                                                                               ACCEPTED
                                                                            04-14-00915-cr
                                                               FOURTH COURT OF APPEALS
                                                                    SAN ANTONIO, TEXAS
                                                                      7/22/2015 3:04:30 PM
                                                                            KEITH HOTTLE
                                                                                    CLERK

                 CAUSE NO. 04-14-00915-CR
                IN THE COURT OF APPEALS
            FOURTH COURT OF APPEALS DISTRICT FILED IN
                                          4th COURT OF APPEALS
                   SAN ANTONIO, TEXAS      SAN ANTONIO, TEXAS
                                                  7/22/2015 3:04:30 PM
                                                    KEITH E. HOTTLE
                                                          Clerk

ADAN FLORES
    Appellant

vs.

THE STATE OF TEXAS,
    Appellee



  APPEALED FROM THE 49th DISTRICT COURT OF WEBB COUNTY
            TRIAL COURT NO. 2014-CRS-000311-D1
       HONORABLE MONICA NOTZON, JUDGE PRESIDING



                 APPELLANT’S REPLY BRIEF




                                ARMANDO TREVINO
ORAL ARGUMENT REQUESTED         State Bar No. 20211100
                                1519 Washington St., Suite One
                                Laredo, Texas 78040
                                Tel: (956) 726-1638
                                Email: armandotrevinolaw@gmail.com
                                Attorney for Appellant
                 CAUSE NO. 04-14-00915-CR
                IN THE COURT OF APPEALS
            FOURTH COURT OF APPEALS DISTRICT
                   SAN ANTONIO, TEXAS



ADAN FLORES
    Appellant

vs.

THE STATE OF TEXAS,
    Appellee



  APPEALED FROM THE 49th DISTRICT COURT OF WEBB COUNTY
            TRIAL COURT NO. 2014-CRS-000311-D1
       HONORABLE MONICA NOTZON, JUDGE PRESIDING



                APPELLANT’S REPLY BRIEF




                                ARMANDO TREVINO
ORAL ARGUMENT REQUESTED         State Bar No. 20211100
                                1519 Washington St., Suite One
                                Laredo, Texas 78040
                                Tel: (956) 726-1638
                                Email: armandotrevinolaw@gmail.com
                                Attorney for Appellant




                           ii
                             TABLE OF CONTENTS



I.     Cover Page ………..………………………………………………

II.    Table of Contents ……………………………………..…………..

III.   Index of Authorities ………………………………………………

IV.    Introductory Statement ………………………………………......

V.     Statement Regarding Oral Argument………………..……………

VI.    Argument …………..…………………………………..………..

       Reply Issue Number One . The Court violated Defendant’s right to due
       process and to be heard when the Court granted the State’s motion to amend
       the indictment at an ex parte hearing.

       Reply Issue Number Two. Defendant’s objection to the qualification of
       VERONICA VALDEZ as the outcry witness should have been sustained.

       Reply Issue Number Three. The Trial Court committed reversible error
       when it instructed the jury that Counts I, II, III, IV, and V were first-degree
       felonies.

VII. Prayer ……………………………….……………………………….

VIII. Certificate of Service …………………………………………………

IX.    Certificate Regarding Word Count …………………………………..




                                          iii
                          INDEX OF AUTHORITIES


                                                                           Page(s)

      Cases

Carmell v. Texas, 529 U.S. 513 (2000)……………………………….…                          5

Garza v. State, 129 S.W. 3rd 79 (Tex. Cr. App. 2001) ………………….                5

Jennings v. State, 302 S.W. 3rd 306 (Tex.Cr..App. 2010)………………                3, 4

Nino v. State, 223 S.W. 3rd 749 (Tex.App.-Houston [14th Dist.] 2007, no pet).3, 4

Norris v. State, 788 S.W. 2d 65 (Tex.App.-Dallas 1990, pet, ref’d) ……...     4

Robinett v. State, 383 S.W. 3rd 758 (Tex.App.-Amarillo 2012, no pet.)…… 3, 4

Sanchez v. State, 354 S.W. 3rd 476 (Tex.Cr.App. 2011) …………………... 3, 4

Scott v. State, 227 S.W. 3rd 670 (Tex.Cr.App. 2007) ……………………… 5

Snowden v. State, 353 S.W. 3rd 85 (Tex.Cr.App. 2011) …………………… 5

Young v. State, 137 S.W. 3rd 65 (Tex.Cr.App. 2004) ……………………… 5

      Constitutions, Statutes and Rules

Texas Constitution, Article 1, Section 16…………….. …………………...... 6

U.S. Constitution Article 1, Section 10.1………..……………………………6




                                         iv
                     INDEX OF AUTHORITIES


                                             Page(s)

