                                                                                 ACCEPTED
                                                                             05-17-00506-CR
                                                                   FIFTH COURT OF APPEALS
                                                                             DALLAS, TEXAS
                                                                           6/1/2018 12:22 PM
                                                                                  LISA MATZ
                                                                                      CLERK



                      NO. 05-17-00506-CR
                                                             FILED IN
                                                      5th COURT OF APPEALS
                 IN THE COURT OF APPEALS                  DALLAS, TEXAS
                                                      6/1/2018 12:22:17 PM
                             FOR THE                        LISA MATZ
                                                              Clerk

            FIFTH JUDICIAL DISTRICT OF TEXAS

                         DALLAS, TEXAS



TEMMIE COOLEY,
                         APPELLANT
vs.

THE STATE OF TEXAS,
                         APPELLEE.


          On appeal from the 416th Judicial District Court,
                       Collin County, Texas
           The Honorable Andrea Thompson presiding.
                Trial Cause No. 416-82809-2014

                      APPELLANT’S BRIEF

                               Stephanie Hudson
                               STEPHANIE DUECKER HUDSON, PLLC
                               1333 W. McDermott Dr., Suite 150
                               Allen, TX 75013
                               469.519.7815
                               972.530.6218 Fax
                               stephaniehudsonlaw@gmail.com
                               State Bar No. 24007130
                               Attorney for Appellant
                                         TABLE OF CONTENTS

TABLE OF CONTENTS........................................................................................ ii

INDEX OF AUTHORITIES................................................................................ iii

STATEMENT OF THE CASE ...............................................................................7

ISSUES PRESENTED ........................................................................................... 9

STATEMENT OF FACTS ................................................................................... 10

SUMMARY OF ARGUMENT ............................................................................ 17

APPELLANT’S POINT OF ERROR NUMBER ONE .....................................18

         T HE    TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING EVIDENCE
         OF AN EXTRANEOUS OFFENSE DURING THE GUILT / INNOCENCE PHASE
         SINCE SUCH EVIDENCE WAS NOT ADMISSIBLE TO SHOW IDENTITY, AND
         THE PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHED BY UNFAIR
         PREJUDICE, CONFUSION OF THE ISSUES, AND CLEARLY MISLED THE
         JURY. ..............................................................................................................18

ARGUMENT AND AUTHORITIES .................................................................18

PRAYER .................................................................................................................41

CERTIFICATE OF COMPLIANCE .................................................................. 42




Appellant Brief (Cooley, Temmie)                                                                                        Page ii
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                                      INDEX OF AUTHORITIES

Cases
Albrecht vs. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972) ......................19
Almanza v. State, 686 S.W.2d 157, 157 (Tex. Crim. App. 1984) ..................... 27
Bachhofer v. State, 633 S.W.2d 869, 872 (Tex. Crim. App. 1982) ...........27, 30
Blackmon v. State, 644 S.W.2d 12, 14 (Tex. App. Dallas, 1982) .................... 23
Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim. App. 1987) .................... 21, 28
Castillo v. State, 739 S.W.2d 280, 290 (Tex. Crim. App. 1987) ...................... 29
Clark v. State, 693 S.W.2d 35, 36- 37 (Tex. App. Houston [1st Dist.] 1985,
 pet. ref.) ............................................................................................................... 27
Clark v. State, 726 S.W.2d 120, 122-123 (Tex. Crim. App. 1986) ................... 20
Cobb v. State, 503 S.W.2d 249, 251 (Tex. Crim. App. 1973)........................... 23
Collazo v. State, 623 S.W. 2d 647, 649 (Tex. Crim. App. 1981) ................24, 28
Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim. App. 1981)....................... 28
Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001) ........................ 35
Connor v. State, 773 S.W.2d 13, 15 (Tex. Crim. App. 1989) ............................ 38
Corley v. State, 987 S.W.2d 615, 619 (Tex. App. Austin 1999) ....................... 29
Dubose v. State, 915 S.W.2d 493, 497-498 (Tex. Crim. App. 1996) ...............18
Ferrell v. State, 429 S.W.2d 901, 903 (Tex. Crim. App. 1968) .................23, 26
Ford v. State, 484 S.W.2d 727, 729-730 (Tex. Crim. App. 1972) .............23, 28
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) ..... 35,
  36, 37, 38
Green v. State, 934 S.W.2d 92, 101-102 (Tex. Crim. App. 1996) ....... 18, 31, 32
Hammer v. State, 296 S.W.3d 555, 568–69 (Tex. Crim. App. 2009) ............ 35
Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001) .................. 34
Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1990) ........................ 39


Appellant Brief (Cooley, Temmie)                                                                                      Page iii
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Howland v. State, 966 S.W.2d 98, 103 (Tex. App. Houston [1st Dist.] 1998),
 affirmed, 990 S.W.2d 274 (Tex. Crim. App. 1999) ........................................31
Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998) .........................18
Huddleston v. United States, 485 U.S. 681, 686 (1988) .................................. 30
James v. State, 554 S.W.2d 680, 683 (Tex. Crim. App. 1977) ........................ 28
Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004) ....................21
Lang v. State, 698 S.W.2d 735 (Tex. App. El Paso 1985, no pet.) .................. 30
Lazcano v. State, 836 S.W. 2d 654, 659
 (Tex. App. - El Paso 1992, pet. ref’d)............................................................... 25
Malone v. State, 849 S.W.2d 414 (Tex. App. Beaumont 1993, no pet.) ........ 34
Martin v. State, 722 S.W.2d 172, 174 (Tex. App. Beaumont 1986, pet. ref.)..21
McDonald v. State, 513 S.W.2d 44, 50-52 (Tex. Crim. App. 1974)................ 30
Messenger v. State, 638 S.W.2d 883, 886 (Tex. Crim. App. 1982) .......... 23, 27
Montgomery v. State, 810 S.W.2d 372, 391
 (Tex. Crim. App. 1991) (opinion on rehearing) .............. 18, 19, 23, 32, 34, 35
Old Chief v. United States, 519 U.S. 172, 184 (1997) ....................................... 32
Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006) .......................... 23
Parmer v. State, 38 S.W.3d 661, 670 (Tex. App. Austin 2000, pet. ref.) 31, 32
Plante v. State, 692 S.W.2d 487, 491 (Tex. Crim. App. 1985) ........................ 27
Rangel v. State, 250 S.W.3d 96, 97-98 (Tex. Crim. App. 2008) .....................18
Rankin v. State, 974 S.W.2d 707, 719
 (Tex. Crim. App. 1998) (opinion on rehearing)............................................. 22
Redd v. State, 522 S.W.2d 890, 894 (Tex. Crim. App. 1975) .......................... 24
Reyes v. State, 69 S.W.3d 725, 740 (Tex. App. Corpus Christi 2002) ........... 27
Robbins v. State, 88 S.W.3d 256, 261 (Tex. Crim. App. 2002) ................ 19, 20
Robinson v. State, 701 S.W.2d 895, 898 (Tex. Crim. App. 1985) ................... 29
Robledo v. State, 480 S.W.2d 401, 402 (Tex. Crim. App. 1972) .................... 28


