                                                                       PD-0282-15
            PD-0282-15                                COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                    Transmitted 3/13/2015 6:35:37 PM
                                                     Accepted 3/18/2015 10:40:56 AM
                                                                        ABEL ACOSTA
                                                                                CLERK

                       In the
         Court of Criminal Appeals of Texas

            Cause No. 14-13-01020-CR
                         In the
 Court of Appeals for the Fourteenth District of Texas
                      at Houston

                    Cause No. 1354834
                 In the 351st District Court
                  Of Harris County, Texas


             REGINALD BROUSSARD
                   Appellant

                             v.

                 THE STATE OF TEXAS
                       Appellee


   PETITION FOR DISCRETIONARY REVIEW



                                     Casey Garrett
                                     Texas Bar No. 00787197
                                     4010 Bluebonnet, Ste. 204
                                     Houston, Texas 77025
                                     713-228-3800
                                     Casey.garrett@sbcglobal.net
March 18, 2015
               IDENTITY OF PARTIES AND COUNSEL
Appellant: Reginald Broussard

Counsel for Appellant at Trial:

             Lourdes Rodriguez
             300 Fannin Street, Room 220
             Houston, Texas 77002
             713-222-8638
             Texas Bar No. 17147100

Counsel for Appellant on Appeal:

             Casey Garrett
             4010 Bluebonnet, Ste. 204
             Houston, Texas 77025
             Texas Bar No. 00787197
             713-228-3800

Counsel for the State at Trial:

             Alycia Harvey
             Texas Bar No. 24032404
             Assistant District Attorney
             1201 Franklin
             Houston, Texas 77002
             713-755-5800

Counsel for the State on Appeal:
             Harris County District Attorney’s Office
             Appellate Division
             1201 Franklin, Suite 600
             Houston, Texas 77002
             (713) 755-5800

Trial Judge: The Honorable Mark Kent Ellis

                                      2
                                  TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .............................................. 2

Trial Judge: The Honorable Mark Kent Ellis ............................................. 2

TABLE OF CONTENTS ............................................................................ 3

INDEX OF AUTHORITIES ....................................................................... 4

STATEMENT REGARDING ORAL ARGUMENT ................................. 5

STATEMENT OF THE CASE ................................................................... 5

STATEMENT OF PROCEDURAL HISTORY ......................................... 5

QUESTION PRESENTED FOR REVIEW ................................................ 6

REASONS FOR REVIEW ......................................................................... 6

PRAYER ................................................................................................... 10

CERTIFICATE OF SERVICE.................................................................. 11




                                                    3
                                  INDEX OF AUTHORITIES


Cases

Jones v. State, 963 S.W.2d 177 (Tex. App.—
  Fort Worth 1998, pet. ref’d) ........................................................................ 7

Mays v. State, 285 S.W.3d 884 (Tex. Crim. App. 2009) ............................... 8

Montgomery v. State, 383 S.W.3d 722 (Tex. App.—
 Houston [14th Dist.] 2012, no pet.) .............................................................. 8

Parr v. State, 557 S.W.2d 99 (Tex. Crim. App. 1977)................................. 10

Reado v. State, 690 S.W.2d 15 (Tex. App.—
 Beaumont 1984), pet. ref’d). ....................................................................... 7

Solano v. State, 728 S.W.2d 428 (Tex. App.—
  San Antonio 1987, pet. ref’d) ...................................................................... 7

West v. State, 121 S.W.3d 95 (Tex. App.—
 Fort Worth 2003, pet. ref’d) ................................................................ 6, 8, 9


Statutes

Tex. Code Crim. P. Ann. art. 38.08 (Vernon 2005) ....................................... 8
Constitutional Provisions

Tex. Const. art. I, sec. 10 ................................................................................ 8

U.S. Const. amend V ...................................................................................... 8




                                                      4
            STATEMENT REGARDING ORAL ARGUMENT

      Mr. Broussard requests oral argument.

