                                                               ACCEPTED
                                                           14-14-00568-CR
                                           FOURTEENTH COURT OF APPEALS
                                                        HOUSTON, TEXAS
                                                      8/5/2015 11:01:56 AM
                                                     CHRISTOPHER PRINE
                                                                    CLERK

  CASE NO. 14-14-00568-CR

                                           FILED IN
                                    14th COURT OF APPEALS
                                        HOUSTON, TEXAS
IN THE 14th COURT OF APPEALS
                                    8/5/2015 11:01:56 AM
                                    CHRISTOPHER A. PRINE
    AT HOUSTON, TEXAS                        Clerk


      MARCUS BROOKS,
           Appellant

              VS.

   THE STATE OF TEXAS,
         Appellee


       Appealed from the
      th
   230 Judicial District Court
      Harris County, Texas
       Cause No. 1408106

    The Honorable Brad Hart,
        Judge Presiding



   BRIEF FOR APPELLANT



ORAL ARGUMENT IS WAIVED


                    KURT. B. WENTZ
                    5629 Cypress Creek Parkway
                    Suite 115
                    Houston, Texas 77069
                    E-mail: kbsawentz@yahoo.com
                    281/587-0088
                    TBA: 211779300
                    ATTORNEY FOR APPELLANT
                             TABLE OF CONTENTS
                                                                              Page

IDENTITY OF PARTIES AND COUNSEL                                                  3

STATEMENT REGARDING ORAL ARGUMENT                                                3

INDEX OF AUTHORITIES                                                             4-5

STATEMENT OF CASE                                                                6

POINTS OF ERROR                                                                  6-7

STATEMENT OF FACTS                                                               7-13

SUMMARY OF ARGUMENT                                                              13

POINT OF ERROR NO. 1 RESTATED AND ARGUMENT AND
AUTHORITIES IN SUPPORT OF POINT OF ERROR NO. 1                                   14-22

    The trial court abused its discretion in denying the appellant's Motion
    to Testify Free from Impeachment by Prior Convictions in a hearing
    outside the presence of the jury.

POINT OF ERROR NO. 2 RESTATED AND ARGUMENT AND
AUTHORITIES IN SUPPORT OF POINT OF ERROR NO. 2                                   22-25

    The trial court abused its discretion in denying the appellant’s Motion
    to Testify Free from Impeachment by Prior Convictions by ruling that
    in addition to the appellant’s recent felony tampering and forgery
    convictions his 1993 burglary of a habitation conviction would also be
    admissible under Tex. R. Evid. 609.

POINT OF ERROR NO. 3 RESTATED AND ARGUMENT AND
AUTHORITIES IN SUPPORT OF POINT OF ERROR NO. 3                                   25-28

    The trial court abused its discretion in denying the appellant’s Motion to
    Testify Free from Impeachment by Prior Convictions and holding that his
    2002 misdemeanor theft conviction, 1993 burglary of a habitation
    conviction, 1990 burglary of a habitation conviction, 1989 burglary of a
    habitation conviction, and 1988 burglary of a motor vehicle conviction
    were each admissible for the purpose of impeachment under Tex. R.
    Evid. 609.

                                          1
POINT OF ERROR NO. 4 RESTATED AND ARGUMENT AND
AUTHORITIES IN SUPPORT OF POINT OF ERROR NO. 4                                26-28

    The trial court abused its discretion in denying the appellant’s Motion
    to Testify Free from Impeachment by Prior Convictions and that his 2002
    misdemeanor theft conviction, 1993 burglary of a habitation conviction,
    1990 burglary of a habitation conviction, 1989 burglary of a habitation
    conviction, and 1988 burglary of a motor vehicle conviction were
    admissible for the purpose of impeachment under Tex. R. Evid. 609
    because of the cumulative harm generated by this error.

PRAYER                                                                        29

CERTIFICATE OF SERVICE                                                        29

CERTIFICATE OF COMPLIANCE                                                     29




                                        2
                     IDENTITY OF PARTIES AND COUNSEL


      1.     The appellant is Marcus Brooks who is incarcerated in the Estelle Unit of

the Institutional Division of the Texas Department of Criminal Justice.

      2.     The trial attorneys for the State of Texas were Kristina Daily and Lisa

Calligan whose address is 1201 Franklin, 6th Floor, Houston, Texas 77002.

       3.    The trial attorney for the appellant was Michelle Beck whose address is

1314 Texas Avenue, Suite 1200, Houston, Texas 77002.

      4.     The trial judge was The Honorable Brad Hart whose address is 1201

Franklin, 16th Floor, Houston, Texas 77002.

      5.     The appellate attorney for the State of Texas is Alan Curry, Assistant

District Attorney, whose address is 1201 Franklin, 6th Floor, Houston, Texas 77002.

      6.     The appellate attorney for the appellant is Kurt B. Wentz whose address is

5629 Cypress Creek Parkway, Suite 115, Houston, Texas 77069.

                 STATEMENT REGARDING ORAL ARGUMENT

   Pursuant to TEX. R. APP. P. 39.1(e) and 39.7, the appellant waives oral argument.




