the effective the effective date [Sept. 1, 2011] of this Act. not be used for enhancement purposes i
date of this Act is governed by the law in An offense committed before the effective ;-iuhs1~dion (b), (c), or (d)."
effect on the date the offense was committed, date of this Act is governed by the law in ,'\('(.:; 2011, 82nd Leg., ch. 1119 (H.B.
and the former law is continued in effect for effect on the datB the offense was committed, .11ka·1-. (b) and (d), inserted "or (c)(4)";
that purpose. For purposes of this section, an and the former law is continued in effect for 111 ::11lna'('. (c)(4), inserted "or 22.021" I
offense was committed before the effective that purpose. For purposes of this section, f fftH'''
42
APPENDIXB
19
§ 22.011 OFFENSES AGAINST THE PER!"C 1:\i AS
Note 90 Tilk " Ch.
2003) 2003 WL 21018335, Unreported. assistance of counsel; venire person st;11<, I
Criminal Law e:> 194 7 unequivocally that he could follow tlll' I,, ..
despite his personal prejudices, and, ;,
Defense counsel's failure to challenge anv event, silent nature of record ;1·. I··
for cause venire person who announced, whv defense counsel decided not to st 1 ii ·
in voir dire examination, his personal bias ve~ire person precluded finding of indl1.
against homosexuality, at trial in which tive assistance. Almendarez v. State (1\1 •1 ·
defendant, a male, stood accused of sexual 13 Dist. 2003) 2003 WL 1387208, 11111.
assault of a male child, was not ineffective ported. Criminal Law ~ 190 I
§ 22.012. Deleted by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sl'Jll
1, 1994
Historical and Statutory Notes
The deleted section, relating to inten- Leg .. ch. 1195, § 14 and Acts 1991, 7:1 .. 1
tionally exposing other persons to AIDS or Leg., ch. 14, § 284(10).
HIV, was derived from Acts 1989, 71st
§ 22.015. Repealed by Acts 2009, 81st Leg., ch. 435, § 3, eff. Sept. I,
2009
Historical and Statutory Notes
The repealed§ 22.015, relating to coerc- ship. was derived from Acts 1999, 'll•I!•
ing, soliciting, or inducing gang member- Leg., ch. 708, § I.
111 I~
§ 22.02. Aggravated Assault
ilOI
(a) A person commits an offense if the person commits assault .1
defined in§ 22.01 and the p~rson: Act
l'l/
(l) causes serious bodily injury to another, including the per.suit I '12
spouse; or di.
(2) uses or exhibits a deadly weapon during the commission of 111 1 ;\, ·t
assault. '·"·
l !)8
(b) An offense under this section is a felony of the second degn' (~n
except that the offense is a felony of the first degree if: di
( 1) the actor uses a deadly weapon during the commission of 11,. !OU
assault and causes serious bodily injury to a person whose relati<11•
ship to or association with the defendant is described by Secti• 111
71.0021(b), 71.003, or 71.005, Family Code; 1\1
(2) regardless of whether the offense is committed under Sub~(• <.1 )(
tion (a)(l) or (a)(2), the offense is committed: /\1
i ·' )(;
(A) by a public servant acting under color of the servant's ollr. , ,,ffit
or employment; '.1
was a felony or involved moral turpitude, regardless of punishment, and 11,,
court determines that the probative value of admitting this evidence outwci1•l1
its prejudicial effect to a party.
