                                                                                 ACCEPTED
                                                                             03-14-00578-CR
                                                                                     6527835
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                        8/17/2015 3:29:19 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
                     NO. 03-14-00578-CR


                    COURT OF APPEALS             FILED IN
                                          3rd COURT OF APPEALS
                                              AUSTIN, TEXAS
                       FOR THE            8/19/2015 2:48:19 PM
                                            JEFFREY D. KYLE
                                                  Clerk
            THIRD SUPREME JUDICIAL DISTRICT



                 DANIEL RAYMOND VADNAIS,
                           Appellant

                            VS.


                   THE STATE OF TEXAS,
                          Appellee


                      APPEAL FROM


           THE 22ND JUDICIAL DISTRICT COURT


                   HAYS COUNTY, TEXAS

            TRIAL COURT CAUSE NO. CR-13-0651



                      STATE'S BRIEF



                           Whitney L. Borgman
                           Assistant Criminal District Attorney
                           712 S. Stagecoach Trail, Suite 2057
                           San Marcos, Texas 78666
ORAL ABLGUMENTis           Ph: (512) 393-7600 /Fax: (512) 393-2246
 NOT EEQUEStEQ             state Bar No. 24082224
                           whitney.borgman@co.hays.tx.us
                           Attorney for the State of Texas
                            NAMES OF PARTIES

Appellee:                  State of Texas


Attorneys for the State;   Wesley H. Mau, «County» County District Attorney
      At trial:            Kathleen Magee Arnold, Assistant Attorney General
      On appeal:           Whitney L. Borgman
                           Assistant Criminal District Attorney
                           712 S. Stagecoach Trail, Suite 2057
                           San Marcos, Texas 78666
                           State Bar No. 24082224
                           Attorney for the State of Texas

Appellant:                 Daniel Raymond Vadnais

Attorney for Appellant:
      At trial:            Gerard McDermott, II
                           8140 North Mopac
                           Westpark 4, Suite 250
                           Austin, Texas 78759

      On appeal:           Dal Ruggles
                           1103 Nueces
                           Austin, Texas 78701




                                                                               n
                     TABLE OF CONTENTS

NAMES OF PARTIES                                          H

TABLE OF CONTENTS                                        ffl

INDEX OF AUTHORITIES                                      V

STATEMENT OF THE CASE                                     2
STATEMENT REGARDING ORAL ARGUMENT                         3
ISSUES PRESENTED                                          3
STATEMENT OF FACTS                                        4
SUMMARY OF THE ARGUMENT                                  14
ARGUMENT                                                 16
 STATE'S RESPONSE TO POINT OF ERROR ONE                  16
  THE TRIAL COURT PROPERLY DENIED APPELLANT'S MOTION
  TO DISMISS FOR VIOLATION OF HIS SIXTH AMENDMENT
  RIGHT TO SPEEDY TRIAL.

 STATE'S RESPONSE TO POINT OF ERROR TWO                  25
  APPELLANT WAIVED HIS 404(B) OBJECTION TO EVIDENCE OF
  HIS PRIOR FORGERY CONVICTION BY STIPULATING TO THE
  ADMISSIBILITY AND VERACITY OF THE EVIDENCE.
  THE ERROR, IF ANY, IN ADMITTING THE EXTRANEOUS
  OFFENSE WAS HARMLESS IN LIGHT OF THE LIMITING
  INSTRUCTION PROVIDED  TO  THE   JURY  AND   THE
  OVERWHELMING EVIDENCE OF GUILT PRESENTED BY THE
  STATE.

 STATE'S RESPONSE TO POINT OF ERROR THREE                26
  APPELLANT FAILED TO RAISE A TIMELY 403 OBJECTION TO
  THE ADMISSION OF THE FORGERY CONVICTION AS REQUIRED
  TO PRESERVE ERROR, AND
  APPELLANT DID NOT SUFFER SUBSTANTIAL HARM AS A
  RESULT OF THE ADMISSION OF THE FORGERY CONVICTION.
STATE'S RESPONSE TO POINT OF ERROR FOUR                  33
 THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY'S
  GUILTY VERDICT.

                                                         iii
CONCLUSION                                           36

PRAYER                                               38

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. PROC.,
RULE 9.4                                             38

CERTIFICATE OF SERVICE                               39




                                                     IV
                          INDEX OF AUTHORITIES

FEDERAL CASES


Barker v. Wingo, 407 U.S. 514 (1972)                                   passim

Doggettv. United States, 505 U.S. 647 (1992)                                19

CASES


Brooks V. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)                     33

Bryant v. Texas, 187 S.W.3d 397 (Tex. Crim. App. 2005)                  25, 26

Burton v. State, 805 S.W.2d 564 (Tex. App.—^Dallas 1991, pet.
  refd)                                                                 19, 20
Cantu V. State, 253 S.W.3d 273 (Tex. Crim. App. 2008)                   18, 19
Carruth v. State, 762 S.W.2d 364 (Tex. App.—^Fort Worth 1998,
   no pet.)                                                                28

Cortez V. State, No. 0501-14, 2015 WL 3776495 (Tex. Crim.
   App., June 17, 2015)                                                    34

Dragoo v. State, 96 S.W.3d 308 (Tex. Crim. App. 2003)                   21, 24
Exparte Cathcart, 13 S.W.3d 414 (Tex. Crim. App. 2000)                      18
Gonzales v. State, 435 S.W.3d 801 (Tex. Crim. App. 2014)         16,20, 22, 23
Harris v. State, 827 S.W.2d 949 (Tex. Crim. App. 1992)                  18, 19
Higginbotham v. State, 356 S.W.3d 584 (Tex. App.—^Texarkana
   2011, pet. refd.)                                                       32

Johnson v. State, 932 S.W.2d 296 (Tex. App.—^Austin 1996, pet.
   refd.)                                                           27, 28, 30
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998)                 28, 33
Lane v. State, 933 S.W.2d 504 (Tex. Crim. App. 1996)                       27

                                                                            V
Lott V. State, 951 S.W.2d 489 (Tex. App.—^E1 Paso 1997, reh'g
   denied)                                                                 17

McCarty v. State, 498 S.W.2d 212 (1973)                                    21

Mechlerv. State, 153 S.W.3d435 (Tex. Crim. App. 2005)                      31

Montgomery v. State, 810 S.W.ld 372 (Tex. Crim. App.
  1991)(op. on reh'g)                                           26, 27, 30, 31

Montgomery,S.W.2d at 377                                                   27

Motilla V. State, 78 S.W.3d 352 (Tex. Crim. App. 2002)                     27

Nolen V. State, 872 S.W.2d 807 (Tex. App.—^Fort Worth 1994,
   pet. refd)                                                              31

Reed v. State, 927 S.W.2d 289 (Tex. App.—^Fort Worth 1996, no
   pet.)                                                               25, 30
State V. Munoz, 991 S.W.2d 818 (Tex. Crim. App. 1999)                 passim
State V. Tatom, No. 05-14-01246-CR, 2015 WL 1735964 (Tex.
   App.—Dallas, Apr. 14, 2015)(mem. op., not designated for
   publication)                                                            23

Whitakerv. State, 286 S.W.3d 355 (Tex. Crim. App. 2009)                    27
Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App. 2002)            16, 17, 22

STATUTES

Tex. Pen. Code Ann. § 32.51(West 2011)                                passim
Tex. Penal Code Ann. § 32.21(West 2011)                                27, 30
TEX.R.APP.PROC. Rule 38.2                                                   1

RULES


Tex. Code Crim. Proc., art. 39.14                                      11, 12
Tex. R. Evid., Rule 403                                                15, 28
                                                                           vi
Tex. R. Evid., Rule 404                               passim

Tex.R.App.Proc., Rule 39.1                                 3

Tex.R.App.Proc,, Rule 39.7                                 3

TREATISES


Lafave & Israel, Criminal Procedure § 18.2(b)(1984)       18




                                                         Vll
                             NO. 03-14-00578-CR


                            COURT OF APPEALS


                                  FOR THE


                   THIRD SUPREME JUDICIAL DISTRICT



                      DANIEL RAYMOND VADNAIS,
                                Appellant

                                     VS.