                                            3
                             INDEX OF AUTHORITIES

                                        CASES
                                                                                 Page

Bryant v. State, 997 S.W. 2nd 673, 676 (Tex. App. – Texarkana 1999)         16

Bustillos v. State, 464 S.W. 2nd 118, 124 (Tex. Crim. App. 1971)            15

Chitwood v. State, 350 S.W. 3rd 746, 749 (Tex. App. – Amarillo 2011)        16

Crisp v. State, 470 S.W. 2nd 58, 59, 60 (Tex. Crim. App. 1971)              15

Geuder v. State, 115 S.W. 3rd 11, 13 (Tex. Crim. App. 2003)                 19

Hankins v. State, 180 S.W. 3rd 177, 179 (Tex. App. – Austin 2009)           16

King v. State, 953 S.W. 2nd 266, 271 (Tex. Crim. App. 1997)                 17

Leyba v. State,416 S.W. 3rd 563, 599 (Tex. App.–Houston[14th Dist.]2003)    16,24,26-28

Linney v. State,401S.W. 3rd 764,782-83(Tex. App.–Houston[1st Dist.]2013) 27

Long v. State,245 S.W. 3rd 563,573(Tex. App –Houston [1st Dist.] 2007)      20

Luce v. U.S., 469 U.S. 38, 43 (1984)                                        20,21,24

Martinez v. State, 98 S.W. 3rd 189, 193 (Tex. Crim. App. 2003)              19

McClendon v. State 509 S.W. 2nd 851, 855-57 (Tex. Crim. App. 1974)          15

Morgan v. State, 891 S.W. 2nd 733 (Tex. App. – Houston [1st Dist.] 1994)    20,21

Motilla v. State, 78 S.W. 3rd 352, 355 (Tex. Crim. App. 2002)               17

Solomon v. State, 49 S.W. 3rd 356, 365 (Tex. Crim. App. 2001)               17

Stahl v. State, 749 S.W. 2nd 826, 832 (Tex. Crim. App. 1988)                25.27

Theus v. State, 845 S.W. 2nd 874, 880 (Tex. Crim. App. 1992)           16,17-19,20,24

Whitaker v. State,909 S.W.2nd 259,262(Tex. App.–Houston[14th Dist.]1995) 20,25


                                           4
                          STATUTES

Tex. R. Evid. 902(10)                10

Tex. R. Evid. 609(a)                 13-16,19,21

Tex. R. Evid. 609(b)                 13,16,18,23-24,26

Tex. R. Evid. 103(a)(1)              19

Tex. R. App. P. 44.2(b)              17




                             5
                                 STATEMENT OF CASE

        The appellant was indicted for the offense of injury to a child. The indictment

contained two additional paragraphs for the purpose of the enhancing punishment. (1CR

13).

        On April 11, 2014 the trial court granted the State's Motion to Amend Indictment

correcting the name of the complaining witness. (1CR 50).

        The jury found the appellant guilty of injury to a child. (1CR 175).

        On July 2, 2014 the jury sentenced the appellant to 60 years' confinement in the

Institutional Division of the Texas Department of Criminal Justice. (1CR 87).

        On July 2, 2014 the Appellant gave notice of appeal. (1CR 195).

        On July 2, 2014 the trial court certified the appellant's right to appeal. (1CR 196).

        On July 2, 2014 the trial court found the appellant remained indigent and

appointed counsel to represent him on direct appeal. (1CR 197).

                                   POINTS OF ERROR

                                 POINT OF ERROR NO. 1

        The trial court abused its discretion in denying the appellant's Motion to Testify

Free from Impeachment by Prior Convictions in a hearing outside the presence of the

jury.

                                 POINT OF ERROR NO. 2

        The trial court abused its discretion in denying the appellant’s Motion to Testify

Free from Impeachment by Prior Convictions by ruling that in addition to the appellant’s



                                              6
recent felony tampering and forgery convictions his 1993 burglary of a habitation

conviction would also be admissible under Tex. R. Evid. 609.

                               POINT OF ERROR NO. 3

      The trial court abused its discretion in denying the appellant’s Motion to Testify

Free from Impeachment by Prior Convictions and holding that his 2002 misdemeanor

theft conviction, 1993 burglary of a habitation conviction, 1990 burglary of a habitation

conviction, 1989 burglary of a habitation conviction, and 1988 burglary of a motor

vehicle conviction were each admissible for the purpose of impeachment under Tex. R.

Evid. 609.

                               POINT OF ERROR NO. 4

      The trial court abused its discretion in denying the appellant’s Motion to Testify

Free from Impeachment by Prior Convictions and that his 2002 misdemeanor theft

conviction, 1993 burglary of a habitation conviction, 1990 burglary of a habitation

conviction, 1989 burglary of a habitation conviction, and 1988 burglary of a motor

vehicle conviction were admissible for the purpose of impeachment under Tex. R. Evid.

609 because of the cumulative harm generated by this error.

                              STATEMENT OF FACTS

                          State's Evidence at Guilt/Innocence

      Tee's1 mother, Susan Cannon, met Mr. Brooks in May 2013 and lived with him

briefly before returning to live with her mother in August. (3RR 17, 20, 22).


1     To safeguard the confidentiality of the complaining witness’ identity the
pseudonym “Tee” will be used throughout to identify the complainant.
                                            7
       Both received disability, she for depression and the appellant for blindness

although she denied he ever used glasses or a cane. She reported Mr. Brooks was able to

ride the bus as well as a bicycle. (3RR 17, 21, 37, 39, 40). Tee also received disability

for an infant tracheal problem and ADHD. (3RR 38).

       The couple continued to date after separating and met at her friend Patty’s

apartment because she did not want Mr. Brooks to know where she lived and did not

really want to date him anymore. (3RR 23, 43). Ms. Cannon denied meeting at Patty's

because her mother did not like her dating an African-American. (3RR 42).