Appellant Brief (Cooley, Temmie)                                                                   Page iv
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Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999) ....................... 33
Simmons v. State, 457 S.W.2d 570, 571 (Tex. Crim. App. 1970) ..............23, 26
Siqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App. 1985) ..................23, 26
Soffar v. State, 742 S.W.2d 371, 377 (Tex. Crim. App. 1987) ...........................19
State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005) ............. 33, 34
Stringer v. State, 845 S.W.2d 400, 402
  (Tex. App. Houston [1st Dist.] 1992, pet. ref.) .............................................. 29
Templin v. State, 711 S.W.2d 30, 32-33 (Tex. Crim. App. 1986)........ 19, 27, 36
Turner v. State, 754 S.W.2d 668, 672 (Tex. Crim. App. 1988) ........................31
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) .........................21
Vernon v. State, 841 S.W.2d 407, 411 (Tex. Crim. App. 1992) ....................... 20
Voelkel v. State, 501 S.W.2d 313, 315 (Tex. Crim. App. 1973) ........................ 29
Walker v. State, 588 S.W.2d 920, 922 (Tex. Crim. App. 1979) ...................... 24
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) ........... 17, 21
Yates v. State, 941 S.W.2d 357, 367 (Tex. App. Waco 1997, pet. ref.) ............31
Ybarra v. State, 401 S.W.2d 608, 609 (Tex. Crim. App. 1966) ....................... 28
Yohey v. State, 801 S.W.2d 232 (Tex. App. San Antonio 1990, pet. ref.) ...... 34
Statutes
TEX. R. EVID. 401 and 402....................................................................................19
TEX. R. EVID. 403............................................................................................ 31, 38
TEX. R. EVID. 404(b) ............................................................................... 20, 21, 36
TEX. RULE APP. PROC. 44.2(a) ............................................................................. 38
Treatises
J. McLaughlin, Weinstein’s Federal Evidence §403.02[1][a]
  at 403-406 (2006 rev.) ..................................................................................... 32
S. Goode, et al., Texas Practice: Guide to the Texas Rules of Evidence,
  § 403.2 at 165 (3rd ed. 2002) .......................................................................... 34



Appellant Brief (Cooley, Temmie)                                                                              Page v
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                                   IDENTITIES OF ALL PARTIES


Appellant
TEMMIE COOLEY

Attorneys for Appellant at Trial
Robbie McClung                                  Richard K. Franklin
MCCLUNG & FRANKLIN                              MCCLUNG & FRANKLIN
2150 South Central Expressway                   2150 South Central Expressway
Suite 200                                       Suite 200
McKinney, TX 75070                              McKinney, TX 75070
214. 695.3507                                   214. 695.3507
rsmcclung@yahoo.com                             State Bar No. 17801540
State Bar No. 00789772

Attorney for Appellant on Appeal
Stephanie Hudson
STEPHANIE DUECKER HUDSON, PLLC
1333 W. McDermott Dr., Suite 200
Allen, TX 75013
469.519.7815
972.530.6218 Fax
State Bar No. 24007130
smdhudson@gmail.com

Presenting Authority at Trial and on Appeal for State / Appellee
THE STATE OF TEXAS
Greg Willis                           Assistant District Attorneys
Criminal District Attorney            Michael Wesley Wynne
2100 Bloomdale Rd., Suite 20004       State Bar No. 24054218
McKinney, TX 75071
972.548.4323                          Calli Bailey
State Bar No. 21653500                State Bar No. 24075638


                                       NO. 05-17-00506-CR



Appellant Brief (Cooley, Temmie)                                                Page vi
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                                   IN THE COURT OF APPEALS

                                          FOR THE

                         FIFTH JUDICIAL DISTRICT OF TEXAS

                                        DALLAS, TEXAS



         TEMMIE COOLEY,
                                            APPELLANT
         VS.

         THE STATE OF TEXAS,
                                            APPELLEE.




TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

         This brief is respectfully submitted on behalf of the Appellant,

TEMMIE COOLEY. The parties will be identified as Appellant and State

(Appellee). The Reporter’s Record will be identified as (RR) and the Clerk’s

Record will be identified as (CR).

                                   STATEMENT OF THE CASE

         Appellant was charged by indictment for murder. (CR p.20). A pre-

trial hearing was held on November 15, 2016 before Judge Chris Oldner to


Appellant Brief (Cooley, Temmie)                                            Page 7
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determine the admissibility of a 2001 murder conviction. (RR Supp v.2 p.16)

No ruling on this hearing is contained in the court’s record. A jury trial

commenced and, presumably, ended in a hung jury on December 2, 2016.

(CR p.115) On January 1, 2017 Judge Andrea Thompson was sworn in as

presiding judge of the 416th Judicial District Court. (RR Supp. v.3 p.4) The

pre-trial matter of the admissibility of the 2001 murder conviction was re-

submitted to Judge Thompson who reviewed the transcript of the November

15, 2016 hearing to make her decision. (CR p.128) Judge Thompson held

that the 2001 murder conviction was admissible during the guilt / innocence

phase of Appellant’s trial for a 1989 murder. (CR p.128) Appellant

requested, and was granted, a running objection throughout the trial to

evidence of the 2001 conviction. (RR v.2 p.9)

         Appellant entered a plea of not guilty and a jury trial commenced. (RR

v2 p.11) The jury found Appellant guilty, and he was sentenced by the court

to eighty years confinement in the Texas Department of Criminal Justice,

Institutional Division. (RR v6 p.158, v7 p.11) Appellant then filed notice of

appeal. (CR p.145)




Appellant Brief (Cooley, Temmie)                                             Page 8
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                                   ISSUES PRESENTED

    1.       THE TRIAL COURT ABUSED ITS DISCRETION BY
             ALLOWING EVIDENCE OF AN EXTRANEOUS OFFENSE
             DURING THE GUILT / INNOCENCE PHASE OF THE TRIAL.