                           THE STATE OF TEXAS,
                                  Appellee


                               APPEAL FROM


                  THE 22ND JUDICIAL DISTRICT COURT


                          HAYS COUNTY, TEXAS

                   TRIAL COURT CAUSE NO. CR-13-0651



                              STATE'S BRIEF



TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW the State of Texas, by and through her Assistant District

Attorney, Whitney L. Borgman, and files this Brief in Opposition to Appellant's

Brief pursuant to Tex. R. App. Proc., Rule 38.2 and would show the Court the

following:

                                                                        Page 1
                          STATEMENT OF THE CASE

      On or about November 25, 2012, Daniel Vadnais ("Appellant") was arrested

for misdemeanor theft in Hays County, Texas. (C.R. 15, 60). Arising out of the same

transaction as the misdemeanor theft, Appellant was indicted by a Grand Jury on

August 7, 2013, for Fraudulent Use or Possession of Identifying Information 10 or

more items but less than 50 items. (C.R. 6, 60). A capias was issued on August 14,

2013, and executed on February 4, 2014, at the State Jail Facility where Appellant

was serving time for an unrelated offense. (C.R. 17, 61). Following Appellant's

arraignment on April 22, 2014, the court held two pre-trial hearings whereby the case

was reset by agreement of the parties as the parties continued plea negotiations. (C.R.

17,61;3R.R. 28-30).

      On August 11, 2014, the trial court denied Appellant's Motion to Dismiss for

Violation of His SixthAmendment Right to SpeedyTrial and both parties announced

ready for trial. (C.R. 114; 3 R.R. 27, 38; 4 R.R. 12). On August 13, 2015, the jury

found Appellant guilty of the offense as alleged in the indictment. (5 R.R. 116).The

court sentenced Appellant to ten years in the Institutional Division of the Texas

Department of Criminal Justice. (5 R.R. 129-130). Appellant filed a notice of appeal

on August 28, 2014, and these proceedings followed. (C.R. 88).




                                                                               Page 2
              STATEMENT REGARDING ORAL ARGUMENT

      Appellant has requested oral argument in this case.       The facts and legal

arguments are adequately presented in the briefs and record, and oral argument

would not aid the decisional process. See Tex. R. App. Proc. 39.1. However, should

the court desire the parties to appear and argue, the State will appear for oral

argument. See Tex. R. App. Proc. 39.7.


                                ISSUES PRESENTED

1.     Did the trial court properly deny Appellant's speedy trial motion when the
       actual length of delay was one year and Appellant wholly failed to present
       evidence of prejudice?

2.    Did Appellant's stipulation to the admissibility of his prior forgery conviction
      waive his 404(b) objection?

3.    Did the admission of the prior forgery create reversible error where a limiting
      instruction was provided to the jury at the time the evidence was published to
      thejury andthe State presented overwhelming evidence of Appellant's guilt?
4.    Did Appellant properly preserve error on his 403 objection to the trial court's
      admission of his prior forgery conviction when Appellant failed to post a
      timely objection?

5.    If the court determines Appellant did in fact preserve error regarding the
      prejudicial nature of the prior forgery conviction, did Appellant suffer
      substantial harm?

6.    Was the evidence sufficient to support the conviction when the State presented
      evidence of a minimum of 13 items of identifying information in Appellant's
      possession without the consent of the owners and expert testimony
      corroborating the number of items identifying information found in
     Appellant's possession?




                                                                              Page 3
                            STATEMENT OF FACTS

   1. Facts ofthe Offense

      On or about November 25, 2012, Deputy Shaun Booth responded to a

residential neighborhood for a reported verbal disturbance. (4 R.R. 22, 134-135,

146). Upon arriving, Booth spoke with neighbor Cathy Bamett, who indicated that

Appellant was causing a disturbance and would not leave the neighborhood. (4 R.R.

23). Booth then observed Appellant across the street, in the driveway of 1011

Swallow Drive, speaking with James Griffin, the homeowner. (4 R.R. 25). Booth

made contact with Appellant, and Appellant denied any verbal altercation, contrary

to the statements made by Bamett moments earlier. (4 R.R. 23-26). Deputy Ronnie

Torres soon arrived, and both Appellant and Griffin were separated so Booth and

Torres couldbetterpursue their investigation. (4 R.R. 27, 135,138, 144).

      While speaking with Griffin, Booth noticed a black, courier-style bag located

in a comer near the garage track that looked out of place. (4 R.R. 29). Griffin

indicated that the bag belonged to Appellant. (4 R.R. 30, 148; State's Ex. 1, 6).

Appellant initially denied ownership of the bag, but admitted ownership after further

questioning by Booth and Torres. Id. While questioning Appellant about the bag.

Booth and Torres observed that Appellant was nervous, vague, evasive, and refiised

to make eye contact. (4 R.R. 31-32, 139-140,142, 166).




                                                                              Page 4
       After Appellant identified the bag as his, Booth asked Appellant multiple

times if they could search the bag. (4 R.R. 32-33; State's Ex. 1). Appellant responded

with inarticulate grunting noises. Id. Eventually, Appellant consented to the bag's

search. (4 R.R. 32-33; State's Ex. 1, 6). After granting consent to search the bag but

prior to the actual search, Appellant identified knives that were subsequently found

inside the bag. (4 R.R. 108-109; 111; State's Ex. 11). After finding a wallet in the bag

with Christopher White's driver's license and verifying that Appellant did not have

permission to have White's wallet, the officers arrested Appellant for theft. '(4 R.R.

65-66; C.R. 15, 60).

       At trial, Deputy Booth testified that Appellant's bag contained various forms

of identifying information, which were subsequently admitted without objection.

(State's Ex. 1-5; 4 R.R. 35- 67). State's Exhibit 2, a manila envelope with all its

contents, contained driver's licenses from Melissa Scintilla, Kenneth Clay, Margaret

Willis, Jacob Shelly, Charles Dodson, Julian Ramon, and White's identification card.

(4 R.R. 39-41). State's Exhibit 2 also contained Amelia Bryant's passport and social

security card, checks belonging to Kelly Dorsey, Douglas Beard, Nathan Eisenburg,

JeffreyIlschner, SteveAldonado, Craig Toole, Austin Miles' immunization card, and

a sticky note containing Misty Lyim's date of birth, name, and address. (4 R.R. 41-

44).




                                                                                Page 5
       Appellant's bag also contained a notebook with a list of naiiies, social security

numbers, dates of birth, addresses, phone numbers, and some driver's license

numbers for fifteen different individuals: Sonia Gamboa, Brian Brown, Julio Ayala,

Calvin Tooley, Jason Allison, David Gomez, Melissa Santilla, Jose Zapata, Jose

Morales, Clay Snodgrass, Francisco Perez, Sunny Rathore, Miguel Angel Sanchez,

Andrea Carrico, and Janet Brown. (4 R.R. 48-53, State's Ex. 3). Appellant's bag also

contained Austin Miles' birth certificate. (4 R.R. 54-55; State's Ex. 3).

