ACCEPTED
01-15-00043-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/27/2015 3:16:31 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00043-CR
FILED IN
IN THE COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
4/27/2015 3:16:31 PM
FOR THE CHRISTOPHER A. PRINE
Clerk
FIRST DISTRICT OF TEXAS
HOUSTON, TEXAS
DEJESUS FOBBS, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
BRIEF FOR THE APPELLANT
TRIAL COURT CAUSE NUMBER 22960
IN THE 356TH DISTRICT COURT OF
HARDIN COUNTY, TEXAS
SEARS & BENNETT, LLP
JOEL H. BENNETT
STATE BAR NO. 00787069
1100 NASA PARKWAY, SUITE 302
HOUSTON, TEXAS 77058
(281) 389-2118
FAX (866) 817-5155
joel@searsandbennett.com
Attorneys for DEJESUS FOBBS
ORAL ARGUMENT WAIVED
LIST OF PARTIES
Presiding Judge Honorable Steven Thomas
Appellant Dejesus Fobbs
Appellee The State of Texas
Attorney for Appellant Ms. Stella Morrison
(Trial only) 4231 Lakeshore Drive
Port Arthur, Texas 77642
Mr. Bryan Laine
1045 Redwood
Kountze, Texas 77625
Attorney for Appellant Mr. Joel H. Bennett
(Appeal only) Sears & Bennett, LLP
1100 Nasa Parkway, Ste 302
Houston, Texas 77058
Attorney for Appellee Mr. David Sheffield
(Trial and Appeal) Mr. Bruce Hoffer
Ms. Kendra Walters
Hardin County District
Attorney’s Office
P. O. Box 1409
Kountze, Texas 77625
Attorney for Appellee Ms. Sue Korioth
(Appeal only) P.O. Box 600103
Dallas, Texas 75630
CITATION TO THE RECORD
Clerk’s Record ...................... C.R. (volume and page)
Reporter’s R......................... R.R. (volume and page)
ii
TABLE OF CONTENTS
PAGE
List of Parties .................................. ii
Table of Contents ............................... iii
List of Authorities ........................... v
Statement of the Case ......................... 9
Appellant’s First Issue ........................ 10
THE TRIAL COURT ERRED IN FAILING TO INCLUDE
AN APPLICATION PARAGRAPH FOR THE TEX. CODE
CRIM. PROC. § 38.23 INSTRUCTION. APPELLANT
DID NOT OBJECTION TO THE ABSENCE OF THIS
INSTRUCTION AND THEREFORE MUST SHOW
EGREGIOUS HARM.
Statement of Facts ............................. 10
Summary of Argument ............................ 15
Argument and Authorities ....................... 15
Appellant’s Second Issue ........................ 27
THE TRIAL COURT COMMITTED REVERSABLE ERROR
BY ADMITTING EXTRANEOUS OFFENSE EVIDENCE AS
CONTEXTUAL EVIDENCE. THE ADMISSION OF A
FIREARM WAS NOT NECESSARY CONTEXTUAL
EVIDENCE AND UNFAIRLY PREJUDICED
APPELLANT’S TRIAL.
Statement of Facts ............................. 27
Summary of Argument ............................ 27
iii
Argument and Authorities ....................... 28
Appellant’s Third Issue ........................ 35
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
BY ADMITTING A NONCERTIFIED COPY OF A
JUDGMENT DURING THE PUNISHMENT PHASE OF THE
TRIAL. THE JUDGMENT WAS NOT PROPERLY
AUTHENTICATED.
Statement of Facts ............................. 35
Summary of Argument ............................ 37
Argument and Authorities ....................... 37
Appellant’s Fourth Issue ....................... 35
THE EVIDENCE IS LEGALLY INSUFFICIENT TO
PROVE THE FIRST ENHANCEMENT PARAGRAPH WAS A
VALID PRIOR CONVICTION FOR THE USE OF AN
ENHANCEMENT. THE JUDGMENT STATES ON ITS
FACE THAT IT COULD BE A STATE JAIL
CONVICTION AND THEREFORE IT COULD NOT BE
USED TO ENHANCE A NON-SATE JAIL FELONY
OFFENSE.
Statement of Facts ............................. 35
Summary of Argument ............................ 37
Argument and Authorities ....................... 37
Conclusion and Prayer .......................... 43
Certificate of Service ......................... 43
iv
LIST OF AUTHORITIES
CASES
Allen v. State, 253 S.W.3d 260 (Tex. Crim. App. 2008) 18
Allen v. State, 253 S.W.3d at 264 (footnotes omitted) 18
Avila v. State, 18 S.W.3d 736, 741–42 (Tex. App.-San
Antonio 2000, no pet.) ..............................38
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.
2010) ...............................................45
Brooks v. State, 323 s.w.3d 893, 912 (Tex. Crim. App.
2010) ...............................................44
Brooks, 323 S.W.3d at 899 ............................45
Carlock v. State, 99 S.W.3d 288, 294-95 (Tex. App.—
Texarkana 2003) .................................36, 38
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007) (citing Hooper v. State, 214 S.W.3d 9, 16-17
(Tex. Crim. App. 2007)) .............................45
Garcia v. State, 367 S.W.3d 683, 686-687 (Tex. Crim.
App. 2012) ..........................................44
Garrett v. State, 875 S.W.2d 444, 447 (Tex. App.-Austin
1994, pet. ref'd) ...................................28
Garza v. State, 963 S.W.2d 926, 931 (Tex. App.-San
Antonio 1998, no pet.) ..........................30, 39
Hutch v. State, 922 S.W.2d 166, 172-73 (Tex. Crim. App.