(b) Time Limit. Evidence of a conviction under this rule is not admissi I.J,
if a period of more than ten years has elapsed since the date of the convict i"1'
or of the release of the witness from the confinement imposed for t li,;1
conviction, whichever is the later date, unless the court determines, in tl1.
interests of justice, that the probative value of the conviction supported I"
specific facts and circumstances substantially outv..reighs its prejudicial effu 1
(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. J·:\ 1
dence of a conviction is not admissible under this rule if:
(1) based on the finding of the rehabilitation of the person convicted, t Ii.
conviction has been the subject of a pardon, annulment, certificate of rehabil1
tation, or other equivalent procedure, and that person has not been convicted ,.1
a subsequent crime which was classified as a felony or involved moral turp1
tude, regardless of punishment;
(2) probation has been satisfactorily completed for the crime for v,chich I iH
person was convicted, and that person has not been convicted of a subseque111
crime which was classified as a felony or involved moral turpitude, regardk"'"
of punishment; or
(3) based on a finding of innocence, the conviction has been the subject ()I
a pardon, annulment, or other equivalent procedure.
(d) Juvenile Adjudications. Evidence of juvenile adjudications is not ad
missible, except for proceedings conducted pursuant to Title III, Family Cock.
in which the witness is a party, under this rule unless required to be admittc·d
by the Constitution of the United States or Texas.
(e) Pcndency of Appeal. Pendency of an appeal renders evidence of Cl
lo contest the use of sue h evidence.
111!1
hi (II,
~)l_l,');
Effective March 1, I 998.
Cross References
Character of witness admissible to prove conduct, see Rules of Evid., Rule 404.
Delinquency adjudications,
Admissible if based upon felony violations. see Vernon's Ann. C.C.P. art.
tr!(':,:,, 37.07.
Penalty phase of trial, admissibility notwithstanding this rule, see Ver-
ltcd it non's Ann. C.C.P. art. 37.07.
Crl Ill< Pre\·ious sexual conduct of sexual assault victim, admissible under this rule. see
id 1111 Rules of Evid., Rule 412.
Law Review and Journal Commentaries
Admissibili!Y of Criminal Convictions in Civil en and Gary A. Udashen, 47 SMTJ L.Rev. 995
issibl( ( 'ases. Quentin Brogdon, 61 Tex. B.J. 1112 (1994)
t I 998).
ict io11
Annual survey of Texas law; Criminal proce- Crnss-examination under Texas rules of evi-
ll 1;11 dure: Pretrial, trial and appeal. Robert Udash- dence. 2 I Houston Lawyer 32 (:Vlarch 1984).
n t IH'
ed I)\ Library References
dlccl Witnesses ('?337(5), 345, 350, 359. Te:x.Prac., Texas Rules of Evidence;
Westlaw Topic No. 410. Civil and Criminal, § 609.1 et
bt C.J.S. Witnesses §§ 503, 507. 514, se4.
528.
d, th,· United States Supreme Court
1abili Prior criminal conviction, prncmptive test. see Green v. Bock Laundry
·tee.I ol introduclion of evidence, chal- Mach. Co., U.S.Pa.1989, 109
lenge of admission of evidence S.Ct. 1981. 490 U.S. 504. 104
turpi on appeal, see Ohler v. U.S., L.Ed.2d 557.
2000, 120 S.Ct. 1851.
Prior felony convictions, impeachment
:h the of civil witnesses, balancing
·quc11t
rdlcs« Notes of Decisions
In general Prejudice 21
Completion of probation 22 Presumptions and burden of proof 32
ect ol Controlled substance convictions, time limit 7 Probative value 15
Conviction 11 Purpose of rule 2
Correcting false impression 25 Relevance 16
Defendant as witness 28 Review 33
OLad Deferred adjudication J 4 Sentencing, time limit 9
Cock. Discretion of court 31 Similaritv 17
nitted
DWI 29 Subsequ~nt convictions, time limit 6
Factors to balance 12 Time limit 3-9
Indictments 13 In general 3
Intoxication 30 Controlled substance convictions 7
of n Juvenile adjudications 20 Moral turpitude 4
Moral turpitude. generally 10 Sentencing 9
Moral turpitude, time limit 4 Subsequent convictions 6
timelv Necessitv 18 Waiver 8
Notice '23 Youthfulness of witness when convicted 5
:s, thl· Open door 26 Unadjudicated offenses 19
'.ice ol Pen packet 27 Variance 24
461