                                                                                 ACCEPTED
                                                                            03-14-00180-CR
                                                                                   4230772
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                       2/20/2015 1:41:28 PM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK




                   No. 03-14-0180-CR
                             00180                          FILED IN
                                                     3rd COURT OF APPEALS
                                                         AUSTIN, TEXAS
In The Court Of Appeals for the Third District,   Austin,  Texas
                                                     2/20/2015 1:41:28 PM
                                                       JEFFREY D. KYLE
                                                             Clerk
                   Curtis Wayne Adams,
                         Appellant
                            vs.
                    The State Of Texas,
                          Appellee


Appeal from the 299th District Court of Travis County, Texas
             Cause Number D-1-DC-11-904084


                       State’s Brief


                                   Rosemary Lehmberg
                                   District Attorney
                                   Travis County, Texas

                                   Rosa Theofanis
                                   Texas Bar No. 24037591
                                   Assistant District Attorney
                                   District Attorney’s Office
                                   P.O. Box 1748
                                   Austin, Texas 78767
                                   Phone: 512.854.9400
                                   Fax: 512.854.9695
                                   Email:Rosa.Theofanis@traviscountytx.gov
                                   AppellateTCDA @traviscountytx.gov

       Oral Argument Not Requested
         Identity of Parties and Counsel


         In accordance with Texas Rule of Appellate
   Procedure 38.2(a)(1)(A), the State supplements
   the Identity of Parties and Counsel set out in the
   appellant’s brief as follows:

Appellate            Ms. Rosemary Lehmberg
Prosecutors          Travis County District Attorney
                     P.O. Box 1748
                     Austin, TX 78767

                     Rosa Theofanis
                     Assistant District Attorney
                     Travis County District Attorney
                     P.O. Box 1748
                     Austin, TX 78767




                            i
                                               Table of Contents

Identity of Parties and Counsel ......................................................... i	  
Index of Authorities ............................................................................ iii	  
Statement of the Case .......................................................................... 2	  
Statement Regarding Oral Argument ............................................. 3	  
Statement of Facts ................................................................................ 4	  
Summary of the Argument .................................................................. 7	  
State’s Reply to the Appellant’s First Point of Error ................ 9
  I. The trial court did not err in exercising its discretion to exclude the
  appellant’s witness’s testimony. ............................................. 11
  II. The appellant was afforded due process for an insanity defense. .. 17	  
  III. The appellant’s remaining constitutional arguments are
  inadequately briefed. ............................................................................. 20	  
  IV. Even if the trial court erred in excluding the testimony of Philip
  Baker, any error was harmless. ............................................................ 23	  
State’s Reply to the Appellant’s Second Point of Error .......... 28
  I. Despite the fact that the State did not file Exhibit 31 with the clerk
  of the court 14 days prior to trial, the exhibit was properly
  authenticated. ........................................................................................ 29	  
  II. Even if admission of Exhibit 31 was erroneous, the error was
  harmless. ................................................................................................ 36	  
State’s Response to the Appellant’s Third Point of Error ...... 41	  
  I. The prosecutor’s jury argument was not improper. ......................... 42	  
  II. Even if the prosecutor’s argument was improper, an instruction to
  disregard was sufficient to cure any prejudice..................................... 46	  
Prayer ...................................................................................................... 48	  
Certificate of Compliance .................................................................. 50	  
Certificate of Service .......................................................................... 50	  


                                                        ii
                              Index of Authorities


CASES

Ake v. Oklahoma, 740 U.S. 68 (1985) ................................................ 17, 18

Anderson v. State, 717 S.W. 2d 622 (Tex. Crim. App. 1986) .................. 38

Baker v. State, 682 S.W.2d 701 (Tex. Crim. App. 1986) ......................... 15

Bigby v. State, 892 S.W. 2d 864 (Tex. Crim. App. 1994) ........................ 15

Borjan v. State, 787 S.W. 2d 53 (Tex. Crim. App. 1990)......................... 42

Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997) ........................ 45

Coble v. State, 330 S.W. 3d 253 (Tex. Crim. App. 2010)......................... 36

Cooks v. State, 844 S.W. 2d 697 (Tex. Crim. App. 1992) ........................ 47

De Freece v. State, 848 S.W.2d 150 (Tex. Crim. App. 1993) ............ 17, 18

Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App. 2004)............... 21, 40

Harris v. State, No. 03-97-00384-CR,1998 WL 546179 (Tex. App.—

  Austin Aug. 31, 1998) (not designated for publication) ....................... 32

Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) ...................... 46

Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim. App. 1991). ....... 42

Johnson v. State, 604 S.W. 2d 128 (Tex. Crim. App. 1980) (panel op.).. 45

Johnson v. State, 967 S.W. 2d 410 (Tex. Crim. App. 1998) ........ 24, 36, 37
                                            iii
King v. State, 953 S.W. 2d 266 (Tex. Crim. App. 1997) .............. 24, 26, 37

Kotteakos v. United States, 328 U.S. 750 (1945) ........................ 24, 26, 36

Ladd v. State, 3 S.W. 3d 547 (Tex. Crim. App. 1999), cert. denied, 529

  U.S. 1070 (2000) ..................................................................................... 47

Long v. State, 823 S.W.2d 259 (Tex. Crim. App. 1991)........................... 42

Modden v. State, 721 S.W. 2d 859 (Tex. Crim. App. 1986)..................... 44

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ..................