       On November 9, 2013 Ms. Cannon and Tee went to Patty’s to attend a party. After

consuming five or six beers Ms. Cannon began to argue with Mr. Brooks on the patio

expressing a desire to end their relationship. As the argument ensued she refused to

return his food stamp book and bus pass. (3RR 23, 26, 28). After approximately 30

minutes Tee came out of the apartment onto the patio and tried to separate the couple

after which he sat in a chair by the door. (3RR 30).

       Tee's mother allowed he carried a butcher's knife with him when he stepped onto

the patio and refused to put it down until she disarmed the 5' 3", 188 lb. youth. (3RR 59,

63, 57). Ms. Cannon recalled when the appellant dropped his cell phone Tee kicked it

precipitating the alleged assault during which the appellant purportedly punched the

youth six times in the face and stomach causing bleeding and bruising. (3RR 76, 31, 36).

       Tee confirmed going to Patty’s apartment with his mother on November 9 th but

remembered 15 people being at the party, not just the five that she recalled. (3RR 94,



                                             8
25). He also allowed Mr. Brooks was blind, but never used a cane and got to the party by

riding a bike. (3RR 103).

       Tee recalled that an argument between he and his mother preceded Ms. Cannon’s

argument with the appellant. Ms. Cannon was still angry when she left her son and went

outside onto the patio. (3RR 105). When Tee heard them argue he got a butcher knife

from the kitchen fearing the couple would become physical in their dispute. (3RR 92).

However, he hid the knife behind his back when he ventured outside and sat in the chair

by the door. (3RR 93).

       Tee denied hitting, kicking or threatening Mr. Brooks, or kicking his cell phone

before the appellant’s assault. (3RR 96, 97, 101). Only after the appellant struck him did

Tee kick the appellant. (3RR 109). Tee recalled Mr. Brooks avoided being thrown off

the patio by his mother only by grabbing a nearby pole. (3RR 99).

       After calling 911 and forcibly removing Mr. Brooks from Patty’s apartment, Ms.

Cannon took her son to the emergency room at Memorial Hermann where he returned the

following day when he complained of headaches. (3RR 35). The 911 call, hospital

records, and family photographs of the alleged injuries were admitted into evidence.

(3RR 33, 77, 79). The hospital records indicated a diagnosis and clinical impressions of

“facial contusions”, “physical assault”, and “contusions to his face” following a

complaint that “mother’s BF punched him in the left side of face.” (State’s Exhibit – No.

1, p. 5, 8, 7, 14). Photographs confirmed a cut, swollen lip and puffiness to the left side

of the youth’s face. (See State’s Exhibit Nos. 8, 9, 10 and 15).



                                             9
       H.P.D. Officer Wesley Blevens, hereinafter “Blevens”, did not learn of the

specifics of his dispatch until arriving at Patty’s apartment.     (3RR 120).       H.F.D.

paramedics recommended further medical care. (3RR 125). Blevens recalled Tee’s lip

and the left side of his face appeared to have been struck multiple times. (3RR 122).

Residents at the complex reported the suspect had fled to the rear of the complex where

his car was parked. (3RR 125).

       Blevens found Mr. Brooks without glasses, walking stick, or cane. (3RR 133).

Mr. Brooks was never seen riding a bike, and no bike or car was ever found by the

officer.

       H.P.D. Sgt. John Jones, hereinafter “Jones”, recalled Tee and his mother coming

to the station the following day to have photographs taken of the youth’s injuries. (3RR

144). Although he had no personal knowledge of the incident, Jones took the requested

photographs and noticed the left side of the youth’s face was swollen. (3RR 146).

                       Appellant’s Evidence at Guilt/Innocence

       Various records relating to the appellant’s eye problems were not admitted into

evidence through private investigator Ron Kelly as they had not been timely filed

pursuant to Tex. R. Evid. 902(10) and constituted hearsay as the private investigator was

not the custodian of the records. (4RR 16).

       Mr. Brooks’ mother, Carrie Brooks, recalled he had had eye problems since birth.

(4RR 23). However, the problems became more serious in 2010 when he was diagnosed

with keratoconus. (4RR 22).



                                              10
       She accompanied her son to various doctors and clinics and assisted him in

obtaining Social Security in 2012. (4RR 23). Prior to this the Department of Assistive

and Rehabilitative Services had aided the appellant in obtaining contact lenses, shades,

and canes. (4RR 24).

       Ms. Brooks described how the appellant used a “stick” when he was at her house

and other places with which he was not familiar. (4RR 27). Her son could not drive, and

she had never seen him ride a bicycle. (4RR 40). She allowed she drove the appellant to

Patty’s apartment the day of the complained-of incident. (4RR 50).

       After listening to a recorded jail conversation with her son Ms. Brooks recalled

talking with him about the case. (4RR 47).

       After the court denied the appellant’s Motion to Testify Free from Impeachment

by Prior Convictions and ruled that all of his felony and misdemeanor convictions

involving moral turpitude dating back to 1988 could be used to impeach him, Mr. Brooks

declined to testify. (4RR 52, 55).

       The appellant rested. (4RR 67).

                              State’s Evidence in Rebuttal

       Ms. Brooks recalled listening to a recorded jail conversation with her son in which

he advised her his private investigator raised the issue of his blindness, and the need to

have her “verify” the problem. (4RR 68, 69). However, the appellant never asked his

mother to lie for him. She confirmed her earlier estimates as to his ability to see. (4RR

69, 70).

