                                                     RECEIVED
                                                     Court of Appeals

                                                       NOV 20 2015
                                                          Lisa Matz
                       NO.    05-11-010161-CR
                                                     Clerk, 5th District
                       &      05-11-010162-CR



                                                            FILED IN
                                                            Court of Appeals
                                IN THE


                      FIFTH COURT OF APPEALS                 NOV 2 0 2015
                                                              Lisa Matz
                        SITTING AT DALLAS
                                                           Clerk, 5th District



                             ARAMANDO SOTO,

                               Appellant,

                                  VS.

                       THE STATE OF TEXAS,

                               Appellee.




                       BRIEF FOR APPELLANT




    Appealed from   Cause numbers: F10-19502-H & F10-190503-H
in the Criminal District Court Number 1, of Dallas County, Texas
             The Honorable Robert Burns, presiding.


                                         ARAMANDO SOTO,
                                         APPELLANT-PRO SE
                                         #1740241-COFFIELD UNIT
                                         2661 F.M. 2054
                                         TENNESSEE COLONY,TX 75884

                     ORAL ARGUMENT REQUESTED
                               IDENTITY OF PARTIES



      Pursuant    to    Texas     Rule   of   Appellate     Procedure 38.1(a),
Appellant    Aramando     Soto,     submits    the   following list of names

and   addresses    of    all parties to the Trial Court's judgment and
and the names and address of all trial and appellate counsel:

APPELLANT:                                Aramando Soto
                                          TDCJ #:1740241
                                          H.H. Coffield Unit
                                          2661 F.M. 2054
                                          Tennessee Colony,TX 75884

COUNSEL FOR APPELLANT      IN             Frank Jackson
THE TRIAL COURT:                          2612 Boll Street
                                          Dallas, Texas 75204

ATTORNEY FOR APPELLANT      IN
THE COURT OF APPEALS                      Velenca    Bush
                                          1000 North Central Expwy. # 400
                                          Dallas, Texas 75231

APPELLEE:                                 THE STATE OF TEXAS

COUNSEL FOR THE STATE OF TEXAS            SUSAN HAWK
                                          CRIMINAL DISTRICT ATTORNEY
                                          OF DALLAS COUNTY, TEXAS
                                          APPELLATE DIVIS0N
                                          133 NORTH RIVERFRONT BLVD-LB-2
                                          DALLAS, TEXAS 75207




SOTO V STATE-APPELLANT BRIEF                                            PAGE,ii
                                  TABLE OF CONTENTS



Identity of Parties                                                                 ii
Index of Authorities                                                                    1
References to the Record                                                                3
Statement of the Case                                                                   4
Statement of Facts                                                                      5
Issues Presented                                                                        9

Issue One                                                                           10
             The record on appeal is incomplete, therein denying the
             Appellant the right to a meaningful appeal.
Issue Two                                                                           13
             The appellant was entitled to confront the witnesses
             against him, this included the right to physical presence
             of the witness before the jury and the appellant without
             appellant's having    to call the witness.
Issue Three                                                                         17
             The trial court erred in receiving the 'in court identif-
             iction' evidence over appellant's objection.
Issue Four                                                                          21
             The trial court      erred in failing to sustain appellant's
             timely objection     to inflammatory and prejudicial photo
             graphs .
Issue Five                                                                         25
             Trial counsel   was    ineffectvie   for   failing   to move to
             suppress evidance describing tests to which appellant,
             while under arrest, had been subjected.
Conclusion                                                                         28
Prayer for Relief                                                                  29
Certificate of Service                                                             29

Certificate of Mailing                                                             30




SOTO V STATE-APPELLANT BRIEF                                                   PAGE,iii
                              INDEX OF AUTHORITIES




                                                        PAGE(S)

Aldrich v. State,
296 S.W.3d 225 (Tex. App.-Fort Worth 2009)                    15
Brooks v.   State,
132 S.W.3d 702 (Tex.App.-Dallas 2004)                         13
Bullcoming v. New Mexico,
131 S.Ct. 2547 (2011)                                         14

Cain v. State,
947 S.W.2d 262 (Tex. Crim. App. 1997)                         12


215 S.W.3d 870,(Tex. Crim. App. 2007)                         22
Connor v.   State,
67 S.W.3d 192 (Tex.Crim.App. 2001)                            22
Crawford v. Washington,
541 U.S. 2678 (2004)                                          14

Erazo v. State,
144 S.W.3d 487 (Tex. Crim.App. 2004)                          23

Escamilla v. State,
556 S.W.2d 796 (Tex .Crim. App. 1977)                         27

Giglibobianco v. State,
210 S.W.3d 637 (Tex .Crim. App. 2006)                         22
Hernandez v. State,
726 S.W.2d 53 (Tex. Crim. App.       1986)                    26

Kimmelman v. Morrison,
47 7 U.S. 365 (1986)                                          26

Loserth v. State,
985 S.W.2d 536 (Tex. App.-San Antonio)                    18,20
Melendez-Diaz v. Massachusetts,
557 U.S. 305 (2009)                                  11,12,13,14

