                                                                                           ACCEPTED
                                                                                       04-14-00130-CR
                                                                           FOURTH COURT OF APPEALS
                                                                                SAN ANTONIO, TEXAS
                                                                                   6/4/2015 2:50:48 PM
                                                                                        KEITH HOTTLE
                                                                                                CLERK
                              NO. 04-14-00130-CR


                                                       FILED IN
                  IN THE COURT OF APPEALS FOR THE4th COURT OF APPEALS
                                                                SAN ANTONIO, TEXAS
                       FOURTH DISTRICT OF TEXAS                6/4/2015 2:50:48 PM
                                                                 KEITH E. HOTTLE
                                                                       Clerk
                            SAN ANTONIO, TEXAS


                            JOSHUA ORCASITAS,
                                      Appellant

                                        V.

                              STATE OF TEXAS,
                                        Appellee


                              Appealed From The
                          175th Judicial District Court
                            Of Bexar County, Texas


                 APPELLANT’S MOTION FOR REHEARING


TO THE HONORABLE COURT OF APPEALS:

      JOSHUA ORCASITAS, the Appellant in Cause Number 2012-CR-7776 in the

175th District Court of Bexar County, Texas, pursuant to Rule 49 of the Texas Rules

of Appellate Procedure, submits this Motion for Rehearing moving this Honorable

Court to reconsider its Opinion of May 20, 2015 affirming the judgment and sentence

of conviction.

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                   GROUND FOR REVIEW NUMBER ONE

             THE COURT OF APPEALS ERRED BY RULING
             THAT A PROSECUTOR, DURING INITIAL
             CLOSING ARGUMENT, MAY STRIKE AT A
             DEFENDANT OVER SHOULDERS OF DEFENSE
             COUNSEL PRIOR TO ANY ARGUMENT BEING
             MADE BY DEFENSE COUNSEL.

                       ARGUMENT AND AUTHORITIES

      In the case at bar, this Court held that a prosecutor, during initial closing

argument, may strike at a defendant over shoulders of defense counsel prior to any

argument being made by defense counsel. Orcasitas v. State, No. 04-14-00130-CR

at 7-8 (Tex. App. - San Antonio, May 20, 2015). The only case cited by this Court in

support of allowing a prosecutor, during initial closing argument, to strike at a

defendant over shoulders of defense counsel prior to any argument being made by

defense counsel, is Garcia v. State, 126 S.W.3d 921 (Tex. Crim. App. 2004). During

oral argument in the case at bar, however, the state conceded that all cases on this

issue cited by the state in its brief (including Garcia) involved prosecution argument

following argument by defense counsel. Undersigned counsel, in fact, was the trial

defense counsel in Garcia, and the complained of argument was after argument by

defense counsel. Garcia v. State refers to defense counsel’s arguments in that case and

the state’s comments regarding “defense counsel’s arguments” and the state’s

“opinion regarding the merits of defense counsel’s arguments.” Id. at 924.


                                          2
      The following cases cited by the state in its brief on this issue are also contrary

to the opinion of this Court. “We have consistently held that argument which strikes

at a defendant over the shoulders of defense counsel is improper.” Dinkins v. State,

894 S.W.2d 330 (Tex. Crim. App. 1995). “Although the prosecutor’s statements may

have been intended as a rebuttal, they also cast aspersion on defense counsel’s

veracity with the jury.” Id. The reviewing court then looks to see if the prosecution

made any “further comments impugning defense counsel’s veracity.” Id. With respect

to comments such as “rabbit trials,” the Court of Criminal Appeals has stated, “. . .

legitimate arguments by defense counsel cannot serve as a basis for permitting

prosecutorial comments that “cast aspersion on defense counsel’s veracity.” Mosley

v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998).

