RECEIVED
Court of Appeals
NOV 20 2015
Lisa Matz
NO. 05-11-010161-CR
Clerk, 5th District
& 05-11-010162-CR
FILED IN
Court of Appeals
IN THE
FIFTH COURT OF APPEALS NOV 2 0 2015
Lisa Matz
SITTING AT DALLAS
Clerk, 5th District
ARAMANDO SOTO,
Appellant,
VS.
THE STATE OF TEXAS,
Appellee.
BRIEF FOR APPELLANT
Appealed from Cause numbers: F10-19502-H & F10-190503-H
in the Criminal District Court Number 1, of Dallas County, Texas
The Honorable Robert Burns, presiding.
ARAMANDO SOTO,
APPELLANT-PRO SE
#1740241-COFFIELD UNIT
2661 F.M. 2054
TENNESSEE COLONY,TX 75884
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.1(a),
Appellant Aramando Soto, submits the following list of names
and addresses of all parties to the Trial Court's judgment and
and the names and address of all trial and appellate counsel:
APPELLANT: Aramando Soto
TDCJ #:1740241
H.H. Coffield Unit
2661 F.M. 2054
Tennessee Colony,TX 75884
COUNSEL FOR APPELLANT IN Frank Jackson
THE TRIAL COURT: 2612 Boll Street
Dallas, Texas 75204
ATTORNEY FOR APPELLANT IN
THE COURT OF APPEALS Velenca Bush
1000 North Central Expwy. # 400
Dallas, Texas 75231
APPELLEE: THE STATE OF TEXAS
COUNSEL FOR THE STATE OF TEXAS SUSAN HAWK
CRIMINAL DISTRICT ATTORNEY
OF DALLAS COUNTY, TEXAS
APPELLATE DIVIS0N
133 NORTH RIVERFRONT BLVD-LB-2
DALLAS, TEXAS 75207
SOTO V STATE-APPELLANT BRIEF PAGE,ii
TABLE OF CONTENTS
Identity of Parties ii
Index of Authorities 1
References to the Record 3
Statement of the Case 4
Statement of Facts 5
Issues Presented 9
Issue One 10
The record on appeal is incomplete, therein denying the
Appellant the right to a meaningful appeal.
Issue Two 13
The appellant was entitled to confront the witnesses
against him, this included the right to physical presence
of the witness before the jury and the appellant without
appellant's having to call the witness.
Issue Three 17
The trial court erred in receiving the 'in court identif-
iction' evidence over appellant's objection.
Issue Four 21
The trial court erred in failing to sustain appellant's
timely objection to inflammatory and prejudicial photo
graphs .
Issue Five 25
Trial counsel was ineffectvie for failing to move to
suppress evidance describing tests to which appellant,
while under arrest, had been subjected.
Conclusion 28
Prayer for Relief 29
Certificate of Service 29
Certificate of Mailing 30
SOTO V STATE-APPELLANT BRIEF PAGE,iii
INDEX OF AUTHORITIES
PAGE(S)
Aldrich v. State,
296 S.W.3d 225 (Tex. App.-Fort Worth 2009) 15
Brooks v. State,
132 S.W.3d 702 (Tex.App.-Dallas 2004) 13
Bullcoming v. New Mexico,
131 S.Ct. 2547 (2011) 14
Cain v. State,
947 S.W.2d 262 (Tex. Crim. App. 1997) 12
215 S.W.3d 870,(Tex. Crim. App. 2007) 22
Connor v. State,
67 S.W.3d 192 (Tex.Crim.App. 2001) 22
Crawford v. Washington,
541 U.S. 2678 (2004) 14
Erazo v. State,
144 S.W.3d 487 (Tex. Crim.App. 2004) 23
Escamilla v. State,
556 S.W.2d 796 (Tex .Crim. App. 1977) 27
Giglibobianco v. State,
210 S.W.3d 637 (Tex .Crim. App. 2006) 22
Hernandez v. State,
726 S.W.2d 53 (Tex. Crim. App. 1986) 26
Kimmelman v. Morrison,
47 7 U.S. 365 (1986) 26
Loserth v. State,
985 S.W.2d 536 (Tex. App.-San Antonio) 18,20
Melendez-Diaz v. Massachusetts,
557 U.S. 305 (2009) 11,12,13,14
SOTO V STATE-APPELANT BRIEF PAGE, 1
PAGE(S)
Old Chief v. United States,
519 U.S. 172 (1997) 22
Prible v. State,
175 S.W.3d 724 (Tex.Crim.App. 2005) 23
Russeau v. State,
171 S.W.3d 871 (Tex.Crim.App. 2005) 15
State v. Creel,
895 S.W.2d 899 (Tex.Crim.App. 199 ) 10
Strickland v. Washington,
466 U.S. 668 (1984) 26
Tanguma v. State,
47 S.W.3d 633 (Tex.App.-Texarkana 2000) 11
TEX. R. APP. PROC. 38.1(a)
TEX. R. EVID. Rule 403
TEX. TRANSPORTATION CODE § 724.011
SOTO V STATE-APPELANI BRIEF PAGE, 2
REFERENCES TO THE RECORD
There are five (5) Volumes of the Reporters Record, and one
Clerk's Record for each case in this appeal. References to the
the Reporter's Record are designated as "RR#:#)," and continue
through each day of trial. References to the clerk's record
is designated as "(CR:# Cause #).