       Booth found a series of receipts with Appellant's name on them that further

connected Appellant with the bag. (4 R.R. 55-57; State's Ex. 3). Appellant's "to-do"

list was also found within Appellant's bag: "TxDot; public data; optometrist; storage

unit; Mercedes; lawyer; house; job; collect $; hotel room, file box, locals, superglue,
                                             (


flashlight, whiteout, car insurance, on-line banking,.. .safe deposit box, Bluetooth,

headset, surveillance cameras, PayPal, Bluebird, Greendot, NetSpend." (4 R.R. 60;

State's Ex. 3).

      Appellant's bag also contained a small black book. (4 R.R 62-63; State's Ex.

4). The black book contained another list that said "separate IDs/ socials; fun

background checks, run credit checks, EIN numbers...." (4 R.R.64; State's Ex. 4).
Finally, Appellant's bag contained White's wallet, including his driver's license,

employee ID, and checks. (4 R.R. 65; State's Ex. 5).




                                                                                Page 6
      White did not know Appellant prior to November 25, 2012. (4 R.R. 123).

Appellant did not have White's consent to possess his driver's license, two credit

cards, or employee ID card. (4 R.R. 116; State's Ex. 5). Appellant possessed checks

with White's personal information on them, but the checks were not from White's

bank. (4 R.R. 118-121; State's Ex. 5). Additionally, White examined hotel receipts

that had his information on them, and testified that he had never stayed at the hotels,

nor had he given anyone permission to use his information to stay at the hotels. (4

R.R. 122; State's Ex. 3).

      Clay Snodgrass stated that he did not know Appellant. (4 R.R. 125). Snodgrass

identified his name, address, driver's license number, date of birth, and social

security number found in State's Exhibit 3. (4 R.R. 126-127). Snodgrass further

testified that he had never given Appellant consent to use his name, social security

number, driver's license number, date of birth, or address. Id.

      Janet Brown did not know Appellant and had not given him permission to

have her identifying information. (4 R.R. 128-129). Brown confirmed her name,

address, date of birth, social security number, and phone number as found on State's

Exhibit 3. (4 R.R. 129).

      Sonny Rathore did not know Appellant and Appellant did not have consent to

have his personal identifying information. (4 R.R. 130-132; State's Ex. 3). Rathore

then confirmed that State's Exhibit 3 contained his address, date of birth, phone

                                                                               Page 7
number, and social security number and that the list of information was not in his

handwriting. (4R.R. 131-132).

       Appellant admitted owning the bag containing State's Exhibits 2 through 5,

and Exhibits 7 through 12. (4 R.R. 149, 152, 157-158; State's Exhibit 6).

       Detective Angelo Floiran, who has over seven years of experience

investigating electronic and financial crimes, testified as an expert for the State. (C.R.

22; 5 R.R. 12-15, 18; State's Exs. 1-5, 7-12). From the numerous pieces of

identifying information in Appellant's black bag as well as three USB drives, three

SIM cards, an adapter, a walkie-talkie, and a scanner which Floiran believed was

used to create driver's licenses and social security cards, Floiran attested that this was

a straightforward identity thefl case. {Id; 5 R.R. 19-21, 24, 27-37; State's Exs. 1-12).

Referencing some of the hotel receipts as having Appellant's name on them, Floiran

noted that identify thieves often use other people's information, like White's, to rent

hotel rooms and gain free internet access to maintain anonymity. (5 R.R. 26-27;

State's Ex. 1-5). After reviewing the identification documents found in Appellant's

bag and the police reports prepared by Booth and Torres, Floiran concluded that

Appellant possessed more than 10 and less than 50 pieces of identifying information

and had an absolute intentto commit fraud. (5 R.R. 45; State's Ex. 1-12).




                                                                                  Page 8
                                                                                    I
   2. Appellant's Speedy Trial Motion

       Appellant filed a Motion to Dismiss for Violation of His Sixth Amendment

Right to Speedy Trial on July 26, 2014, at the time of the third pretrial appearance

following the trial court's appointment of counsel to represent Appellant. On August

11, 2014, the trial court heard Appellant's Motion to Dismiss for Violation of His

Sixth Amendment Right to Speedy Trial. (C.R.114; 3 R.R. 21-27). Appellant argued

that the length of the delay should be measured from Appellant's arrest date on the

misdemeanor theft case arising out of the same transaction until the date of trial,

resulting in a delay between sixteen and eighteen months. (3 R.R. 24). Appellant

fiirther argued that his detention in Williamson County for an unrelated criminal

offense between the time that Appellant was arrested for theft on November 25,

2012, and the time between the Appellant's indictment on August 7, 2013, should be

included when calculating the length of the delay. (3 R.R. 24-25, C.R. 10-13, 18).

      Appellant offered no evidence regarding any increased anxiety or impairment

to his trial defense due to the delay. (3 R.R. 21-27, C.R. 10-13). Instead, Appellant

relied solely on the "presumption of prejudice" based on the length of delay. (3 R.R.

25, C.R. 12). Appellant then asked the trial court to dismiss the case. (C.R. 13).

      The State argued that the length of delay should be measured from the date of

the indictment, August 7, 2013, to the date of the trial, August 11, 2014, a delay of

one year. (3 R.R. 23-27). The State explained that the reason for the delay was due to


                                                                                     Page 9
Appellant's incarceration for prior crimes in other counties, and as such, the State

was not responsible for Appellant's custody on offenses that occurred prior to this

crime. (3 R.R. 27, C.R. 18). The State argued that even though a one year delay

between the indictment and the trial is sufficient to trigger a Barker' analysis, the

State was still entitled to a meaningful hearing to provide a justification for the delay

and examine evidence of prejudice offered by the accused. (3 R.R. 27). Additionally,

the State argued that Appellant's^ request for a dismissal, rather than a request.for a

trial setting, weighs against his assertion of his right to speedy trial. (3 R.R. 27, ClR.

13).

   3. Prior Conviction Evidence

       The State filed a notice upon Appellant's Request for Notice of Extraneous

Offenses offered under 404(b) and 609(a) on July 16, 2014. (C.R. 23, 30; 5 R.R.9).

The State's notice identified a conviction for forgery on or about April 21, 2006.

(C.R. 23; 5 R.R. 52-54).'

       The Court held a hearing outside the presence of the jury to determine the

admissibility of Appellant's prior convictions. (5 R.R. 9-10, 51-65). The State argued

that in light of Appellant's initial denial about possessing the bag or knowing the

bag's contents, the forgery conviction shouldbe admissible to show Appellant's state

^Barker v. Wingo, 407 U.S. 514 (1972)
' The State further listed several other convictions for Burglary ofa Habitation, Credit Card Abuse,
and Unauthorized Use of a Motor Vehicle. (5 R.R. 51-54; C.R. 23; State's Ex. 13). The trial court
sustained Appellant's 404(b) objections to the introduction of these charges, and proceeded to
evaluate the probative value of the forgery charge. See id.
                                                                                          Page 10
of mind under 404(b). (5 R.R. 9-10, 51-54). Appellant argued that he had not opened

the door to any 404(b) extraneous offense during his cross-ex^ination and that he
had not asked for a mistake of fact or law instruction in the charge. (5 R.R. 9-10).

The State countered that 404(b) does not require Appellant to "open the door" to the

use of an extraneous offense, it simply requires that the extraneous offense be

"logically relevant to prove some other fact." (5 R.R. 11). The trial court then took
                               I




the issue of the forgery conviction under advisement. (5 R.R. 11, 52).

      After rehearing the issue, the trial court sustained Appellant's objection to the

admission of the prior forgery conviction in part and overruled it in part. (5 R.R. 54).

The trial court ruled that only the conviction and the date would come in for the

limited purpose of intent. (5 R.R. 54). Appellant's trial counsel proceeded to question

the authenticity of the judgment based on an assertion that the State failed to produce

a copy of the judgment during discovery or properly designate a fingerprint expert to

verify the defendant's identity. Following the court's ruling and the argument of the

parties. Appellant's trial counsel announced the following stipulation:

      THE COURT:                   The Discovery Order was signed pursuant to Article
                                   39.14 of the Code of Criminal Procedure, and the
                                   Court did that based on the representation of the
                                   both parties.