      In Satterwhite v. State, 858 S.W.2d 412 (Tex. Crim. App. 1993), the state’s

argument was directed at the credibility of a witness, not at counsel’s argument. In

Nevels v. State, 954 S.W.2d 154 (Tex. App. - Waco 1997, pet. ref’d), the state’s

argument at issue was after the defense closing argument. The court held that “when

an improper jury argument strikes at the accused over the shoulders’ of his defense

counsel a curative instruction cannot cure the harm and a harm analysis . . . is

required.” Id. There is a “presumption that an improper jury argument which strikes

at the accused over defense counsel’s shoulders is so egregious that a curative

                                           3
instruction has no impact on the error.” Id. Such argument does not “fall within one

of the four permissible areas of jury argument.” Id.

      In the case at bar, however, this Court failed to recognize that the prosecutor’s

“rabbit trails” argument, prior to argument by the Appellant, struck at the Appellant

over shoulders of defense counsel and was therefore improper. Orcasitas v. State,

supra at 7-8. Given the above case law, such argument by the state does not fall

within one of the four permissible areas of jury argument. Yet this Court attempts to

protect such improper argument by claiming that the “rabbit trails” argument “was

made in response to the defense’s theories and was therefore proper argument.” Id.

Counsel is unaware of any case law allowing such a conclusion prior to argument by

a defendant, and no such case law has been cited by this Court or by the state.

      Based upon the above, this Honorable Court should withdraw its opinion of

May 20, 2015, hold that the “rabbit trails” argument by the state, prior to any

argument by the defense, was error, sustain the Appellant’s Point of Error One, and

remand this cause to the trial court for a new trial.

                   GROUND FOR REVIEW NUMBER TWO

             THE COURT OF APPEALS ERRED BY RULING
             THAT AN OBJECTION THAT THE
             PROSECUTOR’S CLOSING ARGUMENT IS
             “OUTSIDE THE RECORD” PRESENTS NOTHING
             FOR APPELLATE REVIEW.

                                           4
                       ARGUMENT AND AUTHORITIES

      In the case at bar, the prosecutor argued in closing argument that defense

counsel was sending signals to defense witnesses during cross-examination by the

prosecutor. (R - v.5 - 55-56). The defense objected that this argument was “outside

the record and it is completely false.” Id. The Appellant argued in his brief before this

Court that this closing argument was improper since it was outside the record and

harmful since it attacked the ethics of defense counsel. This Court held that the

objection “outside the record and it is completely false” does not allow a claim on

appeal that the argument was an attack on the ethics of defense counsel. Orcasitas v.

State, supra at 8-10. This holding by this Court is contrary to the holding in

McMurrough v. State, 995 S.W.2d 944 (Tex. App. - Fort Worth 1999, no pet.). In that

case, the prosecutor in closing argument stated that defense counsel created a defense

for his client, and the defendant objected that such argument was “outside the record.”

Id. The court considered the four permissible areas of closing argument and reiterated

that reviewing courts are “disturbed about final arguments that result in uninvited and

unsubstantiated accusations of improper conduct directed at a defendant’s attorney.”

Id. The court was concerned that such argument was an “attack on defense counsel’s

integrity” and “[s]triking at the defendant over the shoulders of his counsel . . .” Id.

      The Appellant in the case at bar argued, just as in McMurrough, that the

sending signals part of the state’s closing argument was outside the record and an

                                           5
attack on defense counsel’s integrity. This Court incorrectly ruled that an “outside the

record” objection followed by an argument on appeal that such closing argument was

an attack on defense counsel’s integrity “does not comport with the objection made

at trial, [so] we conclude that it presents nothing for our review.” Such a ruling is in

direct contradiction with McMurrough and should be removed from this Court’s

published opinion in the case at bar.

                  GROUND FOR REVIEW NUMBER THREE

             THE COURT OF APPEALS ERRED BY RULING
             T H A T T H E P R OSECUTOR’S CLOSI N G
             ARGUMENT, CLAIMING THAT DEFENSE
             COUNSEL SENT SIGNALS TO DEFENSE
             WITNESSES DURING CROSS-EXAMINATION,
             WAS MERELY A COMMENT ON THE DEMEANOR
             OF THE WITNESSES.