                       STATEMENT OF THE CASE

      Mr. Broussard was charged by indictment with the felony offense of

aggravated assault on a family member (C.R. 11). In particular, he was

charged with threatening Anika Ross, a person with whom he had a dating

relationship, with imminent bodily injury by exhibiting a deadly weapon,

namely, a firearm (C.R. 11). The charge was enhanced with two prior felony

convictions (C.R. 11). Mr. Broussard pled not guilty and the case was tried

before a jury (R.R.3 – 6). The jury found him guilty as charged in the

indictment (C.R. 96). Thereafter, the jury assessed punishment at

confinement for life in the Institutional Division of the Texas Department of

Criminal Justice (C.R. 96).




              STATEMENT OF PROCEDURAL HISTORY

      The Court of Appeals filed a memorandum opinion affirming the

conviction on February 3, 2015.       No motion for rehearing was filed.

Pursuant to Rule 68.2 of the Texas Rules of Appellate Procedure, this



                                     5
Petition for Discretionary Review should be filed thirty days after the day

the court of appeals filed its opinion. A motion for an extension of time was

filed with this Court herewith and the Petition was timely filed within two

weeks of the due date.

                QUESTION PRESENTED FOR REVIEW

         Is a defense attorney required to provide extensive and thorough
         proof of the evidence excluded by a trial court judge before the
         decision of the trial court to exclude such evidence can be
         reviewed?


                         REASONS FOR REVIEW

            The decision of the court of appeals conflicts with
            applicable decisions of the Court of Criminal Appeals.




               APPELLANT’S QUESTION FOR REVIEW

         Is a defense attorney required to provide extensive and thorough
         proof of the evidence excluded by a trial court judge before the
         decision of the trial court to exclude such evidence can be
         reviewed?


      Rule 107 of the Texas Rules of Evidence permits the introduction of

otherwise inadmissible evidence when necessary to fully and fairly explain a

matter opened up by the adverse party. Tex. R. Evid. 107; West v. State, 121

S.W.3d 95, 103 (Tex. App.—Fort Worth 2003, pet. ref’d). It takes effect



                                     6
when other evidence has already been introduced but is incomplete and

misleading. Jones v. State, 963 S.W.2d 177, 182 (Tex. App.—Fort Worth

1998, pet. ref’d). Its purpose is to allow one side to complete the picture

when the opponent has opened the door. See Reado v. State, 690 S.W.2d 15,

17 (Tex. App.—Beaumont 1984), pet. ref’d). This reduces the possibility of

the jury receiving a false impression from hearing only a part of some act,

conversation, or writing. Solano v. State, 728 S.W.2d 428, 430-31 (Tex.

App.—San Antonio 1987, pet. ref’d). When one side pursues a subject that

would ordinarily be outside the realm of proper comment at trial, the door is

open and a right of reply is created. See Parr v. State, 557 S.W.2d 99, 102

(Tex. Crim. App. 1977).

      In the instant case, the complainant testified trouble began in her

relationship with Mr. Broussard when she “found out he was on drugs.”

(R.R.3 – 29). When her medical records were introduced into evidence,

however, the State was allowed to remove the two pages indicating her own

ongoing problem with drugs and alcohol (R.R.3 – 58). The State elected to

redact two pages of her records marked, “insight assessment,” because “all

they are is an evaluation of the complainant’s alcohol and drug use.” (R.R.3

– 58). Defense counsel objected under the rule of optional completeness,

Rule 107 of the Texas Rules of Evidence. The court responded, “it’s hearsay



                                      7
within hearsay,” and overruled the objection on that basis. Rule 107,

however, is expressly intended to allow one side to admit otherwise

inadmissible evidence, in the interest of giving the jury a full picture. West v.

State, 121 S.W.3d 95, 103 (Tex. App.—Fort Worth 2003, pet. ref’d).

      In its opinion, the lower court said, “we are unable to determine

whether the exclusion of those two pages was erroneous or harmful,”

because “the trial court was informed the missing pages were an evaluation

of the complainant’s alcohol and drug use but they were not tendered to the

judge and the record does not include those two pages.” The court cited

Montgomery v. State, 383 S.W.3d 722, 726 (Tex. App.—Houston [14th

Dist.] 2012, no pet.). The court below correctly stated the primary purposes

of an offer of proof: 1) to enable an appellate court to determine whether

exclusion was erroneous or harmful; and 2) to permit the trial court to

consider its ruling in light of the actual evidence. Mays v. State, 285 S.W.3d

884, 890 (Tex. Crim. App. 2009). These cases involved the testimony of live

witnesses, however, where the substance of the evidence excluded would be

impossible to determine without an explicit offer of proof, live testimony, to

consider on the record.

