                                                                                   ACCEPTED
                                                                              14-13-01078-CR
                                                                FOURTEENTH COURT OF APPEALS
                                                                            HOUSTON, TEXAS
                                                                         2/20/2015 6:13:14 PM
                                                                          CHRISTOPHER PRINE
                                                                                       CLERK

                     NO. 14-13-01077-CR, 14-13-01078-CR

                        IN THE COURT OF APPEALS               FILED IN
                                                       14th COURT OF APPEALS
                                                          HOUSTON, TEXAS
                FOURTEENTH JUDICIAL DISTRICT OF      TEXAS
                                                       2/20/2015 6:13:14 PM
                                                       CHRISTOPHER A. PRINE
                           AT HOUSTON, TEXAS                    Clerk
       _____________________________________________________________

                           JACQUALIEN GRANT
                               Appellant,

                                    VS.

                           THE STATE OF TEXAS,
                                 Appellee.

       _____________________________________________________________

              ON APPEAL FROM CAUSE NOS. 1386096 and 1386097
         IN THE 185TH DISTRICT COURT OF HARRIS COUNTY, TEXAS.

       _____________________________________________________________

                    APPELLANT’S SUPPLEMENTAL BRIEF
       _____________________________________________________________

                                   CARMEN M. ROE
                                   TBN: 24048773
                                   440 Louisiana, Suite 900
                                   Houston, Texas 77002
                                   713.236.7755
                                   713.236.7756 Fax
                                   ATTORNEY FOR APPELLANT
                                   [ON APPEAL ONLY]



                       ORAL ARGUMENT REQUESTED

	                                   1	  
	  
               IDENTIFICATION OF INTERESTED PARTIES

       Pursuant to TEX. R. APP. P. 28.1(a), a complete list of the names and

addresses of all interested parties is provided below so the members of this

Honorable Court may at once determine whether they are disqualified to serve or

should recuse themselves from participating in the decision of this case.

                   Complainants, victims, or aggrieved party:
                                  Irene Garza

                             Counsel for Defendant:
                               Mr. Allen M. Tanner
                           917 Franklin Street, Suite 550
                              Houston, Texas 77002

                      Counsel on Appeal for the Appellant:
                                Carmen M. Roe
                            440 Louisiana, Suite 900
                             Houston, Texas 77002

                              Counsel for the State:
                                 Mr. Coby Leslie
                                Mr. David Abrams
                      Harris County District Attorney's Office
                                  1201 Franklin
                              Houston, Texas 77002

                                  Trial Judges:
                             Honorable Susan Brown
                       Presiding Judge, 185th District Court
                               Harris County, Texas




	                                        2	  
	  
                                             TABLE OF CONTENTS
                                                                                                                    Page

IDENTIFICATION OF INTERESTED PARTIES ....................................... 2

INDEX OF AUTHORITIES .......................................................................... 6

STATEMENT REGARDING ORAL ARGUMENT .................................... 9

STATEMENT OF THE CASE ...................................................................... 9

APPELLANT’S POINT OF ERROR ......................................................... 10

SUMMARY OF THE ARGUMENT........................................................... 10

STATEMENT OF THE FACTS.................................................................. 11

ARGUMENT AND AUTHORITIES .......................................................... 13

POINT OF ERROR NUMBER ONE .......................................................... 13

                    THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
                    APPELLANT’S OBJECTION TO THE ADMISSION OF A PRIOR
                    EXTRANEOUS OFFENSE, THAT WAS NOT RELEVANT APART FROM
                    SHOWING CHARACTER CONFORMITY, AND ANY RELEVANCE IT
                    HAD WAS OUTWEIGHED BY UNFAIR PREJUDICE.

A. Standard of Review: Abuse of Discretion ............................................... 13

B. 404 (b): Extraneous Offense is Inadmissible as Conformity Evidence... 15

          1. State failed to Demonstrate that the Extraneous Offense was
             Proffered for a Relevant Purpose.................................................. 17

           2. State Failed to Demonstrate Relevance of Extraneous to Issue of
              Consent.......................................................................................... 20

                                                          3. State Failed to Demonstrate Relevance of Extraneous to Issue of
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  Fabrication………………………………………………………..21


	                                                                3	  
	  
        4. State Failed to Demonstrate Relevance of Extraneous to Show
           Handiwork of Appellant............................................................... 24

C. The Specifics of the “Manner” or “the Type of Crime”…………….…..27

        1. “The Way he Targeted Her”.......................................................... 28

       2. “The Specific Threat he Made” ..................................................... 28

       3. “Close Proximity of the Crimes” ................................................... 28

       4. “Both Offenses Occurred within Weeks of Each Other” ............... 28

D. Rule 403: The Danger of Unfair Prejudice.............................................. 32

       1. The Strength of the Evidence in Making a Fact More or Less
          Probable ....................................................................................... 32

       2. The Potential the Extraneous Offense will Impress the Jury in
          Some Irrational but Indelible Way ................................................ 33

       3. The Amount of Time the Proponent Needed to Develop the
          Evidence………………………………………………………….34

       4. The Strength of the Proponent’s Need for this Evidence to Prove
          a Fact of Consequence………………………………………....…35

E. The Improper Admission of Extraneous Evidence Affected Appellant’s
   Substantial Rights…………………………………………....………….36

       1. Severity of the Misconduct............................................................. 38

       2. Steps Taken to Cure the Misconduct.............................................. 39

       3. Certainty of Conviction Absent Error………………………....…41
	  
CONCLUSION AND PRAYER.................................................................. 43

CERTIFICATE OF SERVICE..................................................................... 44


	                                                       4	  
	  
CERTIFICATE OF COMPLIANCE ........................................................... 44




	                                            5	  
	  
                         INDEX OF AUTHORITIES

CASES                                                                   PAGE

Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972)………………………..16

Avila v. State, 18 S.W.3d 736 (Tex. App.- San Antonio, 2000)……………....…..16

Booker v. State, 103 S.W.3d 251 (Tex. App.-Forth Worth, 2003)………………..37

Brown v. State, 978 S.W.2d 708 (Tex. App.- Amarillo, 1998)…………………...37

Burnett v. State, 88 S.W.3d 633 (Tex. Crim. App. 2002)………………………...37

Cobb v. State, 503 S.W. 2d 249 (Tex. Crim. App. 1973)………...…………....…39

Collazo v. State, 623 S.W.2d 647 (Tex. Crim. App. 1981)………………………30

Curtis v. State, 89 S.W.3d 163 (Tex. App.- Fort Worth 2002)…………………..41

Daggett v. State, 187 S.W.3d 444 (Tex. Crim. App. 2005)…………………..13,15

De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009)………………..14,16

Delane v. State, 369 S.W.3d 412 (Tex. App.- Houston [1st District] 2012)……..38

Ford v. State, 484 S.W.2d 727 (Tex. Crim. App. 1972)………………….…Passim

Jackson v. State, 320 S.W.3d 873 (Tex. App. – Texarkana, 2010)…………Passim

Johnson v. State, 145 S.W.3d 215 (Tex. Crim. App. 2004) ………………..15,37

King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)………………………..36

United States v. Lane, 474 U.S. 438 (1986)………………………………….…37

Martin v. State, 173 S.W.3d 463 (Tex. Crim. App. 2005)…………………Passim

McGautha v. California, 402 U.S. 183 (1971)…………………………………15
	                                     6	  
	  