..
SOTO V STATE-APPELLANT BRIEF PAGE, 3
STATEMENT OF THE CASE
On July 18, 2011, Appellant Aramando Soto, pled not guilty
to the offenses of Intoxication Manslaughter in Cause Nos. F10-
19052 and F10-19053, involving the deaths of Tuong-Lee and her
8-month son Tri Khuu. (RR2:6) On July 19, 2011 trial began.
Following a jury trial, Appellant was convicted of intoxication
Manslaughter in both causes and sentenced to 20 years imprison
ment in the Texas Department of Criminal Justice in each case.
The trial court ordered the sentences to be served consecutively.
(RR4;181-45) Appellant timely filed Notice of appeal on August
22, 2011. (CR1:71:F10-109502); (CR1:72:F10-190503).
Appellant counsel Valencia Bush filed an Anders Brief on
or about February 29, 1012; however, Appellant was nevex properly
notified of his right to file a pro se Appeal brief.
Appellant filed a writ of habeas corpus pursuant to article
11.07 of the Texas Code of Criminal Procedure, where he estab
lished that his appellant counsel rendered ineffective assistance
of counsel. The Texas Court of Criminal Appeals granted relief
in Writ Numbers: WR82,563-01 and WR82,563-02, giving Appellant
an opportunity to file an out-of-time-pro-se responsive brief
alerting the court of appeals of any matters that might be argu
able in a brief on the merits appealing his judgment of convict
ion. This brief in due on November 13, 2015.
SOTO V STATE-APPELLANT BRIEF PAGE,4
STATEMENT OF FACTS
On September 6, 2010, a 2006 Chevrolet Silverado Pickup,
in which Appellant, Aramando Soto was an occupant collided with
a Nissan Sentra. This collision occured at appx 4:45 a.m. on
1-30 in Dallas, Dallas County, Texas (RR3:27).
The indictments, in these actions alleged that Appellant
was the operator the the Chevrolet Pickup (truck), that he was
intoxicated, and by reason of that intoxication caused the deaths
of Tuong Vyt Le, and Tri Khuu, by accident and mistake. (RR3:10).
State's witness, Issac Lozano, testified as a witness
to the accident that Prior to the collision the truck was "going
from lane to lane," (RR3:27) while traveling above the speed
limit. (RR3:26). Lozano, never approached the truck,(RR3:30)
but heard two voices comming from the truck, one was in pain,
the other laughing. (RR3:30). The fact that there were two
occupants to the truck was corroborated by State's witness,
Claudia Rodriquez-Hernandaz, (RR3:63). Ms. Hernandaz was unsure
as to the identity of the driver of the truck; however, over
Appellant's objection, the jury received in court identification
of appellant as the driver of the truck. (RR 3:64-65).
First responder and State's witness, Deputy Nelms, arrived
to find appellant laying on the ground and complaining of pain
to his head. (RR 3:82). Deputy Helms identified the truck as
belonging to the Appellant from the witness at the scene of
SOTO V STATE-APPELLANT BRIEF PAGE, 5
of the accident. (RR3:90) He further identified blood on
the air bag of the truck. (RR3:90-91) Detective Embry testified
to removing, pursuant to a search warrant, the trucks Air-bag
Control Module, (ACM) (RR3:94). He delivered the ACM to a retired
Dallas Police Investigator to analyze the data. This because
the Dallas Sherrif's Department did not have a system capable
of this function. (RR3:95) Appellant objected to the evidence
allegedly contained in the ACM. Detective Embry established
through this objected to evidence that the ACM suppressed the
passenger side air bag; allegedly, as it was unoccupied. (RR3:
111) Detective Embry also entered into evidence data of the
of the trucks speed five seconds before impact-94 M.P.H.- the
engine R.P.M.-3456- and the precentage of throttle-100%- and
the fact that up to one second before the impact the brakes
were not applied. (RR3:113-115) Again, over objection Detective
Embry introduced a video depiction of the accident as he alleged
it occured. This video was complied from accident reports,
not prepared by Detective Embry and the objected to A.CM. data.
