                                                                                          ACCEPTED
                                                                                      12-14-00080-CR
                                                                         TWELFTH COURT OF APPEALS
                                                                                       TYLER, TEXAS
                                                                                 4/20/2015 1:20:22 AM
                                                                                        CATHY LUSK
                                                                                               CLERK

                          CASE NO. 12-14-00080-CR

                               IN THE                                 FILED IN
                                                               12th COURT OF APPEALS
                      TWELFTH COURT OF APPEALS                      TYLER, TEXAS
                            TYLER, TEXAS                       4/20/2015 1:20:22 AM
                                                                    CATHY S. LUSK
                                                                        Clerk
                              STATE OF TEXAS
                                     V.
                               FELIPE CASTRO


                              On Appeal from the

                             349TH District Court,
                            Houston County, Texas

                         (Trial Court No. 13CR-058)
                   Hon. Pam Foster Fletcher, Judge Presiding


                           BRIEF OF APPELLANT

                            WILLIAM M. CURLEY
                               TBC #05257100
                              507 N. Church St.
                            Palestine, Texas 75801
                               (903) 723-6757

                        COUNSEL FOR APPELLANT


                           BRIEF OF APPELLANT


TO THE HONORABLE JUDGE OF SAID COURT:

      COMES NOW, Felipe Castro, the Appellant, and files this his Brief of

Appeal in the above entitled and numbered cause.
                  IDENTITY OF PARTIES AND COUNSEL


Trial Parties and Counsel

Felipe Castro, Defendant

William Curley
Attorney for Defendant
507 N. Church St.
Palestine, Texas 75801

State of Texas

Donna Gordon Kaspar
Houston County District Attorney
Trial Counsel for the State
401 East Houston Ave.
Crockett, Texas 75835



Appellate Parties and Counsel
Felipe Castro, Appellant

William M. Curley
Attorney for Appellant
507 N. Church St.
Palestine, Texas 75801

State of Texas, Appellee

Donna Gordon Kaspar
Houston County District Attorney
Appellate Counsel for the State
401 East Houston Ave.
Crockett, Texas 75835

                                   2
                             TABLE OF CONTENTS
                                                                                Page
Table of Contents.................................……………...…….....….…..……        3

Index of Authorities.....................................……………..………..……....     6

Statement of the Case ........................................……………………....…..   7

Issues Presented

      Point of Error Number One..............................……….…….…...….      8

      The trial court erred in overruling Appellant’s Motion to Suppress
      the oral recorded statement that Appellant gave to police.

      Point of Error Number Two...........................………..……….…....        8

      The evidence is legally insufficient to sustain a conviction for
      Aggravated Kidnapping.

      Point of Error Number Three...........................………..……….…....          8

      The evidence is legally insufficient to sustain a conviction for
      Aggravated Sexual Assault.

      Point of Error Number Four...........................………..……….…....           8

      The trial court erred in failing to instruct the jury on the lesser
      included offense of Sexual Assault.

      Point of Error Number Five...........................………..……….…....           8

      During final argument in the punishment phase of the trial, the
      prosecutor made improper jury arguments that were outside the
      record.




                                           3
    Point of Error Number Six.............................………..……….…....   8

    During final argument in the punishment phase of the trial, the
    prosecutor misstated the law.

Statement of Facts ………………………………………....……….……                               9

Point of Error Number One Restated……………………………..………                         14

    Summary of the Argument…………………………….…….…….                              14

    Argument…………………………………………….……………                                        15

Point of Error Number Two Restated……………………………..….                          18

    Summary of the Argument…………………………….…….…….                              18

    Argument…………………………………………….……………                                        18

Point of Error Number Three Restated……………………………..….                        20

    Summary of the Argument…………………………….…….…….                              20

    Argument…………………………………………….……………                                        20

Point of Error Number Four Restated……………………………..….                         22

    Summary of the Argument…………………………….…….…….                              22

    Argument…………………………………………….……………                                        22

Point of Error Number Five Restated……………………………..….                         23

    Summary of the Argument…………………………….…….…….                              24

    Argument…………………………………………….……………                                        24


                                       4
Point of Error Number Six Restated……..…………………………..….                                25

       Summary of the Argument…………………………….…….…….                                    25

       Argument…………………………………………….……………                                              26

Prayer...................……………….................................…..........…..………   27