SOTO V STATE-APPELANT BRIEF                              PAGE, 1
                                          PAGE(S)

Old Chief v.        United States,
519 U.S. 172 (1997)                            22

Prible v.     State,
175 S.W.3d 724 (Tex.Crim.App. 2005)            23

Russeau v.     State,
171 S.W.3d 871 (Tex.Crim.App. 2005)            15

State v. Creel,
895 S.W.2d 899 (Tex.Crim.App. 199 )            10

Strickland v. Washington,
466 U.S. 668 (1984)                            26

Tanguma v. State,
47 S.W.3d 633 (Tex.App.-Texarkana 2000)        11

TEX. R. APP. PROC. 38.1(a)

TEX.   R.   EVID.    Rule 403

TEX. TRANSPORTATION CODE § 724.011




SOTO V STATE-APPELANI BRIEF               PAGE, 2
                                 REFERENCES    TO THE RECORD




           There    are   five    (5) Volumes of the Reporters    Record, and one
     Clerk's Record        for    each case in this appeal.      References to the
     the    Reporter's      Record     are designated as "RR#:#)," and continue
     through       each   day    of   trial.    References to the clerk's record
     is designated as "(CR:# Cause #).




..




     SOTO V STATE-APPELLANT BRIEF                                           PAGE, 3
                                    STATEMENT OF THE CASE




        On     July        18, 2011, Appellant Aramando Soto, pled not guilty
to     the     offenses of Intoxication Manslaughter in Cause Nos. F10-
19052        and    F10-19053,           involving the deaths of Tuong-Lee and her
8-month           son    Tri     Khuu.     (RR2:6)   On July 19, 2011 trial began.
Following          a jury trial, Appellant was convicted of intoxication
Manslaughter              in    both causes and sentenced to 20 years imprison
ment     in        the     Texas Department of Criminal Justice in each case.
The trial court ordered the sentences to be served consecutively.
(RR4;181-45)               Appellant       timely filed Notice of appeal on August
22,      2011.            (CR1:71:F10-109502); (CR1:72:F10-190503).
        Appellant              counsel Valencia      Bush   filed an Anders Brief on
or     about February 29, 1012; however, Appellant was nevex properly
notified of his right to file a pro se Appeal brief.
        Appellant filed a writ of habeas corpus pursuant to article
11.07        of     the        Texas Code of Criminal Procedure, where he estab
lished that his appellant counsel rendered ineffective assistance
of     counsel.            The Texas Court of Criminal Appeals granted relief
in     Writ        Numbers:        WR82,563-01 and WR82,563-02, giving Appellant
an opportunity to file an out-of-time-pro-se responsive brief
alerting the court of appeals of any matters that might be argu
able         in a brief on the merits appealing his judgment of convict
ion.         This brief in due on November 13, 2015.

SOTO V STATE-APPELLANT BRIEF                                                   PAGE,4
                                         STATEMENT OF          FACTS




        On     September           6,        2010,     a 2006 Chevrolet Silverado Pickup,

in     which        Appellant,          Aramando Soto was an occupant collided with

a     Nissan        Sentra.         This        collision occured at appx 4:45 a.m. on

1-30 in Dallas, Dallas County, Texas                                (RR3:27).
        The indictments, in these actions alleged                                    that       Appellant

was     the        operator        the the Chevrolet Pickup (truck), that he was
intoxicated, and by reason of that intoxication caused the deaths

of Tuong Vyt Le, and Tri Khuu, by accident and mistake. (RR3:10).
        State's witness,                     Issac     Lozano,           testified     as   a     witness

to     the accident that Prior to the collision the truck was "going
from        lane     to     lane," (RR3:27)                  while traveling above the speed

limit.        (RR3:26).            Lozano,           never     approached the truck,(RR3:30)
but     heard        two        voices        comming from the truck, one was in pain,

the         other        laughing. (RR3:30).                 The     fact     that     there were two
occupants           to     the     truck        was     corroborated           by State's witness,
Claudia        Rodriquez-Hernandaz, (RR3:63).                            Ms. Hernandaz was unsure
as     to     the identity              of     the     driver of         the truck; however, over

Appellant's              objection, the jury received in court identification
of     appellant           as     the        driver     of     the truck. (RR 3:64-65).
        First        responder           and State's witness, Deputy Nelms, arrived
to     find        appellant        laying on the ground and complaining of pain

to     his     head.        (RR     3:82).           Deputy Helms identified the truck as

belonging           to     the     Appellant           from        the    witness at the scene of

SOTO V STATE-APPELLANT BRIEF                                                                       PAGE, 5
of     the     accident.       (RR3:90) He                  further      identified     blood   on

the     air bag of the truck. (RR3:90-91)                          Detective Embry testified
to     removing,        pursuant           to     a search warrant, the trucks Air-bag