Appellant Brief (Cooley, Temmie)                          Page 9
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                                   STATEMENT OF FACTS

         On the evening of Friday, November 24, 1989, Dan “Wayne” Trimble

was at home working on a friend’s mother’s car in his garage when his wife,

Sharon Trimble, came home from work, changed clothes, and told Wayne

she was going out. (RR v.4 pp.187-191) A friend of Sharon’s, Rita, stayed at

the house with the couple’s three children that evening. (RR v.4 p.192)

Wayne continued to work on the car with the friend, Reggie, and then left at

some point to return the car to Reggie’s mother. (RR v.4 pp.192-193) When

Wayne returned home later that evening, Rita was there watching tv, and

the children were asleep. (RR v.4 p.193) Wayne, Rita and Reggie sat up

talking for short time, then Wayne went to bed around 1:00 – 2:00am. (RR

v.4 p.194) When Wayne went to bed, Sharon was still not home. (RR v.4

p.195) While this was concerning to him, he was not concerned to the degree

that he felt compelled to contact police, friends or family. (RR v.4 p.195)

When she still was not home when he awoke the next morning, around 4:00

or 5:00am, Wayne started calling people. (RR v.4 p.195) After determining

that three different friends and family members had not heard from her,

Wayne called the police and filed a missing person’s report. (RR v.4 p.196)




Appellant Brief (Cooley, Temmie)                                              Page 10
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         A missing person’s report was filed with Alicia Norman with the Glenn

Heights Police Department on the morning of November 25, 1989. (RR v.4

p.177) Norman went to home of Sharon and Wayne Trimble between 11-

11:30am that morning. (RR v.4 p.178) Wayne reported last seeing Sharon

about 10:30pm the night before. (RR v.4 p.179) A teletype was sent out

making information available to other police agencies about the missing

person. (RR v.4 p.180)

         That same morning Timothy Michel, along with his mother and

brother, were driving from their home in Allen, Texas to a nearby mall. (RR

v.4 pp.27-28, 31) The road on which they were driving was a dirt road, and

somewhat undeveloped. (RR v.4 p.29) As they approached the mall, Michel

saw what he believed to be a body in the ditch along the right-hand side of

the road. (RR v.4 p.30) As they car got a little closer, Michel could see that

the body was a woman wearing a red coat, and nothing from the waist down.

(RR v.4 p.29) Michel and his family proceeded to the mall where they

reported what they had seen to Plano Police officer Robert Powell, who was

working an off-duty job at the mall that day. (RR v.4 pp.31, 35)

         Powell had Michel show him where the body was located. (RR v.4

pp.31, 36) Powell then contacted a police dispatcher to send on-duty units to


Appellant Brief (Cooley, Temmie)                                           Page 11
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further investigate. (RR v.4 p.37) Officer John Naylor was one of the

investigating officers who responded. (RR v.4 p.45-46) Based on his

observations, Naylor believed the victim had died somewhere else, and the

body had been dumped out of a car onto the side of the road. (RR v.4 p.48)

         Detective Thomas Gramm also responded to the crime scene and took

photographs. (RR v.4 pp.72, 78) Gramm observed the victim to be nude

from the waist down, her bra pushed up, and wearing a red sweater. (RR v.4

p.80) A pair of red boots were found near the victim. (RR v.4 p.80) No purse

was located at the scene. (RR v.4 p.81)

         After receiving information via teletype about the missing person’s

report from Glenn Heights, Plano PD called indicating they had a person

who matched description of the missing person. (RR v.4 p.180) Norman

then returned to the Trimble home to report that Sharon had been found,

deceased, in Plano. (RR v.4 p.180)

         Detective Thomas Gramm was assigned to investigate the case on

November 25. (RR v.4 p.75) Through his investigation Gramm was able to

determine that an ATM transaction on Trimble’s account had occurred at

10:18pm the night before her body was found from First City Bank in

Lancaster. (RR v.4 p.91-92) She then called the babysitter to check in at


Appellant Brief (Cooley, Temmie)                                            Page 12
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11:000pm (RR v.4 p.93) Trimble had told her husband that she was going to

visit Charlotte Smith, but Charlotte never saw her that evening. (Charlotte

did say that she left her home for a while, and that it is possible Trimble

came by during this time.) (RR v.4 pp.96-97) Charlotte indicated that she

had talked to Trimble at 8:30-9:00pm that evening. (RR v.4 p.125)

         Gramm interviewed co-workers of Trimble’s at Children’s Hospital,

including: Elena Harris, Joyce Stevens, Donna Landry, Temmie Cooley,

Greg Richardson, and Bobby Owens on November 27, 1989. (RR v.4 pp.98,

127) Through these interviews Gramm was informed that Trimble hung out

primarily with Appellant. (RR v.4 p.98) He also learned that co-workers

often went clubbing together, and it was not uncommon for Trimble to get

telephone numbers from multiple men at these clubs. (RR v.4 p.99)

         While interviewing Appellant, Appellant denied having a sexual

relationship with Trimble, and stated that Trimble had called him on the

night of November 24 asking him to go out with a group from work, but he

had declined. (RR v.4 pp.100, 102) During 2d interview with Charlotte

Smith, Gramm learned that Trimble and Appellant had been seen “loving on

each other” (RR v.4 p.110) Gramm then interviewed Appellant a second time

on December 11. (RR v.4 p.116) During this interview, Appellant said he had


Appellant Brief (Cooley, Temmie)                                              Page 13
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tried to start a sexual relationship with Trimble, but never had one. (RR v.4

p.116)

         One of Trimble’s friends reported seeing her car being driven by two

black men on November 26 (neither was Appellant). (RR v.4 pp. 133-134)

The vehicle was eventually found at apartment complex on December 14

(RR v.4 pp.107-108) Apartment manager had seen two black males get in

car and drive away, then bring car back. The car then sat in the complex

parking lot for two weeks before the manager reported it to police. (RR v.4

p.109) The car was checked for fingerprints, but none were found. (RR v.4

p.108)

         A rape kit was done on Trimble and the presence of sperm was

detected. (RR v.4 p.117, 262) According to the medical examiner who

conducted the autopsy, the cause of death was ligature strangulation (RR v.5

p.31) At the conclusion of his investigation, Gramm was unable to make an

arrest. (RR v.4 p.119)