      MR. MCDERMOTT:               Judge, I did not, at that time, put on the record that I
                                   did not have a copy.




                                                                                  Page 11
THE COURT:       Right. So at least one of the questions is whether or
                 not the State, comphed with 39.14, under these
                 circumstances.


MR. MCDERMOTT:   Judge, if this-

THE COURT:       Yes.


MR. MCDERMOTT:   If the State is only going to enter the judgment in
                 and that is all they're going to do and the instruction
                 ~ proposed instruction of the Court is given, then
                 we'll have no further objection; let's make this easy.

THE COURT:       And L believe that that is an appropriate position,
                 under the applicable provisions of the Code of
                 Criminal Procedure.


                 Okay. Let's get jury back in here.

MS. ARNOLD:      Okay. Wait. Just really quickly, I'm sorry.

THE COURT:       All right.

MS. ARNOLD:      Are you saying that you are stipulating to this or do
                 you want us to call our expert to prove this up,
                 (indicating)? Because it, before the jury comes back
                 in, if that's the case, then we need to go ahead and
                 get him fingerprinted and I needed to do an oral -

MR. MCDERMOTT:   Let's just ~ let's just stipulate.

THE COURT:       Stipulate to the admissibility.

MR. MCDERMOTT:   And I will stipulate to its voracity.

THE COURT:       All right. I think ~

MS. ARNOLD:      Along with oral instruction that you're going to give
                 the jury ~


                                                               Page 12
      THE COURT:              Correct.


      MS. ARNOLD:             ~ to not consider it ~


      THE COURT:              Along with the oral ~

      MS. ARNOLD:             ~ in terms of character evidence.

      THE COURT:              Correct. As I understand that, that is a tactical
                              decision by the Defense based, in part, on the fact
                              that it's a 2007 conviction.

      MR. MCDERMOTT:          Yes, Judge.

      THE COURT:              All right.

      MR. MCDERMOTT:          It is a tactical decision by the Defense based in part
                              on the arguments presented, the history of this case,
                              and the - the procedural history of this case and
                              history of the trial as it has unfolded.

      THE COURT:              All right. Let's go ahead -

      MR. MCDERMOTT:          Thank you, Judge.

(5 R.R. 64-66)

      {Open court, defendant andjurypresent)

      THE COURT:              The State will call its next witness.

      MS. ARNOLD:             Judge, we have no further witnesses, but we do have
                              additional evidence.

      THE COURT:              All right.

      MS. ARNOLD:             We are proffering 13 into evidence, which has
                              already been shown to the Defense.

      MS. ARNOLD:             And I believe you've stipulated to this?
                                                                           Page 13
       MR. MCDERMOTT;             Judge, we've stipulated to this; therefore, I have no
                                  objection.

       THE COURT:                 All right

       No further objection was raised as to the unfairly prejudicial nature of the

conviction. Id. State's Exhibit 13 documenting Appellant's 2006 forgery conviction

was admitted for the limited purpose of intent and a limiting instruction was read to

the jury. M


                        SUMMARY OF THE ARGUMENT

RESPONSE TO POINT OF ERROR 1: The trial court properly denied

Appellant's speedy trial motion in light of the Barker factors and circumstances of

this particular case. Appellant incorrectly calculated the length of delay to total 16 to

19 months in order to inflate his request for relief The actual length of delay was 12

months and Appellant's incarceration in another county on unrelated criminal

charges justified the delay. The filing of Appellant's motion, less than two months

before trial, his request for outright dismissal rather than an immediate trial, and lack

of prejudice to Appellant weigh in favor of the State. Accordingly, the Court should

affirm the trial court's denial of Appellant's speedy trial motion.

RESPONSE TO POINT OF ERROR 2: The Court need not address Appellant's

second point of error because Appellant conceded the probative value of the prior

forgery conviction by stipulating to the admissibility of the extraneous offense.


                                                                                Page 14
Appellant's stipulation aiid subsequent withdrawal of his 404 (b) objection operates

as a judicial concession that fails to properly preserve error for review. Even if the

court finds that error in the admission of the offense was preserved under Rule

404(b), the limiting instruction provided to the jury lessened any potential prejudice

arising from the introduction of the prior forgery conviction. In light of the

overwhelming evidence supporting the jury's verdict, the error, if any, in admitting

the extraneous offense was harmless.


RESPONSE TO POINT OF ERROR 3: After stipulating to the admissibility of

the extraneous offense. Appellant failed to raise an objection under Rule 403 that the

prior conviction evidence was unfairly prejudicial to Appellant. Even if the objection

was preserved for review, the trial court is not required to announce the balancing test

on the record. Because Appellant did not suffer substantial harm as a result of the

admission of the extraneous offense. Appellant's third claim fails.

RESPONSE TO POINT OF ERROR 4: The evidence was legally sufficient to

convict Appellant for the charged offense. Appellant had numerous forms of

identifying information in his possession at the time of the arrest, including seven

driver's licenses, one passport, one social security card, and an unrelated child's birth

certificate. Further, the State conclusively established a minirmim of 13 items of

identifying information found in his possession at the time of his arrest without the

owner's consent. Based on the witnesses' testimony and a review of State's Exhibits

                                                                                Page 15
1 through 13, a rational factfinder could have found beyond a reasonable doubt that

Appellant possessed more than ten items of identifying information without the

owners' consent.



                                     ARGUMENT

               STATE'S RESPONSE TO POINT OF ERROR ONE
      THE     TRIAL      COURT      PROPERLY         DENIED      APPELLANT'S
      MOTION       TO    DISMISS      FOR     VIOLATION        OF   HIS    SIXTH
      AMENDMENT RIGHT TO SPEEDY TRIAL.

   1. Standard ofReview

      An appellate court reviewing a trial court's ruling on a speedy trial motion

employs a bifurcated standard of review; an abuse of discretion for the trial court's

determination of the facts and a de novo standard for its application of the law.

Zamomno v. State, 84 S.W.3d 643, 648 (Tex. Crim, App. 2002). While a reviewing

court should afford almost total deference to a trial court's determination of the

historical facts that the record supports, in reviewing trial court's decisions on federal

constitutional speedy trial claims, appellate courts may conduct de novo review by

independently weighing and balancing the fourBarker factors. Barker v. Wingo, 407

U.S. 514, 532-3, 92 S.Ct. 2182, 33 L.Ed. 2d 101 (1972); State v. Munoz, 991 S.W.2d

818, 821 (Tex. Crim. App. 1999).

      The Sixth Amendment's plain language limits the applicability of the Speedy

Trial Clause only to an "accused." Gonzales v. State, 435 S.W.3d 801, 808 (Tex.

Crim. App. 2014). Thus, a person who has not been formally accused cannot seek
                                                                                 Page 16
protection from the speedy trial clause, and the State is not required to accuse a

person within any particular period of time. See id.

      A reviewing court must balance four factors when analyzing a trial court's

decision to grant or deny a speedy trial claim: 1) the length of the delay before trial;

2) the reason for the delay; 3) the assertion of the right to a speedy trial; and 4)

whether the defendant suffered prejudice as a result of the delay. Munoz, 991 S.W.2d

at 821(citing Barker, 407 U.S. at 532-3). No single factor is a necessary or sufficient

condition to the finding of a speedy trial violation. Zamorano^ 84 S.W.3d at 648.

