                                                                                 ACCEPTED
                                                                            06-14-00130-CR
                                                                  SIXTH COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                                                                       2/2/2015 11:28:07 AM
                                                                            DEBBIE AUTREY
                                                                                     CLERK




                 ORAL ARGUMENT WAIVED
                                                           FILED IN
                                                    6th COURT OF APPEALS
                  CAUSE NO. 06-14-00130-CR            TEXARKANA, TEXAS
                                                    2/3/2015 11:28:07 AM
                                                        DEBBIE AUTREY
                            IN THE                          Clerk

                     COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

              ALVIN PETER HENRY, JR., Appellant

                               V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

      ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
                   LAMAR COUNTY, TEXAS
   TRIAL COURT NO. 25589; HONORABLE BILL HARRIS, JUDGE
____________________________________________________________


  APPELLEE’S (STATE’S) BRIEF
____________________________________________________________


                    Gary D. Young, County and District Attorney
                    Lamar County and District Attorney’s Office
                    Lamar County Courthouse
                    119 North Main
                    Paris, Texas 75460
                    (903) 737-2470
                    (903) 737-2455 (fax)

                    ATTORNEYS FOR THE STATE OF TEXAS
                IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and

counsel is not required to supplement or correct the appellant’s list.




                                       -i-
                                 TABLE OF CONTENTS

                                                                                         PAGE:

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . .                             i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            ii

INDEX OF AUTHORITIES . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .             iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . .               viii

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . .                                        x

ISSUE PRESENTED IN REPLY . . . . . . . . . . . . . . . . . . . . . . . . .                  xi

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . .                       10

ARGUMENT AND AUTHORITIES

        ISSUES PRESENTED IN REPLY NOS. 1 & 2: THE
        EVIDENCE WAS LEGALLY SUFFICIENT FOR A
        RATIONAL JURY TO FIND BEYOND A REASONABLE
        DOUBT THAT THE APPELLANT, HENRY, WAS
        “ONE AND THE SAME” PERSON LINKED TO
        THE PRIOR CONVICTIONS. . . . . . . . . . . . . . . . . . . . . .                    11

        ISSUE PRESENTED IN REPLY NO. 3: THE TRIAL
        COURT DID NOT ABUSE ITS DISCRETION IN
        EXCLUDING THE APPELLANT’S EVIDENCE OF
        HIS “DIMINISHED CAPACITY” DURING THE
        GUILT-INNOCENCE PHASE OF THE TRIAL. . . . . .                                       23



                                                -ii-
                                                                                                 PAGE:

         ISSUE PRESENTED IN REPLY NO. 4: THE TRIAL
         COURT DID NOT ABUSE ITS DISCRETION IN
         DENYING THE APPELLANT’S REQUESTED JURY
         INSTRUCTION ON “DIMINISHED CAPACITY.” . . .                                                28

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      30

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . .                             30

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . .                        31




                                                     -iii-
                                 INDEX OF AUTHORITIES

CASES:                                                                                         PAGE:

Abdnor v. State, 871 S.W.2d 726, 731, 732 (Tex. Crim.
     App. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       28,29

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
     App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          11

Castillo v. State, 913 S.W.2d 529, 337 (Tex. Crim.
       App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        13

Chiles v. State, 57 S.W.3d 512, 518, 519 n.3 (Tex. App.--Waco
      2001, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      23,24

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim
      App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       11-12

Cooper v. State, 363 S.W.3d 293, 296 (Tex. App.--Texarkana
     2012, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        12,15

Cowles v. State, 510 S.W.2d 608, 609 (Tex. Crim.
     App. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          24

Darnes v. State, 118 S.W.3d 916, 918, 919 (Tex. App.--Amarillo
     2003, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      25,26,27

Davis v. State, 268 S.W.3d 683, 715, 716 (Tex. App.--Fort
      Worth 2008, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . .             13,14

Ex parte Russell, 738 S.W.2d 644, 647 (Tex. Crim.
      App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         14

Flowers v. State, 220 S.W.3d 919, 921, 923 (Tex. Crim.
     App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,15,19,20,21,22



                                                    -iv-
CASES:                                                                                            PAGE:

Fuller v. State, 829 S.W.2d 191, 197 (Tex. Crim. App.
      1992), overruled on other grounds . . . . . . . . . . . . . . . . . .                         13,14