         Billy Meeks was assigned to investigate the case on September 12,

2002. (RR v.5 p.83) Meeks began by reviewing the previous case file, then

re-interviewed several witnesses. (RR v.5 p.85) He also obtained some of

biological materials collected in 1989 and sent them to a DNA lab. (RR v.5


Appellant Brief (Cooley, Temmie)                                             Page 14
05-17-00506-CR
pp.85-86) Meeks then obtained a DNA sample from Wayne Trimble and

was able to exclude him as a suspect. (RR v.5 p.89) During his investigation

Meeks received a letter from the Institute of Forensic Sciences stating that

the DNA sample matched Appellant. (RR v.5 p.111)

         After receiving this information Meeks re-interviewed Appellant at the

Kaufman County jail on February 26, 2004. (RR v.5 p.118) Appellant was in

jail charged with a 2001 murder. (RR v.5 p.119) During this interview,

Appellant again denies ever having sex with Trimble, but says they had

kissed. (RR v.5 p.126) Appellant then says that Trimble had performed oral

sex on him. (RR v.5 p.127)

         Meeks interviews Appellant again June 2, 2004, at which time Meeks

informs Appellant of the DNA results. (RR v.5 p.132) Appellant then admits

to having an ongoing sexual relationship with Trimble, including on the day

she was murdered. (RR v.5 pp.136-137, 140-141)

         Elizabeth Spillman took over the investigation of the case early in 2014

(RR v.5 p.153) Spillman spoke to five or six witnesses, reviewed the existing

case file and recorded interviews. (RR v.5 p.153) Spillman interviewed

Appellant on April 16, 2014 and again on May 21, 2014 and obtained a DNA

sample from him, in order to confirm the previous DNA match. (RR v.5


Appellant Brief (Cooley, Temmie)                                            Page 15
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pp.155, 157) During these interviews, Appellant denies having sex with

Trimble on the day of the murder. (RR v.5 p.166)




Appellant Brief (Cooley, Temmie)                                         Page 16
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                                   SUMMARY OF ARGUMENT

1.         Appellant contends the trial court abused its discretion by allowing
           evidence of Appellant’s prior murder conviction to be heard by the jury
           during the guilt / innocence phase of the trial since evidence of the
           conviction was not admissible for the purpose of proving identity, and
           the probative value of the evidence was outweighed by its unfairly
           prejudicial effect.




Appellant Brief (Cooley, Temmie)                                             Page 17
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                APPELLANT’S POINT OF ERROR NUMBER ONE


THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING
EVIDENCE OF AN EXTRANEOUS OFFENSE DURING THE GUILT /
INNOCENCE PHASE SINCE SUCH EVIDENCE WAS NOT
ADMISSIBLE TO SHOW IDENTITY, AND THE PROBATIVE VALUE
SUBSTANTIALLY OUTWEIGHED BY UNFAIR PREJUDICE,
CONFUSION OF THE ISSUES, AND CLEARLY MISLED THE JURY.




                              ARGUMENT AND AUTHORITIES

         Appellant alleges that the trial court abused its discretion by allowing

evidence of a separate murder conviction since such evidence was not

admissible to prove identity, and the probative value was substantially

outweighed by unfair prejudice to Appellant.




                                   Standard of Review

         A reviewing court should review a trial court’s evidentiary rulings for

an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.

App. 2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1991) (opinion on rehearing). A trial court abuses its discretion when it

makes an evidentiary ruling when the court’s decision “lies outside the zone


Appellant Brief (Cooley, Temmie)                                             Page 18
05-17-00506-CR
of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 101-102 (Tex.

Crim. App. 1996). When determining whether a trial court’s evidentiary

ruling was an abuse of discretion, this Court should review the ruling in light

of the evidence that was before the court at the time of its ruling. Rangel v.

State, 250 S.W.3d 96, 97-98 (Tex. Crim. App. 2008); Hoyos v. State, 982

S.W.2d 419, 422 (Tex. Crim. App. 1998).

         A reviewing court may reverse a trial court’s decision for an abuse of

discretion only when it appears that the court applied an erroneous legal

standard, or when no reasonable view of the record could support the trial

court’s conclusion under the correct law and the facts viewed in the light

most favorable to its legal conclusion. See Dubose v. State, 915 S.W.2d 493,

497-498 (Tex. Crim. App. 1996). Even if the reviewing court would have

reached a different result, it should not intercede as long as the trial court’s

ruling was within this “zone of reasonable disagreement.” See Montgomery

v. State, 810 S.W.2d at 380-381.



       Admissibility of Extraneous Offenses During Guilt / Innocence

         A defendant must be tried on the facts alleged in the indictment and

not for a collateral crime or for being a criminal generally. Templin v. State,


Appellant Brief (Cooley, Temmie)                                             Page 19
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711 S.W.2d 30, 32-33 (Tex. Crim. App. 1986); see Albrecht vs. State, 486

S.W.2d 97, 100 (Tex. Crim. App. 1972) (“An accused is entitled to be tried on

the accusation made in the state’s pleading and that he should not be tried

for some collateral crime or for being a criminal generally); Soffar v. State,

742 S.W.2d 371, 377 (Tex. Crim. App. 1987).

         However, evidence of crimes or wrongful acts committed by a

defendant may be admitted during the guilt / innocence portion of the trial

if these collateral crimes are shown to be both material and relevant to a

contested issue in the case. Albrecht vs. State, 486 S.W.2d at 100. Evidence

is relevant and generally admissible if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the

evidence.” See TEX. RULE EVID. 401 and 402.

         The entry of a plea of “not guilty” is insufficient to make extraneous

offenses relevant - the defendant must raise an issue as to some matter for

which extraneous offense evidence may be admitted, such as the defendant’s

intent. Robbins v. State, 88 S.W.3d 256, 261 (Tex. Crim. App. 2002). This

requires that the defendant raise the issue through the affirmative

presentation of defense evidence, vigorous cross-examination, or other


Appellant Brief (Cooley, Temmie)                                             Page 20
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means. Vernon v. State, 841 S.W.2d 407, 411 (Tex. Crim. App. 1992) (In the

defendant’s prosecution for aggravated sexual assault of his minor

stepdaughter, relationship evidence of prior sexual assaults by defendant

against same victim were not relevant to a noncharacter conformity material

issue under Texas Rule of Evidence 404(b) because the defendant did not

present any witnesses or impeach complainant); Clark v. State, 726 S.W.2d

120, 122-123 (Tex. Crim. App. 1986) (Evidence of an extraneous offense

involving the defendant and a third party erroneously admitted on issue of

defendant’s intent because defendant did not vigorously undermine the

State’s case on intent issue); Robbins v. State, 88 S.W.3d at 261 (The

defense’s cross-examination of State witnesses on the issue of Sudden Infant

Death Syndrome or possibility that infant’s death may have been caused by

incorrectly performed CPR efforts to save the victim’s life opened the door to

extraneous evidence of the child’s injuries while the child was in the

defendant’s care).