Deputy Whaley, from the Physical Evidence Section of the
of the Dallas County Sheriff's office, testified that pursuant
to a search warrant, he recovered the air-bag from the truck
in order to have it tested for forensic purposes. (RR3:220-225).
Courtney Ferreira, a forensic biologist at the Southwestern
Institute of Forensic Sciences (SWIFS) analysed the blood on
air-bag and was able to determine from a "blood standard"from
SOTO V STATE-APPELLANT BRIEF PAGE, 6
the Appellant. (RR4:14-22)
Finally, the stated presented medical evidence from Janis
Townsend-Parchman, one of the Dallas County Medical Examiners.
Over objection, the Medical Examiners introduced photos of
the two decedents of the accident. After which the state and
the Defense rested. The charge was submitted to the jury and
who returned a verdict of Guilty.
SOTO V STATE-APPELLANT BRIEF PAGE, 7
ISSUES PRESENTED
ISSUE ONE: The record on appeal is incomplete, therein denying
the appellant the right to a meaningful appeal.
ISSUE TWO: The appellant was entitled to confront the witnesses
against him, this included the right to physical presence of
of the witness before the jury and the appellant without appel
lant having to call the witness.
ISSUE THREE: The trial court erred in receiving the "in court
identification" evidence over appellant's objection.
ISSUE FOUR: The trial court erred in failing to sustain appel
ant 's timely objection to inflammatory and prejudicial photo-
graphs.
ISSUE FIVE: Trial counsel was ineffective for failing to move
suppress evidance describing tests to which appellant, while
under arrest, had been subjected.
SOTO V. STATE-APPELLANT BRIEF PAGE, 9
ISSUE ONE
The record on appeal is incomplete, therein denying the
Appellant the right to a meaningful appeal.
FACTS
Appellant Counsel, Valencia Bush, requested preparation
of the Reporter's Record and designated the matters to be incl
uded (CR:61) Specifically, she requested that "all matters heard
outside the presence of the jury, including pre-trial, trial...
and bench conferences, objections, rulings, and remarks of the
Court..." (CR:62) (emphasis added). There were multible Bench
conferences which are not included in the record: (RR3:53, RR3:
99, RR3: 121, RR3, 148, RR3: 186, RR3, 207).
The failure to not record the bench conferences resulted
in objections, rulings and limiting instructions of the court
and counsel not being preserved for appellate review..
ARGUMENT & AUTHORITIES
Texas Rules of Appellate Procedure, rule 13.1, provides:
"The official court reporter... must: (a) unless excused by
agreement of the parties... make a full record of the proceedings
..." These duties were explained in State v. Creel, 895 S.W.
2d 899 (Tex.App.1992 .)(the duties imposed on the court reporter
by the rule of appellate procedure governing the creation of
transcripts are not met by simply filing the reporter's record
SOTO,V. STATE-APPELLANT BRIEF PAGE,10
with the appropriate court; the record must be complete and
and accurate." Importantly appellate courts have held that
"the burder to record all bench conferences in on the court
reporter and not the defendant. And that a defendants failure
to object to the recordation, does not prevent appellate review
of the error. See, Tanguma v. State, 47 S.W. 3d 633 (Tex.App.-
Texarkana 2000).
In order to determine if the error was or was not harmless
beyond a reasonable doubt, the consequesce of the unrecorded
bench conferences has to be determined from the context in the
record surrounding the bench conferences that were not recorded.
In one instance, trial counsel objected to the admissibility
of reports generated by the Air Bag Control Module, as the proper
predicate had not been laid. The court held a bench-confer
ence, the contents were not included in the record. Appellant
is unable to appeal any unrecorded objections, and rulings or
remarks of the judge. The objected to evidence was then admitted
and presented to the jury. (RR3:98)
Next, Appellant objected to the introduction of an accident
reconstruction under the Confrontation Clause of the United
States Constitution and the United States Supreme Court's ruling
in Melinda-Diaz vs. Massachusetts, 557 U.S. 305 (2009). Once
again there was a bench conference,(RR3:121) the contents of
which were not perserved for appellate review. Appellant has
been deprived the ability to challange any of the objections,
SOIO V STATE-APPELLANT BRIEF PAGE,11
rulings or remarks of the court. The objected to evidence was
was then admitted into evidence.