Certificate of Compliance......……………….....................................…...….. 28

Certificate of Service......……………….....................................…...……..     28




                                             5
                        INDEX OF AUTHORITIES

CASES                                                              PAGE

Hernandez v. State, 13 S.W.3d 78 (Tex. App. – Texarkana 2000, no        15
pet)
Nonn v. State, 69 S.W. 3d (Tex. App. – Corpus Christi 2001)             16
Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. – 1996)              16
Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. – 1990)                17
Jackson v. Virginia, 443 U.S. 307 (1979)                             18,19,20
Santella v. State, 939 S.W. 2d 155 (Tex. Crim. App. 1997)             18,20
Fuller v. State, 73 S. W. 3d 250 (Tex. Crim. App. 2002))              19,20
Laster v. State, 275 S.W.2d 512 (Tex. Crim. App. – 2009)                19
Moore v. State, 802 S.W.2d 367 (Tex. App. – Dallas 1990, pet.           21
ref’d)
Webb v. State, 801 S.W.2d 529 (Tex. Crim. App. – 1990)                 21
Ex Parte Watson, 306 S.W.3d 259 (Tex. Crim. App. – 2010)               23
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. – 2007)                 23
Person v. State, 706 S.W.2d 153 (Tex. App. – Houston [1st Dist.]      24,26
1986, no pet.)
See, Prado v. State, 626 S.W.2d 775 (Tex. Crim. App. – 1982)          24,25
Peak v. State, 57 S.W.3d 14, 19-21 (Tex. App. – Houston [14th         25,26
Dist.] 2001, no pet.)


CODES                                                              PAGE
Tex. Code Crim. Pro. Art. 38.22                                     15, 16, 17
Tex. Pen. Code §22.021                                                  21
Tex. Pen. Code §1.07                                                    21
Tex. Code Crim. Pro. Article 37.09                                      23




                                      6
                          STATEMENT OF THE CASE

              On March 25, 2013, Appellant was indicted by a Houston County

grand jury for the following felony offenses: two counts of Aggravated Sexual

Assault, one count of Assault by Strangulation and one count of Aggravated

Kidnapping. (C.R. p. 25). A jury was selected on March 17, 2014. ( R.R. Vol. 1).

Presentation of evidence began on March 18, 2014. (R.R. Vol. 3). The jury found

Appellant guilty of one count of Aggravated Sexual Assault, Assault by

Strangulation and Aggravated Kidnapping. The jury acquitted Appellant on one

count of Aggravated Sexual Assault. (C.R. pp. 120-124).               The same jury

sentenced Appellant on the count of Aggravated Sexual Assault to 40 years in the

Texas Department of Criminal Justice – Institutional Division; on the count of

Assault by Strangulation to 10 years in the Texas Department of Criminal Justice

– Institutional Division; and on the count of Aggravated Kidnapping to 40 years in

the Texas Department of Criminal Justice – Institutional Division. (C.R. p. 149-

151).

        For convenience sake, volumes cited from the reporter’s record will be

referred to as (R.R.). The clerk’s record will be referred to as (C.R.).




                                           7
                              ISSUES PRESENTED

                       POINT OF ERROR NUMBER ONE

      The trial court erred in overruling Appellant’s Motion to Suppress the oral

recorded statement that Appellant gave to police.

                       POINT OF ERROR NUMBER TWO

      The evidence is legally insufficient to sustain a conviction for Aggravated

Kidnapping.