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991)………...…Passim

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002)……………………37,41

Nelms v. State, 834 S.W.2d 110 (Tex. App.- Houston [1st District] 1992)……...38

Owens v. State, 827 S.W.2d 911 (Tex. Crim. App. 1992)……………….…Passim

Pollard v. State, 255 S.W.3d 184 (Tex. App.- San Antonio, 2008)……24,34,39,43

Rubio v. State, 607 S.W.2d 498 (Tex. Crim. App. 1980)………………………..17

Rhyne v. State, 387 S.W.3d 896 (Tex. App.-Fort Worth 2012)………………....38

Sauceda v. State, 129 S.W.3d 116 (Tex. Crim. App. 2004)…………………….13

Seguendo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008)…………………….26

Sims v. State, 273 S.W.3d 291 (Tex. Crim. App. 2008)………………………...39

Taylor v. State, 920 S.W.2d 319 (Tex. Crim. App. 1992)………………………25

United States v. Walker, 722 F.2d 1172 (5th Cir. 1985)…………………………14

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992)……………………………...…14

West v. State, 124 S.W.3d 732 (Tex. App.-Houston [1st District] 2003)………..43

Wilton v. Seven Falls Co., 515 U.S. 277 (1995)……………………………...…14


OTHER SOURCES:

TEX. R. EVID.401……………………………………………………...……...…17

TEX. R. EVID. 403……………………………………………………...…….10,31

TEX. R. EVID. 404(B)……………………………………………………….Passim

	                                     7	  
	  
TEX. R. APP. P. 39.1……………………………………………………………9

TEX. R. APP. P. 44.2 (B)………………………………………………………36




	                      8	  
	  
                                      STATEMENT REGARDING ORAL ARGUMENT

                 This supplement brief presents an important issue regarding the admission of

a prior sexual assault that occurred two weeks before the charged offense that was

inadmissible because it did not meet any of the 404(b)(2) requirements permitting

the use of such evidence at trial. Because argument would assist this Court in its

decision-making process, argument is warranted in this matter. See TEX.R.APP.P.

39.1.

                                                                   STATEMENT OF THE CASE

                 Appellant was charged by indictment with the felony offenses of aggravated

kidnapping in Cause No. 1386096 and sexual assault in Cause No. 13860971.

(1CR2 at 8; 2CR at 8; 4 RR 5-10), alleged to have been committed on December

13, 2012. On November 7, 2013, the jury found Appellant guilty of both charges,

(6 RR 32-33), and assessed punishment at twenty (20) years imprisonment for the

sexual assault charge, and life in prison for the aggravated kidnapping charge. (6

RR 32-33). The trial courts Certification of the Defendant’s Right to Appeal, (1CR

at 125; 2CR at 120), and notice of appeal were timely filed. (1CR at 123; 2CR at

118).



	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
               Cause No. 1386097 was amended and corrected to charge only sexual assault and not
aggravated sexual assault.
2
           “1CR” followed by page number refers to Cause No. 1386096 and “2CR” refers to Cause No.
1386097 followed by page number.	  
	                                                                                                            9	  
	  
       Appellant filed an original Appellant’s Brief on April 15, 2014. The State

filed its brief on June 18, 2014 and oral argument was scheduled for December 18,

2014. On December 12, 2014, a letter was issued from this Court instructing

Appellant to file a brief on the merits, Ander’s brief, or motion to dismiss the

appeal in Cause No. 14-13-01087-CR. Appellant filed a motion to postpones

submission and extend time to file a brief on the merits. After this Court granted an

extension of time, Appellant files this Supplemental Brief on guilt-innocence in

Cause Nos. 14-13-01077-CR and 14-13-01087-CR.

                      APPELLANT’S POINT OF ERROR

             THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
             APPELLANT’S OBJECTION TO THE ADMISSION OF A PRIOR
             EXTRANEOUS OFFENSE, THAT WAS NOT RELEVANT APART FROM
             SHOWING CHARACTER CONFORMITY, AND ANY RELEVANCE IT
             HAD WAS OUTWEIGHED BY UNFAIR PREJUDICE.

                         SUMMARY OF ARGUMENT

       The trial court abused its discretion in overruling Appellant’s objection to

the admission of an extraneous offense in violation of Texas Rules of Evidence

Rules 404(b) and 403 because the prior sexual assault was not relevant for the

permissible purpose proffered by the state, did not tend to make any issue of fact of

consequence more or less likely, and was not sufficiently similar to show the

modus operandi of Appellant. Therefore, the only relevant purpose in admitting the

extraneous offense evidence was to show Appellant was a criminal generally, an

	                                       10	  
	  
impermissible purpose, and thus its probative value was substantially outweighed

by the danger of unfair prejudice. The trial court’s ruling admitting the extraneous

offense evidence was an abuse of discretion and outside the zone of reasonable

disagreement because it was “… without reference to any guiding rules and

principles.” Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.

1991)(op. on reh'g).

                            STATEMENT OF FACTS

       The state’s case in chief maintained that Appellant kidnapped and sexually

assaulted Irene Garza. Ms. Garza testified that although she previously worked as

an escort, she was neither working on the night in question, nor had she worked as

an escort in the months leading up to this incident. (4 RR 41). Instead, Ms. Garza

testified that her interaction with Appellant began after she arbitrarily chose to pull

into an apartment complex – around 1:00-2:00 p.m.—so that she could consult her

cell phone’s GPS.

       At the apartment complex, Ms. Garza parked her vehicle when Appellant

opened the door and told her, with his hand in his pocket, to do what he said. (4 RR

24). Ms. Garza testified she did not see a weapon. (4 RR 24). She exited her

vehicle and was escorted into an empty apartment, where she engaged in non-

consensual intercourse with Appellant, and another man. (4 RR 30-35). Thereafter,

Ms. Garza testified that both men instructed her to wash herself repeated, before

	                                        11	  
	  
leaving, and also remarked that if she went to the authorities, they would use the

information from her phone to hurt her family. (4 RR 41). She subsequently left,

drove to McDonald’s and called 911. (4 RR 44-45).

       During cross-examination, trial counsel sought to introduce a series of

exhibits that showed Ms. Garza was working as an escort at the time of the offense.

The trial court admitted evidence of Ms. Garza’s advertisements as an escort

because it was relevant to the issue of consent, but redacted the photographs

featured on the advertisement as not relevant to any issue. (4 RR 70 –79).

       Based on trial counsel’s cross examination of Ms. Garza, the state argued

that the door had been opened to extraneous evidence of a prior sexual assault

because counsel raised the issue of consent and to rebut the defensive theory of

fabrication. (4 RR 106). The state argued,

       “The specifics of the manner, the type of crime, the way he targeted
       her and more specifically the specific threat that he made shows
       identity, a specific modus operandi, the close proximity of where
       these crimes occurred to each other, which we have the map that we
       can show, within less than a mile apart, within blocks of each other,
       within weeks of each other.

       Both – the DNA comes back on both individuals to him and because
       the defense has, through cross-examination, opened the door by
       raising issues of fabrication and consent by bringing up her past
       sexual history as an escort, that thereby invokes, as the brief says, the
       doctrine of chances and allows us to put Ms. Marchand as evidence
       that he committed this crime.”

(4 RR 107-108).