When the Defense once again objected to evidence he believed
was in violation of Melinda-Diaz, 557 U.S. 305 (2009) the court
hend another unrecorded bench conference. Appellant is therefore
unable to seek appellate review of any of the objections made
by trial counsel, or the rulings or remarks of the court. The
objected to evidence was entered into evidence.
Finally, Appellant objected to a lab report which contained
evidence of alcohol and drug use prior the the accident. Once
again the court had a bench conference off the record, Appellant
is therefore unable to seek review of any of trial counsel's
objections, the ruling and remarks of the court. The evidence
was then submitted to the jury.
As a result of the imcomplete record on appeal appellant
will be denied his right to a meaningful appeal. The Texas
Court of Criminal Appeals has remarked: "where the error involved
defies analysis by harmless error standards or the data is in
sufficient to conduct a meaningful harm analysis, the the error
will not be proven harmless beyond a reasonable doubt..." Cain
v. State, 947 S.W. 2d 262 (Tex.Crim.App.1997 ).
SOTO V STATE-APPELLANT BRIEF PAGE,12
The appellant was entitled to confront the witnesses against
him. This included the right to physical presence of the witness
before the jury and the appellant without appellant's having
to call the witness.
FACTS
Appellant objected to the introduction of a video accident
reconstruction. (RR3:121) Deputy Embry, testified that someone
else did the acutal reconstruction. (RR:3120) The trial Court,
at first, sustained the objection, and after and unrecorded
bench conference, and subsequent arguments of counsel for the
state and defense, overruled appellant's objection based on
Melendez-Diaz v. Massachuetts, 129 S.Ct. 2527 92009.
ARGUMENTS AND AUTHORITIES
"The Sixth Amendment to the United States Constitution
provides that 'In all criminal prosecutions, the accused shall
enjoy the right...to be confronted with the witnesses against
him"'. Brooks v. State, 132 S.W. 3d 702,709 (Tex.App.-Dallas
2004). The principle concern of the Confrontation Clause is
"to insure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context
of an adversary proceeding before the trier of fact." Brooks
Id.
SOTO V STATE-APPELLANT BRIEF PAGE,13
In Melendez-Diaz v. Massachuetts, the U.S. Supreme Court
held that a certificate presenting forensic lab results was
testimonial evidence and that defendants thus have the Sixth
Amendment right to cross-examine the analyst. Two years after
the Supreme Court ruled in Melendez-Diaz, it decided Bullcoming
v. New Mexico, 131 S.Ct. 2547 (2011). That Court held that
surrogate testimony violated the Confrontation clause when the
report is admitted into evidence and the surrogate neither obser
ved, or offered an expert opinion on, the forensic evidence.
In Bullcoming, a crime of driving while intoxicated, an
analyst's report on blood alcohol was intorduced into evidence.
The analyst who had performed the test was on leave, the state
called another analyst as a witness. This surrogate witness
was familiar with the procedures of the lab but did not observe
or play any role in the test of the blood. Instead of offering
an independent opinion of the defendant's blood alcohol content,
he simply read from the report. Bullcoming, 131 S.Ct. @ 2712.
The Court's holding treated the case as a straight forward
application of Crawford and Melendez-Diaz°: The analyst's report
could not be introduced into evidence without the analyst's
testimony unless the analyst was unavailable and the defendant
had an opportunity to cross-examine him.
In this case, the state offered into evidence a short video
0 Crawford v. Washington, 541 U.S. 2678 (2008)
Melendez-Diaz v. Massachuetts, 129 S.Ct 2527 (2009)
SOTO V STATE-APPELLANT BRIEF PAGE,14
of the accident reconstruction. (RR3120) The surrogate test
imony was offered by Deputy Embry; he makes clear he played
no part in the preparation of the accident reconstruction. (RR3:
120-21) This reconstruction, prepared by another person, was
assembled from photographs, officer reports, and information
contained in the air-bag-control-module And while the state
argued that the video was only introduced for demonstration
purposes, the appellant correctly pointed out to the court:
Deputy Embry was "just reading from a report that was generated
by someone else."