                      POINT OF ERROR NUMBER THREE

      The evidence is legally insufficient to sustain a conviction for Aggravated

Sexual Assault.

                      POINT OF ERROR NUMBER FOUR

      The trial court erred in failing to instruct the jury on the lesser included

offense of Sexual Assault.

                       POINT OF ERROR NUMBER FIVE

      During final argument in the punishment phase of the trial, the prosecutor

made improper jury arguments that were outside the record.



                        POINT OF ERROR NUMBER SIX

      During final argument in the punishment phase of the trial, the prosecutor

                                          8
misstated the law.

                            STATEMENT OF FACTS

      On Thursday morning, February 7, 2013, Vashae Means returned to her

home in Crockett after working the 5 p.m. to 2 a.m. shift at Pilgrim’s Pride in

Lufkin. She arrived at her home at approximately 4 a.m. Means lived with

Appellant, their two minor children and Appellant’s adult sister, Gloria Castro.

(R.R. Vol. 7, pp. 117-29, 50-53). After arriving home, Appellant accused Means

of smelling like a condom. After arguing with her and confirming that Means was

having an affair with another man, Appellant began beating Means. Over the next

several days until early the following Tuesday morning, Appellant beat Means

with his fists, a belt, brooms, a vacuum cleaner, bathroom rod, a chair and broken

pieces of the foregoing. Appellant choked Means. He burned her with an electric

heater. He cut her with a knife. Appellant carved the name of the man, Reko, with

whom Means was having an affair, into her back. Appellant sodomized Means.

(R.R. Vol. 7, pp. 31-38, 63, 162-169, 174-177).

      Their residence did not have running water. So, the household bathed and

did their laundry at the house of Appellant’s father. Means did not go over to the

house of Appellant’s father after the beatings began. Appellant, however, went

over on Saturday, Sunday and Monday. While at his father’s house on Saturday,

                                          9
Appellant was able to access the internet and read the Facebook postings by Reko

concerning the affair with Means. This enraged Appellant and he returned home

and assaulted Means again. (R.R. Vol. 7, pp. 76-77, 174-177).

      Means was unable to go back to work. On Thursday and Friday, the lady

who gave her a ride to work came by the house. Means did not speak to her.

Means was alone in the house at the time. Means said she did not leave because

she was afraid. (R.R. Vol. 7, pp. 58, 64-66). On Friday, everyone in the house

went to the zoo in Lufkin. (R.R. Vol. 7, p. 171).

      On Friday, the entire household went to the zoo in Lufkin. (Vol. 7, p. 171).

On Sunday, Appellant went to his father’s house and fell asleep. (Vol. 7, pp. 80,

181-182).

      On Monday Appellant went to obtain his income tax refund of $4500.00.

(R.R. Vol. 7, pp. 184-186). The entire household then went to Radio Shack and

WalMart. These outings were recorded on security cameras. Appellant initially

went in to Radio Shack alone. Appellant then returned with Means and went into

Radio Shack and purchased smart phones. Gloria and the children remained in the

van. Appellant and Means were in Radio Shack for over an hour. While in the

store, Appellant and Means were apart at various times. (R.R. Vol. 6, pp. 9-16).




                                         10
They purchased three phones, one each for Appellant, Means and Gloria. (R.R.

Vol. 7, pp. 60-61.)

       The store employees were concerned about Means because of her

appearance. One of the employees was alone with Means for a brief time. When

Means failed to ask for help or talk to her, the employee left it alone. Means said

she said nothing because her lip was busted and bleeding. (R.R. Vol. 7, pp. 9-12,

43).

       After leaving Radio Shack, Appellant and his two sons went into WalMart

for about 20 minutes while Gloria and Means stayed in the van. (R.R. Vol. 6,

pp.22).

       After going home, Appellant read more messages on Facebook from Reko..

That night he again confronted Means. Means stated he began hitting her again.

