ACCEPTED
06-14-00010-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/26/2015 10:56:34 AM
DEBBIE AUTREY
CLERK
No. 02-13-00578-CR
IN THE FILED IN
SIXTH COURT OF APPEALS 6th COURT OF APPEALS
TEXARKANA, TEXAS
Texarkana, Texas 1/26/2015 10:56:34 AM
DEBBIE AUTREY
CATRINA MALDONADO, Clerk
Appellant,
V
THE STATE OF TEXAS,
Appellee.
Appealed from the 235th Judicial District Court
Of Cooke County, Texas
MOTION FOR REHEARING
HATCHER & HARRIS, P.C.
BELVIN R. HARRIS
Texas Bar No. 09052000
109 West California Street
P.O. Box 279
Gainesville, Texas 76240
Tel: (940) 665-3441
Fax: (940) 665-2000
ATTORNEY FOR APPELLANT
CATRINA MALDONADO
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No. 02-13-00578-CR
SIXTH COURT OF APPEALS
Texarkana, Texas
CATRINA MALDONADO,
Appellant,
V
THE STATE OF TEXAS,
Appellee.
Appealed from the 235th Judicial District Court
Of Cooke County, Texas
MOTION FOR REHEARING
HATCHER & HARRIS, P.C.
/S/ BELVIN R. HARRIS
Texas Bar No. 09052000
109 West California Street
P.O. Box 279
Gainesville, Texas 76240
Tel: (940) 665-3441
Fax: (940) 665-2000
Billharris6605@att.net
ATTORNEY FOR APPELLANT
CATRINA MALDONADO
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No. 02-13-00578-CR
CATRINA MALDONADO,
Appellant,
V
THE STATE OF TEXAS,
Appellee.
IDENTITY OF THE PARTIES & COUNSEL
CATRINA MALDONADO, (called “Maldonado” in this motion)
HATCHER & HARRIS, P.C.
BELVIN R. HARRIS, Attorney for Appellant
109 West California Street
P.O. Box 279
Gainesville, Texas 76240
Tel: (940) 665-3441
Fax: (940) 665-2000
Billharris6605@att.net
THE STATE OF TEXAS, Appellee, (called “the State” in this motion)
COOKE COUNTY DISTRICT ATTORNEY
JANICE WARDER, Attorney for Appellee
Cooke County Courthouse
101 South Dixon
Gainesville, Texas 76240
Tel: (940) 668-5466
Fax: (940) 668-5499
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INDEX OF AUTHORITIES
CASES
Reese v. State, 33 S.W. 3d 238 (Tex. Crim. App. 2000)……………………… 7
Erazo v. State, 144 S.W. 3d 487 (Tex. Crim. App. 2004)……………………… 7, 9
Erazo v. State, 167 S.W. 3d 889 (Tex. App. Houston 14th 2005,
no pet.)…….………………………………………………………………………….7, 9
Texas Rules of Evidence, Rule 403………………………………………........... 9
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TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL………………………………..……3
INDEX OF AUTHORITIES……………………………………….…….…. 4
ISSUES PRESENTED………………………………………….…….……...…….... 6
ARGUMENT…………………………………………...……………..….…..7
Issue 1: The Court erred in its opinion and holding that
the photographs' obvious prejudicial and admitted
effect on the jury was outweighed by their
probative value.............………………………....7
Issue 2: The Court erroneously held the trial court
performed the balancing test required under
Rule 403, Texas Rules of Evidence ...................9
PRAYER……………………………………………………………………………..10
CERTIFICATE OF SERVICE………………………………………………………11
CERTIFICATEOF COMPLIANCE………………………………………....11
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ISSUES PRESENTED FOR REVIEW
Issue 1: The Court erred in its opinion and holding that the photographs' obvious
prejudicial and admitted effect on the jury was outweighed by their probative value.
Issue 2: The Court erroneously held the trial court performed the balancing test
required under Rule 403, Texas Rules of Evidence.
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ARGUMENT
I.