	                                        12	  
	  
       The trial court expressed concerns about the state’s theory of admissibility,

which the state reiterated was fabrication and consent. (4 RR 111-12). The court

ultimately relied on Martin v. State, 173 S.W.2d 463 (Tex. Crim. App. 2005) and

Daggett v. State, 187 S.W.3d 444 (Tex. Crim. App. 2005), in holding the

extraneous of Ms. Marchand was admissible, concluding that when the defense

brought out the issue of fabrication or consent, the jury was entitled to hear from

another unrelated complaining witness. (4 RR 110).


                      ARGUMENT AND AUTHORITIES

                      POINT OF ERROR NUMBER ONE

             THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
             APPELLANT’S OBJECTION TO THE ADMISSION OF A PRIOR
             EXTRANEOUS OFFENSE, THAT WAS NOT RELEVANT APART FROM
             SHOWING CHARACTER CONFORMITY, AND ANY RELEVANCE IT
             HAD WAS OUTWEIGHED BY UNFAIR PREJUDICE.

                   A. Standard of Review: Abuse of Discretion

       This Court reviews the admissibility of an extraneous offense under an abuse

of discretion standard. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App.

2004). “Extraneous-offense evidence is admissible under both Rules 404(b) and

Rule 403 if that evidence satisfies a two-prong test: whether the extraneous offense

evidence is relevant to a fact of consequence in the case apart from its tendency to

prove conduct in conformity with character; and whether the probative value of the

evidence is not substantially outweighed by unfair prejudice.” Martin v. State, 173
	                                       13	  
	  
S.W.3d at 467. Appellate courts should uphold a trial court’s ruling on the

admissibility of evidence as long as it is within the zone of reasonable

disagreement. Id. A trial court's ruling is generally within this zone if the evidence

shows that, (1) an extraneous transaction is relevant to a material, non-propensity

issue, and (2) the probative value of that evidence is not substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading of the jury.

De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). “A trial court

abuses its discretion and goes beyond the zone of reasonable disagreement in

evidentiary rulings when it acts without reference to any guiding rules and

principles.” Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.

1991)(op. on reh'g).

       While the abuse of discretion standard is deferential, it does not insulate the

trial court’s decision from reversal. Montgomery v. State, 810 S.W.2d 372, 392

(Tex. Crim. App. 1991)(op. on rehr’g). “‘Abuse of discretion’ is a phrase which

sounds worse than it is. The term does not imply intentional wrong or bad faith, or

misconduct, nor any reflection on the judge.” United States v. Walker, 772 F.2d

1172, 1176 n. 9 (5th Cir. 1985). A trial court lacks the discretion to determine what

the law is, or in applying the law to the facts, and has no discretion to misinterpret

the law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). “But discretion, to be

worthy of the name, is not unchanneled judgment; it is judgment guided by reason

	                                       14	  
	  
and kept within bounds. Otherwise, ... it is ‘the law of tyrants: It is always

unknown.’” McGautha v. California, 402 U.S. 183, 285 (1971)(Brennan, J.,

dissenting); see also Wilton v. Seven Falls Co., 515 U.S. 277, 289 (1995)(review

for abuse of discretion is not “tantamount to no review at all”).

       B. 404(b): Extraneous Offense is Inadmissible as Conformity Evidence

        “It is axiomatic that that evidence of other offenses is not generally

admissible as evidence of guilt.” Ford v. State, 484 S.W.2d 727, 729 (Tex. Crim.

App. 1972). TEX.R.EVID. 404(b). Similarly, an accused must be tried only for the

offense he is charged and must not be tried for a collateral crime, or for being a

criminal in general.

        Generally, evidence of extraneous offense may not be used against the
        accused in a criminal trial … While such evidence will almost always
        have probative value, it forces the defendant to defend himself against
        uncharged crimes as well as the charged offense and encourages the
        jury to convict a defendant based upon his bad character, rather than
        proof of the specific crime charged.

Jackson v. State, 320 S.W.3d 873, 882(Tex. App. – Texarkana, 2010)(extraneous

was not sufficiently similar for admissibility to prove intent); citing Daggett v.

State, 187 S.W.3d 444, 450-51 (Tex. Crim. App. 2005)(footnotes omitted).

        Rule 404(b) provides that extraneous evidence may “be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Johnson v. State, 145

S.W.3d 215, 219 (Tex. Crim. App. 2004), quoting Rule 404(b). This list is
	                                        15	  
	  
illustrative, however, and extraneous evidence may also be admissible to rebut a

defensive issue that negates any element of the offense. Martin v. State, 173

S.W.3d at 467–68; De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009).

Therefore, a “party may introduce evidence of other crimes, wrongs, or acts if such

evidence logically serves to make more or less probable an elemental fact, an

evidentiary fact that inferentially leads to an elemental fact, or defensive evidence

that undermines an elemental fact.” De La Paz v. State, 279 S.W.3d at 343. The

Court of Criminal Appeals has said that, “[e]vidence of other crimes committed by

the accused may be admitted… where such evidence is shown to be both material

and relevant to a contested issue in the case.” Avila v. State, 18 S.W.3d 736, 740

(Tex. App. – San Antonio, 2000), citing Albrecht v. State, 486 S.W. 2d 97, 100

(Tex. Crim. App. 1972). So too, in Owens v. State, 827 S.W.2d 911, 915 (Tex.

Crim. App. 1992), the Court observed that “[e]vidence of a defendant’s particular

modus operandi is a recognized exception to the general rule precluding extraneous

offense evidence, if the modus operandi evidence tends to prove a material fact at

issue, other than propensity.” Modus operandi refers to “a defendant’s distinctive

and idiosyncratic manner of committing criminal acts.” Id. at 914. To be relevant,

and therefore admissible, the extraneous offense evidence must have some

distinguishing characteristic common both to it and the charged offense for which

the accused is on trial. Ford v. State, 484 S.W.2d 727, 729 (Tex. Crim. App.

	                                       16	  
	  
1972). If there is no common distinguishing characteristic, “then the evidence is

offered only to show that the accused has once committed a crime, and is therefore

likely to have committed the principal offense. This is not permitted.” Id.

       The State, as the proponent of any extraneous offense evidence, bears the

burden of showing admissibility at trial. TEX.R.EVID. Rules 401, 404(b). To be

convicted of sexual assault, the defendant must have engaged in conduct without

the complainant’s consent. “When the defensive theory of consent is raised, a

defendant necessarily disputes his intent to do the act without the consent of [the

complainant]. His intent is thereby placed in issue.” Rubio v. State, 607 S.W.2d

498, 501 (Tex. Crim. App. 1980). The Court has also held that modus operandi

encompasses the “doctrine of chances” to show lack of consent in a sexual assault

case. Martin v. State, 173 S.W.3d 463, 467–68 (Tex. Crim. App. 2005).

       1. State Failed to Demonstrate that the Extraneous Offense was
          Proffered for a Relevant Purpose.

       Ms. Garza was cross-examined about her work as an escort before, and at

the time of the charged offense. The state argued counsel’s cross-examination

opened the door to otherwise inadmissible evidence of a prior sexual assault. (4 RR

106). The court held the extraneous involving Ms. Marchand was admissible,

concluding that when the defense brought out the issue of fabrication or consent on

cross examination, the jury was entitled to hear from another unrelated

complaining witness. (4 RR 110). The extraneous offense was admitted for its
	                                       17	  
	  
relevance to the issue of consent and fabrication after a finding that this probative

value was not outweighed by the prejudicial value of the testimony. (5 RR 26).