Later that night, early Tuesday morning, Means ran from the house. Appellant

chased after her, but was unable to catch Means. A neighbor called the police after

Means came knocking on her door. (R.R. Vol. 7, pp. 44-45, 191-192).

       Means told the police at the scene that Appellant had beaten her, had used

various items including an electric heater. The officers could not recall what the

items were. (R.R. Vol. 2, pp. 9-11, Vol. 3 p. 7). The police located Appellant at

his father’s house at 3:30 a.m. The police informed Appellant they were

                                          11
investigating the assault on Means. Appellant was handcuffed, taken into custody

and transported to the Sheriff’s office. (R.R. Vol. 2, pp. 18-25). Investigators

interviewed Means at 5 a.m. at the hospital. Means told the investigators that

Appellant had beaten her with a chair, brooms, sticks, a vacuum cleaner, burned

her with a heater, and had sodomized her. (R.R. Vol. 3, p. 30.)

      The investigators then went to the Sheriff’s office where they interviewed

Appellant. Prior to the interview, they photographed Appellant’s clothes and

person. An audio recording was made of the interview. The investigators gave

Appellant his “Miranda” rights, however, they did not warn Appellant he had the

right to terminate the interview at any time. Appellant admitted to beating Means

but denied having anything but consensual sex with her. (R.R. Vol. 2, pp. 55-56,

State’s Exhibit 201, Defendant’s Exhibit 1). Appellant was never told he was free

to leave. (R.R. Vol. 2, pp. 38, 69). Appellant was booked into jail after the

interview. (R.R. Vol. 2, p. 66)

      Means was suffering from renal failure when she was brought to the

Emergency Room in Crockett. This was treated by hydration via an intravenous

tube. After being transported to the Tyler hospital, Appellant underwent surgery

for the puncture wound to her elbow and her orbital fracture. The last progress

note from the Tyler hospital states “no visual problems or difficulties”, her elbow

                                          12
has “full range of motion” and “no pain”, “renal failure improving”, and “no other

problems or difficulties”. No physician testified regarding long-term medical

issues relating to the assault. (R.R. Vol. 6, p. 59, State’s Exhibit 205).

      Later that morning, the police obtained and executed a search warrant for

Appellant’s residence. At the residence, the police recover the electric heater, the

broken chair, pieces of the broom and rake.

      The trial court denied Appellant’s Motion to Suppress the statement he gave

to police. (R.R. Vol. 4, p. 4).

      Appellant requested a jury charge on the lesser included offense of Sexual

Assault. The trial court denied this request. (R.R. Vol. 7, p. 222).

      During the punishment phase of the trial, the prosecutor made the following

statements in closing arguments:

      “We see people that have assaulted their spouse or significant other, we have

even seen them shoot them, but that’s about where the similarities stop in this case.

There’s a whole lot more that is not typical about this case”. (R.R. Vol. 9, p. 59).

      “I mean, he did it multiple times he used multiple implements he did

multiple things to her you don’t usually see sexual assault when somebody just

belows [sic] up over something you don’t usually see kidnapping when somebody

blows up….”. (R.R. Vol. 9, p. 60).

                                           13
      “He says he is remorseful. It is typical to have people say they are

remorseful.” (R.R. Vol. 9, p. 61).

      “There are plenty of people in prison today doing a whole bunch of time that

I suspect would look at this kind of case and go, I cannot believe he did that.”

(R.R. Vol. 9, p. 62).

      “…if you separated these three offenses if he committed one and was

convicted of it and committed the next one and convicted and committed the next

one and convicted he wouldn’t be probation there’s no way forgiving [sic] him

probation then AND the minimum would be a whole lot higher be more like 25 to

99 or life…”. (R.R. Vol. 9, pp. 62-63).

      All objections to these arguments were overruled other than the first one.

               POINT OF ERROR NUMBER ONE RESTATED

      The trial court erred in overruling Appellant’s Motion to Suppress the oral

recorded statement that Appellant gave to police.

