ACCEPTED
01-14-00700-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/12/2015 12:17:42 AM
CHRISTOPHER PRINE
CLERK
CAUSE NO. 01-14-00700CR
IN THE COURT OF APPEALS FOR
FILED IN
THE FIRST JUDICIAL DISTRICT OF TEXAS1st COURT OF APPEALS
HOUSTON, TEXAS
HOUSTON
8/12/2015 12:17:42 AM
THERRELL DEWAYNE FELDER, SR., CHRISTOPHER A. PRINE
Clerk
Appellant
Vs.
THE STATE OF TEXAS,
Appellee
APPEALING THE TRIAL COURT’S JUDGMENT
ON VERDICT OF GUILY IN
CAUSE NO. 14CR0283
IN THE 122nd DISTRICT COURT
OF GALVESTON COUNTY, TEXAS
HONORABLE JOHN ELISOR, PRESIDING
APPELLANT’S BRIEF
ZACHARY MALONEY
SBN 24030761
MALONEY & PARKS, L.L.P.
2925 GULF FREEWAY S. STE. B #295
LEAGUE CITY, TEXAS 77573
(713) 228-2277 Ofc.
(866) 838-5656 Fax.
ZACHMALONEY@GMAIL.COM
ORAL ARGUMENT IS REQUESTED ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
Matthew Michael Shawhan
SBOT NO. 24061342
Joseph Chicherio “Joe” Frank
SBOT NO. 24058444
Galveston County District Attorney’s Office
600 59th Street, Suite 3305
Galveston, Texas 77511
(409) 766-2355 phone
(409) 766-2290 fax
ATTORNEYS FOR THE STATE OF TEXAS
Michael Anthony Abner, Jr.
Attorney at Law
SBOT NO. 24061347
16324 Brookforest Drive
Houston, Texas 77059
(281) 221-1026
ATTORNEY FOR THE DEFENDANT AT TRIAL
Attorney for Appellant on Appeal
ZACHARY MALONEY
SBN 24030761
MALONEY & PARKS, L.L.P.
2925 GULF FREEWAY S. STE. B #295
LEAGUE CITY, TEXAS 77573
(713) 228-2277 Ofc.
(866) 838-5656 Fax.
ZACHMALONEY@GMAIL.COM
i
TABLE OF CONTENTS
Identity of Parties and Counsel i
Index of Authorities iii
Statement of the Case v
Statement of Facts v
Summary of the Arguments 1
Arguments and Authorities 2
Prayer 8
Certificate of Service 9
ii
INDEX OF AUTHORITIES
Cases
Albrecht v. State, 486 S.W.2d 97, 99 (Tex.Cr.App.1972).
Bates v. State, 643 S.W.2d 939, 944 (Tex.Cr.App.1982);
Boutwell v. State, 719 S.W.2d 164 (Tex.Cr.App.1985)
Elkins v. State, 647 S.W.2d 663, 665 (Tex.Cr.App.1983)
Harris v. State, 169 Tex.Cr.R. 143, 333 S.W.2d 142, 144 (1960)
Hernandez v. State, 484 S.W.2d 754, 755 (Tex.Cr.App.1972)
Murphy v. State, 587 S.W.2d 718, 722 (Tex.Cr.App.1979)
Parks v. State, 746 SW2d 738, (Tex. Crt Crim. App. 1987).
Plante v. State, 692 S.W.2d 487, 491 (Tex.Cr.App.1985)
Robledo v. State, 480 S.W.2d 401, 402 (Tex.Cr.App.1972)
Rubio v. State, 607 S.W.2d 498, 499 (Tex.Cr.App.1980)
Velu v. State, 2009 WL 471344 (Waco. Pet. Denied 2009)
Verner v. State, 117 Tex.Cr.R. 112, 35 S.W.2d 428, 429 (1931).
Williams v. State, 662 S.W.2d 344, 346 (Tex.Cr.App.1984).