       The State rested and closed. (4RR 70).

                                             11
        The defense rested and closed. (4RR 70).

                                                 Verdict

        The jury found the appellant guilty. (4RR 87).

                                State’s Evidence at Punishment

        The appellant pled true to the enhancement paragraphs contained in the

indictment. (5RR 5).

        Through a comparison of the appellant’s known fingerprints with the unknown

fingerprints found on the pen packets and judgments in State’s Exhibits 19 through 26 the

State was able to establish that Mr. Brooks had been previously convicted and sentenced

in the following cases:

States                    Date of      Date of
Exhibit #   Volume #      Conviction   Offense          Offense_____    Case No.   Court No.    Sentence

19          7RR 16        8-12-11      1-7-11     Felony Tampering      1291361    339th       2 yrs TDCJ

20          7RR 17        5-20-03      5-10-03    Forgery               948352     183rd       2 yrs TDCJ

21          7RR 18        11-11-02     8-14-02    Failure ID            1130561    10          60 days HCJ

22          7RR 19        11-11-02     8-14-02    Theft                 1130560    10          60 days HCJ

23          7RR 20        03-31-93     4-30-92    Burglary Habitation   631540     178th       15 yrs TDCJ

24          7RR 21        10-16-90     10-12-90   Burglary Habitation   578238     176th       10 yrs TDCJ

25          7RR 22        10-27-89     10-04-89   Burglary Habitation   543926     262nd       6 years TDCJ

26          7RR 23        11-07-88     11-05-88   BMV                   514854     209th       9 Mos. HCJ




        Blevins further provided after initially confronting the appellant Mr. Brooks

became aggressive.        Before he could tazor the suspect Mr. Brooks ran from the

uniformed officer through the apartment complex. (5RR 12). During their ensuing


                                                   12
struggle the appellant threatened to “kill” the officer before he was subdued with the

assistance of two other officers and pepper spray. (5RR 14, 15). Blevens was treated for

facial lacerations at Ben Taub Hospital as a result of his struggles with the appellant.

(5RR 24). His black eye lasted for three weeks and the laceration of his neck about a

week. (5RR 17).

       The State rested on punishment. (5RR 20).

                          Appellant’s Evidence at Punishment

       Mr. Brooks presented no evidence at punishment.

       The appellant rested on punishment. (5RR 20).

                                        Sentence

       The jury sentenced the appellant to 60 years confinement in the Institutional

Division of the Texas Department of Criminal Justice. (5RR 35).

                             SUMMARY OF ARGUMENT

       The harm generated by the trial court’s abuse of discretion in denying Mr. Brooks’

Motion to Testify Free from Impeachment by Prior Convictions allowing him to be

impeached with recent felonies for tampering and forgery under Tex. R. Evid. 609(a) was

exacerbated when the lower court ruled his 2002 misdemeanor theft conviction, 1993

burglary of a habitation conviction, 1990 burglary of a habitation conviction, 1989

burglary of a habitation conviction, and 1988 BMV conviction were also admissible for

impeachment as a result of the “tacking doctrine” and not because their probative value

substantially outweighed their prejudicial effect as required by Tex. R. Evid. 609(b).



                                            13
                          POINTS OF ERROR – RESTATED

                       POINT OF ERROR NO. 1 – RESTATED

        The trial court abused its discretion in denying the appellant's Motion to Testify

Free from Impeachment by Prior Convictions in a hearing outside the presence of the

jury.

                  ARGUMENT AND AUTHORITIES IN SUPPORT
                        OF POINT OF ERROR NO. 1

                                     Applicable Law

        Towards the conclusion of the State’s case trial counsel requested a hearing

outside the presence of the jury on her Motion to Testify Free from Impeachment by

Prior Convictions. (4RR 5). The trial court denied counsel’s motion and argument that

Mr. Brooks should be allowed to testify free from impeachment with any available prior

convictions and alternative argument that impeachment be limited to those felonies for

tampering and forgery that fell within the ten-year limitation provided in Tex. R. Evid.

609(a). (4RR 5-9).

        It has long been reasoned that witnesses who have been convicted of certain

criminal offenses are less worthy of belief than those who have not. Goode, Wellborn,

and Sharlot Texas Practice Series, 1 Guide to the Texas Rules of Evidence, Sec.

609.1(3d. Ed.) at 734, 737-38 (2002). Therefore, witnesses convicted of serious cases,

such as felonies, and offenses involving some level of deceit, such as misdemeanors

involving moral turpitude, can be impeached with these prior convictions. Id. at 736.




                                            14
       Over time case law distinguished between those convictions that were “too

remote” and those that were not. Crisp v. State, 470 S.W. 2nd 58, 59, 60 (Tex. Crim.

App. 1971); McClendon v. State 509 S.W. 2nd 851, 855-57 (Tex. Crim. App. 1974).

While trial courts exercised considerable discretion in admitting evidence of prior

convictions for the purpose of impeachment, it was generally acknowledged that

convictions more than 10 years removed from date of the witness’ testimony were too

remote to be used for impeachment. Crisp at 59, 60; McClendon at 855-57. This “rule”

recognized that such remote convictions had little bearing on the witness’ “present

credibility”, Bustillos v. State, 464 S.W. 2nd 118, 124 (Tex. Crim. App. 1971) and that

individuals were capable of reforming their character over time. Crisp at 56-60.