      The two pages excluded from the medical records were, as the State

expressly said on the record, “an evaluation of the complainant’s alcohol and



                                       8
drug use.” The pages were redacted in front of the trial court judge. The trial

court could easily consider its ruling in light of the actual evidence, because

the court was looking at the actual evidence when the State removed two

pages of her medical records. Moreover, the appellate court can consider the

question of whether the State should have been permitted to exclude

information from the medical records on the basis of “hearsay upon

hearsay,” the stated reason for the Court’s ruling, without examining the

actual records themselves. Whether or not the medical records showed drug

use or no drug use, Mr. Broussard was entitled to put them before the jury as

part of the complainant’s medical records, in the interest of giving the jury

the full picture. West v. State, 121 S.W.3d 95, 103 (Tex. App.—Fort Worth

2003, pet ref’d).

      Mr. Broussard received a life sentence in the case at bar. Under the

rules of appellate procedure, errors pertaining to evidentiary decisions, non-

constitutional in nature, should be disregarded unless they impact the

substantial rights of the defendant. Tex. Rules Appellate P. 44.2(b). In the

instant case, Mr. Broussard had a substantial right to present a full and

complete version of events to the jury so they could better evaluate the

circumstances behind his actions. Had the jury been given the opportunity to

form a full and accurate picture of both the complainant and Mr. Broussard,



                                      9
and therefore, the relationship between the two of them, he would not have

received the maximum sentence under the law. The trial court erred when it

overruled the defense objections under Rule 107, and the court should have

included the information about drug and alcohol abuse in the medical

records presented to the jury. The case should be reversed and remanded for

a new trial.



                                 PRAYER

      Appellant respectfully prays this Honorable Court to grant his petition

for discretionary review.



                                             Respectfully submitted,


                                             ____/s/Casey Garrett____
                                             Casey Garrett
                                             Texas Bar No. 00787197
                                             4010 Bluebonnet, Ste. 204
                                             Houston, Texas 77025
                                             713-228-3800
                                             Casey.garrett@sbcglobal.net




                                     10
                       CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been sent

through the e-file system to the following party:

Harris County District Attorney’s Office
Appellate Division
1201 Franklin, Suite 600
Houston, Texas 77002



                                             ____/s/Casey Garrett____
                                             Casey Garrett
                                             Texas Bar No. 00787197
                                             4010 Bluebonnet, Ste. 204
                                             Houston, Texas 77025
                                             713-228-3800
                                             Casey.garrett@sbcglobal.net




                                      11
                      In the
        Court of Criminal Appeals of Texas

           Cause No. 14-13-01020-CR
                        In the
Court of Appeals for the Fourteenth District of Texas
                     at Houston


            REGINALD BROUSSARD
                  Appellant

                         v.

             THE STATE OF TEXAS
                   Appellee


        CERTIFICATE OF COMPLIANCE



                                Casey Garrett
                                Texas Bar No. 00787197
                                4010 Bluebonnet, Ste. 204
                                Houston, Texas 77025
                                713-228-3800
                                Casey.garrett@sbcglobal.net
      This is the certify that the Petition for Discretionary Review filed in

the above-numbered cause has 1,529 words in compliance with Rule 9 of the

Texas Rules of Appellate Procedure.




                                              ____/s/Casey Garrett____
                                              Casey Garrett
                                              Texas Bar No. 00787197
                                              4010 Bluebonnet, Ste. 204
                                              Houston, Texas 77025
                                              713-228-3800
                                              Casey.garrett@sbcglobal.net
                                                                 February 3, 2015




                                JUDGMENT

                The Fourteenth Court of Appeals
                    REGINALD BROUSSARD, Appellant

NO. 14-13-01020-CR                         V.