Statutes and Rules
Tex.Cr.R. 143, 333 S.W.2d 142, 144 (1960)
CITATIONS TO THE RECORD
Reporter’s Record: volume, page no.
(Rr #p #)
iii
Clerk’s Record: volume, page no.
(Cr # p #)
iv
STATEMENT OF THE CASE
The transcript begins with Felder (Appellant) asking for a severance of two
cases. Rr 2 p 4. Cause numbers 14CR0282 and 14CR0283 where both for the
offense of forgery. Severance was granted and trial began in cause number
14CR0283. On July 1st, 2014, the Jury found Appellant “Guilty” and both of his
habitual enhancements “true”. The indictment charged Appellant for passing a
counterfeit $100 bill on December 26th, 2014. CR. 1 p 52. The Appellant went to
the court for punishment and was awarded 25 years confinement in the
Institutional Division of the Texas Department of Criminal Justice. July 18th,
2014. Motion for new trial was heard and denied on September 26th, 2014. Cr 1 p
75. Appellant presents his direct appeal.
STATEMENT OF FACTS
On December 26, 2013, Appellant allegedly passed a counterfeit $100 bill
to Crystal Morris the clerk at Food King, in Texas City, Galveston County. The
clerk, noticing the fake bill called her Manager, Anthony Melchor. Manger
Melchor, meet with Morris and the Appellant. The Appellant asked for the bill
back and left when denied its’ return. Appellant was later identified through in-
store video and photo line-ups. Appellant was later arrested on an arrest warrant.
v
During trial, for the December offense, the State argued that since identity
and intent where issues the State was allowed to enter the indicted October offense
as proof of identity and intent. Rr 4 p 6&7. However, there was no evidence.
(short of Defense counsel stating it could have been the Appellant), offered at the
time of this introduction in the record, that Appellant was identified as committing
the October offense; nor, any evidence to support intent of the October offense.
The State’s liberal interpretation of the case law to sway the court is
concerning. Rr 4. p 7&8. Defense counsel objected. To no avail the trial court
allowed testimony of the October offense. Trial resumed with the Jury hearing
testimony for a forgery offense allegedly committed by the Appellant on October
10, 2013 for a passing a counterfeit $20 dollar bill to a different clerk at the same
Food King.
There are similarities in both cases. However, in the October offense, the
clerk did not realize the bill was counterfeit until after the Appellant left and the
bill had been deposited in the register. The October offense also dealt with the
same issues of identity and intent. The Jury decided to believe the State’s offer of
proof and found the Appellant “Guilty”.
vi
SUMMARY OF THE ARGUMENTS
Point of Error One (1): The trial court erred allowing evidence of an indicted
extraneous offense, (hereinafter the “October offense”) where the prejudicial
effect outweighed the probative value.
1
APPELLANT'S POINT OF ERROR
ARGUMENT I
Point of Error One (1): The trial court erred allowing evidence of an indicted
extraneous offense, (hereinafter the “October offense”) where the prejudicial
effect outweighed the probative value.
The State and Appellant rely heavily on Parks v. State, 746 SW2d 738,
(Tex. Crt Crim. App. 1987). In Parks, that Appellant was convicted for forgery
involving the filing of forged real property documents. Id at 739. During the
course of the Parks trial other similarly illegal transactions were introduced into
evidence. Id. at 740.
Appellant, to paraphrase Parks’ argument, contends that there is other
evidence sufficient to show the Appellant's intent to defraud. Intent is at issue in
the instant case, evidence of the October extraneous offense remains extremely
prejudicial and has no probative value. Appellant argues the trial court failed, in
determining the admissibility of this evidence, in applying the Williams balancing
test as explained Parks and in Albrecht v. State, 486 S.W.2d 97, 99
2
(Tex.Cr.App.1972). See also, Hernandez v. State, 484 S.W.2d 754, 755
(Tex.Cr.App.1972).
“This test requires that a determination be made as to whether the
prejudicial effects of admitting this evidence are outweighed by the probative
value this evidence may have in aiding the trier of fact in reaching a verdict.
