                                                                                      ACCEPTED
                                                                                  01-14-00700-CR
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                            8/12/2015 12:17:42 AM
                                                                            CHRISTOPHER PRINE
                                                                                           CLERK

                     CAUSE NO. 01-14-00700CR
                  IN THE COURT OF APPEALS FOR
                                                            FILED IN
              THE FIRST JUDICIAL DISTRICT OF TEXAS1st COURT OF APPEALS
                                                          HOUSTON, TEXAS
                             HOUSTON
                                                       8/12/2015 12:17:42 AM
                THERRELL DEWAYNE FELDER, SR.,          CHRISTOPHER A. PRINE
                                                                Clerk
                             Appellant
                                Vs.
                      THE STATE OF TEXAS,
                             Appellee




            APPEALING THE TRIAL COURT’S JUDGMENT
                     ON VERDICT OF GUILY IN
                       CAUSE NO. 14CR0283
                   IN THE 122nd DISTRICT COURT
                  OF GALVESTON COUNTY, TEXAS
               HONORABLE JOHN ELISOR, PRESIDING




                       APPELLANT’S BRIEF




                                        ZACHARY MALONEY
                                        SBN 24030761
                                        MALONEY & PARKS, L.L.P.
                                        2925 GULF FREEWAY S. STE. B #295
                                        LEAGUE CITY, TEXAS 77573
                                        (713) 228-2277 Ofc.
                                        (866) 838-5656 Fax.
                                        ZACHMALONEY@GMAIL.COM


ORAL ARGUMENT IS REQUESTED              ATTORNEY FOR APPELLANT
                IDENTITY OF PARTIES AND COUNSEL

Matthew Michael Shawhan
SBOT NO. 24061342
Joseph Chicherio “Joe” Frank
SBOT NO. 24058444
Galveston County District Attorney’s Office
600 59th Street, Suite 3305
Galveston, Texas 77511
(409) 766-2355 phone
(409) 766-2290 fax
ATTORNEYS FOR THE STATE OF TEXAS

Michael Anthony Abner, Jr.
Attorney at Law
SBOT NO. 24061347
16324 Brookforest Drive
Houston, Texas 77059
(281) 221-1026
ATTORNEY FOR THE DEFENDANT AT TRIAL

Attorney for Appellant on Appeal
ZACHARY MALONEY
SBN 24030761
MALONEY & PARKS, L.L.P.
2925 GULF FREEWAY S. STE. B #295
LEAGUE CITY, TEXAS 77573
(713) 228-2277 Ofc.
(866) 838-5656 Fax.
ZACHMALONEY@GMAIL.COM




                                     i
                            TABLE OF CONTENTS



Identity of Parties and Counsel                   i

Index of Authorities                            iii

Statement of the Case                            v

Statement of Facts                               v

Summary of the Arguments                         1

Arguments and Authorities                        2

Prayer                                           8

Certificate of Service                           9




                                    ii
                      INDEX OF AUTHORITIES

Cases
Albrecht v. State, 486 S.W.2d 97, 99 (Tex.Cr.App.1972).
Bates v. State, 643 S.W.2d 939, 944 (Tex.Cr.App.1982);

Boutwell v. State, 719 S.W.2d 164 (Tex.Cr.App.1985)

Elkins v. State, 647 S.W.2d 663, 665 (Tex.Cr.App.1983)

Harris v. State, 169 Tex.Cr.R. 143, 333 S.W.2d 142, 144 (1960)

Hernandez v. State, 484 S.W.2d 754, 755 (Tex.Cr.App.1972)

Murphy v. State, 587 S.W.2d 718, 722 (Tex.Cr.App.1979)

Parks v. State, 746 SW2d 738, (Tex. Crt Crim. App. 1987).
Plante v. State, 692 S.W.2d 487, 491 (Tex.Cr.App.1985)

Robledo v. State, 480 S.W.2d 401, 402 (Tex.Cr.App.1972)

Rubio v. State, 607 S.W.2d 498, 499 (Tex.Cr.App.1980)

Velu v. State, 2009 WL 471344 (Waco. Pet. Denied 2009)

Verner v. State, 117 Tex.Cr.R. 112, 35 S.W.2d 428, 429 (1931).