                       ARGUMENT AND AUTHORITIES

      In the case at bar, the prosecutor argued in closing argument that defense

counsel was sending signals to defense witnesses during cross-examination by the

prosecutor. (R - v.5 - 55-56). This Court held that such closing argument was proper

because it merely commented on the demeanor of the witnesses. Orcasitas v. State,

supra at 8-10. The Court of Criminal Appeals has held, however, that closing

argument that “impugns the integrity of defense counsel has been repeatedly

condemned by this Court.” Satterwhite v. State, supra. The closing argument in the

case at bar clearly impugned the integrity of defense counsel when the prosecutor

                                           6
argued that when two defense witnesses were tripped up on cross-examination, “they

looked at Mr. Gross [defense counsel] to help them. Why are they looking at him?”

(R - v.5 - 55-56). This closing argument implied that the defense witnesses looked at

defense counsel because counsel sent them signals on how to answer questions. This

argument clearly impugned the integrity of defense counsel and was improper.

      The prosecutor had already spent a considerable amount of time attacking the

credibility of the witnesses and problems with their testimony, but the prosecutor then

went on to name defense counsel as the person sending signals to the witnesses. This

was an improper claim regarding the conduct of defense counsel, not the conduct of

the witnesses. Why name defense counsel if the argument goes solely towards the

conduct of the witnesses? It is because the prosecutor was improperly impugning the

integrity of defense counsel. The theme of the prosecutor’s closing argument was to

portray defense counsel as trying to “confuse” the jury, asking the jury to do what it

was “prohibited from doing,” making “misstatements” to the jury, making

“inflammatory statements,” and doing “anything and everything” to change the focus

off the Appellant. (R - v.5 - 32, 49, 53, 65).

      This closing argument by the prosecutor implying defense counsel sent signals

to the witnesses improperly injected harmful facts outside the record and was

designed to arouse the passion of the jury. Such argument is manifestly improper and

                                           7
injected new facts harmful to the Appellant. This argument was at the close of the

guilt-innocence portion of the trial and immediately prior to deliberations, so the

harmful effect could not have been attenuated by argument of defense counsel. This

argument by the prosecutor was not merely mildy inappropriate. Based upon the

above, this Honorable Court should withdraw its opinion of May 20, 2015, hold that

this argument by the state was error, sustain the Appellant’s Point of Error One, and

remand this cause to the trial court for a new trial.

                                      PRAYER

      WHEREFORE, for the reasons stated above and for the reasons stated in the

Brief for the Appellant, this Court should grant the Appellant’s Motion for Rehearing

and upon rehearing, reverse the judgment of the trial judge and remand this cause for

a new trial.

                                        Respectfully submitted,

                                        GROSS & ESPARZA, P.L.L.C.

                                        /s/ Michael C. Gross
                                        Michael C. Gross
                                        State Bar No. 08534480
                                        106 South St. Mary’s Street, Suite 260
                                        San Antonio, Texas 78205
                                        (210) 354-1919
                                        (210) 354-1920 Fax

                                        Attorney for the Appellant,
                                        JOSHUA ORCASITAS


                                           8
                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing was emailed to
Laura Durbin, Assistant District Attorney, on the 4th day of June 2015.


                                        /s/ Michael C. Gross

                       CERTIFICATE OF COMPLIANCE

1.    The brief complies with the type-volume limitation imposed by Rule 9.4(i) of
the Texas Rules of Appellate Procedure because the brief contains 1,701 words
excluding the signature, proof of service, certification, certificate of compliance, and
appendix.

2.     The brief complies with the typeface and the type style requirements of Rule
9.4(e) of the Texas Rules of Appellate Procedure because this brief has been prepared
in a proportionally spaced typeface using WordPerfect 6.1 in 14 point font and Times
New Roman type style.

                                        /s/ Michael C. Gross




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