ACCEPTED
04-14-00915-cr
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
7/22/2015 3:04:30 PM
KEITH HOTTLE
CLERK
CAUSE NO. 04-14-00915-CR
IN THE COURT OF APPEALS
FOURTH COURT OF APPEALS DISTRICT FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS
7/22/2015 3:04:30 PM
KEITH E. HOTTLE
Clerk
ADAN FLORES
Appellant
vs.
THE STATE OF TEXAS,
Appellee
APPEALED FROM THE 49th DISTRICT COURT OF WEBB COUNTY
TRIAL COURT NO. 2014-CRS-000311-D1
HONORABLE MONICA NOTZON, JUDGE PRESIDING
APPELLANT’S REPLY BRIEF
ARMANDO TREVINO
ORAL ARGUMENT REQUESTED State Bar No. 20211100
1519 Washington St., Suite One
Laredo, Texas 78040
Tel: (956) 726-1638
Email: armandotrevinolaw@gmail.com
Attorney for Appellant
CAUSE NO. 04-14-00915-CR
IN THE COURT OF APPEALS
FOURTH COURT OF APPEALS DISTRICT
SAN ANTONIO, TEXAS
ADAN FLORES
Appellant
vs.
THE STATE OF TEXAS,
Appellee
APPEALED FROM THE 49th DISTRICT COURT OF WEBB COUNTY
TRIAL COURT NO. 2014-CRS-000311-D1
HONORABLE MONICA NOTZON, JUDGE PRESIDING
APPELLANT’S REPLY BRIEF
ARMANDO TREVINO
ORAL ARGUMENT REQUESTED State Bar No. 20211100
1519 Washington St., Suite One
Laredo, Texas 78040
Tel: (956) 726-1638
Email: armandotrevinolaw@gmail.com
Attorney for Appellant
ii
TABLE OF CONTENTS
I. Cover Page ………..………………………………………………
II. Table of Contents ……………………………………..…………..
III. Index of Authorities ………………………………………………
IV. Introductory Statement ………………………………………......
V. Statement Regarding Oral Argument………………..……………
VI. Argument …………..…………………………………..………..
Reply Issue Number One . The Court violated Defendant’s right to due
process and to be heard when the Court granted the State’s motion to amend
the indictment at an ex parte hearing.
Reply Issue Number Two. Defendant’s objection to the qualification of
VERONICA VALDEZ as the outcry witness should have been sustained.
Reply Issue Number Three. The Trial Court committed reversible error
when it instructed the jury that Counts I, II, III, IV, and V were first-degree
felonies.
VII. Prayer ……………………………….……………………………….
VIII. Certificate of Service …………………………………………………
IX. Certificate Regarding Word Count …………………………………..
iii
INDEX OF AUTHORITIES
Page(s)
Cases
Carmell v. Texas, 529 U.S. 513 (2000)……………………………….… 5
Garza v. State, 129 S.W. 3rd 79 (Tex. Cr. App. 2001) …………………. 5
Jennings v. State, 302 S.W. 3rd 306 (Tex.Cr..App. 2010)……………… 3, 4
Nino v. State, 223 S.W. 3rd 749 (Tex.App.-Houston [14th Dist.] 2007, no pet).3, 4
Norris v. State, 788 S.W. 2d 65 (Tex.App.-Dallas 1990, pet, ref’d) ……... 4
Robinett v. State, 383 S.W. 3rd 758 (Tex.App.-Amarillo 2012, no pet.)…… 3, 4
Sanchez v. State, 354 S.W. 3rd 476 (Tex.Cr.App. 2011) …………………... 3, 4
Scott v. State, 227 S.W. 3rd 670 (Tex.Cr.App. 2007) ……………………… 5
Snowden v. State, 353 S.W. 3rd 85 (Tex.Cr.App. 2011) …………………… 5
Young v. State, 137 S.W. 3rd 65 (Tex.Cr.App. 2004) ……………………… 5
Constitutions, Statutes and Rules
Texas Constitution, Article 1, Section 16…………….. …………………...... 6
U.S. Constitution Article 1, Section 10.1………..……………………………6
iv
INDEX OF AUTHORITIES
Page(s)
Constitutions, Statutes and Rules
Code of Criminal Procedure
Art. 28.01 (6).………………………………………………….. 3, 4
28.10 ……………………………………………………… 2
38.07.. ……………………………………………….……. 3, 4
38.072 ……………………………………………….……. 3, 4
Government Code
Art. 311.011……………………………………………………… 2
311.016(4) ……………………………………………..…… 2
311.023 ………………………………………………...……. 2
Texas Penal Code
§12.01 (b)…………………………..………………….……… 5
§22.011(a) (1)(B)……………………………………………… 5
§22.011(a) (2)(A) ……………………………………………… 5
§22.011(a) (2)(C)………………………………………………. 5
§22.011(a) (2)(E) ……………………………………………… 5
Texas Rules of Appellate Procedure
33.1 (a)…………………………………………………..……. 5
44.2(a) ……………………………………………………..…. 5
v
CAUSE NO. 04-14-00915-CR
IN THE COURT OF APPEALS
FOURTH COURT OF APPEALS DISTRICT
SAN ANTONIO, TEXAS
ADAN FLORES
Appellant
vs.