Williams v. State, 662 S.W.2d 344, 346 (Tex.Cr.App.1984).

Statutes and Rules

Tex.Cr.R. 143, 333 S.W.2d 142, 144 (1960)



CITATIONS TO THE RECORD
Reporter’s Record: volume, page no.
        (Rr #p #)

                                       iii
Clerk’s Record: volume, page no.
     (Cr # p #)




                                   iv
                          STATEMENT OF THE CASE

    The transcript begins with Felder (Appellant) asking for a severance of two

cases. Rr 2 p 4. Cause numbers 14CR0282 and 14CR0283 where both for the

offense of forgery.    Severance was granted and trial began in cause number

14CR0283. On July 1st, 2014, the Jury found Appellant “Guilty” and both of his

habitual enhancements “true”. The indictment charged Appellant for passing a

counterfeit $100 bill on December 26th, 2014. CR. 1 p 52. The Appellant went to

the court for punishment and was awarded 25 years confinement in the

Institutional Division of the Texas Department of Criminal Justice. July 18th,

2014. Motion for new trial was heard and denied on September 26th, 2014. Cr 1 p

75. Appellant presents his direct appeal.




                           STATEMENT OF FACTS

      On December 26, 2013, Appellant allegedly passed a counterfeit $100 bill

to Crystal Morris the clerk at Food King, in Texas City, Galveston County. The

clerk, noticing the fake bill called her Manager, Anthony Melchor. Manger

Melchor, meet with Morris and the Appellant. The Appellant asked for the bill

back and left when denied its’ return. Appellant was later identified through in-

store video and photo line-ups. Appellant was later arrested on an arrest warrant.



                                            v
      During trial, for the December offense, the State argued that since identity

and intent where issues the State was allowed to enter the indicted October offense

as proof of identity and intent. Rr 4 p 6&7. However, there was no evidence.

(short of Defense counsel stating it could have been the Appellant), offered at the

time of this introduction in the record, that Appellant was identified as committing

the October offense; nor, any evidence to support intent of the October offense.

      The State’s liberal interpretation of the case law to sway the court is

concerning. Rr 4. p 7&8. Defense counsel objected. To no avail the trial court

allowed testimony of the October offense. Trial resumed with the Jury hearing

testimony for a forgery offense allegedly committed by the Appellant on October

10, 2013 for a passing a counterfeit $20 dollar bill to a different clerk at the same

Food King.

      There are similarities in both cases. However, in the October offense, the

clerk did not realize the bill was counterfeit until after the Appellant left and the

bill had been deposited in the register. The October offense also dealt with the

same issues of identity and intent. The Jury decided to believe the State’s offer of

proof and found the Appellant “Guilty”.




                                          vi
                    SUMMARY OF THE ARGUMENTS

Point of Error One (1): The trial court erred allowing evidence of an indicted

extraneous offense, (hereinafter the “October offense”) where the prejudicial

effect outweighed the probative value.




                                         1
                        APPELLANT'S POINT OF ERROR



                                 ARGUMENT I



Point of Error One (1): The trial court erred allowing evidence of an indicted

extraneous offense, (hereinafter the “October offense”) where the prejudicial

effect outweighed the probative value.



      The State and Appellant rely heavily on Parks v. State, 746 SW2d 738,

(Tex. Crt Crim. App. 1987). In Parks, that Appellant was convicted for forgery

involving the filing of forged real property documents. Id at 739. During the

course of the Parks trial other similarly illegal transactions were introduced into

evidence. Id. at 740.

      Appellant, to paraphrase Parks’ argument, contends that there is other

evidence sufficient to show the Appellant's intent to defraud. Intent is at issue in

the instant case, evidence of the October extraneous offense remains extremely

prejudicial and has no probative value. Appellant argues the trial court failed, in

determining the admissibility of this evidence, in applying the Williams balancing

test as explained Parks and in           Albrecht v. State, 486 S.W.2d 97, 99




                                          2
(Tex.Cr.App.1972). See also, Hernandez v. State, 484 S.W.2d 754, 755

(Tex.Cr.App.1972).