1996) overruled on other grounds Gelinas v. State, 398
S.W.3d 708 (Tex. Crim. App. 2013) ...................16
v
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979) .........................44, 45
Jackson, 443 U.S. at 320 .............................46
Jackson, 443 U.S. at 326 .............................46
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
1998) ...........................................30, 39
Jones v. State, 815 S.W.2d 667, 669 (Tex. Crim. App.
1991) ...............................................16
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
1997) ...........................................30, 39
Laster, 275 S.W.3d at 518 ............................46
Mays v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991) id.
at 86–87 n. 4 ...............................23, 24, 28
Middleton v. State, 125 S.W.3d 450, 457 (Tex. Crim.
App. 2003) ..........................................17
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App.
2000) ...............................................40
Peters v. State, 93 S.W.3d 347, 353-54 (Tex. App.—
Houston [14TH Dist.] 2002, pet. ref’d)...............29
Pondexter v. State, 942 S.W.2d 577, 583–85 (Tex. Crim.
App. 1996) ..........................................28
Riley v. State, 830 S.W.2d 584, 586–87 (Tex. Crim. App.
1992) ...............................................17
Rogers v. State, 853 S.W.2d 29, 33-34 (Tex. Crim. App.
1993) ...............................................26
vi
Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App.
2009) ...............................................17
Sakil v. State, 287 S.W.3d at 26 quoting Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) ...17
Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 72
L. Ed. 2d 652 (1982) ................................46
Wagner v. State, No. 14-01-00392-CR, 2002 WL 31662410,
at 4 (Tex. App. Nov. 27, 2002)(Not designated for
publication) ....................................31, 40
Webb v. State, 36 S.W.3d at 182–83 ...............31, 39
Williams, 547 S.W.2d at 20 ...........................16
Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000)
....................................................28
STATUTES
Tex. Code Crim. Proc. § 38.23 ...........12, 15, 16, 32
Tex. H & S Code 481.116(b) .......................43, 47
Tex. H & S Code 481.116(c) .......................... 47
Tex. Penal Code § 12.35(a) ...........................43
Tex. Penal Code § 12.42(d) .......................43, 47
former Tex. Penal Code § 12.42(a)(1)[now Tex. Penal
Code § 12.425] ......................................43
RULES
Tex. R. App. P. 44.2(b) ..........................30, 38
vii
Tex. R. Crim. Evid. 404(b)(former) .......23, 25, 26, 29
Tex. R. Evid. 901 ................................35, 37
Tex. R. Evid. 901(a) .................................34
Tex. R. Evid. 901(b)(7) ..............................35
Texas Rule of Evidence 902(4) ........................35
viii
NO. 01-15-00043-CR
IN THE
COURT OF APPEALS
FOR THE
FIRST DISTRICT OF TEXAS
HOUSTON, TEXAS
DEJESUS FOBBS, Appellant
v.
THE STATE OF TEXAS, Appellee
Appealed from 356TH District Court
of Hardin County, Texas
Cause No. 22960
BRIEF FOR THE APPELLANT
TO THE HONORABLE COURT OF APPEALS:
Now comes DeJesus Fobbs, by and through his attorney
of record Joel H. Bennett, of Sears & Bennett, LLP, and
files this brief.
9
STATEMENT OF THE CASE
Appellant was charged by indictment with Possession
of a Controlled Substance, to-wit cocaine, in the amount
of four grams or more but less than two hundred grams.
C.R.—2. Appellant pled not guilty to the allegation and
a trial by jury began on December 15, 2014. R.R.V—1;
R.R.VI—35-36. After hearing the evidence and the
argument of counsel, the jury returned a verdict of
“Guilty” on December 16, 2014. R.R.VI—221; C.R.—125.
The Defendant elected for the jury to assess punishment,
and after hearing evidence and argument of counsel on
the issue of punishment, the jury assessed his
punishment at ninety-nine (99) years in the
Institutional Division of Texas Department of Criminal
Justice and no fine. R.R.VII—130-131; C.R.—131.
Judgment and Sentence was entered and signed on December
17, 2014; as well as the trial court’s certification of
Defendant’s right to appeal. C.R.—154-155, 142. Notice
of Appeal was timely filed on December 17, 2014 and
again on December 18, 2014. C.R.—143, 156.
10
APPELLANT’S FIRST ISSUE
THE TRIAL COURT ERRED IN FAILING TO INCLUDE
AN APPLICATION PARAGRAPH FOR THE TEX. CODE
CRIM. PROC. § 38.23 INSTRUCTION. APPELLANT
DID NOT OBJECTION TO THE ABSENCE OF THIS
INSTRUCTION AND THEREFORE MUST SHOW
EGREGIOUS HARM.
STATEMENT OF FACTS
The Charge of the Court during guilt innocence
contained a general instruction to the jury:
“You have a right to consider all of the facts that
are shown by the evidence, and to draw natural and
reasonable inferences from such facts. You alone have
the authority and duty to determine what the facts are
in this case. No evidence obtained by an officer or
other person in violation of any provisions of the
Constitution or laws of the State of Texas, or the
Constitution or laws of the United States of America,
shall be admitted in evidence against the accused on the
trial of any criminal case, [sic] If you believe or have
a reasonable doubt that the evidence was obtained in
violation of these provisions, then and in such event,
11
you shall disregard any such evidence so obtained. In
evaluating the evidence, you must totally disregard what
you believe is my opinion about any factual matter.”
C.R.—121.
The Charge of the Court did not contain an
application paragraph applying the general Tex. Code of
Crim. Proc. § 38.23 instruction. C.R.—119-124.