         Evidence of collateral crimes or wrongful acts is not admissible against

the defendant to prove the defendant’s character in order to show that he or

she acted in conformity with that character. TEX. RULE EVID. 404(b). Such

evidence of crimes or wrongful acts are admissible to show proof of motive,


Appellant Brief (Cooley, Temmie)                                            Page 21
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opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake or accident, or flight. TEX. RULE EVID. 404(b); Johnston v. State,

145 S.W.3d 215, 219 (Tex. Crim. App. 2004); Whittington v. State, 580

S.W.2d 845, 846-847 (Tex. Crim. App. 1979).

         For a trial court to properly admit evidence of an extraneous offense

during the guilt/ innocence portion of a case, the offense must be somewhat

similar to the currently-charged offense. Relevance of the extraneous offense

depends primarily on its similarity to the currently charged offense. United

States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978). Further, the degree of

similarity required for admission depends upon the purpose for which the

extraneous offense is being admitted. Id. at 911. This similarity pertains to

the defendant himself, not to similarities that arise from the type of offense

committed. Martin v. State, 722 S.W.2d 172, 174 (Tex. App. Beaumont 1986,

pet. ref.) (Extraneous evidence admitted where it was alleged that the

defendant grabbed victims from behind and tried to remove their clothing).

Such evidence does not pertain to distinctive similarities as to the currently

charged offense, but similarities as to the victims, locations, and times of

offenses. Id. Further, more similarity is required to prove identity than to

prove intent. Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim. App. 1987).


Appellant Brief (Cooley, Temmie)                                            Page 22
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          When viewed objectively, if a reviewing court believes that the

“relevant criteria” leads it to believe that the danger of unfair prejudice

substantially outweighed the probative value of the evidence, evidence of an

extraneous offense must be excluded. Montgomery v. State, 810 S.W.2d at

392-393. Relevant criteria includes: (1) the ultimate issue was not seriously

contested by the defendant; (2) the state had other convincing evidence to

establish the ultimate issue to which the extraneous evidence was relevant;

(3) the probative value of the misconduct evidence was not particularly

compelling; and (4) the misconduct was of such a nature that a jury

instruction to disregard it for any but the proffered purpose would not likely

have been efficacious. Id.

          As the proponent of the evidence of the extraneous offenses, the State

has the burden of showing admissibility. See Rankin v. State, 974 S.W.2d

707, 719 (Tex. Crim. App. 1998) (opinion on rehearing). As the following

arguments will show, the State failed to meet its burden.

         Evidence of the Extraneous Offense Presented to the Jury During

the Guilt / Innocence Phase Was Not Admissible Based Upon Identity.

         Evidence of an extraneous offense is admissible if the identity of the

person who committed the current charged offense on trial is at issue and


Appellant Brief (Cooley, Temmie)                                              Page 23
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the extraneous offense is so similar that the State can argue that the

extraneous offense and current offense were committed by the defendant.

Messenger v. State, 638 S.W.2d 883, 886 (Tex. Crim. App. 1982); Page v.

State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Cobb v. State, 503

S.W.2d 249, 251 (Tex. Crim. App. 1973); Blackmon v. State, 644 S.W.2d 12,

14 (Tex. App. Dallas, 1982); Ford v. State, 484 S.W.2d 727, 729-730 (Tex.

Crim. App. 1972). “Much more is demanded than the mere repeated

commission of crimes of the same class, such as repeated burglaries or

thefts. The device used must be so unusual and distinctive as to be like a

signature.” Messenger v. State, Id. at 886 (internal citations omitted).

         If there is no sufficiently distinctive characteristic, then the relevancy

of the evidence cannot outweigh its prejudicial potential. Ford v. State, 484

S.W.2d at 729-730.

          The defendant may inadvertently admit the extraneous offense by

thoroughly cross-examining the State’s only identifying identification

witness during cross-examination. Siqueiros v. State, 685 S.W.2d 68, 71

(Tex. Crim. App. 1985); Simmons v. State, 457 S.W.2d 570, 571 (Tex. Crim.

App. 1970); Ferrell v. State, 429 S.W.2d 901, 903 (Tex. Crim. App. 1968).

But if the defense fails to properly impeach the State’s only identification


Appellant Brief (Cooley, Temmie)                                               Page 24
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witness, or only one of several witnesses are impeached, evidence of such an

extraneous offense is not admissible to prove identity. Walker v. State, 588

S.W.2d 920, 922 (Tex. Crim. App. 1979); Redd v. State, 522 S.W.2d 890,

894 (Tex. Crim. App. 1975).

          In excluding evidence of an extraneous offense in a sexual assault

case, the Court of Criminal Appeals has held, “That appellant assaulted adult

women as they returned to their cars in public places was not so distinctive

as to mark these assaults as appellant's handiwork. To say that two sexual

assaults are similar because they are both acts of sadistic sexual deviations is

not to point to a device that is so unusual and distinctive as to be like a

signature; it is merely to characterize a feature of that general class of

offenses. Almost any two sexual assaults could be characterized as sadistic

acts, just as almost any two murders could be characterized as violent acts.

This is nothing more than dressing in psychological garb the very thing that

the law on evidence of extraneous offenses forbids: proof of the repeated

commission of a class of offenses to demonstrate that the defendant is a

criminal (or sexual deviate) generally." Collazo v. State, 623 S.W. 2d 647,

649 (Tex. Crim. App. 1981).




Appellant Brief (Cooley, Temmie)                                               Page 25
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         Similarly, another appellate court has stated, “that appellant choked

and sexually assaulted two young females in the El Paso area within a six-

week time frame after meeting them at a social gathering is insufficiently

similar to justify admission. "[W]e find these general 'similarities' to be

wholly innocuous as such features would tend to be common to many cases.

It is not enough to say the offenses are sufficiently similar. Rather, the

offenses must be distinctively similar. Nothing within the instant 'similar'

facts indicates an unusual and distinctive method or commission of an

offense such that it can be considered an earmark of the perpetrator's

handiwork." Lazcano v. State, 836 S.W. 2d 654, 659 (Tex. App. - El Paso

1992, pet. ref’d).