Control Module, (ACM) (RR3:94). He delivered the ACM to a retired
Dallas        Police     Investigator                 to    analyze the data.       This because

the     Dallas        Sherrif's           Department          did not have a system capable
of     this     function.        (RR3:95)              Appellant objected to the evidence
allegedly        contained           in     the        ACM.      Detective Embry established

through        this     objected           to     evidence that the ACM suppressed the

passenger        side air bag;              allegedly, as it was unoccupied.                (RR3:
111)         Detective     Embry           also        entered     into evidence data of the

of     the     trucks     speed           five seconds before impact-94 M.P.H.- the

engine        R.P.M.-3456-           and        the precentage          of     throttle-100%- and

the     fact     that     up     to        one        second before the impact the brakes

were     not applied. (RR3:113-115)                         Again, over objection Detective
Embry        introduced a video depiction of the accident as he alleged

it     occured.         This     video           was       complied     from accident reports,

not     prepared by Detective Embry and the objected to A.CM. data.

        Deputy        Whaley, from              the    Physical        Evidence Section of the
of     the     Dallas     County Sheriff's office, testified that pursuant
to a search warrant,                 he      recovered           the    air-bag from the truck

in     order to have it tested for forensic purposes. (RR3:220-225).
Courtney        Ferreira,        a     forensic             biologist     at    the Southwestern

Institute        of     Forensic           Sciences (SWIFS)             analysed the blood on

air-bag and       was     able        to     determine           from a "blood standard"from


SOTO V STATE-APPELLANT BRIEF                                                               PAGE, 6
the Appellant. (RR4:14-22)

       Finally,      the     stated presented medical evidence from Janis

Townsend-Parchman,         one     of   the Dallas County Medical Examiners.

Over    objection,     the       Medical   Examiners    introduced photos    of

the    two decedents of the accident.           After   which   the   state and

the    Defense    rested.        The    charge was submitted to the jury and

who returned a verdict of Guilty.




SOTO V STATE-APPELLANT BRIEF                                            PAGE, 7
                                    ISSUES PRESENTED




ISSUE ONE: The            record    on        appeal is incomplete, therein denying

the appellant the right to a meaningful appeal.



ISSUE TWO: The            appellant       was entitled to confront the witnesses

against      him,     this     included             the   right to physical presence of

of   the     witness before the jury and the appellant without appel

lant having to call           the witness.



ISSUE THREE: The            trial     court          erred   in receiving the "in court

identification" evidence over appellant's objection.


ISSUE FOUR:         The     trial court             erred in failing to sustain appel

ant 's     timely     objection          to     inflammatory and prejudicial photo-
graphs.



ISSUE FIVE: Trial            counsel          was     ineffective    for failing to move

suppress      evidance       describing              tests   to   which appellant, while

under arrest, had been subjected.




SOTO V. STATE-APPELLANT BRIEF                                                     PAGE, 9
                                             ISSUE ONE




        The     record       on     appeal        is   incomplete, therein denying the

Appellant the right to a meaningful appeal.

FACTS


        Appellant         Counsel,         Valencia      Bush,    requested    preparation

of     the    Reporter's Record and designated the matters to be incl
uded     (CR:61) Specifically, she requested that "all matters heard
outside       the     presence of the jury, including pre-trial, trial...

and     bench       conferences,           objections,       rulings,   and remarks of the

Court..." (CR:62) (emphasis added).                       There    were    multible    Bench
conferences          which     are not included in the record: (RR3:53, RR3:

99, RR3: 121, RR3, 148, RR3: 186, RR3, 207).

        The     failure       to     not     record the       bench conferences   resulted

in    objections,         rulings          and     limiting instructions of the court

and counsel not being preserved for appellate review..

ARGUMENT &       AUTHORITIES

        Texas     Rules       of     Appellate         Procedure, rule 13.1, provides:

"The     official       court        reporter...         must:    (a)   unless excused by
agreement        of the parties... make a full record of the proceedings

..."     These      duties         were    explained         in State v. Creel, 895 S.W.

2d    899     (Tex.App.1992 .)(the duties imposed on the court reporter
by     the    rule     of appellate              procedure    governing the creation of

transcripts         are      not     met by simply filing the reporter's record

SOTO,V. STATE-APPELLANT BRIEF                                                         PAGE,10
with     the     appropriate           court;    the     record   must be complete and
and     accurate."            Importantly       appellate     courts   have   held that
"the     burder        to     record     all    bench     conferences in on the court

reporter        and     not     the defendant.          And that a defendants failure
to     object     to the recordation, does not prevent appellate review
of     the     error.        See, Tanguma v. State, 47 S.W. 3d 633 (Tex.App.-
Texarkana 2000).