Albrecht v. State, supra. See also Boutwell v. State, 719 S.W.2d 164
(Tex.Cr.App.1985); Williams v. State, 662 S.W.2d 344, 346 (Tex.Cr.App.1984).
This “test” is really nothing more than a statement of a fundamental principle of
evidence. The “test” has been further developed in the Williams case. For the sake
of convenience it will be referred to in this opinion as the “Williams” test.” Parks
at 739 &740.
In the instant case (the December offense), the State introduced direct
evidence in the testimony of the Clerk, the Manager, the photo line up, the video
of the Appellant, and testimony as to the flaws in the counterfeit bill. Evidence,
suffice enough to not warrant the “booting strapping” of the October offense.
“[A]n accused person may not be tried for collateral criminal offenses or for
being a criminal generally. Williams v. State, supra; Albrecht v. State, supra; Rubio
v. State, 607 S.W.2d 498, 499 (Tex.Cr.App.1980). Evidence of extraneous
offenses is of an inherently prejudicial nature and may tend to confuse the issues
of the case. Albrecht v. State, supra. Such evidence carries with it the additional
3
danger that an accused person may be called upon to defend himself against an
implied charge of having a propensity to commit crimes rather than the specific
offense for which he is on trial. Williams v. State, supra; Elkins v. State, 647
S.W.2d 663, 665 (Tex.Cr.App.1983); Bates v. State, 643 S.W.2d 939, 944
(Tex.Cr.App.1982); Albrecht v. State, supra. “Parks at 740.
There are exceptions to the rule, In Albrecht, “Evidence of extraneous
offenses committed by the accused has been held admissible:
(1) To show the context in which the criminal act occurred—what has been termed
the ‘res gestae’—under the reasoning that events do not occur in a vacuum and
that the jury has a right to hear what occurred immediately prior to and subsequent
to the commission of that act so that they may realistically evaluate the evidence.
(2) To circumstantially prove identity where the state lacks direct evidence on this
issue.
(3) To prove scienter, where intent or guilty knowledge is an essential element of
the state's case and cannot be inferred from the act itself.
(4) To prove malice or state of mind, when malice is an essential element of the
state's case and cannot be inferred from the criminal act.
(5) To show the accused's motive, particularly where the commission of the
offense at bar is either conditioned upon the commission of the extraneous offense
4
or is a part of a continuing plan or scheme of which the crime on trial is also a
part.
(6) To refute a defense theory raised by the accused.” (footnotes omitted). 486
S.W.2d at 100–101.
Parks states that such evidence is clearly admissible when the prosecution
can show both that the offense or transaction is relevant to a material issue in the
case, and the probative value of the evidence to the trier of fact is not outweighed
by its prejudicial or inflammatory nature. Boutwell v. State, supra; Plante v. State,
692 S.W.2d 487, 491 (Tex.Cr.App.1985); Williams v. State, supra, at 346; Elkins
v. State, supra, at 665; Murphy v. State, 587 S.W.2d 718, 722 (Tex.Cr.App.1979).
Rubio v. State, supra, (concurring opinion). That is not what occurred in the instant
case. Evidence of identity and intent for the October offense was not sufficient to
warrant inclusion into the December trial case. It fails to meet the Williams test.
The Williams test has two prongs, first if the evidence of extraneous
offenses is relevant to a material issue in dispute in the case, and second, if the
probative value of such evidence outweighs its prejudicial effect.
In the instant case the State relies on the misinterpretation of Parks where,
“cases of forgery and fraud, it is difficult to prove intent. Robledo v. State, 480
S.W.2d 401, 402 (Tex.Cr.App.1972); Harris v. State, 169 Tex.Cr.R. 143, 333
S.W.2d 142, 144 (1960); Verner v. State, 117 Tex.Cr.R. 112, 35 S.W.2d 428, 429
5
(1931). [Court of Criminal Appeals has] held that intent or guilty knowledge
cannot be inferred from the mere passing of a forged instrument. Albrecht v. State.