       In response to trial counsel’s objection to Ms. Marchand’s extraneous, the

state as its proponent was required to demonstrate there was a relevant link

between the charged offense and the extraneous, so that it satisfied the relevance

exception under Rule 404(b). Instead, the state substantiated its basis by providing

the trial court with little more than a recitation of the general exceptions under

Rule 404(b) when it argued:

       “The specifics of the manner, the type of crime, the way he targeted
       her and more specifically the specific threat that he made shows
       identity, a specific modus operandi, the close proximity of where
       these crimes occurred to each other, which we have the map that we
       can show, within less than a mile apart, within blocks of each other,
       within weeks of each other.”

(4 RR 108). The state provided the trial court with generic 404(b) factors, but

never provided the link between factors like modus operandi or identity, and the

extraneous evidence offered. For example, the state fails to provide specifics facts

that support its conclusory assertion that Ms. Marchand was targeted or threatened,

or how it shared sufficient similarities to Ms. Garza’s allegations. The state further

omits how identity, which is not an issue in this case, or modus operandi is

applicable, or relevant, to any issue of fact in this case.

       The state’s mere assertion that the two crimes share a geographic proximity,

without more is insufficient. Similarly, the fact that the offenses occurred weeks
	                                         18	  
	  
apart is not a sufficient basis for the trial court to find the exception to 404(b)

under “identity, or specific modus operandi”. Neither separately, nor conjunctively,

do these facts surmount to the heightened threshold of showing Appellant’s

“handiwork” as required by the case law. Consequently, this Court should find that

the state has failed to meet its burden, thereby depriving the trial court of any

reasonable basis to admit the extraneous offense for the purpose of showing

“identity, a specific modus operandi” exception.

       Further, the state argued that Ms. Marchand’s extraneous evidence should be

admitted, because:

       “Both – the DNA comes back on both individuals to him and because
       the defense has, through cross-examination, opened the door by
       raising issues of fabrication and consent by bringing up her past
       sexual history as an escort, that thereby invokes, as the brief says, the
       doctrine of chances and allows u to prove Appellant sexually
       assaulted Ms. Garza by putting forth evidence of Ms. Marchand’s
       unrelated allegations.


(4 RR 108). The State attempts to argue that Appellant’s line of questioning related

to Ms. Garza’s sexual history as an escort translated into Appellant actually raising

the issue of fabrication or consent, thereby invoking the doctrine of chances and

allowing the state to prove Appellant sexually assault Ms. Garza by offering

evidence of Ms. Marchand’s unrelated allegation. Contrary to this argument, the

state, and not Appellant, is the proponent of the extraneous evidence.

Consequently, it is the state that holds the burden of substantiating its relevancy to
	                                        19	  
	  
Ms. Garza’s allegations. Merely by claiming Appellant “opened the door” does not

permit the state to introduce evidence without first demonstrating how that

evidence applies or otherwise “fits” through the opened door. The state, however,

failed to make any such showing, and therefore this Court should find that the

state’s basis for admitting the extraneous evidence was not only premised upon an

erroneous interpretation of the doctrine of chances, but also failed to demonstrate

any rational connection that would permit a trial court’s decision to admit Ms.

Marchand’s extraneous under a theory of fabrication, consent or the doctrine of

chances.

                 2. State Failed to Demonstrate Relevance of Extraneous to Issue of
                    Consent

                 The state argued the extraneous of Ms. Marchand was relevant to the issue

of consent. Consent, or the lack of consent, is an element of sexual assault and

aggravated kidnapping. Here, the state proffered Ms. Marchand’s extraneous to

prove the lack of consent by Ms. Garza. (4 RR 109). The state argued that trial

counsel’s cross-examination of Ms. Garza about being an escort at the time of the

offense opened the door to the prior extraneous and raised the issue of consent3. (4

RR 112).



	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
3
          Trial insisted at trial that, “he never asked her if she had sex with him. She never identified him
or identified who raped her. I never brought up consent. I just asked her about her background
information. (4 RR 112).
	                                                                                                          20	  
	  
       The state never provided any basis for its contention that trial counsel raised

the issue of consent in his cross-examination of Ms. Garza. In fact, the state

elicited testimony from Ms. Garza that she had previously worked as an escort on

direct examination. (4 RR 41). Trial counsel cross-examined her about the fact that

she claimed she stopped working as an escort six months before the incident. (4

RR 41; 61). In addition, the state failed to show how Ms. Marchand’s sexual

assault was relevant to the issue of lack of consent by Ms. Garza. The state as the

proponent of the evidence was required to demonstrate the relevance of any

extraneous to the trial court. If the state fails to make such a showing, the trial

court lacks the basis to admit the evidence. Here, the state never demonstrated to

the trial court how Ms. Marchand’s extraneous allegation was relevant to prove

intent, or the lack of consent, by Ms. Garza. Therefore, the state failed to provide

the trial court with a sufficient legal basis to admit the evidence at trial.

       3. State Failed to Demonstrate Relevance of Extraneous to Issue of
          Fabrication

       The state also claimed the extraneous of Ms. Marchand was admissible to

rebut the defensive theory of fabrication. The state again argued that trial counsel

opened the door through cross-examination of Ms. Garza about her occupation as

an escort in the months leading up the offense. (4 RR 53). On cross-examination,

Ms. Garza testified she was an escort for four years and admitted that she had sex

with people for money that responded to her online advertisements. (4 RR 41).
	                                         21	  
	  
However, she insisted she was not working as an escort during the six months prior

to the incident. (4 RR 41). While she admitted she allowed the photographs

featured in the advertisements to be taken, she claimed she did not authorize the

posting of her photo to solicit business as an escort in the six months before the

incident. (4 RR 61-66; 85). The state specifically argued:

       “Both – the DNA comes back on both individuals to him and because
       the defense has, through cross-examination, opened the door by
       raising issues of fabrication and consent by bringing up her past
       sexual history as an escort, that thereby invokes, as the brief says, the
       doctrine of chances and allows you to prove Appellant sexually
       assaulted Ms. Garza by putting forth evidence of Ms. Marchand’s
       unrelated allegations.

                                         ***

(4 RR 108)

       And it is to rebut the implication raised by cross of fabrication, which
       he raised by going through the details and pointing out the details that
       were inconsistent from one telling to the next and also the issue of
       consent, which he raised through the issue of the implication of her
       being a continued escort. And many of these cases are very closely
       directly on point on that issue, Judge.

                                         ***
(4 RR 112).

The so-called fabrication elicited on cross-examination was that Ms. Garza lied

about being an escort in the six months leading up to the offense. (4 RR 85). Trial

counsel impeached her testimony using “backpage” advertisements that featured

her as an escort during the six months prior to the offense. The state objected to the

	                                        22	  
	  
admission of the “backpage” ads as not relevant. Trial counsel argued these

exhibits were relevant to show consent. (4 RR 72). The trial court admitted the

advertisements but redacted Ms. Garza’s photograph even though they purported to

be a woman by the name of “Amy Lovett”. (4 RR 62). Trial counsel impeached

Ms. Garza’s credibility with the exhibits and raised the issue of fabrication,

however, whether she was, or was not, an escort at the time of the offense was not

an element of the offense. In addition, any extraneous about Ms. Marchand’s

alleged rape and kidnapping did not logically rebut the defensive theory of

fabrication. Even assuming that trial counsel opened the door to the extraneous

evidence through cross-examination of Ms. Garza about being an escort, the fact

that Ms. Marchand was raped and kidnapped did not make more, or less likely that

Ms. Garza was telling the truth about not being an escort at the time of the offense.