        In     order        to determine if the error was or was not harmless

beyond       a reasonable             doubt,    the     consequesce of the unrecorded
bench        conferences        has     to be determined from the context in the

record        surrounding the bench conferences that were not recorded.
        In one instance, trial counsel objected to the admissibility
of reports generated by the Air Bag Control Module, as the proper
predicate had not been laid. The court held a bench-confer
ence, the contents were not included in the record. Appellant
is     unable     to        appeal     any unrecorded objections, and rulings or
remarks of the judge.                 The objected to evidence was then admitted
and presented to the jury. (RR3:98)
     Next, Appellant objected to the introduction of an accident
reconstruction under the Confrontation Clause of the United
States Constitution and the United States Supreme Court's ruling
in Melinda-Diaz vs.                   Massachusetts,       557 U.S. 305 (2009). Once
again there was a bench conference,(RR3:121) the contents of
which were not                perserved        for appellate review.     Appellant has
been deprived the ability to challange any of the objections,

SOIO V STATE-APPELLANT BRIEF                                                     PAGE,11
rulings        or        remarks           of the court.      The objected to evidence was

was    then admitted             into evidence.

        When the Defense once again objected to evidence he believed

was     in     violation of Melinda-Diaz, 557 U.S. 305 (2009) the court

hend another unrecorded bench conference.                           Appellant is therefore

unable        to        seek     appellate           review of any of the objections made

by     trial        counsel,           or the rulings or remarks of the court.          The

objected to evidence was entered into evidence.

       Finally, Appellant                        objected to a lab report which contained

evidence           of        alcohol        and drug use prior the the accident.       Once

again the court had a bench conference off the record,                            Appellant
is     therefore              unable        to     seek   review of any of trial counsel's
objections,              the     ruling          and remarks of the court.    The evidence
was then submitted to the jury.

       As      a        result        of     the imcomplete record on appeal appellant

will     be        denied        his        right     to a meaningful   appeal.   The Texas

Court of Criminal Appeals has remarked: "where the error involved
defies        analysis           by        harmless error standards or the data is in

sufficient              to     conduct a meaningful harm analysis, the the error

will     not        be        proven harmless beyond a reasonable doubt..." Cain
v. State, 947 S.W. 2d 262 (Tex.Crim.App.1997 ).




SOTO V STATE-APPELLANT BRIEF                                                         PAGE,12
        The appellant was entitled to confront the witnesses against
him.     This included the right to physical presence of the witness
before     the     jury          and     the    appellant without appellant's having
to call    the witness.

FACTS

        Appellant           objected          to the introduction of a video accident
reconstruction.              (RR3:121)              Deputy Embry, testified that someone
else     did     the acutal reconstruction. (RR:3120)                           The trial Court,

at     first,    sustained              the     objection,             and   after and unrecorded
bench     conference,             and        subsequent          arguments of counsel for the
state     and    defense,              overruled          appellant's         objection   based on
Melendez-Diaz v. Massachuetts, 129 S.Ct. 2527 92009.

ARGUMENTS AND AUTHORITIES

        "The     Sixth           Amendment          to     the    United      States Constitution
provides        that        'In all criminal prosecutions, the accused shall
enjoy the        right...to             be     confronted              with the witnesses against
him"'.     Brooks           v.     State,       132        S.W. 3d 702,709 (Tex.App.-Dallas
2004). The        principle             concern           of     the     Confrontation    Clause is
"to     insure        the        reliability             of the evidence against a criminal
defendant        by     subjecting             it        to rigorous testing in the context
of an adversary                   proceeding before the trier of fact." Brooks
Id.



SOTO V STATE-APPELLANT BRIEF                                                                 PAGE,13
        In        Melendez-Diaz                v.      Massachuetts,            the U.S.   Supreme Court

held     that        a    certificate                  presenting          forensic    lab results was

testimonial              evidence           and          that     defendants       thus have   the Sixth

Amendment           right        to        cross-examine the analyst.                  Two years after
the     Supreme           Court ruled in Melendez-Diaz, it decided Bullcoming
v.     New        Mexico,        131           S.Ct.       2547       (2011).     That Court held that
surrogate           testimony              violated             the Confrontation clause when the
report is admitted into evidence and the surrogate neither obser
ved,         or     offered           an        expert opinion on, the forensic evidence.
        In        Bullcoming,              a     crime          of    driving while intoxicated, an
analyst's           report        on blood alcohol was intorduced into evidence.
The     analyst           who     had performed the test was on leave, the state
called        another           analyst             as     a     witness.       This surrogate witness
was     familiar           with the procedures of the lab but did not observe
or     play        any role in the test of the blood.                              Instead of offering
an     independent opinion of the defendant's blood alcohol content,
he simply read from the report. Bullcoming, 131 S.Ct. @ 2712.
        The        Court's        holding treated the case as a straight forward
application of Crawford and Melendez-Diaz°:                                       The analyst's report
could        not     be     introduced                   into        evidence    without the analyst's
testimony           unless        the           analyst was unavailable and the defendant
had an opportunity to cross-examine him.
        In        this case, the state offered into evidence a short video