  .............................................................................................. 11, 29, 35, 41

Morgan v. State, 869 S.W.2d 388 (Tex. App.—Tyler 1993, pet. ref’d) ... 15

Pacheco v. State, 757 S.W. 2d 729 (Tex. Crim. App. 1988). ................... 14

Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002). .............. 23, 25, 26

Reed v. State, 811 S.W. 2d 582 (Tex. Crim. App. 1991).......................... 33

Reyna v. State, 168 S.W. 3d 173 (Tex. Crim. App. 2005) ....................... 31

Thrift v. State, 176 S.W.3d 221 (Tex. Crim. App. 2005) ......................... 48

United States v. Jimenez Lopez, 873 F.2d 769 (5th Cir. 1989) .............. 33

United States v. Scheffer, 523 U.S. 303 (1998) ....................................... 25

Wead v. State, 129 S.W.3d 126 (Tex. Crim. App. 2004) ......................... 41

Winegarner v. State, 235 S.W.3d 787 (Tex. Crim. App. 2007) ............... 35


                                                     iv
STATUTES

TEX. CODE. CRIM. PROC. art. 37.07. .......................................................... 44

TEX. PENAL CODE § 8.01 ............................................................................ 12

TEX. R. APP. PROC. 38.1. ...................................................................... 21, 40

TEX. R. APP. PROC. 44.2(a) ........................................................................ 24

Tex. R. App. Proc. 44.2(a)–(b) ................................................................... 23

TEX. R. EVID. 401 ....................................................................................... 12

TEX. R. EVID. 901(b)(1) .............................................................................. 35

TEX. R. EVID. 902(10) ................................................................................ 34

TEX. R. EVID. 902(10), 61 TEX B.J. 374 (1998) (current version at TEX.

  R. EVID. 902(10)) .................................................................................... 30




                                                     v
                     No. 03-14-0180-CR
                    In the Court Of Appeals
                         Third District
                         Austin, Texas


                     Curtis Wayne Adams,
                           Appellant

                               vs.

                      The State of Texas,
                           Appellee


             Appeal from the 299th District Court
                    Travis County, Texas
              Cause Number D-1-DC-11-904084


                          State’s Brief


To the Honorable Court of Appeals:

      The State of Texas, by and through the District Attorney
for Travis County, respectfully submits this brief in response to
that of the appellant.




                              1
                      Statement of the Case

Nature of     The appellant was charged with one count of Aggravated
the Case      Assault-Bodily Injury with a Deadly Weapon. CR 7.

Trial Court   The Honorable Karen Sage, Wilford Flowers, and Bob
              Perkins, Judges, presiding 299th Judicial District of Travis
              County, Texas. Cause No. D-1-DC-11-904084. 1 RR 1.

Course of   On November 3, 2011, the grand jury for Travis County
Proceedings indicted the appellant for aggravated assault with a deadly
            weapon. CR 7. The indictment also included an
            enhancement paragraph alleging the appellant had a prior
            conviction for aggravated assault. CR 7-8. The appellant
            proceeded to trial by jury on November 14, 2011, pleading
            “not guilty.” 3 RR 5. 1 RR 3. The State presented thirteen
            witnesses during the guilt/innocence phase of the trial and
            the appellant presented none. 1 RR 4-6. The appellant did
            not testify. 1 RR 3-6. At the close of evidence, the jury found
            the appellant guilty of aggravated assault with a deadly
            weapon. 5 RR 89. The appellant elected to go to the jury for
            sentencing. 5 RR 89-90. The punishment stage of the trial
            began on November 16, 2011. 5 RR 90. 1 RR 7. The State
            presented four witnesses and the defense presented three. 1
            RR 7-9. The appellant did not testify. Id. On November 17,
            2011, the jury sentenced the appellant to 20 years
            imprisonment in the Texas Department of Criminal Justice.
            CR 65; 6 RR 105.




                                   2
Disposition   Date Sentenced: November 17, 2011. CR 65; 6 RR 105.
              Sentence: 20 years imprisonment. Id.

Appeal        The appellant was given the opportunity to file an out-of-
              time appeal of the judgment of conviction in this cause.
              Supp. CR 49.
              Notice of Appeal Filed: March 21, 2014. Supp CR 47.
              Appellant’s Brief Filed: October 22, 2014.
              Appellee’s Brief Timely if Filed: February 20, 2015.




              Statement Regarding Oral Argument

         Because     the   issues,   facts,   legal   authorities,   and

    arguments pertinent to the instant appeal are adequately

    addressed in the briefs submitted by the parties, the State

    respectfully asserts that the Court’s decisional process would

    not be significantly aided by oral arguments. Accordingly, the

    State does not request oral argument.




                                     3
                  Statement of Facts

     On the night of February 7, 2011, Aubry JeanJacques

was leaving a drug store with his brother’s heart medication

when the appellant, a stranger, approached him. 4 RR 115.

The appellant knocked Mr. JeanJacques to the ground,

straddled him, and began punching him repeatedly, delivering

upwards of 20 blows to his face. 4 RR 27–29. Mr. JeanJacques

was critically injured by the time the police and paramedics

arrived. Mr. JeanJacques was having trouble breathing due to

the blood in his airway and was nearly unconscious. 4 RR 89.

91. 125. At the time of trial, Mr. JeanJacques’s injuries had

caused him to experience severe headaches, cloudy vision, and

memory loss; health problems he did not have prior to the

assault. 4 RR 118–19. After leaving Mr. JeanJacques semi-

conscious and gravely injured, the appellant walked away from




                            4
the scene, where he was quickly detained by the Austin Police

Department. 4 RR 71, 90–91, 127.