                        SUMMARY OF THE ARGUMENT

      Appellant’s statement was a product of custodial interrogation. Appellant

was not advised that he had the right to terminate the interview at any time. Tex.

Code Crim. Pro. Art. 38.22 states that for a statement to be admissible, this

warning must be given.

                                          14
                                 ARGUMENT

       Tex. Code Crim. Pro. Art. 38.22 states:

       “Sec. 3.(a) No oral or sign language statement of an accused made as a

 result of custodial interrogation shall be admissible against the accused in a

 criminal proceeding unless…

               “(2) prior to the statement but during the recording the accused is

      given the warning in Subsection (a) of Section 2 above and the accused

      knowingly, intelligently, and voluntarily waives any rights set out in the

      warning.”

       Subsection (a) of Section 2 requires that the accused be given the

following warning:

       “(5) he has the right to terminate the interview at any time…”.

       In the present case it is undisputed that Appellant was not given the

above warning. Although the courts have held that “substantial compliance” is

sufficient to meet the requirements of Art. 38.22, the courts have held that the

complete omission of the above warning renders the statement inadmissible at

trial. Hernandez v. State, 13 S.W.3d 78 (Tex. App. – Texarkana 2000, no pet),



                                        15
Nonn v. State, 69 S.W. 3d (Tex. App. – Corpus Christi 2001), aff'd 117 S.W.3d

874 (Tex. Crim. App. 2003).

        At the trial level, the State advanced the following theories to circumvent

the requirements of Art. 38.22:

        1. Appellant was not in custody

        2.   The exception in Art. 38.22 §3(c) applies in that the statement

contained assertions of facts which were found to be true and conduced to

establish the guilt of Appellant.

      The Court of Criminal Appeals has outlined 4 general situations which may

constitute custody: (1) when the suspect is physically deprived of his freedom of

action in any significant way, (2) when a law enforcement officer tells the suspect

that he cannot leave, (3) when law enforcement officers create a situation that

would lead a reasonable person to believe that his freedom of movement has been

significantly restricted, and (4) when there is probable cause to arrest and law

enforcement officers do not tell the suspect that he is free to leave. Dowthitt v.

State, 931 S.W.2d 244, 255 (Tex. Crim. App. – 1996).

      In the present case the facts showing that Appellant was in custody at the

time he made his statement are as follows: the police had identified Appellant as

                                          16
having beaten Means; the police had chased down Appellant at his father’s house

and had placed Appellant in handcuffs at his father’s house; the police had

informed him they were investigating the assault of Means; the police transported

Appellant to the Sheriff’ s Office handcuffed in a patrol car; the police then went

to the hospital and interviewed Means and obtained more specific facts

concerning the assault on Means by Appellant; hours after taking Appellant into

custody, the police returned to the Sheriff’s Office and photographed Appellant’s

clothes and person; the police then took the statement from Appellant and

formally charged him immediately afterward.

        Regarding the exception found in Art. 38.22 §3 (c), the Court of Criminal

Appeals has held that the requirement contained therein of facts or circumstances

“found to be true”, means facts or circumstances about which the police are

unaware at the time of the confession. Romero v. State, 800 S.W.2d 539, 544-

545 (Tex. Crim. App. – 1990).           The confession must reveal facts and

circumstances which lead to the discovery of items previously unknown to the

State. Romero, at 545.

         In the present case, the police were aware of the various items that

Appellant had used during the assault on Means from the interviews with Means

that had occurred prior to the taking of Appellant’s statement.
                                         17
          Appellant requests that the Court sustain Point of Error Number One.


                 POINT OF ERROR NUMBER TWO RESTATED

      The evidence is legally insufficient to sustain a conviction for Aggravated

Kidnapping.

                      SUMMARY OF THE ARGUMENT

      Aggravated Kidnapping requires the State prove that Appellant had the

specific intent to prevent Means’ liberation by secreting or holding her in a place

where she was not likely to be found. The evidence shows that during all relevant

times, Appellant and Means were in public places together, or at Means’residence

with other people present, or Means was alone at her residence with freedom to

stay or leave.