Therefore, the state’s proffered reason for admitting the extraneous offense was not

relevant to rebut the defensive theory of fabrication– that Ms. Garza lied about

being an escort at the time of the offense – and should not have been admitted for

that purpose. As discussed above, any prior rape or kidnapping of Ms. Marchand

had no relevance to whether Ms. Garza was fabricating being an escort at the time

of the offense. Therefore, the purpose for the state’s proffered extraneous failed to

provide the trial court with a sufficient legal basis to admit the evidence at trial.




	                                         23	  
	  
       4. State Failed to Demonstrate Relevance of Extraneous to Show
          “Handiwork” of Appellant

       Finally, the state argued that Ms. Marchand’s testimony was relevant to

show the “modus operandi” of Appellant.

       “The specifics of the manner, the type of crime, the way he targeted
       her and more specifically the specific threat that he made shows
       identity, a specific modus operandi, the close proximity of where
       these crimes occurred to each other, which we have the map that we
       can show, within less than a mile apart, within blocks of each other,
       within weeks of each other.”

(4 RR 108). Trial counsel objected arguing it was not relevant – it was not

sufficiently similar to the charged offense—and that its prejudicial value was

greatly outweighed by any probative value. (5 RR 7). The trial court stated, (1)

“I’m not sure that similarity plays into the fact that the allegation – that the defense

is consent but (2) assuming it does, because the Court of Appeals is much smarter

than me, is that I’m going to allow in Ms. Marchand because I believe that those

are similar.” (5 RR 25).

       “In the context of evaluating the admissibility of extraneous offenses, modus

operandi refers to ‘a defendant’s distinctive and idiosyncratic manner of

committing criminal acts.’” Jackson v. State, 320 S.W.3d at 882, citing Owens v.

State, 827 S.W.2d at 914. When evidence of an extraneous is offered to show

consent, its relevance is derived from the doctrine of chances. Daggett v. State, 187

S.W.3d at 453 n. 18 (“evidence of a remarkably similar act might be admissible to

	                                        24	  
	  
prove the corpus delicti (the crime itself), intent, or lack of consent under ‘the

doctrine of chances.’”). “Before an extraneous offense is admissible to negate the

possibility of accident under Wigmore’s “doctrine of chances”, such offense must

be sufficiently similar in nature to the charged offense that the inference of

improbability of accident logically comes into play.” Martin v. State, 173 S.W.3d

at 467, citing Imwinkelried, Uncharged Misconduct Evidence, §§ 5:05, 5:10

(1984). Therefore, to be admissible the extraneous must be so nearly identical in

method to the charged offense as to earmark it as the handiwork of the accused.

Owens v. State, 827 S.W.2d at 917. The characteristics must be so unusual and

distinctive so as to be like a signature. Avila v. State, 18 S.W.3d at 741, Taylor v.

State, 920 S.W.2d 319, 322 (Tex. Crim. App. 1992). Therefore, extraneous

evidence is not relevant simply by showing similar characteristics that are common

to the type of crime itself, instead the uncharged conduct must reveal the

“handiwork of the accused”. Ford v. State, 484 S.W. 2d 730. Importantly,“[n]o

rigid rules dictate what constitutes sufficient similarities, rather, the common

characteristics may be proximity in time and place, mode of commission of the

crimes, the person’s dress, or any other elements which mark both crimes as

having been committed by the same person.” Segundo v. State, 270 S.W.3d 79, 88

(Tex. Crim. App. 2008)(emphasis added).




	                                       25	  
	  
       Relying on the state’s argument that the extraneous was admissible to prove

a lack of consent, the trial court admitted the evidence of Ms. Marchand

concluding that it was sufficiently similar to the charged offense and that it was

admissible to rebut the defensive theory of consent. (5 RR 25). Here, there are

insufficient details that mark the two offenses as “remarkably similar” or as the

“handiwork” of a single individual. Id. So too, the characteristics of the prior

extraneous and the charged offense are not “so unusual as to act as the defendant’s

‘signature.’” Jackson, 320 S.W.3d at 884. Here, there are no distinguishing

characteristics common to both crimes that mark it as the signature of one person.

While there are similarities, these similarities are common to the type of crime

itself, rather than peculiar similarities to both offenses that distinguish it as the acts

of one man. Owens, 827 S.W.2d at 915, (“The State must show more than the mere

repeated commission of crimes of the same type or class…”). Inaddition, the

Court of Criminal Appeals has made clear that, “if extraneous offense evidence is

not ‘relevant’ apart from supporting an inference of character conformity,’ it is

absolutely inadmissible under Rule 404(b).” Montgomery, 810 S.W.2d 386-87.

       Here, the state argued at trial that the similarities between the extraneous and

the charged offense, which allegedly revealed the “modus operandi” of the

Appellant, were as follows:

       “The specifics of the manner, the type of crime, the way he targeted
       her and more specifically the specific threat that he made shows
	                                         26	  
	  
       identity, a specific modus operandi, the close proximity of where
       these crimes occurred to each other, which we have the map that we
       can show, within less than a mile apart, within blocks of each other,
       within weeks of each other.”

(4 RR 107-108).

              C. “The Specifics of the “Manner” or “the Type of Crime”

       In State v. Ford, the Court “recognize[d] that there will always be

similarities in the commission of the same type of crime. That is, any case of

robbery by firearms is quite likely to have been committed in much the same way

as any other. What must be shown to make the evidence of extraneous crime

admissible is something that sets it apart from its class or type of crime in

general, and marks it distinctively in the same manner as the principal crime.”

484 S.W.2d at 730 (emphasis added). Much like the robbery example, sexual

assault cases will also have similarities because they are in the nature of the

offense itself. In order to be admissible to show modus operandi, the similarities

must go further to reveal something specific and distinctive about the crimes, such

that it reveals an inference of improbability of accident. See Martin v. State, 173

S.W.3d at 467.

       1. “The way he targeted her”.

       Ms. Garza testified that she merely happened upon the apartment complex

where she encountered Appellant. Appellant did not target Ms. Garza. Instead the



	                                      27	  
	  
testimony revealed circumstances that were borne of opportunity. Ms. Marchand,

by contrast, was targeted as she exited a CVS store, but before she entered her car.

       2. “The specific threat he made...”

       The threats made to both women were essentially not to go to the police or

they would be hurt. The specifics of the threat were different in each case. Ms.

Garza testified Appellant and the other man kept her identifying information to

locate her if she went to the police. Ms. Marchand, however, testified that

Appellant wrote down information from her phone and threatened to have gang

members come after her family.

       3. “Close proximity of the crimes”

       Contrary to the state’s argument, which is not evidence, there were no maps

or other evidence admitted at trial to show the proximity between where Ms.

Marchand was allegedly kidnapped and sexually assaulted and where Ms. Garza

was located at the time of her alleged assault.