     Prior to trial, the appellant’s trial counsel, William

Browning, notified the Court that he would be presenting an

insanity defense. CR 101; 4 RR 7. The Honorable Karen Sage

accepted the appellant’s notice of an insanity defense and

ordered that Dr. Harold Scott be appointed to administer a

psychiatric evaluation to the appellant. CR 103–04. At trial,

the Honorable Bob Perkins agreed that the appellant could

proceed with presenting an insanity defense. 4 RR 7.

     At trial, the appellant called his former roommate, Mr.

Philip Baker to testify to his insanity at the time of the

assault. 5 RR 46. During voir dire, Mr. Baker described the

appellant as “delusional,” but said that he had not seen the




                             5
appellant since at least ten days prior to the assault. 5 RR 50,

64.   The State objected to this testimony as irrelevant to the

issue of whether the appellant was insane at the time of the

assault. 5 RR 65. The trial court agreed with the State and

declined to allow Mr. Baker to testify. 5 RR 66. The appellant

called no other witnesses in support of his insanity defense.




                              6
              Summary of the Argument

1.   The appellant was not denied the opportunity to
     present an insanity defense. The appellant had a
     psychiatrist to evaluate him as well as assistance of
     counsel in his insanity defense. He was able to secure
     a jury instruction on insanity and argued insanity in
     his closing jury argument without objection. The trial
     court did not abuse its discretion in excluding the
     testimony of Philip Baker, the appellant’s friend and
     former roommate because his testimony was irrelevant
     to question of whether the appellant knew right from
     wrong at the time of the assault. The proper exclusion
     of this evidence did not amount to the denial of the
     opportunity to present an insanity defense. Even if the
     trial court erred in excluding the testimony of Philip
     Baker, any error was harmless.

2.   The trial court’s decision to admit Exhibit 31, the
     victim’s EMS Patient Care Report, into evidence was
     not an abuse of discretion. Despite the fact that the
     State did not file Exhibit 31 with the clerk of the court
     14 days prior to trial, the exhibit was properly
     authenticated. Even if the admission of the exhibit
     was erroneous, the error was harmless.

3.   The prosecutor’s jury argument was not improper. The
     prosecutor’s plea to the jury to focus on their
     determination of guilt or innocence rather than




                              7
punishment was not improper jury argument and it
introduced no extraneous offenses or prior bad acts to
the jury. Even if the prosecutor’s argument was
improper, an instruction to disregard was sufficient to
cure any prejudice. The trial court did not abuse its
discretion in denying the appellant’s motion for a
mistrial.




                        8
            State’s Reply to the Appellant’s
                  First Point of Error


     The trial court did not abuse its discretion in
     excluding the testimony of Philip Baker, the
     appellant’s friend and former roommate because
     his testimony was irrelevant to the issue of
     insanity. The appellant was afforded due process
     in his insanity defense and the proper exclusion
     of this evidence did not amount to the denial of
     the opportunity to present an insanity defense.
     Even if the trial court erred in excluding the
     testimony, any error was harmless.



Argument and Authorities

     The appellant contends that the trial court erred in

ruling that his sole witness to his inability to discern right

from wrong could not testify during the guilt-innocence

phase of the trial.   Appellant’s Brief at 9.   The appellant




                              9
further equates this exclusion of evidence to a total denial of

his opportunity to present an insanity defense. Appellant’s

Brief at 9.

      However, the trial court did not err in excluding the witness,

Philip Baker’s, testimony.      The testimony was cumulative and

irrelevant to the question of whether the appellant knew right

from wrong at the time of the assault. Further, exclusion of this

evidence did not deny the appellant the opportunity to present an

insanity defense. The appellant was able to secure an instruction

giving the jury the option of finding him not guilty by reason of

insanity. The appellant also addressed his alleged insanity in his

jury argument without objection. The appellant was given due

process   for   presentation    of   insanity   defense,   including   a

psychiatrist to evaluate him.




                                10
Standard of Review


     An appellate court should not set aside a trial court’s

evidentiary ruling absent an abuse of discretion. Montgomery v.

State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). The test for

abuse of discretion is whether the trial court acted “without

reference to any guiding rules or principles” and in a manner that

was “arbitrary or unreasonable.” Id. at 380.

I. The trial court did not err in exercising its discretion
to exclude the appellant’s witness’s testimony.

     The trial court did not err in excluding the testimony of

the appellant’s witness during the guilt-innocence phase.

The appellant’s witness was examined during voir dire and

his testimony was correctly found to be irrelevant to the

issue of whether the appellant knew right from wrong at the

time of the crime. 5 RR 46–66.




                             11
     A. The appellant’s witness’s testimony was
     irrelevant to the issue of insanity.
     Texas Rule of Evidence 401 defines relevant evidence

as “evidence having any tendency to make the existence of a

fact that is of consequence…more or less probable than it

would be without the evidence.” TEX. R. EVID. 401. In order

to show insanity under § 8.01 of the Texas Penal Code, the

appellant needed to demonstrate that he was both suffering

from a “severe mental disease or defect” and did not know

right from wrong at the time of the assault. TEX. PENAL

CODE § 8.01(a).

     Testimony from the appellant’s friend and former

roommate, Philip Baker, did not tend to make either of the

elements of the insanity defense more or less true.     In

undergoing the evidentiary analysis during voir dire, the




                            12
trial court found Mr. Baker’s testimony regarding the

appellant’s general mental health to be cumulative because

after hearing the testimony of the State’s expert witness,

there was no real question as to the appellant’s mental

health problems and propensity towards delusion. 5 RR 61.

Rule 403 says that even if evidence is relevant, it may still

be excluded as a “needless presentation of cumulative

evidence.” TEX. R. EVID. 403.