Officer Travis Hartless was a patrolman with the
Silsbee Police Department. R.R.VI—44. On the evening
of May 19 and the morning of May 20, 2014, he was on
patrol. R.R.VI—46. He had been notified about some car
burglaries in the area. R.R.VI—46-47. About 2:20 am,
Officer Hartless came to 345 West Avenue L during his
routine patrol. R.R.VI—48. He noticed an interior
light on inside a vehicle about 2:30 a.m. and he stopped
to investigate. R.R.VI—49-50. He walked up to the car
and knocked on the glass; the person in the car rolled
down the window about three inches. R.R.VI—53. Officer
Hartless asked the person in the vehicle, “What’s going
on?” and he could also smell the odor of burnt marijuana
12
coming out of the vehicle. R.R.VI—54. Officer Hartless
asked the person to step out of the car and when he did,
Officer Hartless recognized Appellant. R.R.VI—55. He
patted Appellant down for weapons, handcuffed him, and
placed him in the back of the patrol car. R.R.VI—55-57.
Officer Hartless then searched the car due to the odor
of burnt marijuana. R.R.VI—57.
Officer Hartless testified that he saw bags of Kush,
K2, in the open top center console, a synthetic
marijuana. R.R.VI—62. He believed it was synthetic
marijuana but the substance was not tested. R.R.VI-64.
He also found a small bag of what the officer believed
to be marijuana. R.R.VI—65. At this point, he goes
back to Appellant and searches him. R.R.VI—65. During
the search, he located a magazine with ammunition in it
in Appellant’s pocket. R.R.VI—66. Officer Hartless
then searched under Appellant’s cap and located two
baggies of suspected cocaine on Appellant’s head.
R.R.VI—67-68. Officer Hartless goes back to the vehicle
to search further and locates a handgun. R.R.VI—73-74.
13
Officer Hartless took a photograph of the money,
handgun, magazine, Kush, cocaine, and marijuana he
recovered from Appellant and the vehicle; the photograph
is State’s Ex. # 3. R.R.VI—77-78, 79.
During cross-examination, Officer Hartless admitted
that he took no photographs at the scene. R.R.VI—88.
There are no pictures of any burnt marijuana. R.R.VI—
88. Officer Hartless testified that he saw burnt
marijuana but he did not recover the burnt marijuana.
R.R.VI—89.
SUMMARY OF ARGUMENT
The trial court erred in failing to submit an
application paragraph for the exclusionary rule
instruction. The jury was properly instructed about the
general provision that they may not consider any
evidence found by the police in violation of the
Constitution or laws of the United States or State of
Texas. But the application paragraph authorizes the
jury to act and applies the law to the facts of this
case. Appellant did not object at trial and therefore,
14
he must show egregious harm that deprived him of a fair
and impartial trial.
ARGUMENT AND AUTHORITIES
The defense in Appellant’s case centered around the
legality of the search of Appellant and the subsequent
discovery of cocaine in Appellant’s cap. The trial
court properly instructed the jury on the general law
regarding the exclusionary rule of Tex. Code Crim. Proc.
§ 38.23. But, the application paragraph of a jury
charge is the portion of the charge that authorizes the
jury to act. A proper application paragraph should
instruct the jury on the legal consequences of the
facts as they find them to be (or a failure to prove
certain facts beyond a reasonable doubt) and how those
facts are applied to the applicable law in this
particular case.
“[I]t is important to note that the error occurred
in the application paragraph. The application paragraph
is that portion of the charge which authorizes the jury
to act. Jones v. State, 815 S.W.2d 667, 669 (Tex. Crim.
15
App. 1991). Consequently, even though the charge
elsewhere contained a correct statement of art. 38.23,
that instruction did not authorize the jury to consider
or not consider the evidence obtained from appellant's
stop. It is not sufficient for the jury to receive an
abstract instruction on the law. Williams, 547 S.W.2d at
20. An abstract charge does not inform the jury of what
facts, if found by it, would permit the jury's
consideration of the contested evidence. Ibid. Rather,
the authority to consider or not consider the evidence
obtained from appellant's stop came solely from the
erroneous application paragraph. The Court of Appeals
did not consider that the correct statement of art.
38.23 did not authorize the jury to correctly apply the
law.” Hutch v. State, 922 S.W.2d 166, 172-73 (Tex.
Crim. App. 1996) overruled on other grounds Gelinas v.
State, 398 S.W.3d 708 (Tex. Crim. App. 2013).
The Court of Criminal Appeals has consistently held
that an application paragraph is a necessary portion of
the charge, “It is true that we have held that a jury
16
charge should contain the abstract portion of the charge
and the application portion. Riley v. State, 830 S.W.2d
584, 586–87 (Tex. Crim. App. 1992).” Middleton v. State,
125 S.W.3d 450, 457 (Tex. Crim. App. 2003).
Appellant failed to object to the erroneous
instruction at trial. As such, the standard of review
upon appeal to entitle him to a reversal is higher.
When reviewing complaints regarding the jury charge,
the first step is to determine whether there was error
in the charge. Sakil v. State, 287 S.W.3d 23, 25 (Tex.
Crim. App. 2009). If there was error and no
corresponding objection, “the error must be
‘fundamental,’ and reversal is required ‘only if the
error is so egregious and created such harm’ that the
defendant did not have a fair and impartial trial.”
Sakil v. State, 287 S.W.3d at 26 quoting Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
The test for evaluating whether a particular
defendant suffered fundamental error that deprived him
of a fair and impartial trial was explained in Allen v.