0 Crawford v. Washington, 541 U.S. 2678 (2008)
  Melendez-Diaz v. Massachuetts, 129 S.Ct 2527 (2009)
SOTO V STATE-APPELLANT BRIEF                                                                      PAGE,14
of     the     accident                 reconstruction.         (RR3120)      The surrogate test

imony        was        offered           by    Deputy     Embry;     he makes clear he played

no     part in the preparation of the accident reconstruction. (RR3:
120-21)            This        reconstruction,             prepared       by another person, was
assembled              from        photographs,          officer     reports,           and information
contained              in     the        air-bag-control-module              And        while the state

argued        that           the     video       was     only    introduced for demonstration
purposes,              the     appellant          correctly        pointed     out        to the court:
Deputy        Embry           was "just reading from a report that was generated
by someone else."<RR3:125).
        Long           before           Crawford, Melendez-Diaz, and Bullcoming, Texas
courts        have           recognized          that these type of reports offended the
the     United              States        constitutional         provision         as     it relates to

Confrontation                 Clause.           For     example,     in    Russeau v. State, 171
S.W.     3d        871        (Tex.Crim.App. 2005) our own high court found that
the admission of disciplinary eports,                               which described the obser
vations           of        the officers who made them was error.                         The admission

of     those reports violated the hearsay rule and the Confrontation
Clause        since           none of the persons who prepared the reports test
ified        at        trial.            The    Court     found this error was not harmless

due     to        any        affect        on    future dangerousness.              Also, Adlrich v.
State, 296 S.W.                    3d     225    (Tex.App.-Fort           Worth 2009, pet. ref'd)
(Intoxication                  manslaughter)(trial               court      erred        in   permitting
reading           of statements since the defendant did not hav an opport
unity        to        cross-examine             the declarants.           Harm was shown because


SOTO V STATE-APPELLANT BRIEF                                                                      PAGE,15
the   confrontation       clause    violation        affected   the    defendant's

substantial rights.)
       In   conclusion,      the   appellant     made     the proper     objection
to    the    introduction    of    this     video,      the state did not allow

appellant      the   opportunity to cross-examine the person who prep-
pare the video,      Appellant was denied his rights under the United
States      Constitution's     Sixth      Amendment     right to confrontation.




SOTO V STATE-APPELLANT BRIEF                                                PAGE,16
                                               ISSUE THREE




        The     trial          court erred in receiving the                 "in court identif-
ation" evidence over appellant's objection.
FACTS

        During           trial        Claudia Hernandez testified that she             was in
volved        in        the     collision. (RR3:61           She explained that after the
accident        occured           she        stayed in her car. (RR3:62)          And that she
saw     two        people        in     the    white truck that caused the collision.
(RR3:63)           Ms.        Hernandez was able to identify the driver because
"he's     the           one who was arrested by the police and he just passed
by me."        (RR3:63) When                 questioned     about     the    events   following
the     collison,              she testified: "I saw two men in the white truck.
...both        of        them     were wearing white T-shirts.                One of them was,
like,     yelling              something, like, don't call the police." (RR3:63)
When     questioned              as     to     the identification of the appellant she
stated:        "        I'm     not     sure, but I think he looks like that man in
black."

        Defense           counsel        objected     and     the objection was sustained
by the court.                 (RR3:64)         After further questioons, Ms. Hernandez
once     again identified appellant in the courtroom.                            Trial counsel
objected           to     the     identification first as hearsay, and the court
sustained           the        objection,         However,     when     trial court objected
that: "she              said     she     was not sure,"(RR3:65) the court overruled


SOTO V STATE-APPELLANT BRIEF                                                            TSGEJ7
that objection. (RR3:65)
ARGUMENTS AND AUTHORITIES

        It     is     fundamental              that     the     pretrial identification               not

be     so     unnecessarily             suggestive            and    conductive to irreparable

mistaken        identification as to amount to a denial of due process,

factors        to     be     considered              when     determining         the origin of the

courtroom       identification are:

        1.          The  witnesses               opportunity           to     observe       the alleged
                    criminal act;

        2.          Existence             of     any        discrepancy between any pretrial
                    identification and the defendant's                            actual     descript
                    ion ;

        3.          Failure to identify the defendant on prior occasions;

       4.           The      lapse        of     time        between        the   alleged     act     and
                    the     identification.

                    See Loserth v. State, 985                               S.W. 2d 536 (Tex.App.-
                    San-Antonio 1998, pet ref'd)

Prior identification:

       States witness             Ms.     Hernandez          tesified         that    she    was     able

identify        the        driver       because         "     he's     the one who was arrested
by the police and he just passed by me."(RR3:63)                                     Unquestionably,
this        identification           as        the     appellant as the driver is flawed.

Ms.    Hernandez,           was      only able to testify that appellant was the

the one that was arrested.                       Her statement that she knew appellant

was     the    driver        as      he        was     the one was arrested, demonstrates

the    court's        error in receiving the in court identification over
appellants objection.



SOTO V STATE-APPELLANT BRIEF                                                                       PAGE,18
Failure to identify the appellant on a prior occasion:

        During the trial, the state asked Ms. Hernandez:

Q:      ... do you see him here in the courtroom today?