     As to the question of whether the appellant knew right

from wrong at the time of the crime, Mr. Baker’s testimony

provided nothing probative.      During voir dire, Mr. Baker

admitted that he was “not in a position to render any opinion

as to whether or not [the appellant] knew the difference

between right and wrong” at the time of the assault. 5 RR

51. When questioned further as to why he had formed an




                                13
impression that the appellant did not know right from wrong

two to three weeks prior to the crime, Mr. Baker said only

that he knew the appellant “better than his own family” and

that the appellant was “delusional,” a fact that had already

been established by previous testimony. 5 RR 16, 63–65.

      Additionally,   Mr.   Baker’s   interactions   with   the

appellant were too far removed in time to support a finding

of legal insanity. While “properly admitted testimony of lay

witnesses is sufficient to support a finding of insanity,” the

testimony is not properly admitted if it does not speak to

circumstances contemporaneous with the crime itself.

Pacheco v. State, 757 S.W. 2d 729, 733–35 (Tex. Crim. App.

1988). Mr. Baker repeatedly admitted that he had not seen,

spoken to, or observed the appellant on the date of the

assault, and so could not render any opinion as to the




                              14
appellant’s mental state at the time of the crime. Whereas

an expert’s opinion as to whether a perpetrator was insane

at the time of the crime may properly formed from medical

records and observations further removed from the time of

the crime, a lay witness’s opinion testimony is limited to his

impressions of what he has personally observed.      Bigby v.

State, 892 S.W. 2d 864, 889 (Tex. Crim. App. 1994).        In

supporting his contention that Mr. Baker’s testimony was

timely enough to be admitted, the appellant relies on cases

involving expert testimony derived from evaluations 11 days,

22 days, and “a few weeks” after the crimes occurred.

Appellant’s Brief at 13; Baker v. State, 682 S.W.2d 701 (Tex.

Crim. App. 1986); Bigby, 892 S.W. 2d 864; Morgan v. State,

869 S.W.2d 388 (Tex. App.—Tyler 1993, pet. ref’d).        The

appellant also argues that the State’s witness in this case,




                              15
psychiatric expert Dr. Scott, was permitted to offer his

observations from his evaluation of the appellant four

months after the crime. Mr. Baker, however, is held to a

different standard as a lay witness. His testimony must be

based on what he had personally observed about the

appellant at a time close to the commission of the crime.

When pressed in voir dire, Mr. Baker could not give specific

examples supporting the appellant’s claim that he did not

know right from wrong at the time of the crime. Mr. Baker

testified that the last time he had seen the appellant, he was

“in the grip of…religious delusions and…paranoia,” but did

not relate that to his “impression” that the appellant was

unable to discern the difference between right and wrong. 5

RR 50–51.     For this reason, Mr. Baker’s testimony is

ultimately inadmissible.




                              16
     II. The appellant was afforded due process
     for an insanity defense.


     The appellant also asserts that his Fifth Amendment

right to due process was violated by the trial court’s

exclusion of Mr. Baker’s testimony.       Due process for a

defense of insanity requires that a defendant be given access

to the “raw materials integral to the building of an effective

defense” so that he may be “at least minimally equipped to

participate meaningfully in [the] adversarial process.” De

Freece v. State, 848 S.W.2d 150, 155-158 (Tex. Crim. App.

1993) (citing Ake v. Oklahoma, 740 U.S. 68 (1985)). In De

Freece, the Court of Criminal Appeals held that appointment

of a psychiatrist is a raw material to which defendants are

entitled if they demonstrate that insanity will be a




                              17
significant factor in the case. Id. at 156 (citing Ake, 740 U.S.

at 83).

      The appellant asked for and was appointed a

psychiatrist to evaluate him in aid of his insanity defense.

CR 103. The appellant also received an attorney to file the

insanity motion on his behalf and further argue his insanity

at trial. CR 93. Those are the raw materials required for

due process to be fulfilled.   The Court has not held that

defendants are entitled to present otherwise irrelevant

evidence simply because they have no other evidence tending

to prove the elements of insanity. The appellant was not

precluded from presenting an insanity defense. Rather, the

evidence he presented was not probative of his alleged

inability to perceive right and wrong, which made it

irrelevant under Texas Rule of Evidence 401. At trial, the




                               18
appellant questioned the State’s witness on the subject of his

alleged insanity, argued for a finding of insanity in his

closing statement, and secured a jury instruction defining

insanity and giving the jury the option to find him not guilty

by reason of insanity. 5 RR 32–46, 82–84; CR 46–47. While

this exclusion removed the testimony of the appellant’s sole

witness, it is not tantamount to a denial of the appellant’s

opportunity to present an insanity defense at all. It was a

proper evidentiary decision, fully within the trial court’s

discretion. The appellant was given the forum in which to

present his defense, but was not able to provide any relevant

evidence with which to mount it. The appellant was given

his due process and a fair trial. The trial court did not abuse

its discretion in excluding the irrelevant evidence that the

appellant offered.




                              19
     III. The appellant’s remaining
     constitutional arguments are
     inadequately briefed.


     In his brief, the appellant alleges violations of the

Fifth, Sixth, Eighth, and Fourteenth Amendments to the

U.S. Constitution. The Fifth Amendment due process claim

is addressed above, but the appellant’s claim that he was

deprived of his constitutional right to a fair trial and was

subjected to cruel and unusual punishment are not only

without merit, they are not fully developed.