       This rule had one significant exception. If there was evidence the witness had

failed to reform his character and had a subsequent felony conviction or a conviction for

a misdemeanor involving moral turpitude, that remote conviction became admissible for

the purpose of impeachment. Crisp at 59. This gave rise to the “tacking doctrine” under

which a remote impeachable conviction could be “tacked” onto a more recent

impeachable conviction and revived for use at trial.

       The 10-year admissibility “rule” was substantially incorporated into Tex. R. Evid.

609. Rule 609 distinguishes between convictions that are less than ten years old at the

time of the witness’ testimony and those that are older. When the conviction falls within

the former category, the trial court must determine whether the probative value of the

felony or misdemeanor conviction outweighs its prejudicial impact.         Tex. R. Evid.

609(a). Convictions falling within the latter category are not admissible unless the trial

                                            15
court determines, in the interest of justice, that the probative value of the conviction

supported by specific facts and circumstances substantially outweighs its prejudicial

effect. Tex. R. Evid. 609(b).

          The balancing tests incorporated into Rule 609(a) and 609(b) are distinct from one

another and should be applied independently of the other. Hankins v. State, 180 S.W. 3rd

177, 179 (Tex. App. – Austin 2009).           Finality for the purpose of Rule 609(b) is

determined by either the date of the conviction or the date the witness was released from

confinement, whichever is later. “Tacking” has no place within the application of Rule

609(b). Leyba v. State, 416 S.W. 3rd 563, 599 (Tex. App. – Houston [14th Dist.] 2003);

Hankins at 180.

          The balancing tests employed by the trial court under either Rule 609(a) or 609(b)

do not have to be “overt.” Chitwood v. State, 350 S.W. 3rd 746, 749 (Tex. App. –

Amarillo 2011). Nor does the Court have to inform the parties of its balancing process,

describe the factors weighed, or issue findings disclosing what factors favored admission

or exclusion. Id. citing Bryant v. State, 997 S.W. 2nd 673, 676 (Tex. App. – Texarkana

1999). The reviewing court should presume the balancing test was performed. Chitwood

at 749.

          The proponent of Rule 609 evidence has the burden of demonstrating the

probative value of the conviction outweighs its prejudicial effect under both Section A or

Section B. Theus v. State, 845 S.W. 2nd 874, 880 (Tex. Crim. App. 1992).

          A trial court’s decision to admit remote impeachment convictions is reviewed

under an abuse of discretion standard. Theus at 881. If the trial court’s decision to admit

                                              16
a prior conviction lies outside the zone of reasonable disagreement, the appellate court

should not hesitate to reverse the defendant’s conviction. Theus at 881.

        Erroneous evidentiary rulings generally constitute non-constitutional error for the

purpose of Tex. R. App. P. 44.2(b). Such error merits reversal if it effects a defendant’s

substantial rights by exerting a “substantial and injurious effect or influence on the jury’s

verdict.” King v. State, 953 S.W. 2nd 266, 271 (Tex. Crim. App. 1997). The error is

harmless if the reviewing court has “fair assurance that the error did not influence the

jury, or had but slight effect.” Solomon v. State, 49 S.W. 3rd 356, 365 (Tex. Crim. App.

2001). To analyze harm, the entire record, including testimony, physical evidence, the

nature of the evidence support the verdict, the character of the alleged error, the State and

defendant’s respective theories of the case, as well as closing argument are considered.

Motilla v. State, 78 S.W. 3rd 352, 355 (Tex. Crim. App. 2002).

                           Application of Law to Relevant Facts

        Prior to trial the State file notice of its intent to use certain prior convictions for the

purpose of impeachment should the appellant testify.                (1CR 23).     In response the

appellant filed a Motion to Testify Free from Impeachment by Prior Convictions. (1CR

55). A summary of the appellant’s prior convictions and relevant particulars based on

State’s Exhibit 19 through 26 is as follows:

States                   Date of      Date of
Exhibit #    Volume #    Conviction   Offense        Offense_____    Case No.   Court No.    Sentence

19           7RR 16      8-12-11      1-7-11    Felony Tampering     1291361    339th       2 yrs TDCJ

20           7RR 17      5-20-03      5-10-03   Forgery              948352     183rd       2 yrs TDCJ

21           7RR 18      11-11-02     8-14-02   Failure ID           1130561    10          60 days HCJ


                                                17
22           7RR 19       11-11-02    8-14-02    Theft                 1130560   10         60 days HCJ

23           7RR 20       03-31-93    4-30-92    Burglary Habitation   631540    178th      15 yrs TDCJ

24           7RR 21       10-16-90    10-12-90   Burglary Habitation   578238    176th      10 yrs TDCJ

25           7RR 22       10-27-89    10-04-89   Burglary Habitation   543926    262nd      6 years TDCJ

26           7RR 23       11-07-88    11-05-88   BMV                   514854    209th      9 Mos. HCJ




       Towards the conclusion of the State’s case the trial court heard the appellant’s

motion outside the presence of the jury. Counsel acknowledged that the appellant’s 2011

felony tampering conviction and 2003 forgery conviction fell within the ten-year

limitation found in Tex. R. Evid. 609(b) but that Mr. Brooks should be allowed to testify

without impeachment by any prior conviction because the probative value of the

conviction did not outweigh their prejudicial effect. (4RR 5, 6).

       Focusing largely on the tampering and forgery convictions the prosecutor argued

that the appellant’s priors were different than the offense on trial and that his credibility

was critical to the case if he elected to testify. The prosecutor also noted that the need to

test the appellant’s credibility increased with the degree to which any defensive theory

depended on his testimony rather than that of the testimony of others. (4RR 6).

