                                                                                   ACCEPTED
                                                                               14-15-00167-CR
                                                               FOURTEENTH COURT OF APPEALS
                                                                            HOUSTON, TEXAS
                                                                         12/17/2015 1:11:08 PM
                                                                         CHRISTOPHER PRINE
                                                                                        CLERK




                      NO. 14-15-00167-CR
                                                            FILED IN
                                                     14th COURT OF APPEALS
            IN THE COURT OF APPEALS                     HOUSTON, TEXAS
     FOR THE FOURTEENTH DISTRICT OF                 TEXAS
                                                     12/17/2015 1:11:08 PM
                                                     CHRISTOPHER A. PRINE
                                                              Clerk
                   CARL DION LOVINGS
                         Appellant

                               v.

                   THE STATE OF TEXAS
                         Appellee


            On Appeal from Cause Number 1419029
      From the 177th District Court of Harris County, Texas


                 REPLY BRIEF FOR APPELLANT



ORAL ARGUMENT REQUESTED                   ALEXANDER BUNIN
                                          Chief Public Defender
                                          Harris County, Texas
                                          JANI MASELLI WOOD
                                          Assistant Public Defender
                                          Harris County, Texas
                                          TBN. 00791195
                                          1201 Franklin Street, 13th Floor
                                          Houston, Texas 77002
                                          Phone: (713) 368-0016
                                          Fax: (713) 368-9278


                                          Counsel for Appellant
                      IDENTITY OF PARTIES AND COUNSEL


Appellant:                        Carl Dion Lovings
                                  Tdcj-id# 01984211
                                  Michael Unit
                                  2664 Fm 2054
                                  Tennessee Colony, Tx 75886

Prosecutors:                      Cheryl Ann Williamson (Trial)
                                  Nick Socias (Trial)
                                  Carly Dessauer (Appellate)
                                  Assistant District Attorneys
                                  Harris County, Texas
                                  1201 Franklin, 6th Floor
                                  Houston, Texas 77002

Defense Counsel at Trial:         Gary Polland
                                  2211 Norfolk St., Suite 920
                                  Houston, Texas 77098

Presiding Judge:                  Hon. Ryan Patrick
                                  177th District Court
                                  Harris County, Texas
                                  1201 Franklin, 19th Floor
                                  Houston, Texas 77002

Defense Counsel on Appeal:        Jani Maselli Wood
                                  Assistant Public Defender
                                  Harris County Public Defender’s Office
                                  1201 Franklin, 13th Floor
                                  Houston, Texas 77002




                                    -2-
                                                       Table of Contents


Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issue Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

          The 248th District Court convicted Mary Koul of prostitution. District
          courts have no jurisdiction in prostitution cases unless the defendant has
          previously been convicted of prostitution three or more times. Mary had
          previously been convicted of prostitution five times. But in none of the
          previous five convictions did the trial court have jurisdiction of the case.
          Did the 248th District Court have jurisdiction of the prostitution case? .. . . . . 5

Reply Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
          In a one witness trial, allowing the police officer to testify that a non-testifying complainant
was credible., and failing to get a ruling on a valid objection, is ineffective assistance of counsel in this
case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The State’s belief that the medical records were admissible under the business records exception is
wrong.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Certificate of Compliance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                                    -3-
                                      INDEX OF AUTHORITIES

Garcia v. State,
       126 S.W.3d 921 (Tex. Crim. App. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Weathersby v. State,
      627 S.W.2d 729 (Tex. Crim. App. 1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6




                                                     -4-
                                            Issues Presented

        Issue One: A witness may not testify to the credibility of another
        witness. The responding police officer - and the sole witness at trial -
        testified he found the complainant credible. Defense counsel failed to
        preserve error on this issue. Did Mr. Lovings receive ineffective
        assistance of counsel at trial?

        Issue Two: Statements made for purposes of medical diagnosis are an
        exception to the hearsay rule. The State presented “medical evidence”
        regarding Facebook posts and an argument description during closing
        argument with no objection. Did Mr. Lovings receive ineffective
        assistance of counsel at trial?


        Mr. Loving relies fully on the facts and argument presented in his original brief.
He files this reply to the State’s brief.

                            REPLY ARGUMENT AND AUTHORITIES
In a one witness trial, allowing the police officer to testify that a non-testifying complainant was
credible, and failing to get a ruling on a valid objection, is ineffective assistance of counsel in this case.
        The State avers that although trial counsel failed to properly preserve error by

failing to get a ruling, there was a “strategy:”
        Given the trial court’s response to this objection [“Let’s move on],
        counsel may have strategically decided not to object to the additional
        evidence of Peterson’s credibility based on the court’s dismissal of the
        objection or based on a desire not to emphasize the evidence to the jury.