      The length of delay is a triggering mechanism for analysis of the other Barker
                                                               f


factors. Munoz, 991 S.W. 2d at 821. A mere passage of time is not prejudicial and

will not result in the denial of speedy trial. Lott v. State, 951 S.W.2d 489, 495 (Tex.

App.—El Paso 1997, reh'g denied)(holding that defendant's failure to raise speedy

trial complaint until 30 years following indictment did not weigh in defendant's

favor). Until there is some delay which is presumptively prejudicial, there is no

necessity for inquiry into the other [Barker] factors that go into the balance. Id.

"Presumptive prejudice" does not necessarily indicate a statistical probability of

prejudice, it simply marks the point at which courts deem the delay unreasonable

enough to trigger the Barker enquiry. Id. While there is no set time element that

triggers the Barker analysis, most Texas courts have held that a delay of one year




                                                                               Page 17
generally triggers a speedy trial analysis. Cantu v. State, 253 S.W.3d 273, 281 (Tex.

Crim. App. 2008).

        Appellant argues that any delay exceeding 8 months is presumptively

prejudicial, and thus triggers a Barker analysis based on the holding in Harris v.

State, 827 S.W.2d 949 (Tex. Crim. App. 1992).^ App. Brf., p. 23. However in Harris,

the Texas Court of Criminal Appeals held that a 13-month delay, while sufficient to

trigger a Barker analysis was not extraordinary given the complexity of the

prosecution's case. Appellant's failure to invoke his constitutional speedy trial right

until the trial setting, and Appellant's failure to present evidence of any particularized

prejudice. Harris, 827 S.W.2d at 956.

    2. Application ofLaw and Facts

            a) The Length of Delay

        One's right to a speedy trial is triggered by a length of delay that must be

presumptively prejudicial. Munoz, 991 S.W. 2d at 821. The length of the delay is

measured fi"om the date the defendant is arrested or formally accused and is

determined on a case by case basis as to whether the delay is sufficient to trigger

further speedy trial analysis. Harris, 827 S.W. 2d at 956. The time period where no

charges are pending should not count against the State for purposes of a speedy trial

analysis. See Exparte Cathcart, 13 S.W.3d 414, 417 (Tex. Crim. App. 2000).

^LaFave &Israel, asecondary source, is the basis for the oft quoted premise that adelay of "eight
months or longer" triggers a speedy trial analysis. See Lafave & Israel, Criminal Procedure §
18.2(b)(1984), e.g., see Harris.
                                                                                       Page 18
         Here, Appellant was fonnally charged on August 7, 2013, when the grand

jury returned the indictment against him. He was never restrained of his liberty for

this specific offense until the capias was served on February 4, 2014. Although a 12-

month delay is sufficient to trigger a speedy trial analysis, most courts have found it

to be considered the minimum amount of time needed to meet the threshold of a

Barker analysis, and not an excessive amount of time that weighs against the state."^

Doggett V. United States, 505 U.S. 647, 651 &. 1, 112 S. Ct. 2686, 2691 fii. 1, 120

L.Ed. 2d (1992); Harris, 827 S.W. 2d at 956; Munoz, 991 S.W. 2d at 821.
                               I

            b) The Reason for the Delay

        It is the State's burden to justify a lengthy delay. Cantu, 253 S.W.3d at 280.

Both the United States Supreme Court and the Texas Criminal Court of Appeals have
                                                                                            .   I




held that a defendant can waive a speedy trial when he is responsible for the delay.

Munoz, 991 S.W.2d at 822 ("delay which is attributable to the defendant may even

constitute a waiver of a speedy trial claim")(citing Barker, 407 U.S. 528-30 (delay

attributable to defendant constitutes waiver of speedy trial).

        Delay that results fi"om Appellant's own actions should weigh heavily against

him and in favor of the State. Munoz, 991 S.W.2d at 822; see also Burton v. State,

805 S.W.2d 564, 572 (Tex. App.—^Dallas 1991, pet. ref d). Furthermore, courts have


^Appellant deducted athree (3) month period at the time oftrial and in Appellant's briefbased on
"the period of time attributable to agreed court resets." App. Brf, p. 23. If the State rehed on this
argument, the length of delay would measure nine (9) months, and thus arguably would fail to
trigger the Barker analysis.
                                                                                           Page 19
held that the right to speedy trial is not violated where Appellant agrees to court

resets and fails to object to continuances that effectively postpone the trial. Burton,

805 S.W.2d at 572. Additionally, good faith plea negotiations, overcrowded dockets,

and the case's complexity make some delays inevitable, and should not weigh

heavily against the state. See Munoz, 991 S.W.2d at 824.

       Here, Appellant was the sole cause for the delay. Although Appellant contends

that the State should be faulted for his slew of criminal activity and punishment

thereafter in Williamson County, the fact that Appellant was confined in another

county for the first six months after the indictment is wholly his fault. This factor

should weigh heavilyagainst Appellant. See Burton, 805 S.W.2d at 564 (holding that

a four year delay resulting firom appellant absconding after being released on bail

pending trial was wholly his fault).

       Furthermore, the record demonstrates the State did not intentionally delay

Appellant's prosecution.^ Appellant was indicted on this felony charge in August of

2013. (C.R. 17, 61). A capias was issued one week after his indictment, and was

executed less than six months later in Williamson County, where Appellant was

sentenced to TDCJ for an offense he committed prior to this offense (C.R. 18, 61).

He was bench warranted back to Hays County on February 4, 2014, immediately

^The Sixth Amendment limits the applicabihty to right ofspeedy trial clause only to the accused
and the State is not required to discover, investigate, and accuse a person within any particular
period of time. See Gonzales, 435 S.W.3d at 809. The State was under no obligation to present
Appellant's charge to the grand jury prior to August 7, 2013, or immediately following the
November 25,2012, arrest.
                                                                                       Page 20
after he finished serving his sentence at TDCJ for an unrelated Burglary of a Building
                                                           (



case. (3 R.R. 23, C.R. 17-18, 61). After receiving appointed counsel in March of

2014, Appellant then sought two (2) agreed court resets before filing his speedy trial

motion less than two months before the trial setting. (4 R.R. 23-25, C.R. 17, 61).

Appellant and the State participated in plea negotiations, and the State and Defense

both announced ready at the first trial setting immediately following the denial of

Appellant's speedy trial motion. (3 R.R. 27-30, 4 R.R. 12). The fact that the State

diligently prosecuted this matter following Appellant's indictment in conjunction

with Appellant's fault in creating the delay should weigh heavily in favor of the

State.


           c) The Assertion of the Right

         The Criminal Court of Appeals has held that the defendant's motivation in

asking for dismissal rather than a prompt trial is clearly relevant, and may sometimes

attenuate the strength of his claim. McCarty v. State, 498 S.W.2d 212, 216 (1973). A

lack of persistence in asserting the right fiirther attenuates a speedy trial claim.

Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). Although one cannot

waive his right to a speedy trial, resting on one's laurels until right before trial to

assert the right is potentially too late. See id.




                                                                              Page 21
       Here, Appellant asked for a dismissal rather than a trial in his motion filed less

than two months before the jury trial setting.^ (C.R. 10-13). Appellant's trial counsel

did not urge his speedy trial motion until August 7, 2014, four days before trial at the

pre-trial hearing. (2 R.R. 7, C.R. 114). A lack of timely demand and Appellant's

motivation for seeking a dismissal indicate that the Appellant did not want a speedy

trial and should weigh strongly against Appellant.

           d) Prejudice Caused bv the Delay

       In Zamarono, the Court identified three interests that the right to speedy trial

was designed to protect: 1) to prevent oppressive pretrial incarceration; 2) to

minimize anxiety and concern of the accused; and 3) to limit the possibility that the

defense will be impaired. Zamorano, 84 S.W.3d at 652. The Criminal Court of

Appeals has highlighted the last interest as the most crucial since the defendant must

be provided the opportunity to "adequately prepare his defense." Gonzales v. State,

435 S.W. 3d at 812(citing Barker, 407 U.S. at 532, 92 S.Ct. 2182). Ordinarily, the

defendant must make some showing of prejudice, although a showing of actual

prejudice is not required. Munoz, 991 S.W.2d at 826.