       The trial court denied the appellant’s motion and ruled that should the appellant

testify he would be subject to impeachment with the tampering and forgery convictions

as well as all of his convictions that fell outside the ten-year limitation of Rule 609(b).

(4RR 7-9).2


2
        The trial court’s decision to admit all of the appellant’s remote convictions is the subject
of the points of error that follow.
                                                 18
       Counsel preserved error by timely advising the Court of her desire to have the

appellant testify free from impeachment by motion and argument outside the presence of

the jury and obtaining a ruling thereon from the Court. Geuder v. State, 115 S.W. 3rd 11,

13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W. 3rd 189, 193 (Tex. Crim. App.

2003). By having the trial court rule on the appellant’s motion in a hearing outside the

presence of the jury counsel eliminated the need to object to the prior convictions each

time they were mentioned at trial. Tex. R. Evid. 103(a)(1), Geuder at 13.

       Theus v. State, 845 S.W. 2nd 874, 880 (Tex. Crim. App. 1992) provides five

factors that may be considered in assessing whether the probative value of a prior

conviction outweighs its prejudicial effect. They are: (1) The impeachment value of the

prior crime; (2) the temporal proximity of the prior offense relative to the charged offense

and the witness’ subsequent history; (3) the similarity between the prior conviction and

the charged offense; (4) the importance of the witness’ testimony; and (5) the importance

of the witness’ credibility. The opinion in Theus v. State recognizes these factors are not

exclusive and cannot be applied with “mathematical precision.” Id. at 880.

       While the appellant acknowledges when considered individually the Theus factors

weigh in favor of the admissibility of the tampering and forgery convictions under Rule

609(a). Convictions for crimes of deception have greater impeachment value than crimes

of violence, Theus at 881, and tampering and forgery both embody some level of

deception. While the conviction for forgery is near the outer limits of the ten-year

limitation period, the tampering conviction has greater temporal proximity to the charged

offense and together they provide proof of a subsequent criminal history for the purpose

                                            19
of the second factor. Nor can it be said that the tampering and forgery convictions are

similar in nature to the charged offense.

       The fourth and fifth factors are intertwined because they depend on the nature of

the defendant’s defense and the necessity of his testimony within the context of his case.

Leybra at 571, 572.     As the importance of a defendant’s testimony and credibility

increases, so does the need to impeach his credibility. Id. However in the instant cause

Mr. Brooks was not only the only witness to his history of eye problems and ability to

see, his mother, Carrie Brooks, was able to testify to his eye problems and ability to see.

Mr. Brooks’ testimony would have gone to his intent, a factor that can only be supplied

by the defendant in any positive manner. Because the Theus factors cannot be applied

with “mathematical precision, and the complainant’s testimony was supported by his

mother’s and the hospital records, it cannot be said the probative value of the tampering

and forgery convictions outweighed their prejudicial effect.

       The appellant acknowledges a defendant waives Rule 609 error when he fails to

submit himself to cross-examination. Luce v. U.S., 469 U.S. 38, 43 (1984); Whitaker v.

State, 909 S.W. 2nd 259, 262 (Tex. App. – Houston [14th Dist.] 1995); Morgan v. State,

891 S.W. 2nd 733 (Tex. App. – Houston [1st Dist.] 1994). It has been reasoned that

without a defendant’s testimony the appellate court cannot weigh the probative value of

the prior convictions against its prejudicial impact. Long v. State, 245 S.W. 3rd 563, 573

(Tex. App. – Houston [1st Dist.] 2007). In addition, any harm would be speculative as the

court and prosecutor could change their minds on the use of the prior convictions.

Further, the defendant could always claim harm if he decided not to testify after the court

                                            20
erroneously admitted a prior conviction into evidence. Morgan at 735 discussing Luce v.

U.S.

       However, this Court should re-examine this blanket rule and decide whether there

are cases in which the trial record provides sufficient certainty as to the State’s use of the

impeachable prior convictions and the substance of the defendant’s testimony for the

purpose of error analysis. In Mr. Brooks’ case the prosecutor not only provided specific

facts and circumstances supporting the probative value of the tampering and forgery

convictions, she also argued the appellant’s 1993 burglary of a habitation conviction was

admissible under Rule 609(a). (4RR 6, 7). Given her insistence on the admissibility of

the prior convictions there is little reason to believe she would ever change her mind.

The appellant’s recorded jail conversation with his mother revealed he would have

testified his vision problems provided a defense to the alleged offense and cast doubt on

his intent to commit the alleged offense. (4RR 68, 69).

       The purported strength of the State’s case is deceiving. Besides the discrepancies

between the mother and son’s testimony, it is obvious they manufactured much of the

evidence against Mr. Brooks. Not content to tell their version of the events of November

9th to the healthcare professionals at Memorial Hermann that evening, the stocky youth

and his mother returned the following day to retell their story alleging Tee continued to

suffer self-reported headaches. After taking their own pictures of the alleged injuries on

the 9th, mother and son went to the police the following day and had Officer Jones take

additional pictures. (3RR 146). The car and bike that residents and Tee said he rode to

the apartment were never found because they never existed. (3RR 125 and 3RR 103

                                             21
respectively).    Ms. Brooks drove her son to the apartment the night of the alleged

incident. (4RR 50).