       4. “Both offenses occurred within weeks of each other”

       The only factor the state argued that provided some evidence of similarity

between the two offenses was that Ms. Marchand was assaulted two weeks prior to

Ms. Garza’s alleged attack. This fact alone, however, would not make the two

offenses sufficiently similar to be admissible. Because “[t]he similarities between

the charged offense and the extraneous offense … were not so unusual or

	                                        28	  
	  
idiosyncratic as to signal conclusively that they were the handiwork of the same

person” the trial court abused its discretion in admitting the testimony of Ms.

Marchand.

       In Ford v. State, the Court reversed a robbery conviction where the

extraneous was not sufficiently similar to the charged offense to be admissible to

show intent. 484 S.W.2d 727 (Tex. Crim. App. 1972). The defendant was involved

in a robbery-murder and the state attempted to introduce a supermarket robbery

that occurred two months earlier. Id. at 729. Although there were similarities, they

were neither distinguishing, novel, nor unusual. Id. at 730. The robbery-murder

involved a tall, black male. Id. Both crimes involved pistols and persons were

injured in both cases. Id. The Appellant allegedly wore purple in both robberies. Id.

The dissimilarities included the fact that there was two months between the

robberies, four men committed one robbery, and only one man committed the

other. Id. Appellant gained access to one under the pretext that he was looking for

work, however there was no evidence that he gained entry to the supermarket in

the same way. Id. In reversing the trial court’s decision, the Court held there was

“no distinguishing characteristic[s] common to both crimes. There are similarities,

but they are more in the nature of the similarities common to the type of crime

itself rather than similarities peculiar to both offense alone.” Id.




	                                         29	  
	  
       Similarly, the Court reversed the erroneous admission of an extraneous

offense in Owens v. State, a sexual assault case where the extraneous was not

sufficiently similar to show the handiwork of the same person. 827 S.W.2d at 915.

The Court held that two incidents of sexual assault, allegedly committed by the

defendant, were not so similar as to render evidence of the extraneous admissible

where the two offenses were alike only in that they were both sexual assaults

against minor females, of approximately the same age, both of whom were the

defendant’s daughters. Id. The Court said,

       When the State seeks to admit extraneous offense evidence under a
       theory of “system” or modus operandi, “there must be a showing that
       the extraneous offense which was committed by the defendant was ‘so
       nearly identical in method [to the charged offense] as to earmark
       them as the handiwork of the accused.’”

Id. at 915 (emphasis added); Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim.

App. 1981), quoting E. Cleary, McCormick's Handbook of the Law of Evidence

449 (2d ed. 1972).


       By contrast, in Martin v. State, the Court found the extraneous offense and

charged offense were sufficiently similar to be admissible to rebut the defensive

theories of consent and lack of intent. 173 S.W.3d at 463. The defendant admitted

he falsely claimed to be a law enforcement officer as a ruse to pick up both the

complainant and the victim of the extraneous. Id. at 467. In addition both women

testified they agreed to meet him in residential areas, and that he took both women

	                                      30	  
	  
to a residence to sexually assault them after the initial meeting. Id. The Court held

these facts –-that he claimed in both cases to be a law enforcement officer to pick

up the women, took them to a residential area and sexually assaulted them in a

home-- were sufficient to show modus operandi, because they were sufficiently

distinctive to qualify as an exception to the general rules that preclude the

admission of extraneous-offense evidence. Id.

       The present case does not present the distinguishing characteristics found in

Martin v. State, but instead provide general characteristics that are common to the

type of crime committed, similar to the Court’s holdings in Ford and Owens.

While an extremely high degree of similarity is not required, the Court of Criminal

Appeals has made clear that the relevance of any extraneous evidence derives from

the fact that it is sufficiently similar and “so unusual as to act as the defendant’s

‘signature.’” Jackson, 320 S.W.3d at 884, and it must be so identical in method to

the charged offense as to earmark it as handiwork of the accused. Even where a

case presents some similarities, they must be distinguishing, novel and unusual,

Ford, 484 S.W.2d at 730, to warrant its admission, because “there will always be

similarities in the commission of the same type of crime.” Ford, 484 S.W.2d at

730. It is not just the similarity of the offenses that permits its admission but that

level of sufficiency so as “to signal conclusively that [it is] the handiwork of the

same person.” Martin, 173 S.W.3d at 467; see also Owens, 827 S.W.2d at 915-16.

	                                       31	  
	  
Because the trial court’s admission of Ms. Marchand’s testimony about an alleged

prior extraneous was outside the zone of reasonable disagreement, the trial court

abused its discretion.

                  D. Rule 403: The Danger of Unfair Prejudice

       Even if the trial court properly admitted the extraneous evidence pursuant to

Rule 404(b), it still must exclude the evidence if the probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues

or misleading the jury. TEX.R.EVID. 403; Montgomery v. State, 810 S.W.2d at 387.

The following factors are balanced to determine whether the trial court abused its

discretion in admitting the extraneous offense evidence: (1) the strength of the

evidence in making a fact more or less probable; (2) the potential of the extraneous

offense evidence to impress the jury in some irrational but indelible way; (3) the

amount of time the proponent needed to develop the evidence; (4) the strength of

the proponent’s need for this evidence to prove a fact of consequence.

         1. The Strength of the Evidence in Making a Fact More or Less
            Probable.

       As discussed thoroughly above, the first factor weighs against admissibility.

To be admissible, the extraneous must be relevant to some theory, other the general

proposition that one who commits one crime is prone to commit another. Ford, 484

S.W.2d at 729. The trial court admitted the extraneous to to prove consent or to

rebut the defensive theory of fabrication operandi of Appellant. Because the
	                                       32	  
	  
extraneous was not sufficiently similar to the charged offense, it could not have

provided the jury with any permissible evidence that would make the issue of

consent more or less probable. In addition, the state did not use the evidence for its

purported purpose of showing a lack of consent. Instead, the state offered the

evidence and argued it to show character conformity. Therefore, the extraneous

evidence was not relevant to any fact issue, other than a propensity to commit

crime, and it was therefore not relevant because the sexual assault of Ms.

Marchand does not make a fact of consequence more or less probable. Jackson,

320 S.W.3d at 885.

       2. The Potential the Extraneous Offense to Impress the Jury in Some
          Irrational but Indelible Way.

       The second factor also falls on the Appellant’s side of the ledger. Since the

extraneous served no permissible purpose, and because it was a prior sexual

assault, it had the very real potential to impress the jury in some irrational but

indelible way. All “[e]xtraneous offense evidence is ‘inherently prejudicial, tends

to confuse the issues, and forces the accused to defend himself against charges not

part of the present case against him.’” Jackson v. State, 320 S.W.3d at 889. Sims v.

State, 273 S.W.3d 291 (Tex. Crim. App. 2008)(quoting Pollard v. State, 255

S.W.3d 184, 185 (Tex. App. – San Antonio, 2008), aff’d, 277 S.W.3d 25 (Tex.