A.      I'm     not        sure, but I think he looks like that man in black.

Q-      ...    Which one          in black?

A.      The     guy        in     black     with     a tie on and also some white, but
        I'm not sure.

State:          Let        the     record     reflect       aht this witness is refering
                to    the    Defendant       Aramando      Soto.

Trial counsel:             ... I object

Court: Okay. Sustained... Ask you next question.

Q.      The     person           you're     referring       to,    in     the black, with the
        the white            and     the     tie     on,   where is he sitting? Can you
        point?

A.      Here straight from me.

Q.      Okay. And   if we were                     to count the chairs here and I was
        sitting in chair 1,2                       and so on, which chair would he be
        sitting in?

A.      Four


Q.      Okay.        And     claudia,        is     that    the    man that you later came
        to know as          Aramando       Soto?

Trial     counsel:               Objection        Your Honor.      She said she's not even
        sure if he's             the one who was at the site.

Court:          That objection is overruled.

Trial counsel:  I object                      to the hearsay, Your Honor. It's not
     whether or not she                       found it out, it's how she found it
        out.     If she found it out through hearsay.

Court:          That objection is sustained.

Trial Counsel:              Your      Honor,        I'll object         to that.   She has not
        identified the Defendant.                    she's said she's not sure.

Court:        Well, that' overruled; you over objection is overruled.
SOTO V STATE-APPELLANT BRIEF                                                            PAGE,19
        This       testimony demonstrates that Ms. Hernandez never ident

ified        appellant as the person she saw at the site.                       She      twice

told     the       court, she was not sure, but when pressed by the state

to     identify          the     appellant      she      was only able to point out the

person       she      said       "looks    like       the     man...    but I'm not sure."

(RR3:64)           The         court's    acceptance of this identification gives
rise     to a very substantial likelihood of irreparable misidentif-

ication.        The      witness was very indifinite and there was a subst

antial        lapse of time between the crime and the in court identif

ication.           See    Loserth,        985     S.W.      2d 536 (Tex.App.-San Antonio
1998)

        In     conclusion, the            Trial       court     erred   in   receiving    the

in     court     identification evidence over the appellants objection,
and     appellant         was      irreparable        harmed as Ms. Hernandez was the

only     person, who testified that she could identify the appellant
as    the driver of            the truck that caused the accident.




SOTO V STATE-APPELLANT BRIEF                                                          PAGE,20
                                         ISSUE FOUR




        The     trial       court    erred    in     failing to sustain appellant's
timely objection to inflammatory and prejudicial photographs.

FACTS

        The     State Called Janis Townsend Parchman, one of the Dallas

County        Medical       examiners.       Dr. Parchman testified that as part

of    the autopsy photographs were taken (RR4:31)                     The state sought
to introduce the photographs.

        During a        voir dire examination by Defense Counsel, (RR4:34)
Dr.     Parchamn        was    questioned as to the necessity            of the photo

graphs        being     shown to the Jury. (RR4:34) And she testified that

experience,          many     people could not evision the injuries and they
needed to see the photographs.(RR4:35)

        Trial       Counsel     objected      to     the introduction of the photo
graphs as being "prejudicial and flamatory [sic]."                      The objection
was   overruled.


ARGUMENT AND AUTHORITIES

        Rule 403, of the Texas Rules of Evidence provides:
               Although        relevant,      evidence     may   be   excluded if the
               its     probative      value     is    substantially outweighted by
               the danger of unfair purjudice, confusion of the issues
               or misleading the jury, or by considerations of undue
               delay or needless presentation of cumulative evidence.

      The      Rule     exludes evidence when there is a "clear disparity
between       the     degree    of    prejudice       of   the offered evidence and

SOTO V STATE-APPELLAI!^, BRIEF                                                  PAGE,21
of     the     offered        evidence           and      its      probative value." Connor v.
State, 67 S.W. 3d 192, 202 (Tex.Crim.App. 2001) The first factor,
and     the     one        complained of by appellant, leads to the exclusion
of     relevant        evidence           is     the      phrase       "unfair prejudice" which
refers        not     to the evidence's potentially adverse or detrimental
effect        but     to     "an undue tendency to suggest decision on an im
proper        basis,        commonly,           though       not      necessarily, an emotional
one."         Giglibobianco          v.         State,       210 S.W. 3d 637,641 (Tex.Crim.
App.     2006)         See also, Old Chief v. United States, 519 U.S. 172,
(1997)(defining              "unfair           prejudice        as         "the    capacity    of some
of     some     concededly           relevant             evidence         to lure the fact-finder
into     declaring           guilt        on a ground different from proof specific
to the offense charged")
        Texas        Courts        have        set out a more elaborate balancing test

for determining whether the danger of unfair prejudice substanti
ally     outweighs           the     evidence's              probative        value.     The Court of
Criminal Appeals has suggested that:

                [Courts]           must         balance         (1)     the       inherent    probative
                force of the proffered item of evidence along with
                (2) the proponents need for that evidence against
                (3) any tendency of the evidence to confuse or distract
                the        jury     tht        has     not      been equipped to evaluate the
                the probative force of the evidence, and (6) the likel
                ihood        that        the presentation of the evidence will con
                sume        an     inordinate             amount      of      time or merely repeat
                evidence already admitted.                              Casey v. State, 215 S.W.
                3d 870, (Tex.Crim.App. 2007)
        In     the     present           case,       it      was undisputed that both of the
victims        of     the        accident        were deceased.               The state had no lig-

itmate        need     to        offer     the       autopsy          photographs to the jury.