17
State, 253 S.W.3d 260 (Tex. Crim. App. 2008). The
Court of Criminal Appeals held, “In examining the
record for egregious harm, vel non, a reviewing court
should consider...1) the entire jury charge, 2) the
state of the evidence, including the contested issues
and the weight of the probative evidence, 3) the final
arguments of the parties, and 4) any other relevant
information revealed by the record of the trial as a
whole. Jury charge error is egregiously harmful if it
affects the very basis of the case, deprives the
defendant of a valuable right, or vitally affects a
defensive theory.” Allen v. State, 253 S.W.3d at 264
(footnotes omitted).
The factors to be reviewed in determining the harm
in this case weigh heavily in favor of finding harm to
Appellant. The charge as a whole simply asked the jury
to decide whether or not Appellant possessed cocaine or
whether they had a reasonable doubt thereof. This was
the sole question posed to the jury. The central issue
of the defense was that the State failed to prove to the
18
jury the factual issues regarding the legality of the
search. Namely, the defense focused on the officer’s
failure to preserve any alleged burnt marijuana.
Appellant’s vehicle was searched after the officer
claimed he smelled burnt marijuana. He testified that
he saw the burnt marijuana but failed to document that
through a photograph or even recover the evidence that
would support his search.
The defense’s argument at the guilt-innocence phase
of the trial was that the State failed to bring
sufficient evidence to support a legal search. R.R.VI—
208. The defense argued that no arrest should be made
without probable cause. R.R.VI—213. The State’s
response to the defense’s argument was just believe the
officer. R.R.VI—214. “Isn’t that what we want?”
R.R.VI—214.
The jury was never given the opportunity to decide
the central issue in the case. Did or did the State not
prove beyond a reasonable doubt the existence of the
burnt marijuana that led to the search and then the
19
arrest that led to the discovery of the cocaine. Jury
charge error is egregiously harmful if it affects the
very basis of the case, deprives the defendant of a
valuable right, or vitally affects a defensive theory.
The failure of the trial court to provide the avenue for
the jury to act in this case deprived Appellant of his
right to have the jury decide the factual issue
surrounding the legality of the search. This failure
strikes at the very heart of the defensive issue of this
case. The failure to provide the application paragraph
prevented the jury from deciding all the factual issues
in this case and thereby deprived Appellant of a fair
trial.
For all the foregoing reasons, Appellant’s First
Issue should be sustained, Appellant’s case be reversed,
and the case remanded for further proceedings.
APPELLANT’S SECOND ISSUE
THE TRIAL COURT COMMITTED REVERSABLE ERROR
BY ADMITTING EXTRANEOUS OFFENSE EVIDENCE AS
CONTEXTUAL EVIDENCE. THE ADMISSION OF A
FIREARM WAS NOT NECESSARY CONTEXTUAL
EVIDENCE AND UNFAIRLY PREJUDICED
20
APPELLANT’S TRIAL.
STATEMENT OF FACTS
During the officer’s search of Appellant and
Appellant’s vehicle, he discovered a magazine loaded
with ammunition in Appellant’s pocket and a handgun in
the vehicle. R.R.VI—66, 74. Appellant had objected to
the admission any evidence of a gun during his motion in
limine, then he renewed his objection during the
testimony, and again when the State offered pictures of
the weapon and magazine. R.R.VI—29-20, 63-64, 75, and
78-79. The trial court stated that he would take it
under consideration during the hearing on the Motion in
Limine, then overruled the objections when Appellant
renewed the objections during the testimony. R.R.VI—30,
64. The trial court specifically stated that the
evidence was contextual. R.R.VI—64. When the State
moved to admitted State’s Exhibits 4 and 3 (pictures of
the gun and magazine), Appellant again renewed his
objection to the introduction of the gun and magazine.
R.R.VI—75, and 78-79. The trial court specifically held
21
that Appellant had preserved his objection and his
objection was abundantly clear. R.R.VI—78-79. The
trial court again overruled his objection.
SUMMARY OF ARGUMENT
An extraneous offense is admissible as contextual
evidence if it is necessary to provide background
information or if the narration of the events would make
little or no sense without the admission of the
extraneous offense. The events surrounding Appellant’s
arrest for possession of cocaine could have easily and
fully been described to the jury without the admission
of the handgun.
ARGUMENT AND AUTHORITIES
Extraneous offenses may be admitted during a trial
if they are contextual evidence of the charged offense
and the introduction of such evidence is necessary to
the jury’s understanding of the current offense. In
Appellant’s case, the State was allowed to introduce
evidence, over objection, that Appellant was in
possession of a magazine loaded with ammunition and a
22
pistol was found in the vehicle where he was sitting
when the officer approached. The State offered this
evidence as contextual evidence. The trial court agreed
and admitted the evidence.
Not all extraneous acts are admissible just because
they were discovered at the same time or occurred during
the same criminal episode. The test for whether such
evidence is properly admissible is whether or not the
such evidence is “necessary” to the jury’s understanding
of the events. If it is not necessary, the evidence
should be excluded.
“The evidence pertaining to appellant's
possession, use and sale of marijuana constitutes
‘same transaction contextual evidence’ rather than
‘background contextual evidence’, as such evidence
is of ‘acts, words and conduct’ of appellant at the
time of his arrest. See [Mays v. State, 816 S.W.2d
79 (Tex. Crim. App. 1991) id. at 86–87 n. 4. Same
transaction contextual evidence is admissible as an
exception under [Tex. R. Evid.] Rule 404(b) where
23
such evidence is necessary to the jury's
understanding of the instant offense:
Same transaction contextual evidence is deemed
admissible as a so-called exception to the
propensity rule where ‘several crimes are
intermixed, or blended with one another, or
connected so that they form an indivisible criminal
transaction, and full proof by testimony, whether
direct or circumstantial, of any one of them cannot
be given without showing the others.’ [citation
omitted] The reason for its admissibility ‘is
simply because in narrating the one it is
impracticable to avoid describing the other, and
not because the other has any evidential purpose.’