THE STATE OF TEXAS,
Appellee
INTRODUCTORY STATEMENT
TO THE HONORABLE COURT OF APPEALS:
Comes now Appellant, ADAN FLORES, and files his Reply Brief on three
issues without waiving the other issues in his original Appellant’s Brief. Appellant
had previously filed a timely motion for extension of time to file his Reply Brief.
STATEMENT REGARDING ORAL ARGUMENT
Appellee has requested oral argument Appellant requests oral argument in
the event that the Court of Appeals grants Appellee’s request for oral argument.
ARGUMENT AND AUTHORITIES
Page | 1
REPLY ISSUE NUMBER ONE. The Court violated Defendant’s right to
due process and to be heard when the Court granted the State’s motion to amend
the indictment at an ex parte hearing.
Argument and Authorities
Notice and an opportunity to be heard are fundamental components of due
process. A statute or rule that is clear and unambiguous must be enforced as
written and is not subject to judicial discretion or interpretation. See Gov’t Code §
311.011, 311.016(4), 311.023.
The state filed a motion to amend the indictment (CR67-76). Article 28.10
of the Code of Criminal Procedure allows an amendment to an indictment after
notice to the defendant. The Court granted the State’s motion at an ex parte hearing
(CR 86-88) and without notice to Defendant (RR vol. 8 pp 6,7). Defendant’s
conviction and sentence must be set aside because he was tried on an invalid
amended indictment in violation of Art. 28.10 Texas Code of Criminal Procedure.
REPLY ISSUE NUMBER TWO. Defendant’s objection to the qualification
of VERONICA VALDEZ as to outcry witness should have been sustained.
Argument and Authorities
The State filed a motion to qualify VERONICA VALDEZ as the outcry
witness and Defendant objected (CR 204-208). The Matter was heard in two
Page | 2
phases, the first one by Judge Lopez on June 25, 2014 (RR Vol. 7), and the second
part by Judge Notzon on September 15, 2014 (RR Vol. 14).
THE HEARING BEFORE JUDGE LOPEZ
ANA was the only witness to testify at the hearing (RR Vol.7 p.3). (1)She
testified that she had been the subject of a video tape interview by VALDEZ, (2)
that prior to the interview she had made outcries to ARTURO (her mother’s
boyfriend, to her aunt JESSICA MORALES (pp. 42, 43, 54) and to her school
counselor Ms. AYALA (pp. 30, 32), as well as to her grandmother (p. 34). Judge
LOPEZ said he did not have to hear from ANA’s mother or from Ms. VALDEZ
and that Ms. VALDEZ was qualified as the outcry witness (pp. 62, 63). The ruling
by Judge LOPEZ will not withstand appellate review because he failed to consider
and rule out the prior outcries made by ANA and his ruling violates the Texas
Code of Criminal Procedure and decisions of the Court of Appeals and other
Courts of Appeal. See Arts. of the Code of Criminal Procedure 28.01(6), 38.07,
38.072; Jennings v. State, 302 S.W. 3rd 306, 311 (Tex.Cr.App. 2010) (all jury
charge errors are cognizable on appeal if the Defendant failed to object); Sanchez
v. State, 354 S.W. 3rd 476, 478 (Tex.Cr.App. 2011) (opportunity to cross-examine
the outcry witness) Robinett v. State, 383 S.W. 3rd 758, 761 (Tex.App.-Amarillo
2012, no pet.) (admissible outcry witness testimony is even-specific); Nino v.
State, 223 S.W. 3rd 749, 752-53 (Tex.App.-Houston [14th Dist.] 2007, no pet.);
Page | 3
Norris v. State, 788 S.W. 2d 65 (Tex.App. Dallas 1990, pet. ref’d)( battery of
requirements as a condition to the admission of outcry testimony).