SOTO V STATE-APPELLANT BRIEF                                                                     PAGE,22
           Several           recent cases have held that the admission of photo-

graphs-particularly                       those        of    autopsies and crime vitims-should
be     analyzed more rigorously under Rule 403.                                      In Prible v. State,
175        S.W.        3d        724     (Tex.Crim.App.                2005). The court of criminal

appeals           held           that the admission of numerous post-autopsy photo
graphs            of        three        young children's lungs and tracheas was error
under        Rule           403     when        capital murder defendant was charged only

the        deaths           of     the        childrens          parents.       Although the cause of

children's             deaths            by     smoke        inhalation        was     of some probative

value to corroborate the testimony of the State's witness, intro
ducing the              post-autopsy photographs of the children was unfairly

prejudicial                 and        threatened           to    confuse      the     disputed issues.
           Similarly, in Erazo v. State, 144 S.W. 3d 487,488 (Tex.Crim.
App. 2004)              the court              held     it       was    error to admit a photograph
of     a     fetus           removed           f4rom        the murder victim's womb during the

the        autopsy.               The court distinguished between the admissibility

of     crime-scene                 photographs,              which     depict        the   dircet results

of     a     defendant's                 actions,        and other photographs such as those
taken        after an autopsy, which demonstrate the collateral results

of     a crime or illustrate the steps in the investigatory process.

        Here           the        admission of photographs,of a infant was so pred-

duical        as       to confuse             the    issues.     As    the   sole    issue here at    trial

was     whether              Appelant was the driver of the vehicle which caused

the     accident.                 In this           issue, the evidence was not overwhelming;

both        witnesses to the accident saw two occupants to the vehicle.


SOTO V STATE-APPELLAOT BRIEF                                                                         PAGE,23
Neither witness     was     able    to    positively identify the Applicant

as the driver of the vehicle.            The photographs were only introdu-

uced   to    so   inflame      the jury so they would    return   a verdict

of guilty.




SOTO V STATE-APPELLANT BRIEF                                         PAGE,24
                                                ISSUE    FIVE




        Trial        Counsel        was     ineffective for failing to move to sup

press     evidance           describing tests to which appellant, while under

arrest, had be subjected.

FACTS

        The     applicant           was     arrested        at the scene of the accident.

(RR3:63) Deputy              Nelms        noticed         what   appeared     to    be blood on

on the driver's side air-bag. (RR3:89)                           Deputy Brroadnax, testif-

ified     he        was     present        at     the     hospitial during the "mandatory
blood" draw. (RR3:159)                    Heather Cowan,         a    registered nurse, per

formed        the blood draw at the direction of law enforcement. (RR3:

182)     Erin Spargo, Deputy Chief of Forensic Chemistry with South
western        Institute        of        Forensic        Sciences     (SWIFTS) analyzed the
mandatory           blood for purposes of blood and alcohol content. (RR3:
195)     Derric           Whaley,        a detective at the Dallas County Sheriff's
Office,       Physical         Evidence Section              pursuant to a search warrant

removed        the        driver's        air     bag     from   the truck involved in the
in the accident.              (RR3:224)            And      delivered       the    air   bag   to

SWIFTS        for     forensic           testing.        (RR3:224).      Alexander Nham the
Forensic        Biologist           at     SWIFTS,       analyzed the air bag for blood.

(RR3:230)            The     blood        was sent to the DNA section of the SWIFTS

facility         for        analysis.           (RR3:234). Finally, Courtney Ferreira,
the     Forensic           Biologist        at SWIFTS analyzed the blood sample for


SOTO V STATE-APPELLANT BRIEF                                                              PAGE,25
DNA comparison (RR4:19) The                         blood     sample       from    the air bag was
compared           to     a    known blood sample-obtained without any warrant
in     the    mandatory             blood      draw-     of     the appellant. (RR4:19)
       Trial            Counsel      never         questioned        the   orgin     of the blood

sample used for comparison. (RR4:19)
ARGUMENT AND AUTHORITIES

        "[T]he right to counsel is the right to effective assistance
of     counsel."           Kimmelman          v.     Morrison,        477 U.S. 365,377 (1986).

Article        1,        Section 10 of the Texas Constitution entitles a def
endant        to        effective       assistance of counsel.              Hernandez v.    State,

726 S.W. 2d 53,56-57 (Tex.Crim.App. 1986) .r .
        Effective             representation in a non-capital case is evaluated

under the standard articulated in Strickland v. Washington,                                    466

U.S. 668 (1984).