[citation omitted] Necessity, then, seems to be one
of the reasons behind admitting evidence of the
accused's acts, words and conduct at the time of
the commission of the offense. [citation omitted]
[Mays v. State, 816 S.W.2d 79 (Tex. Crim. App.
1991) Id. at 86–87 n. 4.
24
“Necessity, then, is an ‘other purpose’ for
which same transaction contextual evidence is
admissible under Rule 404(b). Only if the facts and
circumstances of the instant offense would make
little or no sense without also bringing in the
same transaction contextual evidence, should the
same transaction contextual evidence be admitted.
“In narrating appellant's arrest for the
instant offenses it would not have been
impracticable to avoid describing the recovery of
the marijuana and appellant's confessed use and
sale of marijuana. See id. The State could simply
have described the events of appellant's arrest
without mentioning that marijuana was found, in
addition to methamphetamine. The jury's
understanding of the instant offenses would not
have been impaired or clouded had the State
described appellant's arrest without including the
evidence concerning the marijuana. Such omission
would not have caused the evidence regarding the
25
instant offenses (burglary and possession of
methamphetamine) to appear incomplete. Further,
omission of the objectionable portion of
appellant's written confession would not have
rendered the remaining portions of the confession
confusing or questionable. We hold that the
evidence concerning the marijuana was not
‘necessary’ to the jury's understanding of the
offenses of burglary and possession of
methamphetamine and was therefore not admissible as
same transaction contextual evidence under Rule of
Criminal Evidence 404(b). The court of appeals
erred in holding that such evidence was admissible
as “res gestae” of the offense.”
Rogers v. State, 853 S.W.2d 29, 33-34 (Tex. Crim.
App. 1993)(Emphases added).
Similarly in this case, the State’s case of
Possession of Cocaine would have not been impacted. The
State’s description of the event was not dependant upon
or related to the possession of the magazine and
26
firearm. Officer Hartless testified that he approached
the vehicle out of concern for car burglaries in the
area, he smelled the odor of burnt marijuana, and
searched the vehicle due to the odor of marijuana.
After discovering synthetic marijuana and marijuana, he
searched Appellant and discovered cocaine inside the
baseball cap Appellant was wearing. R.R.VI—48-49, 50,
54, 61-62, 65, 68.
The handgun was not found until the officer decided
to inventory the vehicle, which was after the officer
had located the cocaine. R.R.VI—74. The magazine was
located in Appellant’s pocket after the officer located
the marijuana but prior to the discovery of the cocaine.
R.R.VI—66. The State was able to fully describe why he
approached Appellant, why he decided to search the
vehicle, and then why he further searched Appellant and
located the cocaine. All of this testimony was done
without any need to mention the loaded magazine located
in Appellant’s pocket and prior to the discovery of the
firearm.
27
“Same transaction contextual evidence is admissible
only when the offense would make little or no sense
without also bringing in the same transaction evidence.
Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000);
Pondexter v. State, 942 S.W.2d 577, 583–85 (Tex. Crim.
App. 1996). Nor do we believe that the evidence of the
shotgun and the marijuana was so intertwined with the
issue of consent that the jury could not understand the
testimony without it. See Garrett v. State, 875 S.W.2d
444, 447 (Tex. App.-Austin 1994, pet. ref'd). On the
contrary, the testimony concerning the consent of the
officers could have been easily understood, and
certainly more clear, without the introduction of the
extraneous evidence. See Wyatt, 23 S.W.3d at 25. And, it
would have been a simple matter to describe the
circumstances surrounding the entry without mentioning
the shotgun under the bed and the marijuana cigarette
burning in the ashtray. See Mayes, 816 S.W.2d at 86 n.
4. In short, because the evidence did not directly
relate to a fact of consequence in the case and was
28
intended to prove that appellant acted in conformity
with a(bad) character, the evidence fell within Rule
404(b)'s prohibition. Moreover, the shotgun was not
necessary to the jury's understanding of the offense or
the circumstances concerning the entry; it was not
admissible as an exception under Rule 404(b). The trial
court erred in admitting the evidence.”
Peters v. State, 93 S.W.3d 347, 353-54 (Tex. App.—
Houston [14TH Dist.] 2002, pet. ref’d)(Emphasis added).
As in the Peters case, the State could have—and in
fact did—tell the entire factual basis that led to the
discovery of the cocaine without the necessity of
introducing evidence of the handgun. The cocaine was
found prior to the officer locating the gun. Any
argument that the introduction of the handgun was
necessary to the search for and locating of the cocaine
is simply false and unsupported by the facts. The fact
that the officer found a magazine with ammunition is
also without consequence to the finding of the cocaine.
Clearly, the officer was not looking for a firearm
29
inside Appellant’s cap. Therefore, the trial court
erred in admitting evidence of the gun and the magazine
as contextual evidence.
“Having found error in the trial court's ruling, we
must determine whether appellant was harmed by the
improper admission of the evidence. Because no
constitutional error is involved when evidence of an
extraneous offense is admitted without notice, we look
to whether the error affected appellant's substantial
rights. Tex. R. App. P. 44.2(b). The substantive right
affected by the admission of an extraneous offense is
the right to a fair trial. See Garza v. State, 963
S.W.2d 926, 931 (Tex. App.-San Antonio 1998, no pet.).
An error affects a substantial right when the error had
a substantial and injurious effect or influence on the
jury's verdict. King v. State, 953 S.W.2d 266, 271
(Tex. Crim. App. 1997). If the error had no influence
or only a slight influence on the verdict, it is
harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.