THE COURT ERRED IN ITS OPINION AND HOLDING
THAT THE PHOTOGRAPH'S OBVIOUS PREJUDICIAL
AND ADMITTED EFFECT ON THE JURY WAS
OUTWEIGHED BY THEIR PROBATIVE VALUE
The Court erred in its opinion and holding that the photographs' obvious
prejudicial and admitted effect on the jury was outweighed by their probative value.
To say such photographs of the child two weeks after he was injured by Johnny
Alexander did not unfairly impress the "jury in an irrational way" defies logic.
Although the Court placed reliance on 2nd Court of Appeals precedent, it
completely disregarded precedent of the Court of Criminal Appeals. Even citing Erazo
v. State, 144 S.W. 3d 487 (Tx. Crim. App. 2004), the Court for some unknown reason
completely failed to follow its guidance. See Reese v. State, 33 S.W. 3d 238 (Tex.
Crim. App. 2000). The Court of Criminal Appeals performed a balancing test and held
a photograph inadmissible due to it being unduly prejudicial and remanded case to the
Court of Appeals for a harm analysis. The Court of Appeals held the error was
harmful stating "... we do not have fair assurance that the erroneously admitted
photograph did not influence the jury or that it influenced the jury only slightly in
assessing appellant's punishment." Erazo v. State, 167 S.W. 3d 889 (Tex. App.
Houston 14th 2005, no pet.). The range of punishment as in this case was 5 years to
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99 years or life. Without the objectionable photographs, the jury could have assessed a
more lenient punishment.
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II.
THE COURT ERRONEOUSLY HELD THE TRIAL COURT
PERFORMED THE BALANCING TESTS REQUIRED
UNDER RULE 403, TEXAS RULES OF EVIDENCE.
The Court erroneously held the trial court performed the balancing test required
under Rule 403, Texas Rules of Evidence.
Some cases lay emphasis on the lack of time granted the trial court to rule on
objections under Rule 403, supra, which completely disregards that such rulings
should be made after taking the time to perform the proper balancing. After all, a
person's liberty is at stake. An appellate court should focus on the methodology the
trial court used rather than the result the trial court reached. Rule 403 and Erazo cases,
supra, do not require an appellate court to presume a proper test was performed by the
trial court when it was not. Using the court's reasoning in this case, there is little or no
need for any balancing test to be done since it assumed, proper or otherwise, the trial
court performed such test. This case exemplifies the lack of any balancing test.
Reciting by the court what the trial judge said and did should serve to negate there
having been some sort of balancing test conducted. This court should grant a
rehearing and examine the record for any indication of a balancing test being
performed by the trial court.
For whatever reason, the Court mentioned at page 4 of its opinion a "related"
case of State v. Johnny Alexander. Since it was mentioned, the Court should take note
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of a statement made by the State in that case, to wit:
"This man hurt this little boy and killed him. ... Alexander prevented the
mother from seeking medical treatment for Nathan..."
"She (Nathan's mother) wanted to take the child to the doctor" (Reporter's
Record of trial of Johnny Alexander, unknown page number. Since the
Court mentioned the case, it apparently has reviewed the record.).
PRAYER
Maldonado prays that this court reverse the judgment of the trial court
and remand for a new punishment trial.
Respectfully submitted,
Hatcher & Harris, P.C.
/s/ Belvin R. Harris
State Bar No. 09052000
Attorney for Catrina Maldonado
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CERTIFICATE OF SERVICE
I certify that on January 26, 2015 , a true and correct copy of the
Brief for Appellant, was served to each person listed below by the method
indicated.
/s/ Belvin R. Harris
Janice Warder
Cooke County District Attorney, Attorney for Appellee
Courthouse
101 South Dixon
Gainesville, Texas 76240
*Via E-Mail*
Sue Korioth
Sue Korioth, PC
P.O. Box 600103
Dallas, Texas 75360-0103
*Via E-Mail*
CERTIFICATE OF COMPLIANCE
I certify that this document contains 1094 words, according to
Microsoft Word 2007 word counter, and in all other ways, conforms with
Texas Rule of Appellate Procedure 9.4(i) (3).
/s/ Belvin R. Harris
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