       Appellant compares his case to Gonzales v. State, in which the Court held that

the defendant's right to a speedy trial was violated after finding a six year delay


^ Despite Appellant's argument that he timely asserted his speedy trial motion after retaining
counsel, the record clearly indicates that the speedy trial motion was filed three months after the
appointment of counsel and afterAppellant had agreed to three resets without objection on April 22,
2014, May 22, 2014, and June 26, 2014. App. Brf., p. 20,25; (C.R. 17, 61).
                                                                                         Page 22
between appellant's indictment and arrest where the State failed to provide any

explanation for the delay after the defendant timely asserted his right to a speedy

trial. Gonzales, 435 S.W. 3d at 809. Appellant misinterprets the Gonzales language

and holding. While addressing the issue of prejudice, the Gonzales court was

specifically examining the role,that an excessive delay plays in the impairment of a

defendant's ability to present a defense. Id. The Court held that "in certain instances,

the lensth of delay may be so excessive that it presumptively compromises the

reliability of a trial in ways that neitherparty can prove or identify."Only then "in

such instances, the defendant is absolved fi"om the requirement to demonstrate

prejudice." Id. Gonzales does not purport to establish new law, it merely applies the

law to cases of excessive delay. See State v. Tatom, No. 05-14-01246-CR, 2015 WL

1735964 at 6 (Tex. App.—Dallas, Apr. 14, 2015)(mem. op., not designated for

publication). Where the court fails to find excessive delay, there is no basis for a

court to presume prejudice. Id.

       Here, there was a delay of a year between the indictment and Appellant's trial.

(C.R. 17, 61). Appellant offered no evidence as to any anxiety or concern. Nor did he

offer any evidence that his defense was impaired due to the passage of time. (C.R.

10-13, 18, 60-61; 3 R.R. 21-27). Rather, Appellant now seeks to argue that his

defense was impaired based on a mere reading of the record.^ An appellate court


^App. Brf., p.26.
                                                                               Page 23
reviewing a trial court's ruling on a motion to dismiss for want of speedy trial must

do so in light of the evidence offered to the trial court at the time it mled. Dragoo, 96

S.W. 3d at 313. Therefore, this Court should not consider Appellant's argument as to

whether Appellant suffered any prejudice as a result of the one year delay between

the time Appellant was indicted until the trial. (3 R.R. 21-27).

      Based on the Barker factors, the trial court properly denied Appellant's

Motion to Dismiss for Violation of his Sixth Amendment Right to a Speedy Trial,

and this Court should uphold the trial court's ruling. The actual length of the delay,

the lack of negligence by the State in prosecuting this case, and the fact that the State
        i


presented a justifiable reason for the delay should weigh in favor of the State. The

delay in Appellant's case was not extraordinary, and thus Appellant's claim was

rightfully denied as there was no showing of prejudice. Appellant's first claim fails.




                                                                                Page 24
              STATE'S RESPONSE TO POINT OF ERROR TWO
      APPELLANT WAIVED HIS 404(B) OBJECTION TO EVIDENCE
      OF HIS PRIOR FORGERY CONVICTION BY STIPULATING TO
      THE ADMISSIBILITY AND VERACITY OF THE EVIDENCE. THE
      ERROR, IF ANY, IN ADMITTING THE EXTRANEOUS OFFENSE
      FOR     WAS      HARMLESS         IN    LIGHT     OF    THE     LIMITING
      INSTRUCTION          PROVIDED          TO   THE     JURY      AND     THE
      OVERWHELMING EVIDENCE OF GUILT PRESENTED BY THE
      STATE.

   1. Appellant waived any 404(b) objection to the admission of the priorforgery
      offense by stipulating to the admissibility and veracity ofthe conviction.

          a) Standard of Review

      This Court need not address Appellant's second or third point of error as it was

waived by his stipulation to the forgery conviction and failure to properly preserve

the error for review. To preserve an issue for appeal, a party must have presented a

timely objection, or motion that states the specific grounds for a desired ruling if they

are not apparent from the context of the objection o^ motion. Reed v. State, 927

S.W.2d289, 291 (Tex. App.—^Fort Worth 1996, no pet.). If a party fails to object, the

error is not preserved, and the complaint is waived. Id. An objection must be specific,

and the objection preserves only the specific grounds cited. Id.

      A stipulation is tantamount to a judicial admission, which has the effect of

withdrawing a fact from issue and dispensing wholly with the need for proof of the

fact. See Bryant v. Texas, 187 S.W.3d 397, 399 (Tex. Crim. App. 2005). By entering

into a stipulation, a party waives the right to put the government to its proof of that



                                                                                Page 25
element, and he cannot complain on appeal that the State failed to prove an element

to which he judicially confessed. See id at 402.

          b) Application of Law and Facts

       Although Appellant initially objected to the admission of the forgery offense,

Appellant's attorney eventually stipulated to the conviction's admissibility in light of

the court's proposed limiting instruction. (5 R.R. 64-67; State's Ex. 13). At the time

the State offered State's Exhibit 13 into evidence. Appellant's trial counsel responded

that Appellant had no objection. Id. Thus, Appellant's stipulation to the forgery

offense forfeits his 404(b) objection. Because Appellant stipulated to both the

conviction's admissibility during the 404(b) conference as well as the judgment's

authenticity. Appellant has failed to properly preserve this issue.

   2. The error, ifany, in admitting the extraneous offensefor the limitedpurpose
      ofintent was harmless in light ofthe limitinginstructionprovided to thejury
      and the overwhelming evidence ofguiltpresented by the State.

          a) Standard of Review

      Should this Court choose to address Appellant's second point of error, the

standard of review for the trial court's admission of an extraneous offense is an abuse

of discretion. See Montgomery v. State, 810 S!W.2d 372, 391 (Tex. Crim. App.

1991)(op. on reh'g). Extraneous offenses may be admissible to show motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident or to rebut defensive theories raised by a defendant in opening statement or


                                                                               Page 26
during cross-examination of a State's witness. Montgomery, 810 S.W.2d at 387. A

trial court is given wide latitude to admit or exclude extraneous offenses. Id at 390.

       A trial court does not abuse its discretion to admit an extraneous offense if its

decision falls within the "zone of reasonable disagreement." See Johnson v. State,

932 S.W.2d 296, 301 (Tex. App.—Austin 1996, pet. refd.) A trial court's ruling is

generally within the zone of reasonable disagreement if the evidence shows that: 1)

an extraneous offense is relevant to a material, noncharacter conformity issue, and

2) the probative value of that evidence is not substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury.

Montgomery, 810 S.W.2d at 377. Whenever the extraneous offense is substantially

similar to the charged offense, there is always a potential that the jury may be

unfairly prejudiced by the offender's character conformity. Lane v. State, 933 S.W.2d

504, 520 (Tex. Crim. App. 1996). However, any impermissible inference of character

conformity can be minimized through a limiting instruction. See id. (citing

Montgomery, 810 S.W.2d at 391).