     The appellant does not specify how the trial court’s

ruling excluding the testimony of Philip Baker impacted his

Sixth, Eighth, and Fourteenth Amendment or Texas

Constitutional rights.   The appellant’s Sixth Amendment

claim consists of one sentence—the accusation that the trial




                              20
court abused its discretion by ruling on the State’s objection

to Phillip Baker’s testimony “without any reference to

relevant contraindicating principles of law.”      Appellant’s

Brief at 13.   The parties must present “clear and concise

argument for the contentions made, with appropriate

citations to authorities and the record.” TEX. R. APP. PROC.

38.1. The appellant’s brief makes no argument in support of

his conclusory allegation of a Sixth Amendment violation.

Because the claim is inadequately briefed, it is unclear what

constitutes the alleged violations of his constitutional rights

under these provisions. See Hankins v. State, 132 S.W.3d

380, 385 (Tex. Crim. App. 2004) (“Because the appellant does

not provide any argument or authority in support of this

contention, it is inadequately briefed”). For this reason, the

claim should be overruled.




                              21
     The appellant also equates the trial court’s exclusion of

Mr. Baker’s testimony with a violation of the Eighth

Amendment’s protection against a punishment that is

neither cruel nor unusual. Appellant’s Brief at 13. With

regards to this claim, it should be noted that Mr. Baker was

allowed to testify in the penalty phase of the trial so as to

ensure that the jury was provided with all the evidence

necessary to assess a fair and proper punishment. 6 RR 53–

66. The exclusion of that testimony at the guilt-innocence

phase did not subject the appellant to an unconstitutionally

cruel and unusual punishment.          Cruel and unusual

punishment, as characterized by the authority to which the

appellant cites, would be subjecting a person with limited

moral culpability to a gravely disproportionate penalty, such

as execution. Appellant’s Brief at 13. Further, neither the




                             22
proportionality nor the propriety of the sentence is at issue

in the appeal, as this point of error only concerns the guilt-

innocence phase of the trial. Again, the appellant’s claim is

not adequately developed or briefed.

     IV. Even if the trial court erred in
     excluding the testimony of the appellant’s
     witness, any error was harmless.

     Exclusion of evidence in a criminal trial should be

disregarded unless it is constitutional error or non-

constitutional error that substantially affects the defendant’s

rights.   TEX. R. APP. PROC. 44.2(a)–(b).     Exclusion of a

defendant’s evidence is constitutional error “only if the

evidence forms such a vital portion of the case that exclusion

effectively precludes the defendant from presenting a

defense.” Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim.

App. 2002). Constitutional error is subject to harmless error




                              23
review. TEX. R. APP. PROC. 44.2(a). Non-constitutional error

is disregarded unless it affects the appellant’s substantial

rights. Id. Error affects a substantial right when it has a

“substantial and injurious effect or influence in determining

the jury’s verdict.” Kotteakos v. United States, 328 U.S. 750,

776 (1945); King v. State, 953 S.W. 2d 266, 271 (Tex. Crim.

App. 1997). A criminal conviction should not be overturned

for non-constitutional error if the appellate court, after

examining the record as a whole, has “fair assurance that

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

effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.

App. 1998).

     The appellant claims that the trial court denied him an

opportunity to present his insanity defense.     However, as

discussed supra, the appellant was prevented only from




                              24
presenting evidence that was redundant, cumulative, and

ultimately not probative of the only element of his insanity

defense that was in dispute—that he did not know right

from wrong at the time of the crime. The appellant believes

that he was deprived an opportunity to present his defense

only because without the testimony of his sole witness, he

had no other evidence to present. The appellant’s allegation

of error rests on the assumption that he was denied his right

to present evidence in his favor.     Appellant’s Brief 11.

However, no such right exists. See United States v. Scheffer,

523 U.S. 303, 316 (1998); Potier v. State, 68 S.W.3d 657, 659

(Tex. Crim. App. 2002).     Any error in the trial court’s

exclusion of the witness’s testimony was harmless.

     Error is also harmless as long as it did not have a

substantial or injurious effect or influence on the jury’s




                             25
decision. Kotteakos, 328 U.S. at 776; King, 953 S.W. 2d at

271. That the appellant was “unable to [ ] present his case to

the extent…he desired is not prejudicial where…he was not

prevented from presenting the substance of his defense to

the jury.” Potier, 68 S.W. 3d at 666. The appellant was not

prevented from presenting his defense to the jury.         The

appellant was able to cross-examine the State’s witness on

the subject of his alleged insanity; he argued for a finding of

insanity in his closing statement, and secured a jury

instruction defining insanity and giving the jury the option

of finding him not guilty by reason of insanity. 5 RR 32–46,

82–84; CR 46–47.     Presenting the jury with Mr. Baker’s

testimony would not have changed the jury’s finding of

insanity in any appreciable way. The main thrust of Mr.

Baker’s testimony was that the appellant had a history of




                              26
delusion, evidence which had already been presented

through the testimony of the State’s witness, Dr. Scott.

Further, questioning at voir dire revealed that Mr. Baker

possessed no information or timely, personal observations

counteracting the basis for Dr. Scott’s conclusion that the

appellant knew right from the wrong at the time of the

offense. 5 RR 21–26.

     The appellate court affords great deference to the trial

judge’s determination of the admissibility of evidence unless

the decision constitutes an abuse of discretion. It is evident

from the record that the trial judge conscientiously utilized

all the requisite guiding rules and principles to come to a

conclusion that was neither arbitrary nor unreasonable.

Accordingly, the trial court’s ruling on the admissibility of

Mr. Baker’s testimony should be affirmed.