        In order to prevail on a claim of ineffectivness an appellant

must    show both:

        Deficient performance- that trial counsel's performance
        failed to constitute "reasonably effective assistance,"
        i.e., counsel's representation fell below an objective
        standard of                 reasonableness           under     prevailing professional
        norms; and
        Prejudice-that there was a "reasonable probability" the
        result  of the proceeding would have   been different but
        for counsel' deficient performance,  i.e., a probability
        sufficient             to     undermine        the     outcome      of     the proceeding.

        In     the        instant case the appellant was entitled to suppres

sion     of        the     results      of    the DNA test which was              obtained without

his consent or warrant.                      Tex.Transp. Code §724.011 provides:

                   "If a person          is        arrested     for    an offense arising out

SOTO V STATE-APPELLANT BRIEF                                                                PAGE, 26
                   of acts alleged to have been committed while the person
                   was operating a motor vehicle in a public place...
                   the person is deemed     to have consented...to submit
                   to the taking of one or more specimens of the person's
                   ...blood for analysis    to determine the alcohol con
                   centration           or     the     presence          in     the person's body of
                   a     controlled substance, drug, dangerous drug, or other
                   substance.

        There           is     nothing        in     the     statute that permits the taking

of blood for purposes of obtaining a DNA profile of the appellant

The     taking           of     a     blood sample from a defendant under arrest is

a     search           and     sizure        within the meaning of Art. 1 Section 9 of

Texas        Constitution,                  "thus     the        state    was    required to comply
with the           provision           of Tex.Code Crim. proc. art 1.06 and Chapter

18.     Escamilla v. State,556 S.W. 2d 796 (Tex.Crim.App. 1977).

        Consequently,                 has     trial counsel objected to the introduct

ion     of     the           blood     evidence        obtained in violation of Texas Law

and     the        Texas        Constitution,              there was a resonable probability

had     trial          counsel         objected        to        this evidence, the court would

supressed it.

        Appellant             was     harmed        by the introduction of the evidence,
there        was       not     clear        identification of appellant as the driver

of the truck.                  Both    witneses        at        the     scene failed to identify
appellant          as         the driver.           Importantly, both witnesses testified

there were two occupants of the truck which caused the collision.

The     State          never        answered the question of "What happened to the
other     Guy?"              Therefore        there         is    a reasonable probability ap
pellant could not have been convicted without this evidence.


SOTO V STATE-APPELLANT BRIE                                                                  PAGE,27
                                                CONCLUSION




        This     appellant              as     presented five (5) non-frivolous issues
that     were        available           for appeal.        Appellant has been prejudiced

in     the     preparation              of this brief due to teh incomplete records

provided        by     the        court. Appellant never received from the court

the     now     seceret            bench        conferences,          never    received    any   of

photos,       maps,      statements,              reports        search warrants, toxicology

reports,        chain        of        custody        reports,     SWIFTS reports, a copy of

the     slide        show,        or     disc     crash     demo, copies of the           the jail

call    CD.

        Moreover, has been                prejudiced by the inadequate law-library,

services        in     prison,           the     unreasonable time constraints in lieu

of     the    unconstitutional                  access     to    courts       provided    by TDCJ.

Consequently,           due        to     the incomplete record, and inadequate law

library,        appellant              asks     the court, in the interest of justice,

to     appoint       another            attorney        to re-brief the issues presented.

Further,        appellant              asks     the    court     to    allow the new attorney

to brief any issues he or she should discover.




SOTO V STATE-APPELLANT BRIEF                                                                PAGE,28
                                    PRAYER FOR    RELIEF




      For    all of these reasons, appellant asks the court to appoint

new       counsel     to   brief      the    issues   raised in his pro se brief,

to provide a complete record so the issues can be properly raised
in the new brief.

      Appellant       prays     for any other relief to which he may be ent-
titled.

                                                        Respectfully sifbmit^d,


                                                        Aramando Soto,
                                                        Appellant pro se
                                                        #1740241-Coffield Unit
                                                        2661   F.M.   2054
                                                        Tennessee Colony,TX 75884




                                CERTIFICATE OF SERVICE




      I     certify    that     a    true    and correct copy of Appellant's pro
sey brief was mailed                  to the attorney representing the state-
Susan Hawk, 133 North                 Riverfront Blvd-LB-2- on this \Q day
November,        by    United       States    First   Class    Mail, proper postage
attached.



                                                       Aramando Soto




SOTO V STAIE-APPELLANT BRIEF                                                 PAGE,29
                           CERTIFICATE OF MAILING




   I   certify     that   Appellant's        pro   se    brief was deposited in

institutional      mail    system     here    at       the H.H. Coffield Unit on

this    1Q   day    of    November,    2015, proper United States Postage

attached.

                                                   X

                                                   Aramando    Soto




SOTO V STATE-APPELLANT BRIEF                                              PAGE,30