   Constitutions, Statutes and Rules

Code of Criminal Procedure
     Art. 28.01 (6).…………………………………………………..     3, 4

        28.10 ………………………………………………………           2

        38.07.. ……………………………………………….…….        3, 4

        38.072 ……………………………………………….…….         3, 4

Government Code
     Art. 311.011………………………………………………………        2

        311.016(4) ……………………………………………..……      2

        311.023 ………………………………………………...…….      2

Texas Penal Code
            §12.01 (b)…………………………..………………….……… 5

        §22.011(a) (1)(B)……………………………………………… 5

        §22.011(a) (2)(A) ……………………………………………… 5

        §22.011(a) (2)(C)………………………………………………. 5

        §22.011(a) (2)(E) ……………………………………………… 5

Texas Rules of Appellate Procedure
            33.1 (a)…………………………………………………..……. 5

        44.2(a) ……………………………………………………..…. 5



                                   v
                      CAUSE NO. 04-14-00915-CR
                     IN THE COURT OF APPEALS
                 FOURTH COURT OF APPEALS DISTRICT
                        SAN ANTONIO, TEXAS



ADAN FLORES
    Appellant

vs.

THE STATE OF TEXAS,
    Appellee



                       INTRODUCTORY STATEMENT

TO THE HONORABLE COURT OF APPEALS:

      Comes now Appellant, ADAN FLORES, and files his Reply Brief on three

issues without waiving the other issues in his original Appellant’s Brief. Appellant

had previously filed a timely motion for extension of time to file his Reply Brief.

              STATEMENT REGARDING ORAL ARGUMENT

      Appellee has requested oral argument Appellant requests oral argument in

the event that the Court of Appeals grants Appellee’s request for oral argument.

                      ARGUMENT AND AUTHORITIES




                                                                               Page | 1
      REPLY ISSUE NUMBER ONE. The Court violated Defendant’s right to

due process and to be heard when the Court granted the State’s motion to amend

the indictment at an ex parte hearing.

                             Argument and Authorities

      Notice and an opportunity to be heard are fundamental components of due

process. A statute or rule that is clear and unambiguous must be enforced as

written and is not subject to judicial discretion or interpretation. See Gov’t Code §

311.011, 311.016(4), 311.023.

      The state filed a motion to amend the indictment (CR67-76). Article 28.10

of the Code of Criminal Procedure allows an amendment to an indictment after

notice to the defendant. The Court granted the State’s motion at an ex parte hearing

(CR 86-88) and without notice to Defendant (RR vol. 8 pp 6,7). Defendant’s

conviction and sentence must be set aside because he was tried on an invalid

amended indictment in violation of Art. 28.10 Texas Code of Criminal Procedure.

      REPLY ISSUE NUMBER TWO. Defendant’s objection to the qualification

of VERONICA VALDEZ as to outcry witness should have been sustained.

                             Argument and Authorities

      The State filed a motion to qualify VERONICA VALDEZ as the outcry

witness and Defendant objected (CR 204-208). The Matter was heard in two




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phases, the first one by Judge Lopez on June 25, 2014 (RR Vol. 7), and the second

part by Judge Notzon on September 15, 2014 (RR Vol. 14).

                   THE HEARING BEFORE JUDGE LOPEZ

      ANA was the only witness to testify at the hearing (RR Vol.7 p.3). (1)She

testified that she had been the subject of a video tape interview by VALDEZ, (2)

that prior to the interview she had made outcries to ARTURO (her mother’s

boyfriend, to her aunt JESSICA MORALES (pp. 42, 43, 54) and to her school

counselor Ms. AYALA (pp. 30, 32), as well as to her grandmother (p. 34). Judge

LOPEZ said he did not have to hear from ANA’s mother or from Ms. VALDEZ

and that Ms. VALDEZ was qualified as the outcry witness (pp. 62, 63). The ruling

by Judge LOPEZ will not withstand appellate review because he failed to consider

and rule out the prior outcries made by ANA and his ruling violates the Texas

Code of Criminal Procedure and decisions of the Court of Appeals and other

Courts of Appeal. See Arts. of the Code of Criminal Procedure 28.01(6), 38.07,

38.072; Jennings v. State, 302 S.W. 3rd 306, 311 (Tex.Cr.App. 2010) (all jury

charge errors are cognizable on appeal if the Defendant failed to object); Sanchez

v. State, 354 S.W. 3rd 476, 478 (Tex.Cr.App. 2011) (opportunity to cross-examine

the outcry witness) Robinett v. State, 383 S.W. 3rd 758, 761 (Tex.App.-Amarillo

2012, no pet.) (admissible outcry witness testimony is even-specific); Nino v.

State, 223 S.W. 3rd 749, 752-53 (Tex.App.-Houston [14th Dist.] 2007, no pet.);


                                                                            Page | 3
Norris v. State, 788 S.W. 2d 65 (Tex.App. Dallas 1990, pet. ref’d)( battery of

requirements as a condition to the admission of outcry testimony).

                  THE HEARING BEFORE JUDGE NOTZON

      Without reviewing the transcript of the testimony of ANA at the hearing

before Judge LOPEZ, Judge NOTZON announced at the commencement of her

hearing and at the conclusion that she agreed with the ruling by Judge LOPEZ

holding that VALDEZ was qualified to testify as the outcry witness (Vol. 14 p.