      “This test requires that a determination be made as to whether the

prejudicial effects of admitting this evidence are outweighed by the probative

value this evidence may have in aiding the trier of fact in reaching a verdict.

Albrecht v. State, supra. See also Boutwell v. State, 719 S.W.2d 164

(Tex.Cr.App.1985); Williams v. State, 662 S.W.2d 344, 346 (Tex.Cr.App.1984).

This “test” is really nothing more than a statement of a fundamental principle of

evidence. The “test” has been further developed in the Williams case. For the sake

of convenience it will be referred to in this opinion as the “Williams” test.” Parks

at 739 &740.

      In the instant case (the December offense), the State introduced direct

evidence in the testimony of the Clerk, the Manager, the photo line up, the video

of the Appellant, and testimony as to the flaws in the counterfeit bill. Evidence,

suffice enough to not warrant the “booting strapping” of the October offense.

      “[A]n accused person may not be tried for collateral criminal offenses or for

being a criminal generally. Williams v. State, supra; Albrecht v. State, supra; Rubio

v. State, 607 S.W.2d 498, 499 (Tex.Cr.App.1980). Evidence of extraneous

offenses is of an inherently prejudicial nature and may tend to confuse the issues

of the case. Albrecht v. State, supra. Such evidence carries with it the additional



                                         3
danger that an accused person may be called upon to defend himself against an

implied charge of having a propensity to commit crimes rather than the specific

offense for which he is on trial. Williams v. State, supra; Elkins v. State, 647

S.W.2d 663, 665 (Tex.Cr.App.1983); Bates v. State, 643 S.W.2d 939, 944

(Tex.Cr.App.1982); Albrecht v. State, supra. “Parks at 740.



         There are exceptions to the rule, In Albrecht, “Evidence of extraneous

offenses committed by the accused has been held admissible:

(1) To show the context in which the criminal act occurred—what has been termed

the ‘res gestae’—under the reasoning that events do not occur in a vacuum and

that the jury has a right to hear what occurred immediately prior to and subsequent

to the commission of that act so that they may realistically evaluate the evidence.

(2) To circumstantially prove identity where the state lacks direct evidence on this

issue.

(3) To prove scienter, where intent or guilty knowledge is an essential element of

the state's case and cannot be inferred from the act itself.

(4) To prove malice or state of mind, when malice is an essential element of the

state's case and cannot be inferred from the criminal act.

(5) To show the accused's motive, particularly where the commission of the

offense at bar is either conditioned upon the commission of the extraneous offense



                                           4
or is a part of a continuing plan or scheme of which the crime on trial is also a

part.

(6) To refute a defense theory raised by the accused.” (footnotes omitted). 486

S.W.2d at 100–101.

        Parks states that such evidence is clearly admissible when the prosecution

can show both that the offense or transaction is relevant to a material issue in the

case, and the probative value of the evidence to the trier of fact is not outweighed

by its prejudicial or inflammatory nature. Boutwell v. State, supra; Plante v. State,

692 S.W.2d 487, 491 (Tex.Cr.App.1985); Williams v. State, supra, at 346; Elkins

v. State, supra, at 665; Murphy v. State, 587 S.W.2d 718, 722 (Tex.Cr.App.1979).

Rubio v. State, supra, (concurring opinion). That is not what occurred in the instant

case. Evidence of identity and intent for the October offense was not sufficient to

warrant inclusion into the December trial case. It fails to meet the Williams test.

        The Williams test has two prongs, first if the evidence of extraneous

offenses is relevant to a material issue in dispute in the case, and second, if the

probative value of such evidence outweighs its prejudicial effect.

        In the instant case the State relies on the misinterpretation of Parks where,

“cases of forgery and fraud, it is difficult to prove intent. Robledo v. State, 480

S.W.2d 401, 402 (Tex.Cr.App.1972); Harris v. State, 169 Tex.Cr.R. 143, 333

S.W.2d 142, 144 (1960); Verner v. State, 117 Tex.Cr.R. 112, 35 S.W.2d 428, 429



                                          5
(1931). [Court of Criminal Appeals has] held that intent or guilty knowledge

cannot be inferred from the mere passing of a forged instrument. Albrecht v. State.