         During the guilt / innocence phase of the trial the State offered

evidence of a subsequent murder charge, committed in 2001, for which

Appellant plead guilty under the theory that it was admissible as identity

evidence under Rule 404(b). (RR Supp.v.2 pp.16-17) However, all the State

showed was the “mere repeated commission of a crime of the same class,

such as repeated burglaries…”

         The only evidence offered by the State to connect Appellant to the

1989 murder was the presence of his DNA. However, a logical explanation


Appellant Brief (Cooley, Temmie)                                              Page 26
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exists for the presence of his DNA – that he and the victim were involved in

a consensual sexual relationship. While it is true that both cases involved

victims who were killed by ligature strangulation and then dumped on the

side of a road, there was other evidence that connected Appellant to the

1989 murder. No one saw Appellant and the victim together on the evening

she was murdered. (RR v.5 p.148) But in the 2001 case, the victim told a

friend that she was going to see Appellant on the day she was murdered, her

body was found wrapped in a bed sheet that belonged to one of Appellant’s

children, calls were placed from her cellphone after she was killed by people

associated with Appellant, and Appellant’s fingerprints were found inside

her car when it was recovered a few weeks after she was killed. None of this

is true of the 1989 case. The two offenses were not similar enough to rise to

the level of showing a “signature” as contemplated by the Court of Criminal

Appeals.

         And Appellant did not “inadvertently admit the extraneous offense by

thoroughly cross-examining the State’s only identifying identification

witness during cross-examination. Siqueiros v. State, 685 S.W.2d at 71;

Simmons v. State, 457 S.W.2d at 571; Ferrell v. State, 429 S.W.2d at 903.

Appellant cross-examined numerous State witnesses, and he did not


Appellant Brief (Cooley, Temmie)                                           Page 27
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necessary impeach any of them - Appellant simply showed that the State did

not present legally sufficient evidence tying him to the presently-charged

offense.

  The Prior Conviction Was Too Remote to be Admissible Under Texas
                       Rule of Evidence 404(b)

         A reviewing court must consider the remoteness of the prior

extraneous act because remoteness reduces its probative value. Clark v.

State, 693 S.W.2d 35, 36- 37 (Tex. App. Houston [1st Dist.] 1985, pet. ref.);

Plante v. State, 692 S.W.2d 487, 491 (Tex. Crim. App. 1985). There is no “per

se” rule regarding when an extraneous offense becomes too remote for

admission. Templin v. State, 711 S.W.2d at 32-33. However, as a general

rule, the greater the time period between the charged and extraneous

offenses, the greater the likelihood of error in admitting the evidence of the

extraneous offense. See Reyes v. State, 69 S.W.3d 725, 740 (Tex. App.

Corpus Christi 2002); Messenger v. State, 638 S.W.2d at 885 (Court of

Criminal Appeals reversed a conviction where nineteen days elapsed

between the extraneous offense and the offense charged and tried before the

trial court), overruled on other grounds by Almanza v. State, 686 S.W.2d

157, 157 (Tex. Crim. App. 1984); Bachhofer v. State, 633 S.W.2d 869, 872

(Tex. Crim. App. 1982) (Court reversed the conviction where 52 months

Appellant Brief (Cooley, Temmie)                                          Page 28
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elapsed between the between the extraneous offense and the offense charged

and tried before the trial court); Collazo v. State, 623 S.W.2d 647, 648 (Tex.

Crim. App. 1981) (Court of Criminal Appeals reversed where one year

elapsed between the extraneous offense and the offense charged and tried

before the trial court); James v. State, 554 S.W.2d 680, 683 (Tex. Crim. App.

1977) (Court of Criminal Appeals reversed where 33 months elapsed

between the extraneous offense and the offense charged and tried before the

trial court); Ford v. State, 484 S.W.2d at 731 (Court of Criminal Appeals

reversed where two months elapsed between the extraneous offense and the

offense charged and tried before the trial court); Robledo v. State, 480

S.W.2d 401, 402 (Tex. Crim. App. 1972) (Court of Criminal Appeals reversed

where 51 months elapsed between the extraneous offense and the offense

charged and tried before the trial court); and Ybarra v. State, 401 S.W.2d

608, 609 (Tex. Crim. App. 1966) (Court of Criminal Appeals held that the

unlawful sale of alcoholic beverages two years prior to and after current

charged offense are inadmissible).

         Examples of cases where the offenses were held sufficiently close in

time to be probative include Cantrell v. State, 731 S.W.2d at 90 (Court of

Criminal Appeals allowed evidence of other armed robberies committed 10


Appellant Brief (Cooley, Temmie)                                            Page 29
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months prior to commission of charged offense); Castillo v. State, 739

S.W.2d 280, 290 (Tex. Crim. App. 1987) (Court of Criminal Appeals allowed

evidence of several robberies with same characteristics that were committed

one month apart); Robinson v. State, 701 S.W.2d 895, 898 (Tex. Crim. App.

1985) (Court of Criminal Appeals allowed evidence of unlawful

appropriation of property that occurred six months prior to charged

offense); Voelkel v. State, 501 S.W.2d 313, 315 (Tex. Crim. App. 1973) (Court

of Criminal Appeals allowed evidence of embezzlement that occurred eight

years prior to charged offense); and Stringer v. State, 845 S.W.2d 400, 402

(Tex. App. Houston [1st Dist.] 1992, pet. ref.) (Reviewing court allowed

evidence of admitting evidence of sexual assault that occurred five years

prior to charged offense).

         The factors used to measure the probative value of extraneous offense

evidence are: (1) the similarity between the extraneous offense and the

offense charged; (2) the closeness in time of the extraneous offense to the

charged offense; and (3) the availability of alternative sources of proof. See

Robinson v. State, 701 S.W.2d at 898-899; Corley v. State, 987 S.W.2d 615,

619 (Tex. App. Austin 1999).




Appellant Brief (Cooley, Temmie)                                            Page 30
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         While there are certainly similarities between the 1989 offense and the

2001 offense, as discussed above, there are ample differences. More

importantly, there is a 12-year time period between the two offenses. This

time period renders the 2001 extraneous offense too remote to be admissible

during the guilt / innocence phase of the trial for the 1989 offense.

         This Court should also consider whether there were intervening acts of

misconduct between the old extraneous offense and the current offense

charged. If there were no such intervening acts of misconduct, the old

offense should not be admissible. Lang v. State, 698 S.W.2d 735 (Tex. App.

El Paso 1985, no pet.); Bachhofer v. State, 633 S.W.2d at 872; McDonald v.