202). Neither the State nor the Court called ANA’s mother, ANA’s aunt, the male

friend of ANA’s mother, or ANA’s grandmother to inquire into the extent of

ANA’s revelations to those witnesses at the outcries that preceded the interview by

VERONICA VALDEZ (RR Vol. 14).               The ruling by Judge NOTZON that

VERONICA VALDEZ was qualified to testify as the outcry witness is legally and

factually incorrect. See Arts. 28.01(6), 38.07, 38.072 of the Code of Criminal

Procedure; Jennings v. State, 306 S.W. 3rd at 311; Sanchez v. State, 354 S.W. 3rd at

478; Robinett v. State, 383 S.W. 3rd at 761-62; Nino v. State, 223 S.W. 3rd at 752-

53; and Norris v. State, 788 S.W. 2d 65.

      The State’s contention that Defendant did not preserve error because he did

not file a motion to suppress is meritless. A review of Defendant’s objections to

VERONICA VALDEZ as the outcry witness makes it clear that Defendant sought

to exclude/suppress her testimony as the outcry witness and that the preserved


                                                                              Page | 4
error. See Rules 33.1(a), 44.2(a) Texas Rules of Appellate Procedure; Young v.

State, 137 S.W. 3rd 65, 69-70 (Tex.Cr.App. 2004) (timely and specific objection);

Garza v. State, 129 S.W. 3rd 79, 84-85 (Tex.Cr.App. 2004) (overruling of a pretrial

motion to suppress; Snowden v. State, 353 S.W. 3rd 815, 821-22 (Tex.Crim.App.

2011) (harmless error inquiry and analysis); Scott v. State, 227 S.W. 3rd 670, 690-

91) (Tex.Cr.App. 2007) (whether the constitutional error was a contributing factor

in the jury’s deliberations in arriving at the verdict).

      REPLY ISSUE NUMBER THREE. The Trial Court committed reversible

error when it instructed the jury that Counts I, II, III, IV, and V were first degree

felonies.

                              Argument and Authorities

      In the jury charge pertaining to guilt or innocence (CR 211) and in the

punishment phase (CR 233-237), the Court instructed the jury that those counts

were first-degree felonies, punishable by confinement of 5 years to life

imprisonment. The offenses allegedly occurred prior to 2009, and were second-

degree felonies. Penal Code §12.01(b) says that Penal laws enacted after the

effective date of the code are to be classified for punishment purposes in

accordance with the laws in effect when the offenses occurred. When the alleged

offenses occurred, they were second-degree felonies punishable by 2 to 20 years

confinement.        See    Penal    code    Secs.   22.01(a)(2)(A),   22.011(a)(1)(B),


                                                                                  Page | 5
22.011(a)(2)(C), 22.011(a)(2)(E); Carmell v. Texas, 529 U.S. 513, 537 (2000) “It

is settled by the decisions of this Court… that any statute which punishes as on act

previously committed …. which makes more burdensome the punishment for a

crime, after its commission … is prohibited as ex post facto.” Because Defendant

was tried, convicted and punished under ex post facto laws and such laws are

prohibited by the Federal and Texas Constitutions, his conviction must be reversed.

See Article 1, Section 10.1 of the United States Constitution and Article 1, section

16 of the Texas Constitution.

      PRAYER. Premises considered, Appellant asks the Court to consider the

Reply Brief in conjunction with his Brief and reverse his conviction or reverse and

remand it to the trial court for a new trial.

                                         Respectfully submitted,

                                           /s/ Armando Treviño
                                         ARMANDO TREVINO
                                         State Bar No. 20211100
                                         1519 Washington St., Suite One
                                         Laredo, Texas 78040
                                         Tel: (956) 726-1638
                                         Email: armandotrevinolaw@gmail.com
                                         Attorney for Appellant




                                                                              Page | 6
                          CERTIFICATE OF SERVICE

      A true copy of the above document was served on the 22nd day of July, 2015,
on David L. Reuthinger, Jr. Assistant District Attorney, Webb County District
Attorney,      via       Prodoc     e-service      electronic      filing      at
dreuthinger@webbcountytx.gov., 1110 Victoria, Suite 401, Laredo, Texas 78040.


                                                /s/ Armando Treviño
                                              ARMANDO TREVINO



                          CERTIFICATE OF COMPLIANCE

         Relying on the word count function in the word processing software used to

produce this document, I certify that the number of words in this Reply Brief

(excluding any caption, identity of parties and counsel, statement regarding oral

argument, table of contents, index of authorities, statement of the case, statement

of issues presented, statement of jurisdiction, statement of procedural history,

signature, proof of service, certification, certificate of compliance and appendix) is

1,321.


                                                /s/ Armando Treviño
                                              ARMANDO TREVINO
                                              Attorney for Appellant




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