         Therefore, because it cannot be said the trial court’s abuse of discretion would not

have had a substantial and injurious effect or influence on the jury’s verdict had the

appellant testified, King at 271, this Court should reverse the appellant’s conviction and

order a new trial.

                         POINT OF ERROR NO. 2 – RESTATED

         The trial court abused its discretion in denying the appellant’s Motion to Testify

Free from Impeachment by Prior Convictions by ruling that in addition to the appellant’s

recent felony tampering and forgery convictions his 1993 burglary of a habitation

conviction would also be admissible under Tex. R. Evid. 609.

                       ARGUMENT AND AUTHORITIES IN SUPPORT
                           OF POINT OF ERROR NO. 2

         For the purpose of this Point of Error all argument and authorities in support of

Point of Error No. 1 are incorporated herein.

                                       Applicable Law

         The applicable law has been discussed in this same subsection for Point of Error

No. 1.

                           Application of Law to Relevant Facts

         In arguing for the admissibility of the 2011 tampering conviction and 2013 forgery

conviction the prosecutor included the appellant’s 1993 burglary of a habitation




                                              22
conviction.   She incorrectly urged the trial court to rule the 1993 conviction was

admissible because the sentence for that case “expired” in 2007. (4RR 7).

       The prosecutor’s argument was erroneous because the date of the 1993 burglary

conviction obviously falls outside the ten-year limitation found in Rule 609(b).

Moreover, the only other criteria for ascertaining the admissibility of a remote conviction

is the date the defendant is released from confinement for that conviction, not the date the

sentence has “expired.” Rule 609(b).

       Mr. Brooks had been released from custody for the 1993 burglary case well before

the 2007 date argued by the prosecutor. This can be inferred by the fact that he was

released from the six-year sentence on his 1989 burglary on October 12, 1990 when he

committed his second burglary offense. (See Chart, p. 16). In addition, the appellant was

released from the ten-year sentence for his 1990 burglary conviction by April 30, 1992,

the date of the 1993 burglary offense. Having served such short periods of time on his

first and second burglary convictions there is no reason to believe that he remained

convicted on his third for the full 15-year period as argued by the State.

       Should these logical inferences not be sufficient for the purpose of proving the

1993 burglary conviction did not fall within the parameters of Rule 609(b), the appellant

was surely out of prison at the time of his August 14, 2002 misdemeanor theft case and

failure to ID case. (See Chart, p. 16).

       There is no record evidence the trial court considered the detailed chronology of

the appellant’s crimes and convictions contained in the enclosed chart as the court made



                                             23
reference only to its consideration of the State’s notice of intention to use prior

convictions. (1CR 23).

       In addition, the trial court specifically referred to the “tacking doctrine” in ruling

the appellant’s felony convictions and misdemeanors involving moral turpitude going

back to 1988 would be admissible for the purpose of impeachment, not the “substantially

outweighs” standard required by Rule 609(b). (4RR 7, 8).

       Obviously misstating the law and facts surrounding the 1993 burglary conviction

did not satisfy the State’s “difficult burden” in establishing the admissibility of this

conviction. Leyba at 572. Nor did the prosecutor explain how the 1993 conviction had

probative value for Mr. Brooks’ case or that this probative value was supported by

specific facts and circumstances. Id.

       For the purpose of the five factors found in Theus v. State, 845 S.W. 2nd 874 (Tex.

Crim. App. 1992) because burglary is considered a crime of deception it had

impeachment value in Mr. Brooks’ case. However, that value is diluted by the fact the

1993 burglary was distant in temporal proximity to the case on trial and was removed by

some nine years from his 2002 forgery conviction.

       While there was no similarity between the burglary and the charged offense for the

purpose of the third Theus factor, the fourth and fifth factors do not weigh in favor of the

prior convictions’ admissibility because, unlike in Point of Error No. 1, the appellant was

subject to impeachment with his prior tampering and forgery convictions and would not

go without his credibility being impeached. However, unlike in Point of Error No. 1, the



                                             24
appellant would ot have been subject to impeachment with his tampering and forgery

convictions and would not go without his credibility being impeached.

       Because the “tacking doctrine” relied upon by the trial court does not require a

determination of whether the probative value of the impeachment conviction substantially

outweighing its prejudicial effect, the trial court abused its discretion in admitting the

1993 burglary of a habitation conviction.

       As there is no reason to believe the State would not use the 1993 burglary case to

impeach the appellant given its erroneous argument for admission, and the record in this

case provides ample certainty as to what the appellant’s testimony would be, this Court

should not automatically find that Mr. Brooks waived error by failing to testify. Luce v.

U.S., 469 U.S. 38, 43 (1984); Whitaker v. State, 909 S.W. 2nd 259, 262 (Tex. App. –

Houston [14th Dist.] 1995). Rather, under the circumstances of this case, the Court

should determine whether it can consider the merits of this Point of Error.

       Because it cannot be said the trial court’s abuse of discretion in admitting the

appellant’s 1993 burglary of a habitation conviction for the purpose of impeachment

would not have had a substantial and injurious effect or influence on the jury’s verdict

had the appellant testified, this Court should reverse his conviction and remand this case

for a new trial.

                       POINT OF ERROR NO. 3 – RESTATED

       The trial court abused its discretion in denying the appellant’s Motion to Testify

Free from Impeachment by Prior Convictions and holding that his 2002 misdemeanor

theft conviction, 1993 burglary of a habitation conviction, 1990 burglary of a habitation

                                            25
conviction, 1989 burglary of a habitation conviction, and 1988 burglary of a motor

vehicle conviction were each admissible for the purpose of impeachment under Tex. R.

