Javier Noel Campos v. State

CAUSE NOS.01-13-00415-CR; 01-13-00416-CR; 01-13-00417-CR IN THE TEXAS COURT OF APPEALS JN- ^s FIRST JUDICIAL DISTRICT c^/s '0/5 HOUSTON, TEXAS Cte%. J/J^'% JAVIER NOEL CAMPOS Appellant VS. THE STATE OF TEXAS Appellee APPELLANT'S SUPPLEMENTAL BRIEF On remand from the Texas Court of Criminal Appeals in Nos. PD-0054-15; PD-0055-15; PD-0056-15 From the 184th District Court of Harris County , Texas in Trial Nos. 1308988; 1328806; 1328807 Honorable Jan Krocker , Presiding JAVIER NOEL CAMPOS Appellant , pro se TDCJ # 1854678 MARK STILES UNIT 3060 FM 3514 Beaumont , Texas 77705 IDENTITY-. OF -PARTIES Javier Noel Campos - Appellant TRIAL ATTORNEYS Greg Houl.ton - Attorney for State 1201 Franklin , Ste. 600 Houston , Texas 77002 Diana Olvera - Attorney for Appellant Daniel Lacayo,Jr. - Attorney for Appellant Harris County Public Defender's Office 1201 Franklin , 13th floor Houston , Texas 77002 APPELLATE ATTORNEYS Harris County District Attorney's Office Appellate Division 1201 Franklin , Ste. 600 Houston , Texas 77002 Wayne T. Hill - Attorney for appellant 4615 Southwest Freeway , Ste. 600 Houston , Texas 77027 Honorable Jan Krocker - Trial Judge 184th District Court Harris County Criminal Justice Center 1201 Frhklin Street , 17th floor Houston , Texas 77002 TABLE ..OF CONTENTS Page IDENTITY OF PARTIES i TABLE OF CONTENTS ii INDEX OF AUTHORITIES iii STATEMENT OF THE CASE 1 STATEMENT OF PROCEDURAL HISTORY 1 STATEMENT REGARDING ORAL ARGUMENTS 1 STATEMENT OF THE FACTS 1 POINT OF ERROR #1 2-4 PRAYER FOR RELIEF 4 CERTIFICATE OF SERVICE 5 INMATE OATH/DECLARATION 5 ii INDEX,OF.AUTHORITIES Cases Page Meadows V. State, 455 S.W.3d 166, 169 (Tex. Grim. App. 2015) 3 Miller V. State, 196 S.W. 3d 256 (Tex. App.-Fort Worth 2006, pet. ref'd) 3 Theus y. State, 845 S.W.2d 874 (Tex. Crim. App. 1992) Statues Teas Rules of Evidence 609 2,3 in STATEMENT.OF THE,CASES Appellant was tried and convicted in one trial on three seperate accounts of aggravated sexual assaults of a child in Cause Nos. 1308988 (CR-1-26); 1328806 (CR-1-10); and 1328807 (CR-1-10). Appellant was found guilty and sentenced to sixty-eight(68) years in the Texas Department of Criminal Justice Institutional Divisions. The Court granted State's Motion to Cumulate Appellant's Sentences. Appellant gave timely notice of appeal. STATEMENT,OF PROCEDURAL.HISTORY The First Court of Appeals affirmed Appellant's appeal and issued it's memorandum opinion on January 13, 2015. Appellant filed a Motion for Rehearing and a Motion for En Banc Reconsideration on Febuary 2, 2015. Both Motions were denied on Febuary 19, 2015. Appellant filed a Petition for Discretionary Review with the Texas Court of Criminal Appeals on April 22, 2015. The Court of Criminal Appeals rendered it's decision on July 29, 2015 and remanded the case back to the Court of Appeals First Judicial District for further analysis. The deadline for filing a supplem ental brief is October 1, 2015. Appellant filed an extension of time to file a Supplemental Brief on September 16, 2015. STATEMENT.REGARDING- ORAL.ARGUMENTS Appellant requests oral argument. Oral arguments will benefit this Court during it's decisional process. STATEMENT OF THE.FACTS For the sake of convenience and simplicity, please incorporate Appellant's statement of facts from original brief pages 1-21 as if here. 1 POINT..OF ERROR NUMBER. ONE THE TRIAL COURT ERRORED WHEN IT ALLOWED THE STATE TO CROSS EXAMINE APPELL ANT CONCERNING A CONVICTION WHICH WAS MORE THAN TEN YEARS OLD. (It should be noted that point of error number one on this supplemental brief correspondes to point of error number nine from the original brief) Statement Of Facts Appellant filed a Motion To Testify Free of Impeachment by Prior Convictions. One of the prior convictions under review by the Trial Court was a 1992 felony conviction for aggravated assault. Appellant's counsel noted that this conviction was more than ten (10) years old, claiming that it was substantially more prejudicial due to the age of the convict ion. (R-VI-72) In it's efforts to introduce evidence of Appellant's 1992 aggravated assault conviction, the State relied upon "tacking" a 2006 misdemeanor assault oh a family member (not a female). (R-VI-69) Appellant's counsel objected, noting that this misdemeanor was not class ified as a crime involving moral turpitude and therefore not admissible. (R-VI-69) The Trial Court commented that she assumed Appellant would have been off parole in 1997 on the 1992 case. The Court went on to say that due to a 2006 conviction, she would use "tacking" to