                              27
                     State’s Reply to the
               Appellant’s Second Point of Error


        The trial court’s decision to admit Exhibit 31, the
        victim’s EMS Patient Care Report, into evidence
        was not an abuse of discretion because despite
        the fact that the State did not file Exhibit 31 with
        the clerk of the court 14 days prior to trial, the
        exhibit was properly authenticated. Even if the
        admission of the exhibit was erroneous, the error
        was harmless.


Argument and Authorities

        The appellant objects to the admission of State’s

Exhibit 31, the victim’s Travis County EMS Patient Care

Report, because he claims it was improperly authenticated

under Texas Rule of Evidence 902(10) and so constituted

inadmissible hearsay.        Appellant’s Brief at 15.     The trial

court    did    not   err   in   permitting   admission    of   this

authenticated report.




                                  28
Standard of Review


      The appellate court reviews a trial court’s evidentiary

ruling for abuse of discretion.    Montgomery v. State, 810

S.W.2d 372, 379 (Tex. Crim. App. 1990)). The court should

not upset the trial court’s ruling unless the court acted

“without reference to any guiding rules or principles” and in

a manner that was “arbitrary or unreasonable.” Id. at 380.

        I.      Despite the fact that the State did
                not file Exhibit 31 with the clerk of
                the court 14 days prior to trial, the
                exhibit was properly
                authenticated.


      At the time of the appellant’s trial in 2012, Texas Rule

of   Evidence    902(10)   provided   that   business    records

admissible   under    Rule   803(6)   and    803(7)     may   be

authenticated when accompanied by an affidavit “filed with




                              29
the clerk of the court…at least fourteen days prior” to the

start of the trial. TEX. R. EVID. 902(10), 61 TEX B.J. 374

(1998) (current version at TEX. R. EVID. 902(10)).       At trial,

the State offered the victim’s medical records under 803(6),

and the appellant’s trial counsel objected because the records

had never been filed with the clerk’s office. 4 RR 94–95.

However, the State properly notified the appellant that it

intended to offer these records and filed the authenticating

affidavit within the 14 day time limit prescribed by the Rule.

4 RR 95–96. The State also provided a copy of the records to

the appellant prior to their introduction at trial, action

which was not required by the Rule. Id. Trial counsel’s only

objection to the admission of the record was that it was not

on file with the district clerk prior to the start of the trial. 4

RR 96.




                                30
     The appellant also makes an unsupported Sixth

Amendment Confrontation Clause claim, insinuating that

the objection at trial was more than a procedural

authentication issue. Brief 14–15. However, there was no

objection on Confrontation Clause grounds at trial, only a

hearsay objection to a lack of proper authentication.         “An

objection   [to]   hearsay   does   not    preserve   error    on

Confrontation Clause grounds.” Reyna v. State, 168 S.W. 3d

173, 179 (Tex. Crim. App. 2005).          The appellant’s Sixth

Amendment clause argument should be overruled.

     Only one issue was preserved with regard to the

admission of the victim’s patient care report—whether the

exhibit was properly authenticated under Rule 902(10)(a).

The appellant states that this Court has held that “medical

records which the State failed to file with the clerk two




                              31
weeks before trial are inadmissible by law.”     Appellant’s

Brief 16 (citing Harris v. State, No. 03-97-00384-CR,1998

WL 546179, at *2 (Tex. App.—Austin Aug. 31, 1998) (not

designated for publication).    However, in Harris, the case

that the appellant relies upon, this Court actually held that

the medical records at issue had been properly admitted

because the custodian of the record was called as a witness

to testify.   Harris v. State, No. 03-97-00384-CR,1998 WL

546179, at *2.    Although Harris goes on to re-state the

remaining part of the relevant evidentiary rule, saying that

records may also be admitted by affidavit, that case did not

interpret or rely upon Rule 902(10) because “the prosecutor

chose to introduce the medical records through the first

method rather than by filing an affidavit.” Id. Harris did




                               32
not restrict the trial court’s discretion to admit the records

under Rule 902(10)(a).

     The trial court did not err in admitting Exhibit 31

simply because the State did not file a copy of the Patient

Care Report with a clerk’s office.      Conclusive proof of

authenticity before allowing admission of disputed evidence

is not required; Rule 901 requires only that the proponent of

the evidence furnish the court with evidence “sufficient to

support a finding that the evidence in question is what its

proponent claims it to be.” See e.g. Reed v. State, 811 S.W.

2d 582, 587 (Tex. Crim. App. 1991) (citing United States v.

Jimenez Lopez, 873 F.2d 769, 772 (5th Cir. 1989)). In this

case, the State provided the trial court with more than

enough evidence to support a finding that the Patient Care




                              33
Report was authentic, and, in fact, went “beyond what the

Rule require[d]. 4 RR 98.

     The trial court found that the State had complied with

the “spirit of the law” and had accomplished the ultimate

objective of authentication through its actions. Id. In fact,

the State anticipated the 2013 modification to Rule 902(10),

which no longer requires that the record at issue be filed

with the district clerk.       The rule now states that

authentication is accomplished by serving the opposing party

with a copy of the record within 14 days of the trial. TEX. R.

EVID. 902(10).

     Moreover, the report was also authenticated by a

second method. Immediately before the exhibit was offered

into evidence, Amanda Stinson (neé Randle), the paramedic




                              34
who responded to the assault on Mr. JeanJacques, testified

that she had written the report. 4 RR 93–94. Texas Rule of

Evidence 901(b)(1) allows a “witness with knowledge” to

testify that “a matter is what it is claimed to be.” TEX. R.

EVID. 901(b)(1). As the prosecutor pointed out at trial, Ms.