State, 513 S.W.2d 44, 50-52 (Tex. Crim. App. 1974) (Where there are several

intervening acts of similar misconduct between the presently-charged

offense and the older extraneous offense, the older extraneous offense was

admitted). There is no evidence that Appellant committed any intervening

acts of misconduct between the 1989 offense and the 2001 conviction.

              Role of the Trial Court and Texas Rule of Evidence 403

         The trial court must determine whether the extraneous offense is

relevant to prove a material issue other than the defendant’s character. TEX.

RULE EVID. 402; Huddleston v. United States, 485 U.S. 681, 686 (1988);


Appellant Brief (Cooley, Temmie)                                            Page 31
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Turner v. State, 754 S.W.2d 668, 672 (Tex. Crim. App. 1988). The trial court

must also determine whether such offense serves to make more probable

either an elemental fact, an evidentiary fact that inferentially leads to an

elemental fact, or defensive evidence that undermines an elemental fact.

Montgomery v. State, 810 S.W.2d at 390-392.

         Rule 403 of the Texas Rules of Evidence provides “although relevant,

evidence may be excluded if its probative value is substantially outweighed

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

jury, or by considerations of undue delay, or needless presentation of

cumulative evidence.” TEX. RULE EVID. 403. When a Rule 403 objection is

made and then overruled, the trial court necessarily conducts a balancing

test by considering and overruling the objection. Parmer v. State, 38 S.W.3d

661, 670 (Tex. App. Austin 2000, pet. ref.); Howland v. State, 966 S.W.2d

98, 103 (Tex. App. Houston [1st Dist.] 1998), affirmed, 990 S.W.2d 274

(Tex. Crim. App. 1999); Yates v. State, 941 S.W.2d 357, 367 (Tex. App. Waco

1997, pet. ref.). It is not necessary for a trial court to put its findings and

conclusions about a Rule 403 objection on the record. Green v. State, 934

S.W.2d at 104. In Parmer v. State, the Fourth Court of Appeals held that

when a Rule 403 objection is made and overruled, the trial court performed


Appellant Brief (Cooley, Temmie)                                                  Page 32
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a balancing test in that moment. Parmer v. State, 38 S.W.3d at 670. A

balancing test does not need to be performed on the record to render the

balancing test completed. Id.; Green v. State, 934 S.W.2d 92, 104 (Tex.

Crim. App. 1996).

         Texas Rule of Evidence 403 recognizes that relevance alone does not

ensure admissibility. J. McLaughlin, Weinstein’s Federal Evidence

§403.02[1][a] at 403-406 (2006 rev.) (Discussion of Rule 403 of the

Federal Rules of Evidence). A cost/benefit analysis must often be conducted

by the trial court. Id. Relevant evidence may be excluded if its probative

value is not worth the problems that its admission may cause. Id. The issue

is whether the “search for truth will be helped or hindered by the

interjection of distracting, confusing, or emotionally charged evidence. In

making this determination, the [trial] court must assess the probative

value of the proffered item as well as the harmful consequences specified in

Rule 403 that might flow from its admission.” Id.

         The key phrases in this analysis are “probative value” and “unfair

prejudice.” Probative value means more than simply relevance. Old Chief v.

United States, 519 U.S. 172, 184 (1997) (Discussion of Federal Rule of

Evidence 403). Probative value is the inherent probative force of an item of


Appellant Brief (Cooley, Temmie)                                              Page 33
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evidence; that is, how strongly it serves to make more or less probable the

existence of a fact of consequence to the litigation-coupled with the

proponent’s need for that item of evidence. See Montgomery v. State, 810

S.W.2d at 390 (“[w]hen the proponent [of an item of evidence] has other

compelling or undisputed evidence to establish the proposition or fact that

the [item of evidence] goes to prove, the [probative value of the item of

evidence] will weigh far less than it otherwise might in the probative versus-

prejudicial balance.”).

         The second key phrase of Rule 403, “unfair prejudice,” refers to a

tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one. State v. Mechler, 153 S.W.3d 435, 440 (Tex.

Crim. App. 2005); Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App.

1999). Evidence might be unfairly prejudicial if, for example, it arouses the

jury’s hostility or sympathy for one side without regard to the logical

probative force of the evidence. K. Broun, et al., McCormick on Evidence

§185 at 737 (6th ed. 2006).

         Rule 403 also discusses other issues relevant to the trial court’s

analysis. “Confusion of issues” refers to a tendency to confuse or distract the

jury from the main issues in the case. S. Goode, et al., Texas Practice: Guide


Appellant Brief (Cooley, Temmie)                                              Page 34
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to the Texas Rules of Evidence, § 403.2 at 165 (3rd ed. 2002). “Misleading

the jury” refers to a tendency of certain evidence to be given undue weight by

the jury on other than emotional grounds. Id. § 403.2 at 164. The Court of

Criminal Appeals has provided a Rule 403 analysis based upon the following

factors: (1) the probative value of the evidence, (2) the potential of the

evidence to impress the jury in some irrational yet indelible way, (3) how

much trial time the state needs to develop the evidence such that the jury

will be diverted from the charged offense, and (4) how great is the State’s

need for the extraneous evidence. State v. Mechler, 153 S.W.3d at 440;

Montgomery v. State, 810 S.W.2d at 389-390.

         The defendant need not object to the admission of extraneous offense

instruction to be entitled to a contemporaneous limiting instruction of the

extraneous offense evidence to the purpose that justified its admission.

Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001). But if the

defendant makes an objection, the defendant should object specifically that

the probative value was outweighed by the danger of unfair prejudice to

defendant. Yohey v. State, 801 S.W.2d 232 (Tex. App. San Antonio 1990,

pet. ref.); Malone v. State, 849 S.W.2d 414 (Tex. App. Beaumont 1993, no

pet.). In this case Appellant did specifically object that the probative value of


Appellant Brief (Cooley, Temmie)                                             Page 35
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admission of the 2001 conviction was outweighed by the danger of unfair

prejudice to him.

                                   Rule 403 Factors

         When determining if admission would create unfair prejudice, the

court must balance: (1) the inherent probative force of the proffered item of

evidence along with (2) the proponent’s need for that evidence against (3)

any tendency of the evidence to suggest decision on an improper basis, (4)

any tendency of the evidence to confuse or distract the jury from the main

issues, (5) any tendency of the evidence to be given undue weight by a jury

that has not been equipped to evaluate the probative force of the evidence,

and (6) the likelihood that presentation of the evidence will consume an

inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). As

the Court of Criminal Appeals has noted, “these factors may well blend

together in practice.” Id. at 642. “[Rule 403] envisions exclusion of evidence

only when there is a ‘clear disparity between the degree of prejudice of the

offered evidence and its probative value.’” Hammer v. State, 296 S.W.3d 555,

568–69 (Tex. Crim. App. 2009) (quoting Conner v. State, 67 S.W.3d 192,

202 (Tex. Crim. App. 2001)).