      Overwhelming evidence of guilt is a relevant factor in any Rule 44.2(b) harm

analysis. Motilla v. State, 78 S.W.3d 352, 356-57 (Tex. Crim. App. 2002); See also,

e.g., Whitaker v. State, 286 S.W.3d 355, 363-64 (Tex. Crim. App. 2009). A criminal

conviction should notbe overturned for non-constitutional error if the appellate court,

after examining the record as a whole, has fair assurance that the error did not


                                                                               Page 27
influence the jury, or had but a slight effect on the verdict. See Johnson v. State, 967

S.W.2d 410,417 (Tex. Crim. App. 1998).

             b) Application of Law to Facts

          To the extent Appellant's objection was not waived following his stipulation to

the admissibility of the extraneous offense, the trial court deemed the prior forgery

conviction as having probative value for the limited purpose of intent.^ If the Court

deems the admission of the prior forgery conviction as error. Appellant was not

harmed by the admission of the offense. Prior to the conviction's publication to the

jury, the trial court provided a limiting instruction to the jury that the forgery

conviction could solely be considered for the purpose of intent. (5 R.R. 54, 65-67;

State's Exhibit 13). The limiting instruction mitigated any potential prejudicial effect

or harm resulting fi:om the admission of the extraneous offense. Johnson, 932 S.W.2d

at 303.


        Even if the Court determines that the limiting instruction was insufficient to

mitigate any potential harm resulting from the admission of the extraneous offense,

the record as a whole shows overwhelming evidence of Appellant's guilt. Appellant


^The element of intent is by nature material to the State securing a conviction against Appellant.
See Johnson, 932 S.W.2d at 301. An extraneous offense is admissible to prove intent if the
required intent cannot be inferred from the act itself, or if the accused presents evidence to rebut
the inference of intent. See id at 302. Unless the record clearly reveals a different result is
appropriate, we must defer to the factfmder's determination. See Carruth v. State, 762 S.W.2d
364, 367 (Tex. App.—^Fort Worth 1998, no pet.)(holding evidence of extraneous offenses of
forgery and theft admissible to rebut defensive theory that no intent to defraud by forgery
existed).
                                                                                          Page 28
admitted ownership of the bag and identified knives that were ultimately discovered

in the bag prior to the officers' search. Further, the bag's contents included hotel

receipts and emails in Appellant's name. (4 R.R. 108-109, 111-112; 5 R.R. 41). The

State introduced seven individual driver's licenses found in Appellant's possession, a

passport and social security card for an eighth individual, a birth certificate and

medical immunization record for a ninth individual with no known connection to

Appellant, and a listing of 15 different individual names with their corresponding

dates of birth, addresses, and social security numbers. (4 R.R. 39-55; State's Ex. 2, 3,

4).

      Witness testimony fi-om White, Snodgrass, Brown, and Rathore all confirmed

that Appellant did not have consent to possess their specific items of personal

identification. (4 R.R. 117-132; State's Ex. 3). Appellant's bag contained three USB

devices, three SIM cards, a Magic Wand scanner, two disks, and adapter plugs,

which Det. Floiran, an expert in financial crimes and fraud investigations, testified

are commonly found in identity fraud cases. (5 R.R. 39). Based on Det. Floiran's

expert opinion. Appellant knowingly possessed over 10 items of others' identifying

information with the intentionto defraud those individual owners. (5 R.R. 45).

      The trial court's admission of Appellant's prior criminal conviction was within

the zone of reasonable disagreement, and thus not an abuse of discretion. Even

assuming the decision to admit the evidence was improper. Appellant did not suffer

                                                                               Page 29
injury or substantial harm as a result that warrants a reversal of his criminal

conviction.



                 STATE'S RESPONSE TO POINT OF ERROR THREE
       APPELLANT FAILED TO RAISE A TIMELY 403 OBJECTION TO
       THE ADMISSION OF THE FORGERY CONVICTION AS
       REQUIRED TO PRESERVE ERROR, AND APPELLANT DID NOT
       SUFFER SUBSTANTIAL HARM AS A RESULT                                      OF    THE
       ADMISSION OF THE FORGERY CONVICTION.

    1. Appellant failed to raise a timely 403 objection to the admission of the
       forgery conviction as required to preserve error.

               a) Standard ofReview

       Once a trial court resolves a Rule 404(b) challenge to the admission of

evidence of a prior bad act by finding that the extraneous offense is relevant to a
         • (



material, non-character conformity issue, the opponent of the evidence is required to

further object under Rule 403^ in order to preserve error on appeal. Montgomery, 810

S.W.3d at 388; Johnson, 932 S.W.2d at 303. A party who fails to timely object fails

to preserve error and waives complaint on appeal. Reed, 927 S.W.2d at 291.

       If a Rule 403 objection is made challenging the admission of the extraneous

offense evidence, the court must conduct a balancing test to determine if the

probative value of the evidence is substantially outweighed by the prejudicial effect

that the information will have on finder of fact. Johnson, S.W.2d at 303. When



^"The court may exclude relevant evidence ifits probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading thejury,
undue delay, or needlesslypresenting cumulative evidence." Tex. R. Evid. 403.
                                                                                         Page 30
conducting a 403 analysis, the court looks at four factors: 1) the probative value of

the evidence; 2) the potential to impress the jury in some irrational yet indelible way;

3) the time needed to develop the evidence; and 4) the proponent's need for the

evidence. Mechler v. State, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Rule 403

favors the admissibility of relevant evidence and there is a presumption that relevant

evidence will be more probative than prejudicial. Montgomery, 810 S.W.2d at 389.

            b) Application of Law and Facts

        After conceding admissibility of the evidence under Rule 404(b),Appellant

did not object under Rule 403 to properly preserve error for review.Montgomery,

810 S.W.2d at 395. Because Appellant failed to raise a contemporaneous objection to

the unfairly prejudicial nature of the prior conviction after the trial court ruled that the

evidence was admissible under Rule 404(b), Appellant has forfeited Appellate review

of this point. Id.

       Even if the Court determines Appellant sufficiently objected to the

admissibility of the prior conviction, the forgery conviction was deemed probative

only for the limited purpose of intent. Appellant's counsel made the tactical decision


  See STATE'S RESPONSE TO POINT OF ERROR TWO, above.
  Appellant asserts that "the record reflects that the trial courtdid not conduct a Rule 403 balancing
test." App. Brf., p. 33. However, there is no requirement that the trial coxirt announce for the record
that it has conducted a balancing test in its own mind. Nolen v. State, 872 S.W.2d 807, 812 (Tex.
App.—^Fort Worth 1994, pet. refd). The fact that a trial judge made a proper balancing test can be
implied from the record of a court proceeding. Nolen, 872 S.W.2d at 812. Furthermore, the trial
court's decision to sustain defense counsel's objection to the introduction of Appellant's prior
convictions for Burglary of Habitation, Credit Card Abuse, and Unauthorized Use of a Motor
Vehiclesupportan inference that the trial court conducted a 403 balancingtest.
                                                                                             Page 31
to stipulate to the admissibility of this prior bads act arguably based on trial counsel's

belief that the 2006 conviction would fail to impress the jury in an indelible or

inflammatory manner. Because Appellant failed to raise an objection as to the

prejudicial nature of the charge, Appellant has waived this issue for review on appeal.

   2. The admission of,the priorforgery offense did not cause Appellant to suffer
      substantial harm.

          a) Standard of Review

      Error in admitting evidence concerning extraneous offenses is reviewed

under the standard for nonconstitutional error set forth in Rule 44.2(b), Tex. R.