Stinson’s testimony that she wrote the patient care report

properly authenticated the document.     4 RR 99.    Even if

authentication was not proper under Rule 902(10), the

report was admissible under Rule 901(b)(1). The appellate

court must uphold the trial court’s decision “as long as [it]

was correct under any theory of law applicable to the case.”

Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App.

2007) (citing Montgomery v. State, 810 S.W.2d at 391.




                             35
     Because the report was properly authenticated under

two independent bases, the trial court did not commit an

abuse of discretion in admitting it.

           II.   Even if admission of Exhibit 31
                 was erroneous, the error was
                 harmless.

     Even if the trial court did err in admitting the victim’s

medical records, the error was harmless.           Erroneous

admission of evidence is non-constitutional error. See, e.g.,

Coble v. State, 330 S.W. 3d 253, 280 (Tex. Crim. App. 2010);

Johnson v. State, 967 S.W. 2d 410, 417 (Tex. Crim. App.

1998).     Non-constitutional error is disregarded unless it

affects the appellant’s substantial rights.   TEX. R. APP. P.

44.2(b).    Error affects a substantial right when it has a

“substantial or injurious effect or influence in determining

the jury’s verdict.” Kotteakos v. United States, 328 U.S. at




                              36
776; King v. State, 953 S.W. 2d at 271. A criminal conviction

should not be overturned for non-constitutional error if the

appellate court, after examining the record as a whole, has

“fair assurance that the error did not influence the jury, or

had but a slight effect.” Johnson v. State, 967 S.W. 2d at

417.


       Admission of Exhibit 31, the victim’s Patient Care

Report from Travis County EMS, did not have a substantial

or injurious effect on the appellant’s case, nor did it influence

the jury in reaching their verdict.          Contrary to the

appellant’s assertion, the information about the extent of the

victim’s injuries contained in the report was not “highly

prejudicial.” Appellant’s Brief 17. In fact, the report’s flat

descriptions of the injuries paled in comparison to the

previous uncontested testimony of witnesses who described




                               37
the victim’s injuries in graphic detail. One witness said he

heard the victim’s nose break, while paramedic Amanda

Stinson testified that the victim was having trouble

breathing due to the blood flooding his throat. 4 RR 28-29,

76. Even more vivid are the photos of victim’s injuries that

were admitted without objection before Exhibit 31 was

offered into evidence. 4 RR 83. Additionally, the paramedic

who wrote the report, Amanda Stinson, testified to the same

information about the victim’s injuries immediately before

the exhibit was admitted.     4 RR 88–94.      Inadmissible

evidence is harmless “if other evidence at trial is admitted

without objection and it proves the same fact that the

inadmissible evidence sought to prove.” Anderson v. State,

717 S.W. 2d 622, 628 (Tex. Crim. App. 1986)(internal

citations omitted.)




                             38
     Further, it is unlikely that the information in Exhibit

31 influenced or directed the jury’s decision in any way.

Because the appellant conceded that he assaulted Mr.

JeanJacques, the jury had two options—to find the appellant

guilty or to find him not guilty by reason of insanity. 5 RR

83. The EMS report did not contain any information tending

to prove or disprove that the appellant was suffering from a

severe mental disease or defect or that he did not know right

from wrong at the time of the assault. Even if the exhibit

were admitted in error, any error was harmless.




                             39
III. The appellant’s remaining             Constitutional
claims should be overruled.

     As discussed supra, the appellant’s Sixth Amendment

Confrontation Cause claim was not preserved at trial, and

should be overruled by this Court. The appellant alleges an

additional Fifth Amendment violation by admission of

Exhibit 31 into evidence, but he fails to develop that claim

any further.     The appellant makes a contention, but no

arguments to support it, and so has inadequately briefed his

claim. The claim should be overruled. See Hankins v. State,

132 S.W. 3d 380, 385 (Tex. Crim. App. 2004); TEX. R. APP.

PROC. 38.1(i).




                             40
                State’s Response to the
            Appellant’s Third Point of Error


     The prosecutor’s plea to the jury to focus on their
     determination of guilt or innocence rather than
     punishment was not improper jury argument and
     introduced no extraneous offenses or prior bad
     acts to the jury. Regardless, the trial court did
     not abuse its discretion in denying the appellant’s
     motion for a mistrial because an instruction to
     disregard was sufficient to cure any prejudice.


Standard of Review
     When reviewing a trial court’s ruling on a motion for

mistrial, an appellate court must uphold the ruling absent an

abuse of discretion and as long as it is “within the zone of

reasonable disagreement.” Wead v. State, 129 S.W.3d 126, 129

(Tex. Crim. App. 2004) (citing Montgomery v. State, 810

S.W.2d 372, 391 (Tex. Crim. App. 1990).




                               41
        I.   The prosecutor’s jury argument
             was not improper.


     Proper jury argument must fall within one of four

categories: “(1) summary of the evidence; (2) reasonable

deduction from the evidence; (3) in response to argument of

opposing counsel; and (4) a plea for law enforcement.”

Borjan v. State, 787 S.W. 2d 53, 55 (Tex. Crim. App. 1990).

Argument that is improper under this standard only

constitutes reversible error if it is “extreme, manifestly

improper, injects new or harmful facts into [the] case or

violates a mandatory statutory provision and is thus so

inflammatory that its prejudicial effect cannot reasonably be

cured by judicial instruction to disregard argument.” Long

v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991)




                             42
(quoting Hernandez v. State, 819 S.W.2d 806, 820 (Tex.

Crim. App. 1991)).