bring the 1992 conviction within the ten year rule envisioned by the rule 609 of the Texas Rules of Evidence. Appellant was cross-examined concerning the 1992 aggravated assault case. (R-VI-98) ARGUMENTS AND AUTHORITIES In the unambiguous plain language , Rule 609(a) provides that witness credibility may be attacked by admitting evidence that the witness prev- iosly has been convicted of a felony or crime of moral turpitude if the Trial Court determines that the probative value of admitting the evidence simply outweighs It's prejudicial effect. In equally unambiguous plain language, Rule 609(b) limits Rule 609(a) by providing that evidence of a prior conviction is inadmissible if more than ten years has elapsed since the latter of the date of the conviction or release of the witness from the confinement imposed for that conviction unless the Court determines in the interest of justice, that the probative value of the conviction supported by specific facts and circumstnces substantially outweighs it's prejudicial effect. Whether to admit remote convictions lies within the Trial Court's discretion. Theus v. State, 845 S.W. 2d 874 (Tex. Crim. App. 1992) If the Trial Court's decision falls outside the "zone of reasonable disagreement" It has abused it's discretion. Theus and Miller V. State, 196 S.W. 3d 256 (Tex. App-Fort Worth 2006 , pet. ref'd) The issue of applying the common law "tacking" doctrine under Texas Rule of Evidence 609(a)(b) was addressed by the Texas Court of Criminal Appeals in Meadows V. State, 455 S.W.3d 166,169 (Tex. Crim. App. 2015) In Meadows, the Court stated that "the Court of Appeals committed error by engrafting onto Texas Rule Of Evidence 609(b) the common law doctrine known as "tacking" to treat convictions older than ten(10) years old as though they were more recent than ten(10) years although there is no provision contained in Rule 609 to allow such result." (Id at 1. ftnt) In the instant case, appellant submits that if the 2006 misdemeanor assault (hot against a woman) Is not classified as a crime involving moral turpitude and doesn't substantially outweigh its prejudicial effect, then Its use to "tack" back to the 1992 aggravated assault was error. MeadowjB, supra Therefore, the Trial Court could not permissibly allow the State to use 3- his 2006 misdemeanor assault conviction to "tack" onto his 1992 aggravated assault conviction and for this, the case should be sent back to the Trial Court for further proceedings. PRAYER WHEREFORE, PREMISES CONCIDERED, Appellant prays that the Court review the remaining point of error raised herein and find, as a matter of law, that the error has merit and that the Court grant relief as It deems necessary. RESPECTFULLY^SUBMITTED, uXc~Y>< Javier Noel Campos Appellant, pro se TDCJ # 1854678 Mark Stiles Unit 3060 FM 3514 Beaumont , Texas 77705 4. CERTIFICATE OF SERVICE A true and correct copy of Appellant's Supplemental Brief has been served to the Harris County District Attorney's Office-Appellate Division 1201 Franklin , Ste.600, 6th floor, Houston , Texas 77002. Signed on this^^T^ay of ^k^tg^ibgE 2015- ^ya, Javier Noel Campos Appellant , pro se INMATE OATH/.DECLARATION I , Javier Noel Campos , being presently incarerated in the Mark Stiles Unit of the Texas Department of Criminal Justice in Beaumont, Texas , Jefferson County, Texas , do verify and declare under penality of perjury that the foregoing statements are true and correct. Executed on this 33rdday of ^^MKPpgQIS. 5. FILED IN 1STCOURT OF APPEALS HOUSTON, TEXAS September J3, 2015 SEP 2 5 2015 Christopher A. Prihe TORHEBA^PRINE CHRISTOI Clerk CLERK First Court Of Appeals 301 Fannin Street Houston , Texas 77002 RE: Javier Noel Campos VS. The State Of Texas Cause Nos. 01-13-00415-CR; 01-13-00416-CR; 01-13-00417-CR Dear Clerk: Please find enclosed, petitioner's pro se Supplemental Brief. Please file it and bring it to the attention of the Court. I also ask that you notify me if and when respdent files a counter brief and of the judgement of same said cause by the Court. In addition , please date stamp this letter or in the alternative , send a copy of same said brief date stamped back to me at the address listed below. Thank you in advance for all your time and attention to this matter and I anticipate hearing from you- RESPECTFULLY ^SUBMITTED, Javier Noel Campos Aopellant , pro se TDCJ # 1854678 Mark stiles Unit 3060 FM 3514 Beaumont , Texas 77705 ~JA\/X£h{ C/imPos iO(bC> P/^ 35/y SE*U/MCW77^»fS 7770S RECEIVED FIRST COURT OF APPEALS HOUSTON, TEXAS SEP 2 5 2015 CHRISTOPHER A. PRINE ICLERK, c£