Indeed, to hold otherwise would create the danger that the unknowing and
accidental passing of a forged instrument could effectively become a strict liability
offense. The issue of intent is of such overriding importance in a case of forgery
that it effectively becomes the focus of the State's case. Establishing intent in such
cases is so crucial and so difficult to do that, as a practical matter, evidence of
extraneous offenses is nearly always admissible. Robledo v. State, supra; Harris v.
State, supra; Vernon v. State, supra. While it is hypothetically possible that a case
of forgery could be established by direct evidence, such as eyewitness testimony,
most cases of forgery rest on circumstantial evidence. In the vast majority of such
cases, the probative value of evidence of extraneous offenses will inevitably
outweigh its prejudicial effect.” Parks, 741.
As stated before, in the instant case the State had a wealth of evidence to
present to the jury to show identity, intent and guilt without the use of the October
offense.
In applying the first prong of the Williams test, the extraneous offense
alleged was not relevant to a material element of the State's case. True the alleged
6
transactions involved were nearly identical. However, the October offense had the
issues of identity as well as the fact that the counterfeit bill was not discovered
until after the Appellant had left and the bill was examined later. In the instant
case the State could rely upon the conversations of the witnesses and the defendant
and the testimony as to the authenticity of the counterfeit bill. Given, that the jury
had other evidence to consider the October extraneous offense was not to a
material element of the State's case.
The second prong of Williams test is the balance between the probative and the
prejudicial aspects of the evidence in question. In assessing this balance between
the probative values of the evidence versus its prejudicial effect, it is necessary to
view the nature of the State's case. The State's case consisted of evidence that
appellant had passed the counterfeit $100.00 dollar bill, opinion testimony as to
the flaws in the bill, the photo line up, the testimony of two eyewitnesses as to the
Appellant’s demeanor, actions and conversations with the Appellant. The addition
of the October offense was purely to inflame the jury and sway the jury and not for
probative value.
The second prong of the Williams test, as established in Albrecht, is not
satisfied. The evidence was improperly admitted.
The State’s use of the unpublished opinion, Velu v. State, 2009 WL 471344
(Waco. Pet. Denied 2009) is factually disguisable and wrong to use in the instant
7
case. Velu confessed that he had passed forged checks; Velu gave conflicting
statements implicating his guilt. Identity and intent was not at issue an either
Velu’s trial case nor the extraneous offenses. In the Instant case Appellant gave
neither statement nor was his identity known till after the completion of the
offense. The State’s use of Velu to redefine Parks is flawed and the prejudicial
harm caused to the Appellant outweighs the probative value of the October
offense.
CONCLUSION
The State relies upon the allegation that Appellant was the culprit in both
cases. In both cases identity and intent are at issue. In the caselaw relied upon by
the State, identity was not an issue, nor was the actions of those defendants. In the
instant case, the state glazes over the fact that the discovery of the counterfeit
$20.00 dollar bill was not discovered till after the appellant left and the bill
removed from the till. There was ample evidence in the instant case for the State
to use without the October offense. Under the Williams test, as summarized in
Parks, the October offense as evidence in guilt innocence was improperly
admitted.
8
PRAYER
WHEREFORE, should the Honorable Court of Appeals find error in the
record on appeal, Appellant prays the Court reverse and remand this cause for new
trial, remand for new trial on punishment or, in the alternative, reverse and render
with instruction to enter a judgment of acquittal.
CERTIFICATE OF COMPLIANCE
I hereby certify pursuant to TRAP 9.4(i) that the preceding document
contains 2,492 words as determined by the word count of the computer program
used to prepare this document.
/s/ Zachary S. Maloney
Zachary S. Maloney
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Appellant’s Original Brief has
been sent to the Galveston County, District Attorney’s Office, Appeal Division, on
this the 20th day of June, 2015.
__/S/ Zachary S. Maloney
ZACHARY MALONEY
9