Crim. App. 2009). Here, the extraneous evidence allowed the jury to find

Appellant guilty if it believed he committed the sexual assault of Ms. Marchand,
	                                       33	  
	  
even if it did not believe Ms. Garza. The prosecutor reinforced this belief in its

closing argument by telling jurors, “Just in case you don’t believe Irene – that’s

why we brought in evidence of another girl raped just 2 weeks before.” (5 RR

117). Importantly, the prosecutor’s argument also never limits the jury’s

consideration of the extraneous to whether or not Ms. Garza consented to the

sexual assault with Appellant. Instead the prosecutor argued this evidence could

be used to prove Appellant committed the charged offense, thus the sexual assault

of Ms. Marchand “had a significant potential ‘to lure the person in order to show

that he acted in conformity therewith.’” Jackson v. State, 320 S.W.3d at 886, citing

TEX.R.EVID. “As stated by the Texas Court of Criminal Appeals: ‘if extraneous

offense evidence is not ‘relevant’ apart from supporting an inference of character

conformity,’ it is absolutely inadmissible under Rule 404(b). Id. at 885; citing

Montgomery v. State, 810 S.W.2d 386-87.

       3. The Amount of Time the Proponent Needed to Develop the Evidence.

       The third factor does not fall in favor of admission since Ms. Marchand’s

testimony distracted the jury from the charged offense for a significant period of

time during trial. This evidence was then reiterated during the state’s closing

argument, where it was argued that if the jury did not believe the charged offense

occurred, they could substitute the testimony of Ms. Marchand for the testimony of

Ms. Garza. The testimony outside the presence of the jury and in front of the jury

	                                      34	  
	  
spanned approximately 50 pages furthering the conclusion that the time to develop

the evidence was significant.

       4. The Strength of the Proponent’s Need for this Evidence to Prove a
          Fact of Consequence.

       The fourth and final factor weighs heavily against admission of the

extraneous to prove consent or to rebut the defensive theory of fabrication. As

discussed, the only evidence contesting consent was based on the cross

examination of Ms. Garza about her work as an escort. (5 RR 26). A jury could

reasonably infer a lack of consent from the evidence introduced at trial that Ms.

Garza: (1) called police to report the attack; (2) went to the hospital for a rape kit;

(3) had physical injuries consistent with an attack; and (4) her personal

identification was taken. Therefore, the prosecutor did not need the additional

evidence of a prior sexual assault to prove a fact of consequence in this trial. This

is particularly true since the relevance of this evidence to the issue of consent

hinged on whether the sexual assault of Ms. Marchand was sufficiently similar to

show the “signature” or modus operandi of Appellant. Because it was not

sufficiently similar, it only provided jurors with evidence of Appellant’s propensity

to commit sexual assaults, an impermissible purpose.

       For all the foregoing reasons, the trial court’s decision to admit the

extraneous was outside the zone of reasonable disagreement because the probative

value of the extraneous evidence was substantially outweighed by the danger of
	                                        35	  
	  
unfair prejudice. Thus, the extraneous would not be admissible to show a lack of

consent by the complainant or rebut the defensive theory of fabrication, and

therefore such evidence did not make a fact of consequence more or less probable.

       E. The Improper Admission of Extraneous Evidence Affected Appellant’s
                                Substantial Rights

          If this Court concludes that the trial court erroneously admitted the

extraneous evidence, it must determine whether such error was harmless. The

erroneous admission of an extraneous does not constitute constitutional error so

this Court applies Texas Rule of Appellate Procedure, Rule 44.2(b). Therefore, any

error      “that   does   not   affect   substantial   rights   must   be   disregarded.”

TEX.R.APP.PROC. 44.2(b). The rule requires this Court to determine if this error

had “a substantial and injurious effect or influence in determining the jury’s

verdict.” King v. State, 953 S.W.2d 266, 270 (Tex. Crim. App. 1997). If this Court

has “grave doubt” that the result was free from the substantial influence of the

error, it must treat the error as if it did. United States v. Lane, 474 U.S. 438, 449

(1986); Burnett v. State, 88 S.W.3d 633, 638 (Tex. Crim. App. 2002)(“In cases of

grave doubt as to the harmlessness the [appellant] must win.”); Brown v. State, 978

S.W.2d 708, 716 (Tex.App.–Amarillo 1998, pet. ref’d)(emphasis in original)(“The

determination of harm is little more than an educated guess. What the jurors

actually thought persuasive or actually considered is seldom, if ever, available to

us. So, we ... assess potentialities.”).
	                                           36	  
	  
       Appellant is not required to prove harm, instead it is this Court’s duty to

review the record and assess harm. Johnson v. State, 43 S.W.3d 1, 4-6 (Tex. Crim.

App. 2001). The proper inquiry is whether the error substantially swayed or

influenced the verdict. Booker v. State, 103 S.W.3d 521, 538 (Tex. App.– Fort

Worth 2003, pet. ref’d). This Court must consider the erroneous admission of the

extraneous in the context of the entire record, and not merely whether there was

sufficient, or even overwhelming evidence of guilt. Motilla v. State, 78 S.W.3d

352, 355 (Tex. Crim. App. 2002). In conducting its Rule 44.2(b) harm analysis,

this Court cannot lose sight of two interrelated considerations. First, if there is any

doubt that this error affected a substantial right, it is dispelled by the prosecutor’s

closing argument that urged the jury to convict Appellant based not on their belief

that Appellant committed the charged offense, but instead asked jurors to find him

guilty based on the extraneous offense evidence that he committed another rape

just two weeks prior. (5 RR 117).

       This Court has long held that prosecutorial emphasis on erroneously

admitted evidence at trial and in final argument, is powerful evidence that an error

affecting a substantial right warrants reversal. See Delane v. State, 369 S.W.3d

412 (Tex. App – Houston [1st Dist.] 2012)(misapplication of rules of evidence

affected substantial rights where State emphasized erroneously admitted evidence

during final argument); Nelms v. State, 834 S.W.2d 110, 114 (Tex.App. – Houston

	                                        37	  
	  
[1st Dist.] 1992, pet. ref’d)(same); see also Rhyne v. State, 387 S.W.3d 896, 906

(Tex. App.– Fort Worth 2012, no pet.)(erroneous admission of breath test result

affected substantial rights when State advised jury in summation that breath-test

evidence was “best evidence” Appellant was intoxicated.”).

       1. Severity of the Misconduct

       There can be little doubt that the introduction of Ms. Marchand’s alleged

rape to prove Appellant committed the sexual assault of Ms. Garza, would

adversely affect the jury’s verdict. The prosecutor’s final argument improperly

directed the jury to convict Appellant based, not on the evidence at trial, but

instead on the impermissible evidence that he kidnapped and raped another woman

just two weeks prior. Considering the lack of unique similarities between the two

offenses, the extraneous was not relevant to any issue at trial, including lack of

consent by the complainant or to rebut the defensive theory of fabrication. Since

the extraneous was not relevant to any fact issue of consequence, it carried little

probative value and tended to impress the jury with the fact that Appellant acted in

conformity with his character, an impression the law seeks to avoid. See

TEX.R.EVID. 402; Cobb v. State, 503 S.W.2d 249, 250 (Tex. Crim. App. 1973).

Because “[e]xtraneous offense evidence is ‘inherently prejudicial, tends to confuse

the issues, and forces the accused to defend himself against charges not part of the

present case against him,’” it is unlikely this evidence had only a slight effect on

	                                      38	  
	  
the jury’s deliberation. Jackson at 889. Sims v. State, 273 S.W.3d 291 (Tex. Crim.

App. 2008)(quoting Pollard v. State, 255 S.W.3d 184, 185 (Tex. App. – San

Antonio, 2008), aff’d, 277 S.W.3d 25 (Tex. Crim. App. 2009).