(State’s brief a 7). Apparently, the attorney recognized there was a problem and

objected. Failing to follow through on the objection is ineffective. Failing to properly

object to the officer’s testimony is reversible error:

        Two detectives testified to their opinions from their examination of the
        files in the case that appellant was guilty. This was improper, Boyde v.
        State, Tex.Cr.App., 513 S.W.2d 588, 590, yet no objection was made.
        Later, in jury argument, these opinions were again stated to the jury, and

                                                     -5-
       still there was no objection:

               “And the key point here is a man that has had nothing to
               do with the prior investigation who is taking the
               statements, who is reading the whole file. And he believes
               that they committed the robbery, such that he goes down
               to the District Attorney's office, presents the file to the
               District Attorney's office and charges are filed, based on his
               experience and his beliefs.
               “I think I can emphasize this strong enough. Certain people
               have a finesse or ability to talk to other people, to elicit
               facts, to investigate. And this is what this detective is paid
               to do, what he is hired to do. And he states that he believes
               it to be and still does. He stated from the stand he knew
               Keith Barnes was in prison for this offense, the offense of
               aggravated robbery.”
Weathersby v. State, 627 S.W.2d 729, 730 (Tex. Crim. App. 1982).                    This case is

remarkably similar to Mr. Lovings’s case. No objection was made to the following

statement from the police officer:
       You never want to file a charge against someone if they’re being accused
       of the crime if you don’t believe that the person or persons that are
       witness against them are telling the truth.
(3 R.R. at 10-11). The State argued the credibility issue during punishment it in

punishment, like the Weathersby case. There is no strategy in allowing a witness to

vouch for the credibility of another.


The State’s belief that the medical records were admissible under the business records exception is
wrong.

       The State argues that the inadmissible evidence from the medical records was,

in fact, alternatively admissible under the business records exception:



                                               -6-
      Further, the record reveals that the objection proposed by appellant in
      his ineffective claim would have been frivolous as the complainant’s
      records were also admissible under the business record exception to the
      hearsay rule.

(State’s brief at 9). The complained of statements from the medical records are not
admissible as a business record, as explained by the Court of Criminal Appeals:

      The State laid a proper foundation for admission of the shelter's business
      records under Rule 803(6). The records themselves were admissible,
      but that does not mean that all information, from whatever source
      or of whatever reliability, contained within those business records
      is necessarily admissible. When a business receives information
      from a person who is outside the business and who has no
      business duty to report or to report accurately, those statements
      are not covered by the business records exception. Those
      statements must independently qualify for admission under their
      own hearsay exception—such as statements made for medical
      diagnosis or treatment, statements concerning a present sense
      impression, an excited utterance, or an admission by a party opponent.
      (Footnotes omitted)(emphasis added)
Garcia v. State, 126 S.W.3d 921, 926-27 (Tex. Crim. App. 2004). The statements by the
complainant were made from someone “outside the business” and thus, inadmissible.

      Mr. Lovings received ineffective assistance of counsel at trial.




                                          -7-
                                         PRAYER

      Appellant Carl Lovinngs respectfully prays that this Court reverse his

conviction and remand for a new trial.
                                                Respectfully submitted,

                                                ALEXANDER BUNIN
                                                Chief Public Defender
                                                Harris County Texas

                                                /s/ Jani J. Maselli Wood
                                                ______________________
                                                JANI J. MASELLI WOOD
                                                Assistant Public Defender
                                                Harris County Texas
                                                1201 Franklin, 13th Floor
                                                Houston Texas 77002
                                                (713) 368-0016
                                                (713) 368-4322
                                                Jani.Maselli@pdo.hctx.net
                                                TBA No. 00791195
                             CERTIFICATE OF SERVICE
      Pursuant to Tex. R. App. Proc. 9.5, this certifies that on December 17, 2015, a
copy of the foregoing was emailed to counsel for the state (through texfile.com) at the

following address:

      Carly Dessauer
      Assistant District Attorney
      1201 Franklin Street, 6th Floor
      Houston, TX 77002
      Dessauer_Carly@dao.hctx.net
                                                /s/ Jani J. Maselli Wood
                                                _________________________
                                                JANI J. MASELLI WOOD
                                                Assistant Public Defender




                                          -8-
                             CERTIFICATE OF COMPLIANCE

      Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief

complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1.      Exclusive of the portions exempted by TEX. R. APP. P. 9.4 (i)(1), this brief

contains 1,416 words printed in a proportionally spaced typeface.
2.     This brief is printed in a proportionally spaced, serif typeface using Garamond

14 point font in text and Garamond 14 point font in footnotes produced by

Wordperfect.
3.          Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in TEX. R. APP.

P. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.


                                                 /s/ Jani J. Maselli Wood
                                                 _________________________
                                                 JANI J. MASELLI WOOD




                                           -9-