Crim. App. 1998). However, if we harbor ‘grave doubts’
30
the error did not affect the outcome, we must treat the
error as if it did.” See Webb v. State, 36 S.W.3d at
182–83.” Wagner v. State, No. 14-01-00392-CR, 2002 WL
31662410, at 4 (Tex. App. Nov. 27, 2002)(Not designated
for publication).
The State compounded the harm of the erroneous
admission of the firearm and magazine by emphasizing the
presence of the gun and magazine during final argument.
R.R.VI—215-216. The State argued that the officer was
keeping “you” (the jury) safe from people with drugs and
guns. The defense’s argument at the guilt-innocence
phase of the trial was that the State failed to bring
sufficient evidence to support a legal search. R.R.VI—
208. The defense argued that if there was sufficient
probable cause to search for the burnt marijuana and you
claim you saw it, then show me the marijuana.
The State countered the defense’s argument by
telling the jury to use its common sense that Appellant
was a drug dealer. The State argued he had large
amounts of cash, the gun, the magazine with ammunition,
31
marijuana, and cocaine. R.R.VI—215. The State
described it as a war on drugs and a war on Appellant.
R.R.VI—215.
As discussed in Appellant’s first issue, the jury
was not properly instructed on the application of the
exclusionary rule for Tex. Code Crim. Proc. § 38.23.
This failure to give the proper instruction, coupled
with the improper admission of the handgun and the
State’s argument emphasizing the possession of the
handgun certainly should cause grave concerns about the
decision of the jury. The defense was forced to argue
to the jury to find Appellant not guilty due to the
failure of the State to properly prove to the jury the
grounds for the search of Appellant—an search that was
based upon evidence that was never recovered or
photographed by the State. The erroneous admission of
the handgun and subsequent “war on” Appellant as argued
by the State calls into grave doubt whether Appellant
was given a fair trial and the proper chance for the
jury to make the very difficult choice of finding him
32
“Not Guilty”, even though the evidence showed that the
cocaine was found inside his cap.
For all the foregoing reasons, Appellant’s Second
Issue should be sustained, Appellant’s case be reversed,
and the case remanded for further proceedings.
APPELLANT’S THIRD ISSUE
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
BY ADMITTING A NONCERTIFIED COPY OF A
JUDGMENT DURING THE PUNISHMENT PHASE OF THE
TRIAL. THE JUDGMENT WAS NOT PROPERLY
AUTHENTICATED.
STATEMENT OF FACTS
During the punishment phase of the trial, the State
introduced a non-certfied copy of a judgment in cause
number 14,045. R.R.VII—52-53, 55-56; R.R.VIII—36-39.
Appellant objected to the admission of this document on
the grounds that it had not been properly authenticated
and that it was not a certified copy of the judgment.
R.R.VII—55-56. The State responded by arguing that the
cause number was referenced in State’s exhibit 12A.
R.R.VII—55. The trial court overruled Appellant’s
objection and admitted the document. R.R.VII—56.
33
SUMMARY OF ARGUMENT
The trial court committed reversible error by
admitting a noncertified copy of a judgment of a
previous conviction against Appellant. The record is
wholly void of any proper authentication of the
judgment. The use of this prior conviction harmed
Appellant as the State used such evidence to argue to
the jury that Appellant should receive a maximum
sentence, which the jury did impose.
ARGUMENT AND AUTHORITIES
The Rules of Evidence require that prior to a
document’s admission into evidence, it must be properly
authenticated. “To satisfy the requirement of
authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it
is.” Tex. R. Evid. 901(a). The Exhibit 12B was not
authenticated by certification as a public document or
by any other means.
“In this case, Carlock distinguishes Bautista
34
because in that case the parole officer testified using
certified copies of the judgments against the
defendant, whereas in this case copies of the judgments
were admitted into evidence that were not certified.
Carlock contends the ‘appropriate’ method to introduce
the prior judgments was to obtain certified copies and
offer those judgments under Texas Rule of Evidence
902(4) as certified public records. Rule 902 describes
documents that are self-authenticating, and Carlock's
suggested method is certainly the traditional method of
introducing a prior judgment. However, if a document is
not self-authenticated under Rule 902, it still can be
authenticated under Rule 901.
“Rule 901(b)(7) illustrates how to authenticate
public records and reports. Tex. R. Evid. 901(b)(7). To
authenticate a public record which is authorized by law
to be recorded or filed in a public office, the
testifying witness must be able to provide evidence
that the writing is from the public office that keeps
that type of record. Id. Carlock contends the parole
35
officer could not authenticate the judgments because
she was not the custodian of those records and
therefore could not authenticate the judgments by ‘mere
testimony that he or she once supervised a Defendant on
parole.’ Carlock is correct. The parole officer was
able to testify she was familiar with the defendant and
his previous criminal record; however, her testimony
was not sufficient to authenticate the two judgments
because she was unable to provide the necessary proof
that those two judgments were from the public office
responsible for maintaining those records. Because the
judgments were not certified copies, authentication was
required and the parole officer's testimony was not
enough.”
Carlock v. State, 99 S.W.3d 288, 294-95 (Tex. App.—
Texarkana 2003).
In the present case, there was even less evidence
supporting the admission of the uncertified copy of the
judgment. In Carlock, the parole officer testified that
the defendant in that case was on his case load under
36
the judgment offered and admitted in that case. The
parole officer testified that she was familiar with his
file and but she was unable to provide the necessary
proof that those two judgments were from the public
office responsible for maintaining those records. In
Appellant’s case, the uncertified copy was admitted
through a fingerprint expert who had no personal
knowledge about the judgment and sentence or the
defendant.