                 2. Steps Taken to Cure the Misconduct

                 As discussed above the State was permitted to tell jurors in final argument

that, “Just in case you don’t believe Irene – that’s why we brought in evidence of

another girl raped just two weeks before.” (5 RR 117). The State was also allowed

to argue that: “his DNA was in both women – women who never met,” “that both

girls were raped at different locations” and “that DNA evidence doesn’t lie.” (5 RR

117).

        Although the trial court did give jurors a limiting instruction4 after the state

rested, it did not instruct the jury that it should only consider the evidence to rebut

the defensive theory of fabrication or to show a lack of consent by the complainant,

if it did. (5 RR 87-88). The trial court also failed to limit the jury’s consideration

of the extraneous evidence in the jury charge. Jurors were provided with the
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
4	  The Court:

                                                      “And before you do that, ladies and gentlemen, I have some instructions for you
regarding the testimony concerning the defendant’s involvement in another act.
                                                      You are instructed that if there is any evidence in this case regarding the defendant’s
committed an alleged offense or offenses other than the offense alleged against him in the
indictment in this case, you cannot consider such evidence for any purpose unless you find and
believe beyond a reasonable doubt the defendant committed such other offense or offenses, if
any, and even then you may only consider the same in determining the motive, opportunity,
intent, knowledge or absence of mistake or accident of the defendant, if any, in connection with
the offense, if any, alleged against him in the indictment, and for no other purpose.” (5 RR 86-
87).
	                                                                                                          39	  
	  
standard list of 404(b) exceptions, however the court never identified the limited

purpose the evidence was to be considered in this case; the lack of consent or to

rebut the defensive theory of fabrication. An instruction that tells jurors not

consider inadmissible evidence, except for a limited purpose, still instructs jurors

to consider inadmissible evidence. Jackson, 320 S.W.3d at 889. Here, the evidence

should not have been considered for any purpose during the guilt/innocence phase

of trial therefore, this Court should not hold that the limiting instruction renders the

error harmless.

       The Court of Criminal Appeals held “that an appellate court cannot affirm a

trial court’s decision to admit extraneous—offense evidence to rebut a defensive

theory if the trial court failed to instruct the jury, in the trial court’s limiting

instruction, on the extraneous evidence admissibility to rebut a defensive theory.”

Owens, 827 S.W.2d at 917, see Curtis v. State, 89 S.W.3d 163, 177 (Tex. App. –

Fort Worth 2002, pet ref’d)(refusing to consider whether admission of extraneous

offense evidence to rebut defensive theory was proper because jury was not

instructed on that basis). The Owens Court said this is because, “[a]bsent such

additional instruction, there is no way for an appellate court to know whether the

jury properly applied the evidence of appellant’s ‘system’ to rebut the weight or

credibility of appellant’s ‘frame-up’ theory or relied on it for an improper basis

such as character conformity.” Owens, 827 S.W.2d at 917. Because the trial court

	                                        40	  
	  
did not instruct the jury to limits its consideration of the extraneous to rebut the

defensive theory of fabrication or to show a lack of consent by the complainant,

effectively no methods were taken to cure this harm.

       3. Certainty of Conviction Absent Error

       The Court of Criminal Appeals has stressed that “an appellate court should

consider overwhelming evidence of guilt, but that should be only one factor in the

analysis.” Motilla v. State, 78 S.W.3d 352, 355, 357 (Tex. Crim. App. 2002). As

previously stated, extraneous evidence is inherently prejudicial because it forces

the defendant to defend himself against charges not before the jury. Therefore, the

improper admission of an extraneous offense tends to be harmful because it

encourages a jury to base its decisions on character conformity, rather than

evidence that the defendant committed the offense charged.

       Although evidence suggests Appellant committed the sexual assault and

aggravated kidnapping of Ms Garza, it was not without contradiction. The

evidence showed that Ms. Garza claimed she was not working as escort in the six

months prior to the offense however evidence was also admitted that showed she

did work as an escort in the months prior to the offense. Extraneous evidence of

the prior sexual assault of Ms. Marchand likely had a profound effect on the jury’s

decision to believe or disbelieve Ms. Garza. The allegation that Appellant

committed the sexual assault and aggravated kidnapping of Ms. Marchand likely

	                                      41	  
	  
influenced the jury’s ultimate conclusion that Ms. Garza was a credible witness.

The State’s closing argument emphasizing this connection between Ms. Marchand

and Ms. Garza, which urged jurors to consider Appellant’s tendency to act in

conformity with his character, reinforces the likelihood that this improper evidence

played a significant role in the jury’s deliberations.

       Based on this record, this Court cannot say with fair assurance that the

erroneous admission of the extraneous that Appellant committed a prior sexual

assault, and the state’s emphasis on this evidence in urging jurors to convict him,

not for the sexual assault of Ms. Garza, but because he acted in conformity with his

character, did not influence jurors, or had but a slight effect on their verdict. See

e.g., Pollard v. State, 255 S.W.3d 184, 190 (Tex. App.– San Antonio, 2008), aff’d,

277 S.W.3d 25 (Tex. Crim. App. 2009)(“[W]e conclude the State’s emphasis of the

murder conviction prejudiced the jury’s decision-making, causing a substantial and

injurious effect or influence on the jury’s verdict...”); West v. State, 124 S.W.3d

732, 736 (Tex. App.– Houston [1st Dist.] 2003, pet. ref’d)(State’s emphasis of

error during final argument was powerful indicia that trial court’s misapplication of

rules of evidence affected defendant’s substantial rights). This Court should hold

that the introduction of the extraneous was harmful and sustain Appellant’s point

of error.

       The judgment of conviction entered below must be reversed and the cause

	                                         42	  
	  
remanded for a new trial.

                         CONCLUSION AND PRAYER

       Appellant respectfully prays that this Honorable Court sustain the appellate

contention here advanced, reverse the trial court’s order and hold the trial court

abused its discretion in admitting the extraneous offense in violation of Texas

Rules of Evidence Rules 404(b) and 403 because the prior sexual assault was not

relevant for the permissible purpose proffered by the state, did not tend to make

any issue of fact of consequence more or less likely, and was not sufficiently

similar to show the modus operandi of Appellant.




                                      RESPECTFULLY SUBMITTED,

                                       /s/ Carmen Roe
                                      ____________________________
                                      CARMEN ROE
                                      TBN: 24048773
                                      440 Louisiana, Suite 900
                                      Houston, Texas 77002
                                      713.236.7755
                                      713.236.7756 Fax
                                      ATTORNEY FOR APPELLANT




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                         CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the foregoing Appellant’s

Brief was served on the Harris County District Attorney, Appellate Division, 1201

Franklin, 6th Floor, Houston, Texas 77002 by electronic filing, on 20th day of

February, 2015.

                                      /s/ Carmen M. Roe
                                      ______________________________
                                      CARMEN M. ROE




                      CERTIFICATE OF COMPLIANCE

       This document complies with the typeface requirements of TEX. R. APP. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with

the word-count limitations of TEX. R. APP. P. 9.4(i), if applicable, because it

contains 8,441 words, excluding any parts exempted by TEX. R. APP. P. 9.4(i)(1).


                                      /s/ Carmen M. Roe
                                      ______________________________
                                      CARMEN M. ROE




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