App. P. Higginbotham v. State, 356 S.W.3d 584, 592 (Tex. App.—^Texarkana

2011, pet. ref d.). Any nonconstitutional error that does not affect a substantial right

must be disregarded as a harmless error. See id. If, on the record as a whole, it

appears the error did not influence the jury, or had but a slight effect, a reviewing

court must conclude the error was not harmful and allow the conviction to stand. Id.

          b) Application of Law and Facts

      If the Court finds that the prior forgery conviction was improperly admitted

despite Appellant's stipulation and failure to object under Rule 403, the error would

be harmless.Not only was a limiting instruction provided to the jury prior to the

publication of the evidence, but the State presented overwhelming evidence of the

Appellant's guilt. If the Court, after a review of the record as a whole, has fair

  See STATE'S RESPONSE TO POINT OF ERROR TWO, above, for a complete harm analysis
regarding the trial court's error, if any, in admitting the extraneous offense.
                                                                                Page 32
assurance that the admission of extraneous offense did not have a substantial and

injurious effect or influence in determining the jury's verdict, the Court may not

reverse based on an abuse of discretion. See Johnson, 967 S.W.2d at 417.


             STATE'S RESPONSE TO POINT OF ERROR FOUR
      THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY'S
      GUILTY VERDICT.

   1. The evidence was sufficient to support thejury's guilty verdict

          a) Standard of Review

      In reviewing a challenge to the legal sufficiency of the evidence, the appellate

court examines the evidence to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Brooks

V. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Courts review all the

evidence in the light most favorable to the verdict and assume the trier of fact

resolved conflicts in the testimony, weighed the evidence, and drew reasonable

inferences in a manner that supports the verdict. See id.

      A person commits the offense of Fraudulent Possession of Identifying

Information More than 10 but Less than 50 Items "if the person, with the intent to

harm or defi"aud another, obtains, possesses, transfers, or uses an item of identifying

information of another person without the other person's consent." Tex. Pen. Code.

32.51(b)(l)(West 2011). Identifying information is defined as "information that alone

or in conjunction with other information identifies a person, including a persons:

                                                                              Page 33
name, date of birth, unique biometric data, including the person's fingerprint, voice

print, or retina or iris image; unique electronic identification number, address, routing

code, or financial institution account number, telecommunication identifying

information or access device; and social security number or other government-issued

identification number." Tex. Pen. Code 32.51(a)(West 2011).

         In Cortez v. State, the Texas Court of Criminal Appeals held that an "item of

identifying information" as any single piece of personal identifying information

enumerated in the definition of "identifying information" that alone or in conjunction

with other information identifies a person, as opposed to a thing that may contain a

group of pieces of information identifying a person, such as a license, credit card, or

document." Cortez v. State, No. 0501-14, 2015 WL 3776495 at 4-5 (Tex. Crim.

App., June 17, 2015). Under the Court's interpretation of the statute, a defendant can

possess an "item of identifying information" regardless of the physical form in which

that information is possessed. Id at 7. Further, a single document or tangible thing can

contain multiple "items of identifying information." Id. An actor is "presumed to

have the intent to harm or defraud another if the actor possesses: the identifying

information of three or more other persons." Tex. Pen. Code. 32.51(b)(l)(West

2011).




                                                                                Page 34
            b) Application of Law and Facts

        In this case, the evidence was overwhelming that the Appellant possessed

more than ten items of identifying information.'^ Witness testimony and the State's

exhibits corroborated that the checks, driver's licenses, social security numbers, birth

certificates, addresses, dates of birth, and names found within Appellant's bag

amounted to well over ten items of identifying information. Reviewing the evidence

in the light most favorable to the verdict, the State introduced seven individual driver

licenses found in Appellant's possession, a passport and social security card for an

eighth individual, checks in the name of six additional individuals, a birih certificate

and medical immunization record for a ninth individual with no known connection to

Appellant, and a listing of 15 different individual names with their corresponding

date of birth, addresses, and social security numbers. (4 R.R. 39-55; State's Ex. 2, 3,

4).

        Appellant concedes that if an accused possessed a driver's license, for

example, he would be in possession of three items of identifying information,

specifically the person's name and date of birth, address, and driver's license number.

See App. Brf., p. 38. Even if the Court were to rely exclusively on the items that

  In arguingthat the evidence is legallyinsufficient to supportAppellant's conviction for fraudulent
use or possession of identifying information 10 or more items but less than 50 items, Appellant
challenges the number of actual items of identifying information presented by the state, but fails to
contest the sufficiency of the evidence as to intent or that Appellant had the consent of the
complainant's to possess the items of identifying information. App. Brf, p. 37-42. But see also the
discussion of the overwhelming evidence of guilt vis a vis harmless error relating to Point of Error
Three, at p. 31.
                                                                                           Page 35
belonged to White, Snodgrass, Brown, and Rathore, the State would have admitted

evidence that Appellant possessed at least 13 items of identifying information

obtained without the owner's consent.'"* (4 R.R. 118-119, 125-131; State's Exhibit 3,

4,5).

        Detective Floiran corroborated the physical evidence produced by the State

and testified that Appellant possessed more than 10 items of identifying information,

but less than 50. The jury could also presume that because Appellant had more than

three identifying items, he had the intent to harm or defraud another as set forth

Texas Penal Code § 32.51. Because the evidence is legally sufficient to support the

jury's determination of Appellant's guilt beyond a reasonable doubt. Appellant's

fourth point of error should be overruled.


                                         CONCLUSION

        Appellant's constitutional right to speedy trial was not violated as a result of

the 12 month delay between the indictment and the trial. The State diligently

prosecuted this case and six months of the delay is solely attributable to Appellant as

a result of his incarceration an unrelated offense. Appellant's failure to put forth any



  The State calculates the items of identifying information in Ught of the Texas Criminal Court of
Appeals holding in Cortez. See Cortez, No. 0501-14, 2015 WL 3776495 at 5-8. The items of
identifying information include three from White's recovered driver's license, (name and date of
birth, address, and driver's license number), four items belonging to Snodgrass (name and date of
birth, address, driver's license number, and social security number), three from Brown (name and
date of birth, address, and social security number), and three belonging to Rathore (name and date
of birth, address, and social security number.)
                                                                                        Page 36
evidence of prejudice, request for an outright dismissal of the case, and the State's
                                                                 \


justifiable explanation as to the nature of the delay weigh in favor of the State in the

context of a Barker analysis.

       Appellant failed to properly preserve error to challenge the admissibility of the

prior forgery offense both as improper character evidence and as unfairly prejudicial

to Appellant. Therefore, the Court is precluded from examining Appellant's points of

error two and three.


       Finally, the evidence before the court was legally sufficient to support the

jury's verdict as the State presented evidence of a minimum of 13 items of

identifying information possessed by Appellant without the consent of the owner.

The State presented both expert testimony as well as circumstantial evidence to prove

the element of intent beyond a reasonable doubt. Accordingly, this appeal should be

denied in toto.




                                                                               Page 37
                                       PRAYER

       Wherefore, premises considered, the State respectfully prays that the Court

overrule Appellant's issues, AFFIRM the trial court's judgment of GUILT, including

affirmation of the punishment.

                                         Respectfully submitted,




                                         Whitney L, Borgma
                                         Assistant CriminarDistrict Attbhiey
                                         712 S. Stagecoach Trail, Suite 2057
                                         San Marcos, Texas 78666
                                         State Bar No. 24082224
                                         whitney.borgman@co.hays.tx.us
                                         Attorney for the State of Texas


               CERTIFICATE OF COMPLIANCE WITH TEX. R.
                         APR PROC.. RULE 9.4

       I certify that this brief contains 8.839 words, exclusive of the 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.




                                         Whitney L.
                                         Whitney      Bpl^man         (j
                                         Assistant Criminal Districti^ttomey


                                                                                 Page 38
                          CERTIFICATE OF SERVICE

      I certify that a true copy of the foregoing brief has been e-delivered to:

Dal Ruggles
1103 Nueces
Austin, Texas 78701
on this the 17^^ day ofAugust, 2015.


                                        Whitney L. Bo,i^an
                                        Assistant Criminal District Attorney




                                                                                   Page 39