                      THE STATE OF TEXAS, Appellee


                    ________________________________

     This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
     We further order appellant pay all costs expended in the appeal.
     We further order this decision certified below for observance.
Affirmed and Memorandum Opinion filed February 3, 2015.




                                        In The

                        Fourteenth Court of Appeals

                                 NO. 14-13-01020-CR

                        REGINALD BROUSSARD, Appellant
                                           V.
                          THE STATE OF TEXAS, Appellee

                        On Appeal from the 351st District Court
                                Harris County, Texas
                            Trial Court Cause No. 1354834

                   MEMORANDUM                      OPINION


      A jury convicted appellant Reginald Broussard of aggravated assault of a family
member with a deadly weapon. Appellant entered a plea of “true” to two enhancement
paragraphs and the jury sentenced him to prison for life. Appellant filed a timely notice
of appeal. We affirm.

      The complainant had a dating relationship with appellant that had ended.
Subsequently, appellant came to her home in the middle of the night and asked her to
get her belongings out of his van. The complainant refused to go to the van. Appellant
grabbed the complainant by the hair and dragged her from the porch. Appellant put a
gun in her face and a struggle ensued. Appellant stuck the gun to the complainant’s
chest and shot her. They continued to struggle until the complainant got away. As the
complainant was running into the house, she turned around and saw appellant point the
gun to shoot again. A bullet was later found embedded in the wall of the complainant’s
home. The complainant called 911 and was taken to the hospital where she was treated
for a gunshot wound. The jury found appellant guilty of aggravated assault with a
deadly weapon.        Appellant pled true to two enhancement paragraphs and the jury
assessed his punishment at confinement for life in the Institutional Division of the Texas
Department of Criminal Justice.

       In his only issue, appellant claims the trial court erred in overruling his objection
to the State’s admission of the complainant’s medical records. During its case-in-chief,
the State offered into evidence the complainant’s medical records. The State did not
include two pages of those records, marked “insight assessment,” that the State
described as “an evaluation of the complainant’s alcohol and drug use” that were not
necessary to understand the medical records. Appellant objected “under Rule 107,
optional completeness.” See Tex. R. Evid. 107.1 The trial court overruled the objection.
Appellant then further objected “under Rule 107 again because it show[ed] the person’s
state at the time when they were interviewing her and shortly after that.” The trial court
again overruled the objection. In his brief, appellant claims the trial court should have
required the State to include the two pages.

       1
          “When part of an act, declaration, conversation, writing or recorded statement is given in
evidence by one party, the whole on the same subject may be inquired into by the other, and any other
act, declaration, writing or recorded statement which is necessary to make it fully understood or to
explain the same may also be given in evidence, as when a letter is read, all letters on the same subject
between the same parties may be given. “Writing or recorded statement” includes depositions.” Tex. R.
Evid. 107.

                                                   2
      In order to preserve error regarding a trial court’s decision to exclude evidence,
the complaining party must comply with Rule of Evidence 103 by making an “offer of
proof” which sets forth the substance of the proffered evidence. Mays v. State, 285
S.W.3d 884, 890 (Tex. Crim. App. 2009). See also Watts v. State, 371 S.W.3d 448, 464
(Tex. App.—Houston [14th Dist.] 2012, no pet.). The primary purpose of an offer of
proof is to enable an appellate court to determine whether the exclusion was erroneous
and harmful. Mays, 285 S.W.3d at 890. A secondary purpose is to permit the trial court
to reconsider its ruling in light of the actual evidence. Id. See also Montgomery v. State,
383 S.W.3d 722, 726 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

      The trial court was informed the missing pages were an evaluation of the
complainant’s alcohol and drug use but they were not tendered to the judge and the
record does not include those two pages. Accordingly, we are unable to determine
whether the exclusion of those two pages was erroneous or harmful. See Montgomery,
383 S.W.3d at 726 (a general statement that a witness would testify about the vehicles’
speeds was insufficient to determine whether the exclusion was harmful). We cannot
conclude that the trial court abused its discretion in excluding evidence when the
excluded evidence is unavailable for us to review. We therefore overrule appellant’s
issue affirm the trial court’s judgment.




                                           /s/       Marc W. Brown
                                                     Justice



Panel consists of Justices Jamison, Busby, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).



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