     The statement to which the appellant objects is as

follows: “You don’t get to consider what you think should

happen to this man today, right now, because he has a

second phase of trial, and during that phase you are going to

hear more information. You are going to hear more

information about this defendant from the State and you are

going to hear more information about this defendant from

the defense attorney, so you don’t get to think about what

you think should happen to him when you’re making your

decision today because you don’t know the whole story about

him.” 5 RR 80.




                             43
     The prosecutor’s statement did not constitute improper

jury argument.      The statement introduced no extraneous

offenses or prior bad acts to the jury, but rather implored the

jury to focus on their determination of guilt or innocence

rather than punishment. The distinction between the two

phases of a criminal trial is foundational. See generally TEX.

CODE. CRIM. PROC. art. 37.07. To the extent that the

prosecutor was reminding the jury of their separate and

distinct   roles   in   the   guilt-innocence   phase   and   the

punishment phase of the trial, then the statement would be

a plea for law enforcement, well within the bounds of proper

jury argument. See Modden v. State, 721 S.W. 2d 859, 862

(Tex. Crim. App. 1986). Prior to the portion to which trial

counsel objected, the prosecutor admonished the jury that

they were only permitted to use evidence of the appellant’s




                                 44
mental illness to determine whether he was guilty or not

guilty by reason of insanity. This reminder was especially

important in a case like this in which the appellant had

already conceded that he had committed the assault on the

victim. The potential for the mental illness evidence to be

used to assess culpability instead of legal guilt is heightened

in a case like this, and it makes sense that the prosecutor

would have found it necessary to address it with the jury.

Statements during jury argument must be evaluated in the

broader context of the “entire record of final arguments [in

order] to determine if there was a willful or calculated effort

on the part of the State to deprive the appellant of a fair and

impartial trial.” Cantu v. State, 939 S.W.2d 627, 633 (Tex.

Crim. App. 1997) (citing Johnson v. State, 604 S.W. 2d 128,

135 (Tex. Crim. App. 1980) (panel op.)).         A statement




                              45
underlining the importance of the separateness of trial

phases is hardly indicative of a “willful or calculated effort”

on the part of the State to compromise the integrity of the

trial. In fact, it is a willful effort to preserve it.

         II.   Even if the prosecutor’s argument
               was improper, an instruction to
               disregard was sufficient to cure
               any prejudice.


      Even assuming, for the sake of argument, that the

prosecutor’s statement was improper in any way, the trial

court did not err in denying the appellant’s motion for

mistrial in favor of an instruction to disregard. Mistrial is

an extreme curative measure, and one only reserved for

cases in which improper jury argument is “so prejudicial

that expenditure of further time and expense would be

wasteful and futile.” Hawkins v. State, 135 S.W.3d 72, 77




                                  46
(Tex. Crim. App. 2004) (quoting Ladd v. State, 3 S.W. 3d

547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070

(2000)). Because mistrial is such an extreme measure, an

instruction to disregard improper jury argument will

generally suffice as a curative measure unless, in light of the

record as a whole, the argument was extreme or manifestly

improper, violated a mandatory statute, or injected new facts

harmful to the accused. Cooks v. State, 844 S.W. 2d 697, 727

(Tex. Crim. App. 1992).

     As discussed in the previous section, the prosecutor’s

statements were not manifestly improper, nor did they inject

new and prejudicial facts into the proceeding.             The

prosecutor’s   statement     gave    the   jury    the   same

admonishment that they had been given several times

before—that they should only consider the issue of guilt in




                              47
the first phase of the trial. A restatement of such a basic

and foundational doctrine relevant to criminal proceedings

in Texas is not improper or prejudicial in any way.

Regardless, the trial court admonished the jury “to disregard

the last remark of State's counsel.” 5 RR 80-81. On, appeal,

it is generally presumed the jury followed the trial court's

instructions as given. Thrift v. State, 176 S.W.3d 221, 224

(Tex. Crim. App. 2005).      The trial court was correct in

denying a mistrial and relying on the instruction to

disregard as the proper curative measure for any minimal

harm caused by the prosecutor’s statement. The decision of

the trial court denying a mistrial should be affirmed.


                           Prayer

     WHEREFORE, the State requests that the Court

overrule all of the appellant’s points of error and affirm the




                               48
     judgment of the trial court.


                           Respectfully submitted,

                           Rosemary Lehmberg
                           District Attorney
                           Travis County


Law Clerk: Lisa Elizondo
                           /s/ Rosa Theofanis
                           Rosa Theofanis
                           Texas Bar No. 24037591
                           Assistant District Attorney
                           District Attorney’s Office
                           P.O. Box 1748
                           Austin, Texas 78767
                           Phone: 512.854.9400
                           Fax: 512.854.9695
                           Email: Rosa.Theofanis@traviscountytx.gov
                                 AppellateTCDA @traviscountytx.gov




                                    49
                Certificate of Compliance


      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3),
effective December 1, 2012, the State certifies that the length
of this brief is 5,938 words. The State also certifies, pursuant
to Texas Rule of Appellate Procedure 9.4(e), a conventional
typeface 14-point was used to print this brief.

                                   /s/ Rosa Theofanis
                                   Rosa Theofanis
                                   Assistant District Attorney


                  Certificate of Service


      This is to certify that the above State’s brief has been
served on the appellant by U.S. mail, electronic mail, by
facsimile, or electronically through the electronic filing
manager to his attorney, Ariel Payan, 1012 Rio Grande St.,
Austin, Texas 78701 <arielpayan@hotmail.com> on this 20th
day of February, 2015.

                                   /s/ Rosa Theofanis
                                   Rosa Theofanis
                                   Assistant District Attorney




                              50