In Carlock, the Court of Appeals found that the
admission of the judgment was harmful to the defendant
and reversed his conviction. “It was error for the
trial court to admit the two uncertified copies of the
judgments because the testimony of the parole officer
was insufficient to authenticate the documents under
Rule 901. See Tex. R. Evid. 901. This error was
obviously harmful to Carlock. The jury assessed
punishment at ninety-nine years' imprisonment, which was
only permissible because of the enhancements. Therefore,
Carlock's third point of error is sustained.” Carlock v.
37
State, 99 S.W.3d at 295.
Appellant’s case presents a somewhat different harm
analysis. Like Carlock, Appellant was sentenced to
ninety-nine years in prison and was twice enhanced.
Unlike Carlock, the judgment introduced against
Appellant was not one of the enhancement paragraphs.
Because this is not a constitutional error, the
erroneous admission of evidence will be disregarded if
it did not adversely affect substantial rights or the
jury's verdict, or had only a slight effect on the
jury's verdict. Avila v. State, 18 S.W.3d 736, 741–42
(Tex. App.-San Antonio 2000, no pet.). Tex. R. App. P.
44.2(b).
“Having found error in the trial court's ruling, we
must determine whether appellant was harmed by the
improper admission of the evidence. Because no
constitutional error is involved when evidence of an
extraneous offense is admitted without notice, we look
to whether the error affected appellant's substantial
rights. Tex. R. App. P. 44.2(b). The substantive right
38
affected by the admission of an extraneous offense is
the right to a fair trial. See Garza v. State, 963
S.W.2d 926, 931 (Tex. App.-San Antonio 1998, no pet.).
An error affects a substantial right when the error had
a substantial and injurious effect or influence on the
jury's verdict. King v. State, 953 S.W.2d 266, 271
(Tex. Crim. App. 1997). If the error had no influence
or only a slight influence on the verdict, it is
harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.
Crim. App. 1998). However, if we harbor ‘grave doubts’
the error did not affect the outcome, we must treat the
error as if it did. See Webb v. State, 36 S.W.3d at
182–83. In assessing the likelihood that the error
adversely affected the jury's decision, we consider
everything in the record, including all testimony and
evidence admitted for the jury's consideration, the
nature of the evidence supporting the verdict, the
character of the alleged error, and how the error might
have been considered in connection with other evidence
in the case. See Morales v. State, 32 S.W.3d 862, 867
39
(Tex. Crim. App. 2000). We may also consider the
State's theory of the case, any defensive theories,
closing arguments, and voir dire. Id.” Wagner v.
State, No. 14-01-00392-CR, 2002 WL 31662410, at 4 (Tex.
App. Nov. 27, 2002)(Not designated for publication).
In Appellant’s case, he was assessed the maximum
punishment allowed by law. The difference between 99
years and life in prison is academic, at best. The
State’s argument was that Appellant should be given the
maximum sentence because of his prior offenses. The
State specifically mentioned the eight month sentence in
cause number 14,045 in the beginning of its final
argument. R.R.VII—121-122. The defense also addressed
the issue of whether the prior judgments were properly
authenticated. R.R.VII—115. The sentence handed down
by the jury was for the maximum sentence. The State
argued that due to the number of prior judgments to
which Appellant had been sentenced, he should receive
the maximum sentence. The specific reliance on this
improperly admitted judgment to argue to the jury that
40
Appellant should receive the maximum sentence causes
grave doubt that the error did not contribute to the
sentence. Therefore, Appellant has suffered harm due to
the improper introduction of this exhibit.
For all the foregoing reasons, Appellant’s Third
Issue should be sustained, Appellant’s case be reversed,
and the case remanded for further proceedings.
APPELLANT’S FOURTH ISSUE
THE EVIDENCE IS LEGALLY INSUFFICIENT TO
PROVE THE FIRST ENHANCEMENT PARAGRAPH WAS A
VALID PRIOR CONVICTION FOR THE USE OF AN
ENHANCEMENT. THE JUDGMENT STATES ON ITS
FACE THAT IT COULD BE A STATE JAIL
CONVICTION AND THEREFORE IT COULD NOT BE
USED TO ENHANCE A NON-SATE JAIL FELONY
OFFENSE.
STATEMENT OF FACTS
The State gave Notice of Enhancements. C.R.—8-9.
The first enhancement paragraph alleged the following:
“And it is further presented in and to said Court that,
prior to the commission of the aforesaid offense
(hereafter styled the primary offense), on or about
January 29, 1998, in cause number 13997 in 356th
41
District Court of Hardin County, Texas, the defendant
was convicted of the felony offense of Possession of a
Controlled Substance”. C.R.—8.
The judgment entered into evidence during the trial
states that Appellant was previously conviction in
cause number 13997 under P.C. 481.116(b), (c).
R.R.VIII-32-35.
The judgment also states that the original term of
probation was for seven years and the probation was
revoked for a term of four years. R.R.VIII—32-35. The
judgment is silent as to whether there was a deadly
weapon. R.R.VIII—32-35. The judgment is also silent
as to whether there were any enhancement paragraphs.
R.R.VIII—32-35.
SUMMARY OF ARGUMENT
The judgment introduced into evidence states on its
face that the conviction was for either a State Jail
Felony offense for the Possession of a Penalty Group 2
substance or for a third degree felony for the
possession of a Penalty Group 2 substance. Therefore,
42
the evidence is legally insufficient to show that
Appellant was convicted of a prior non-state jail felony
that was a valid felony conviction to be used as an
enhancement.