Evid. 609.

                       POINT OF ERROR NO. 4 – RESTATED

       The trial court abused its discretion in denying the appellant’s Motion to Testify

Free from Impeachment by Prior Convictions and that his 2002 misdemeanor theft

conviction, 1993 burglary of a habitation conviction, 1990 burglary of a habitation

conviction, 1989 burglary of a habitation conviction, and 1988 burglary of a motor

vehicle conviction were admissible for the purpose of impeachment under Tex. R. Evid.

609 because of the cumulative harm generated by this error.

               ARGUMENT AND AUTHORITIES IN SUPPORT OF
                     POINT OF ERROR NOS. 3 AND 4

       For the purpose of these Points of Error all of the arguments and authorities in

support of Points of Error Nos. 1 and 2 are incorporated herein.

                                    Applicable Law

       It has been recognized that similar error repeated over the course of a trial can

have a cumulative effect that increases the likelihood of harm. Stahl v. State, 749 S.W.

2nd 826, 832 (Tex. Crim. App. 1988). In Leyba v. State, 416 S.W. 3rd 563, 573 (Tex.

App. – Houston [14th Dist.] 2013) this Court recognized errors in admitting prior

convictions for the purpose of impeachment could have a cumulative harmful effect even

though the convictions when considered individually were harmless. Leyba at 573 citing




                                            26
Stahl at 832 and Linney v. State, 401 S.W. 3rd 764, 782-83 (Tex. App. – Houston [1st

Dist.] 2013).

                           Application of Law to Relevant Facts

       The arguments of the prosecutor and defense counsel at the hearing on the

Appellant’s Motion to Testify Free from Impeachment by Prior Convictions focused

solely on the 2011 tampering, 2002 forgery, and 1993 burglary of a habitation cases.

       Looking at the State’s Notice of Intent to Use Prior Convictions, 1CR 23, the trial

court ruled without argument by the State that all of the appellant’s felonies and

misdemeanors involving moral turpitude could be available for impeachment. (4RR 7-9).

This includes the following:

                November 11, 2002 misdemeanor theft

                March 31, 1993 burglary of a habitation

                October 16, 1990 burglary of a habitation

                October 1, 1989 burglary of a habitation

                November 7, 1988 burglary of a motor vehicle

       The court’s ruling came without any explanation of how the probative value of the

remote convictions or how their probative value was supported by specific facts and

circumstances.      The court’s reference was to the “tacking doctrine” and not the

“substantially outweighs” balancing test of Rule 609(b).

       In Leyba this Court recognized that trial courts may abuse their discretion in

admitting certain prior convictions for the purpose of impeachment but not others. Leyba



                                             27
at 592, 573 (comparing the admission of aggravated robberies and possession of a

firearm).

       In Point of Error No. 2 it was argued that the trial court abused its discretion in

admitting the appellant’s 1993 burglary of a habitation conviction. Similar reasons and

logic apply to the 2002 theft conviction, 1990 burglary of a habitation conviction, 1989

burglary of a habitation conviction and 1988 BMV conviction.

       Should this Court decide there is not sufficient reason or harm to accord Mr.

Brooks’ relief on the use of any of the above prior convictions individually, this court

should next assess whether the trial court’s errors, when viewed cumulatively, affected

his substantial rights.

       As in Leyba there is reason to doubt the prosecutor had the “substantial need” to

impeach Mr. Brooks with so many remote convictions. Leyba at 574. Indeed, the

overwhelming effect was to cast Mr. Brooks as a criminal, not just an untruthful person.

With the tampering and forgery convictions available to impeach the appellant, the

multitude of other remote convictions risked Mr. Brooks would be found guilty as a

criminal generally, and not because he committed the instance offense and was not

credible. The Court’s ruling certainly had a chilling effect on his decision not to testify.

       Therefore, because it cannot be said the cumulative effect of the trial court’s

decision to admit all of the appellant’s remote prior felony convictions and misdemeanor

convictions involving moral turpitude did not have a substantial and injurious effect or

influence on the jury’s verdict had he testified, this Court should reverse the appellant’s

conviction and remand his case for a new trial.

                                             28
                                PRAYER FOR RELIEF

       WHEREFORE, PREMISES CONSIDERED, the appellant prays that this

Honorable Court consider each point of error raised herein, reverse the appellant's

conviction, and grant him a new trial.

                                                  Respectfully submitted,


                                                  /s/Kurt B. Wentz___________________
                                                  KURT. B. WENTZ
                                                  5629 Cypress Creek Parkway, Suite 115
                                                  Houston, Texas 77069
                                                  E-mail: kbsawentz@yahoo.com
                                                  281/587-0088
                                                  TBA: 211779300
                                                  ATTORNEY FOR APPELLANT

                            CERTIFICATE OF SERVICE

       I, Kurt B. Wentz, hereby certify that a true and correct copy of the foregoing brief

was personally delivered to the Clerk of this Court to be deposited in the box reserved for

the Harris County District Attorney’s Office on the 5th day of August, 2015


                                   /s/Kurt B. Wentz____________________
                                   KURT B. WENTZ

                           CERTIFICE OF COMPLIANCE

       I, Kurt B. Wentz, hereby certify the foregoing appellant’s brief contains 5,939

number of words.

       Signed this 5th day of August, 2015

                                   /s/Kurt B. Wentz_____________________
                                   KURT B. WENTZ


                                             29