Indeed, to hold otherwise would create the danger that the unknowing and

accidental passing of a forged instrument could effectively become a strict liability

offense. The issue of intent is of such overriding importance in a case of forgery

that it effectively becomes the focus of the State's case. Establishing intent in such

cases is so crucial and so difficult to do that, as a practical matter, evidence of

extraneous offenses is nearly always admissible. Robledo v. State, supra; Harris v.

State, supra; Vernon v. State, supra. While it is hypothetically possible that a case

of forgery could be established by direct evidence, such as eyewitness testimony,

most cases of forgery rest on circumstantial evidence. In the vast majority of such

cases, the probative value of evidence of extraneous offenses will inevitably

outweigh its prejudicial effect.” Parks, 741.



      As stated before, in the instant case the State had a wealth of evidence to

present to the jury to show identity, intent and guilt without the use of the October

offense.



      In applying the first prong of the Williams test, the extraneous offense

alleged was not relevant to a material element of the State's case. True the alleged



                                          6
transactions involved were nearly identical. However, the October offense had the

issues of identity as well as the fact that the counterfeit bill was not discovered

until after the Appellant had left and the bill was examined later. In the instant

case the State could rely upon the conversations of the witnesses and the defendant

and the testimony as to the authenticity of the counterfeit bill. Given, that the jury

had other evidence to consider the October extraneous offense was not to a

material element of the State's case.

The second prong of Williams test is the balance between the probative and the

prejudicial aspects of the evidence in question. In assessing this balance between

the probative values of the evidence versus its prejudicial effect, it is necessary to

view the nature of the State's case. The State's case consisted of evidence that

appellant had passed the counterfeit $100.00 dollar bill, opinion testimony as to

the flaws in the bill, the photo line up, the testimony of two eyewitnesses as to the

Appellant’s demeanor, actions and conversations with the Appellant. The addition

of the October offense was purely to inflame the jury and sway the jury and not for

probative value.

      The second prong of the Williams test, as established in Albrecht, is not

satisfied. The evidence was improperly admitted.

      The State’s use of the unpublished opinion, Velu v. State, 2009 WL 471344

(Waco. Pet. Denied 2009) is factually disguisable and wrong to use in the instant



                                          7
case. Velu confessed that he had passed forged checks; Velu gave conflicting

statements implicating his guilt. Identity and intent was not at issue an either

Velu’s trial case nor the extraneous offenses. In the Instant case Appellant gave

neither statement nor was his identity known till after the completion of the

offense. The State’s use of Velu to redefine Parks is flawed and the prejudicial

harm caused to the Appellant outweighs the probative value of the October

offense.

                                     CONCLUSION

      The State relies upon the allegation that Appellant was the culprit in both

cases. In both cases identity and intent are at issue. In the caselaw relied upon by

the State, identity was not an issue, nor was the actions of those defendants. In the

instant case, the state glazes over the fact that the discovery of the counterfeit

$20.00 dollar bill was not discovered till after the appellant left and the bill

removed from the till. There was ample evidence in the instant case for the State

to use without the October offense. Under the Williams test, as summarized in

Parks, the October offense as evidence in guilt innocence was improperly

admitted.




                                         8
                                     PRAYER

      WHEREFORE, should the Honorable Court of Appeals find error in the

record on appeal, Appellant prays the Court reverse and remand this cause for new

trial, remand for new trial on punishment or, in the alternative, reverse and render

with instruction to enter a judgment of acquittal.

                      CERTIFICATE OF COMPLIANCE

      I hereby certify pursuant to TRAP 9.4(i) that the preceding document

contains 2,492 words as determined by the word count of the computer program

used to prepare this document.

                                       /s/ Zachary S. Maloney
                                       Zachary S. Maloney




                         CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing Appellant’s Original Brief has

been sent to the Galveston County, District Attorney’s Office, Appeal Division, on

this the 20th day of June, 2015.



                                           __/S/ Zachary S. Maloney
                                           ZACHARY MALONEY




                                          9