ARGUMENT AND AUTHORITIES
The evidence adduced at trial is legal insufficient
to support valid enhancement because the judgment
introduced at trial alleges either a state jail or a
third degree. The judgment is insufficient to prove
valid enhancement as a matter of law. A State Jail
felony under Tex. Penal Code § 12.35(a) cannot be used
to enhance a non-state jail offense to habitual status.
Tex. Penal Code § 12.42(d).
Possession of a Controlled Substance under Tex. H &
S Code 481.116(b) is a state jail felony. Such a
felony could be punished as a third degree felony if
there were two prior state jail convictions. See former
Tex. Penal Code § 12.42(a)(1)[now Tex. Penal Code §
12.425]. Under the judgment entered into evidence, the
facts do not prove beyond a reasonable doubt that the
43
prior conviction could be used to enhance a non-state
jail felony offense.
The appropriate standard of review of the
sufficiency of the evidence was set for the by the
Court of Criminal Appeals in Brooks v. State, 323
s.w.3d 893, 912 (Tex. Crim. App. 2010), “As the Court
with final appellate jurisdiction in this State, n48 we
decide that the Jackson v. Virginia standard is the
only standard that a reviewing court should apply in
determining whether the evidence is sufficient to
support each element of a criminal offense that the
State is required to prove beyond a reasonable doubt.
All other cases to the contrary, including Clewis, are
overruled.”
The Court of Criminal Appeals again addressed the
proper review of the sufficiency of the evidence. In
Garcia v. State, 367 S.W.3d 683, 686-687 (Tex. Crim.
App. 2012), the Court held:
“To determine whether evidence is sufficient to
support a conviction, a reviewing court views all
44
the evidence in the light most favorable to the
verdict to decide whether any rational trier of
fact could have found the essential elements of the
offense beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893,
895 (Tex. Crim. App. 2010). This requires the
reviewing court to defer to the jury's credibility
and weight determinations because the jury is the
‘sole judge’ of witnesses' credibility and the
weight to be given testimony. Jackson, 443 U.S. at
319; Brooks, 323 S.W.3d at 899. A reviewing court
determines whether the necessary inferences are
reasonable based upon the combined and cumulative
force of all the evidence when viewed in the light
most favorable to the verdict. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing
Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim.
App. 2007)). When the record supports conflicting
inferences, a reviewing court must presume that the
45
fact finder resolved the conflicts in favor of the
prosecution and defer to that determination. See
Jackson, 443 U.S. at 326.
“Evidence is insufficient to uphold a
conviction when the record contains no evidence, or
merely a ‘modicum’ of evidence, probative of an
element of the offense. See Jackson, 443 U.S. at
320 ("[A] 'modicum' of evidence [cannot] by itself
rationally support a conviction beyond a reasonable
doubt."); Laster, 275 S.W.3d at 518 ("After giving
proper deference to the factfinder's role, we will
uphold the verdict unless a rational factfinder
must have had reasonable doubt as to any essential
element."). If a reviewing court finds the evidence
insufficient under this standard, it must reverse
the judgment and enter an order of acquittal. Tibbs
v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 72 L.
Ed. 2d 652 (1982).”
In this case, the evidence admitted during the
trial leaves open the question as to whether the
46
judgment was for a state jail offense (481.116(b)) or a
third degree offense (481.116(c)). The actual term of
the sentence is for four years in the Institutional
Division of the Texas Department of Criminal Justice.
This would indicate that the judgment was not for a
state jail felony. But, a state jail felony could be
punished as a third degree felony if there were two
prior state jail convictions to enhance the punishment
under the then existing Tex. Penal Code § 12.42(d).
Included in the Reporter’s Record as Exhibit 12,
R.R.VIII—17-19, are original judgment and indictment in
that matter. These documents were not admitted into
evidence and therefore are not available to support a
finding of a third degree felony. If the Court finds
that since these documents are part of the appellate
record and available to settle the issue regarding the
proper level of offense in cause number 13997, then the
Court will also find that Appellant was never charged
with the possession of a Penalty Group 2 substance.
These documents demonstrate that the judgment entered
47
into evidence in Appellant’s case is unsupported by an
indictment for the offense for which he was sentenced.
The indictment included within the un-admitted Exhibit
12 shows that Appellant was charged with the possession
of cocaine, a penalty group one substance under 481.115,
not a penalty group 2 substance under 481.116.
Therefore, the evidence is insufficient to support the
first enhancement alleged against Appellant.
For all the foregoing reasons, Appellant’s Fourth
Issue should be sustained, Appellant’s case be reversed,
and the case remanded for further proceedings.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, the Appellant,
DeJesus Fobbs, prays that the Judgment of the Trial
Court be reversed and remanded for further proceedings
consistent with the judgment of this Honorable Court.
Respectfully submitted,
SEARS & BENNETT, LLP
_/s/ Joel H. Bennett_____________
48
JOEL H. BENNETT
Texas State Bar No. 00787069
1100 Nasa Parkway, Suite 302
Houston, Texas 77058
Telephone: (281) 389-2118
Facsimile: (866) 817-5155
joel@searsandbennett.com
ATTORNEY FOR DEJESUS FOBBS
CERTIFICATE OF SERVICE
I hereby certify that Appellant’s Brief has been
served upon Sue Korioth by email at suekorioth@aol.com
and the Hardin County District Attorney’s Office by
facsimile to 409-246-5142 on this the 27th day of April,
2015.
_/s/ Joel H. Bennett_____________
Joel H. Bennett
Certificate of Compliance
In compliance with TRAP 9.4(i), I certify that the
word count in this reply brief is approximately 7512
words.
_/s/ Joel H. Bennett_____________
Joel H. Bennett
49