THE HEARING BEFORE JUDGE NOTZON
Without reviewing the transcript of the testimony of ANA at the hearing
before Judge LOPEZ, Judge NOTZON announced at the commencement of her
hearing and at the conclusion that she agreed with the ruling by Judge LOPEZ
holding that VALDEZ was qualified to testify as the outcry witness (Vol. 14 p.
202). Neither the State nor the Court called ANA’s mother, ANA’s aunt, the male
friend of ANA’s mother, or ANA’s grandmother to inquire into the extent of
ANA’s revelations to those witnesses at the outcries that preceded the interview by
VERONICA VALDEZ (RR Vol. 14). The ruling by Judge NOTZON that
VERONICA VALDEZ was qualified to testify as the outcry witness is legally and
factually incorrect. See Arts. 28.01(6), 38.07, 38.072 of the Code of Criminal
Procedure; Jennings v. State, 306 S.W. 3rd at 311; Sanchez v. State, 354 S.W. 3rd at
478; Robinett v. State, 383 S.W. 3rd at 761-62; Nino v. State, 223 S.W. 3rd at 752-
53; and Norris v. State, 788 S.W. 2d 65.
The State’s contention that Defendant did not preserve error because he did
not file a motion to suppress is meritless. A review of Defendant’s objections to
VERONICA VALDEZ as the outcry witness makes it clear that Defendant sought
to exclude/suppress her testimony as the outcry witness and that the preserved
Page | 4
error. See Rules 33.1(a), 44.2(a) Texas Rules of Appellate Procedure; Young v.
State, 137 S.W. 3rd 65, 69-70 (Tex.Cr.App. 2004) (timely and specific objection);
Garza v. State, 129 S.W. 3rd 79, 84-85 (Tex.Cr.App. 2004) (overruling of a pretrial
motion to suppress; Snowden v. State, 353 S.W. 3rd 815, 821-22 (Tex.Crim.App.
2011) (harmless error inquiry and analysis); Scott v. State, 227 S.W. 3rd 670, 690-
91) (Tex.Cr.App. 2007) (whether the constitutional error was a contributing factor
in the jury’s deliberations in arriving at the verdict).
REPLY ISSUE NUMBER THREE. The Trial Court committed reversible
error when it instructed the jury that Counts I, II, III, IV, and V were first degree
felonies.
Argument and Authorities
In the jury charge pertaining to guilt or innocence (CR 211) and in the
punishment phase (CR 233-237), the Court instructed the jury that those counts
were first-degree felonies, punishable by confinement of 5 years to life
imprisonment. The offenses allegedly occurred prior to 2009, and were second-
degree felonies. Penal Code §12.01(b) says that Penal laws enacted after the
effective date of the code are to be classified for punishment purposes in
accordance with the laws in effect when the offenses occurred. When the alleged
offenses occurred, they were second-degree felonies punishable by 2 to 20 years
confinement. See Penal code Secs. 22.01(a)(2)(A), 22.011(a)(1)(B),
Page | 5
22.011(a)(2)(C), 22.011(a)(2)(E); Carmell v. Texas, 529 U.S. 513, 537 (2000) “It
is settled by the decisions of this Court… that any statute which punishes as on act
previously committed …. which makes more burdensome the punishment for a
crime, after its commission … is prohibited as ex post facto.” Because Defendant
was tried, convicted and punished under ex post facto laws and such laws are
prohibited by the Federal and Texas Constitutions, his conviction must be reversed.
See Article 1, Section 10.1 of the United States Constitution and Article 1, section
16 of the Texas Constitution.
PRAYER. Premises considered, Appellant asks the Court to consider the
Reply Brief in conjunction with his Brief and reverse his conviction or reverse and
remand it to the trial court for a new trial.
Respectfully submitted,
/s/ Armando Treviño
ARMANDO TREVINO
State Bar No. 20211100
1519 Washington St., Suite One
Laredo, Texas 78040
Tel: (956) 726-1638
Email: armandotrevinolaw@gmail.com
Attorney for Appellant
Page | 6
CERTIFICATE OF SERVICE
A true copy of the above document was served on the 22nd day of July, 2015,
on David L. Reuthinger, Jr. Assistant District Attorney, Webb County District
Attorney, via Prodoc e-service electronic filing at
dreuthinger@webbcountytx.gov., 1110 Victoria, Suite 401, Laredo, Texas 78040.
/s/ Armando Treviño
ARMANDO TREVINO
CERTIFICATE OF COMPLIANCE
Relying on the word count function in the word processing software used to
produce this document, I certify that the number of words in this Reply Brief
(excluding any caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance and appendix) is
1,321.
/s/ Armando Treviño
ARMANDO TREVINO
Attorney for Appellant
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