                                   ARGUMENT

        In reviewing a record for legal sufficiency, the court should view the

 evidence in the light most favorable to the verdict, and then determine whether

 any rational finder of fact could have found all of the evidential elements of the

 offense proven beyond reasonable doubt. Jackson v. Virginia, 443 U.S. 307

 (1979); Santella v. State, 939 S.W. 2d 155 (Tex. Crim. App. 1997).             The

 Jackson standard measures evidentiary sufficiency against the “substantial”


                                         18
elements of the criminal offense as defined by state law. Jackson, at f.n. 16;

Fuller v. State, 73 S. W. 3d 250, at 252 (Tex. Crim. App. 2002).

      To obtain a conviction for Aggravated Kidnapping, the State was

required to prove that Appellant had the specific intent to prevent Means’

liberation by secreting or holding her in a place where she was not likely to be

found. Laster v. State, 275 S.W.2d 512, 521 (Tex. Crim. App. – 2009). During

the entire 5 day period in which Appellant assaulted Means, there is no evidence

that Appellant had the intent to secret Means. Means was left at home alone

during this time period on several occasions. A co-worker came by to give

Means a ride to work when Means was alone and indeed observed the co-

worker. Appellant and Means went into Radio Shack where Means was left

alone with the store personnel. Means was never bound or locked in at any

location. Means purchased a cellphone for herself while she was with Appellant

that gave her the opportunity to communicate with anyone and everyone.

Although Appellant engaged in assaultive behavior toward Means, there is no

evidence to support that he had the intent to hide or secret Means so that she

could not be found.

      Appellant requests that the Court sustain Point of Error Number Two.



                                       19
             POINT OF ERROR NUMBER THREE RESTATED

      The evidence is legally insufficient to sustain a conviction for Aggravated

Sexual Assault.

                      SUMMARY OF THE ARGUMENT

      One of the required elements of Aggravated Sexual Assault is proof that

Appellant caused serious bodily injury or attempted to cause the death of Means.

Although, Appellant caused bodily injury, the evidence is insufficient to show

serious bodily injury or an attempt to cause the death of Means.

                                  ARGUMENT

        In reviewing a record for legal sufficiency, the court should view the

evidence in the light most favorable to the verdict, and then determine whether

any rational finder of fact could have found all of the evidential elements of the

offense proven beyond reasonable doubt. Jackson v. Virginia, 443 U.S. 307

(1979); Santella v. State, 939 S.W. 2d 155 (Tex. Crim. App. 1997). The Jackson

standard measures evidentiary sufficiency against the “substantial” elements of

the criminal offense as defined by state law. Jackson, at f.n. 16; Fuller v. State,

73 S. W. 3d 250, at 252 (Tex. Crim. App. 2002).

        A necessary element of Aggravated Sexual Assault as alleged in the

 indictment is that Appellant caused serious bodily injury or attempted to cause
                                         20
the death of Means. (C.R. p. 26 , Tex. Pen. Code §22.021(a)(2)(A)(i)). There is

no evidence in the record that Appellant attempted to cause the death of Means.

“Serious bodily injury” is defined as bodily injury that creates a substantial risk

of death or that causes death, serious permanent disfigurement, or protracted

loss or impairment of the function of any bodily member or organ. Tex. Pen.

Code §1.07(a)(46).

       The existence of serious bodily injury is determined by the injury as

inflicted. The State may not transform an injury into serious bodily injury

through use of speculative testimony about what might have occurred had the

injury not been medically treated. Moore v. State, 802 S.W.2d 367, 370 (Tex.

App. – Dallas 1990, pet. ref’d). The State should provide medical evidence of

the degree of injury; the victim’s testimony alone is generally not sufficient to

prove this element. Webb v. State, 801 S.W.2d 529, 532-533 (Tex. Crim. App.