Appellant Brief (Cooley, Temmie)                                           Page 36
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         “Probative value” means more than simply relevance; it “refers to the

inherent probative force of an item of evidence - that is, how strongly it

serves to make more or less probable the existence of a fact of consequence

to the litigation - coupled with the proponent’s need for that item of

evidence.” Gigliobianco, 210 S.W.3d at 641.

         In this case, there is simply no reason that the State needed to offer

evidence of the 2001 conviction to prove the 1989 case. Evidence of the 2001

case carried absolutely no probative force in the current case. A defendant is

entitled to be tried on the accusation in the indictment, and not for a

collateral crime or being a criminal generally. Templin v. State, 711 S.W.2d,

30, 32 (Tex.Crim.App. 1986); TEX. R. EVID. 404(b).

         As for the third factor, it “refers to a tendency to suggest decision on an

improper basis, commonly, though not necessarily, an emotional one.” Id.

The only possible result of allowing the jury to hear evidence of the 2001

conviction would be that their decision on the current case would be made

on an improper basis.

         The fourth factor “refers to a tendency to confuse or distract the jury

from the main issues in the case.” Id. “Evidence that consumes an inordinate




Appellant Brief (Cooley, Temmie)                                               Page 37
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amount of time to present or answer, for example, might tend to confuse or

distract the jury from the main issues.” Id.

         Evidence presented by the State was for an offense that occurred

twelve years after the case for which Appellant was on trial. Further, the

evidence did take an inordinate amount of time at trial to develop and

present. The State did not just offer evidence that Appellant had previously

been convicted of murder, they, essentially, tried him for the 2001 offense

during the trial for the 1989 offense by calling the investigating officer, two

separate DNA witnesses, and the medical examiner who performed the

autopsy in the 2001 case. In addition, a number of photographs and forensic

reports were offered.

         The fifth factor “refers to a tendency of an item of evidence to be given

undue weight by the jury on other than emotional grounds.” Id. “For

example, ‘scientific’ evidence might mislead a jury that is not properly

equipped to judge the probative force of the evidence.” Id. This factor

similarly favors admissibility. Hearing that a person has been convicted of a

violent murder will always result in a jury placing undue weight on that

information. Essentially, Appellant was painted as a “murderer in general,”

rather than being tried on just the facts of the 1989 offense.


Appellant Brief (Cooley, Temmie)                                             Page 38
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         The final factor concerns “the efficiency of the trial proceeding rather

than the threat of an inaccurate decision.” Id. Other than a few similarities

that would be present in a number of murder offenses, the State showed no

connection between the 2001 conviction and the 1989 case. And as stated

above, the State spent a great deal of time introducing evidence of the 2001

case through multiple witnesses and exhibits. For all of these reasons, we

conclude the trial court did not abuse its discretion when it overruled

appellant’s rule 403 objection. See TEX. R. EVID. 403; Gigliobianco, 210

S.W.3d at 641–42.



                        The Trial Court’s Error Was Not Harmless

         The trial court’s error was not harmless because when one eliminates

the evidence of the 2001 conviction, there simply is insufficient evidence to

prove that Appellant committed the presently-charged offense. See TEX.

RULE APP. PROC. 44.2(a). The trial court’s error clearly contributed to the

jury’s verdict the error. Connor v. State, 773 S.W.2d 13, 15 (Tex. Crim. App.

1989).

         In applying the harmless error rule, a reviewing court “should not

focus upon the propriety of the outcome of the trial, but instead should be


Appellant Brief (Cooley, Temmie)                                              Page 39
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concerned with the integrity of the process leading to the conviction. Harris

v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1990). The reviewing court

“should examine the source of the error, the nature of the error, whether or

to what extent it was emphasized by the State, its probable collateral

implications, and how much weight a juror would probably place upon the

error.” Id. In this case, the integrity of the process that led to Appellant’s

conviction is suspect. The State heavily emphasized the evidence of the 1989

conviction, so it is likely that the collateral implications severely harmed

Appellant. Consequently, it is reasonable to conclude that the jury placed

great weight on the error.



                                    Conclusion

         The trial court erred and abused its discretion by allowing the State to

present evidence of the 2001 conviction for murder because (1) evidence of

the 2001 conviction presented to the jury during the innocence/guilt phase

was not admissible based upon motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake or accident, and flight; and (2)

the probative value of admitting evidence of the 2001 conviction for murder

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


Appellant Brief (Cooley, Temmie)                                             Page 40
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the issues, and clearly misled the jury. Appellant thus asks this Court of

Appeals to reverse the judgment of conviction and sentence for murder and

remand this case back to the trial court for a new trial, and order that the

evidence of the 2001 conviction not be allowed during the innocence/guilt

portion of the trial.


                                      PRAYER

         WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

Court will reverse the judgment of the trial court and enter a judgment of

acquittal, or in the alternative, remand the case to the trial court.



                                   Respectfully Submitted,



                                        /s/ Stephanie Hudson
                                   Stephanie Hudson

                                   STEPHANIE DUECKER HUDSON, PLLC
                                   1333 W. McDermott Dr., Suite 150
                                   Allen, TX 75013
                                   469.519.7815
                                   972.530.6218 Fax
                                   stephaniehudsonlaw@gmail.com
                                   State Bar No. 24007130
                                   Attorney for Appellant




Appellant Brief (Cooley, Temmie)                                             Page 41
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                                   CERTIFICATE OF SERVICE

         The undersigned certifies that a true and correct copy of the foregoing

Appellant’s Brief has been served on the Collin County Criminal District

Attorney’s Office, 2100 Bloomdale Road, Suite 20004, McKinney, TX

75071.



                                                /s/ Stephanie Hudson
                                           Stephanie Hudson



                              CERTIFICATE OF COMPLIANCE

         This brief complies with the word limitations in Texas Rule of

Appellate Procedure 9.4(i)(2). In reliance on the word count of the

computer program used to prepare this brief, the undersigned attorney

certifies that this brief contains 6,393 words, exclusive of the sections of the

brief exempted by Rule 9.4(i)(1).



                                                /s/ Stephanie Hudson
                                           Stephanie Hudson




Appellant Brief (Cooley, Temmie)                                            Page 42
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