– 1990).

       Means was suffering from renal failure when she was brought to the

Emergency Room in Crockett. This was treated by hydration via an intravenous

tube. After being transported to the Tyler hospital, Appellant underwent surgery

for the puncture wound to her elbow and her orbital fracture. The last progress

note from the Tyler hospital states “no visual problems or difficulties”, her
                                        21
 elbow has “full range of motion” and “no pain”, “renal failure improving”, and

 “no other problems or difficulties”. No physician testified regarding long-term

 medical issues relating to the assault.

        Appellant requests that the Court sustain Point of Error Number Three.

              POINT OF ERROR NUMBER FOUR RESTATED

             The trial court erred in failing to instruct the jury on the lesser

included offense of Sexual Assault.

                       SUMMARY OF THE ARGUMENT

      Sexual Assault is a lesser included offense of Aggravated Sexual Assault.

The jury could have rationally found that Means did not suffer serious bodily

injury, so as to find Appellant was guilty only of the lesser included offense of

Sexual Assault.

                                    ARGUMENT

      The determination of whether a lesser included offense instruction must be

given requires a two-step analysis. First, it must be determined whether the

requested offense has the relationship of a lesser included offense to the offense

charged in the indictment. Second, the evidence at trial must be considered to

determine whether there is a basis for the jury to conclude that the defendant may

be found guilty only of the charged offense, which means that there must be a

                                           22
reasonable view of the evidence from which the jury may conclude the defendant

is not guilty of the charged offense but possibly guilty of the requested lesser

included offense.

      An offense is a lesser included offense of another offense, under Article

37.09(1) of the Code of Criminal Procedure, if the indictment for the greater-

inclusive offense alleges all of the elements of the lesser-included offense. Ex

Parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. – 2010). In the present case

sexual assault is a lesser included offense of aggravated sexual assault in that the

indictment alleges all of the elements of sexual assault.

      Anything more than a scintilla of evidence is sufficient to entitle the

defendant to an instruction on the lesser included offense. Hall v. State, 225

S.W.3d 524, 535-536 (Tex. Crim. App. – 2007). In the present case, there existed

a fact question as to whether Appellant had caused seriously bodily injury or

attempted to caused the death of Means. (See Point of Error Number Three

above).

          Appellant requests that the Court sustain Point of Error Number Four.

                POINT OF ERROR NUMBER FIVE RESTATED

      During final argument in the punishment phase of the trial, the prosecutor

made improper jury arguments that were outside the record.

                                          23
                       SUMMARY OF THE ARGUMENT

      During final argument in the punishment phase of the trial, the prosecutor

injected facts outside the record. The improper arguments were extreme and

manifestly improper and injected new and harmful facts into the trial.

                                   ARGUMENT

      Jury arguments should be confined to the following areas: (1) summation of

the evidence, (2) reasonable deduction from the evidence, (3) answer to argument

of opposing counsel, and (4) plea for law enforcement. Argument that falls outside

these areas and that are extreme or manifestly improper or inject new and harmful

facts, and are reversible on appeal. Person v. State, 706 S.W.2d 153, 154 (Tex.

App. – Houston [1st Dist.] 1986, no pet.).

      There was no evidence in the record that the sexual assault and kidnapping

are “not seen” or “not typical” in crimes involving family violence. Nor is there

evidence that it is typical for a defendant to be remorseful. Nor is there evidence in

the record that there are a whole lot of inmates in prison that would look at

Appellant’s conduct and find it so heinous as to recoil in disbelief.

      The prosecutor’s arguments are similar to the improper arguments made in

Prado v. State, where the court held it was reversible error for the prosecutor to

argue if the community knew what the defendant did, it would want the defendant

                                          24
to go to the penitentiary. See, Prado v. State, 626 S.W.2d 775 (Tex. Crim. App. –

1982).

         There is no assurance the prosecutor’s improper argument had no effect

on the jury’s assessment of punishment. Not only were new and harmful “facts”

put before the jury, but the trial court compounded the error by overruling the

objections. There is no certainty that the jury would have assessed the 40 years

on the Aggravated Sexual Assault and Aggravated Kidnapping charges and 10

years on the Assault charge, absent the error. Peak v. State, 57 S.W.3d 14, 19-21

(Tex. App. – Houston [14th Dist.] 2001, no pet.)..

         Appellant requests that the Court sustain Point of Error Number Five.

                POINT OF ERROR NUMBER SIX RESTATED

      During final argument in the punishment phase of the trial, the prosecutor

misstated the law.

                       SUMMARY OF THE ARGUMENT

      During final argument in the punishment the prosecutor misstated the law as

it applied to this case. The improper arguments were extreme and manifestly

improper in that the jury was essentially told that 25 years to life was the range of

punishment.



                                          25
                                   ARGUMENT

      Jury arguments should be confined to the following areas: (1) summation of

the evidence, (2) reasonable deduction from the evidence, (3) answer to argument

of opposing counsel, and (4) plea for law enforcement. Argument that falls outside

these areas and that are extreme or manifestly improper or inject new and harmful

facts, and are reversible on appeal. Person v. State, 706 S.W.2d 153, 154 (Tex.

App. – Houston [1st Dist.] 1986, no pet.).

      The prosecutor told the jury that the law states that if Appellant had been

tried separately for the three crimes for which he was convicted, he would be

facing a minimum sentence of 25 years. This was misleading to the jury, in that

Appellant’s range of punishment ranged from 2-10 years for the Assault by

Strangulation, and 5-99 years or life for the Aggravated Kidnapping and

Aggravated Sexual Assault. In addition, he was eligible for probation on each

conviction. The prosecutor’s argument was a misstatement of the law and

designed to confuse and mislead the jury.

        It is improper for the prosecutor to incorrectly state the law contrary to

the trial court’s instruction.   Peak v. State, 57 S.W.3d 14, 19 (Tex. App. –

Houston [14th Dist.] 2001, no pet.). There is no assurance that this misstatement

                                         26
of the law had no effect on the jury’s assessment of punishment. Not only was

the jury misled, but the trial court compounded the error by overruling the

objection. There is no certainty that the jury would have assessed the 40 years on

the Aggravated Sexual Assault and Aggravated Kidnapping charges and 10 years

on the Assault charge, absent the error. See, Peak, supra at 19 – 21.

        Appellant requests that the Court sustain Point of Error Number Six.

                                     PRAYER

      WHEREFORE, PREMISE CONSIDERED, Appellants prays this Honorable

Court to sustain the point of errors raised above, vacate the judgment and reverse

and render an acquittal or remand the case for new trial.




                                       Respectfully submitted,

                                       William M. Curley, P.C.
                                       507 N. Church St.
                                       Palestine, Tx 75801
                                       (903) 723-6757
                                       (903) 727-0554



                                       By:/s/ William M. Curley
                                          William M. Curley
                                          State Bar No. 05257100
                                          Attorney for Appellant

                                         27
                   CERTIFICATE OF COMPLIANCE

      I certify that pursuant to Tex. R. App. Pro. 9.4(i)(3), in reliance on the word

count of the computer program used to prepare this document, the word count of

this document is 4,936.


                                   /s/ William M. Curley
                                   William M. Curley



                        CERTIFICATE OF SERVICE

      I certify that a true copy of Appellant’s Brief was served in accordance with

rule 9.5 of the Texas Rules of Appellate Procedure on each party or that party's

lead counsel as follows:

Party: State of Texas

Lead attorney: Donna Gordon Kaspar

Address:     401 East Houston Ave., Crockett, Tx 75835

Method of service: email to dgordon@co.houston.tx.us

Date of service: April 20, 2015



                                   /s/ William M. Curley
                                   William M. Curley

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