Hart v. State, 314 S.W.3d 37, 40 n. 1 (Tex. App.--Texarkana
      2010, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            24

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.--Texarkana
      2010, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             11

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
     App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             11

Howard v. State, 896 S.W.2d 401, 406 (Tex. App.--Amarillo
     1995, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         13-14,15

Human v. State, 749 S.W.2d 832, 839 (Tex. Crim.
    App. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              15

Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim.
      App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            24

Jackson v. State, 115 S.W.3d 326, 328 (Tex. App.--Dallas
      2003), aff’d, 160 S.W.3d 568 (Tex. Crim. App. 2005) . . . 24,25,26,27

Jackson v. Virginia, 443 U.S. 307, 318, 319, 99 S.Ct. 2781,
      61 L.Ed.2d 560 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . .                     11

Littles v. State, 726 S.W.2d 26, 31 (Tex. Crim. App.
        1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      15-16

Logan v. State, 482 S.W.2d 229, 232 (Tex. Crim.
     App. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               14

Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App.
       1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        23


                                                       -v-
CASES:                                                                                        PAGE:

Mays v. State, 223 S.W.3d 651, 653, 654 (Tex. App.--Texarkana
      2007), rev’d, 318 S.W.3d 368, 381, 382 (Tex. Crim. App. 2010),
     cert. denied, ___ U.S. ___, 131 S. Ct. 1606; 179 L. Ed.
     2d 506 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,24.28, 29

Montgomery v. State, 810 S.W.2d 372, 378-379, 391 (Tex. Crim. App.
     1990) (op. on reh’g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23.27

Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.
      2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         23

Rhoten v. State, 299 S.W.3d 349, 355 n. 8 (Tex. App.--Texarkana
     2009, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             24

Rosales v. State, 867 S.W.2d 70, 72, 73 (Tex. App.--El Paso
      1993, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        13,14

Ruffin v. State, 270 S.W.3d 586, 593, 596 (Tex. Crim.
       App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          24

Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009) . .                                     28

Smith v. State, 401 S.W.3d 915, 920 (Tex. App.--Texarkana
     2013, pet. ref’d) (Morriss, C.J.) . . . . . . . . . . . . . 11,12,15,19,20,21, 22

Smith v. State, 998 S.W.2d 683, 687, 688 (Tex. App.--Corpus
      Christi 1999, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . .            13, 14

Wagner v. State, 687 S.W.2d 303, 311, 312 (Tex. Crim. App.
     1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25,26,27

Warner v. State, 944 S.W.2d 812, 815-16 (Tex. App.--
     Austin 1997, pet. dism’d), 969 S.W. 2d 1 (Tex. Crim.
     App. 1998) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . .                26,27



                                                     -vi-
CASES:                                                                                     PAGE:

Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.--Texarkana
      2012, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    28,29

Wright v. State, 932 S.W.2d 572, 576 (Tex. App.--Tyler
     1995, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       13


STATUTES:                                                                                  PAGE:

TEX. R. APP. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       14,15

TEX. R. APP. P. 38.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . .                 i



TREATISES:                                                                                 PAGE:

Texas Criminal Pattern Jury Charges, Defenses, 2010,
      Volume 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      28




                                                   -vii-
                      STATEMENT OF THE CASE

      This is a criminal appeal from the trial court’s final judgment of

conviction (CR, pgs. 93-94) for evading arrest or detention with a motor

vehicle. See Tex. Penal Code Ann. § 38.04(a) (Vernon Supp. 2014).

      Following a high-speed chase on December 24, 2013, a grand jury in

Lamar County returned an original indictment against Henry for the felony

offense of evading arrest or detention with a motor vehicle, which also

alleged a deadly weapon. See CR, pg. 5. Later, the State filed an amended

notice the State filed its first amended notice of intent to seek enhanced

sentence as a habitual offender. See CR, pgs. 45-46.

      After a jury trial, the jury, by its verdict, found Henry guilty of the

offense of evading arrest or detention with a motor vehicle, as charged in the

indictment. See RR, Vol. 4, pg. 60; CR, pg. 75. On the special issue, the

jury further found beyond a reasonable doubt that Henry did use or exhibit a

deadly weapon, to-wit: a motor vehicle. See RR, Vol. 4, pg. 61; CR, pg. 76.

      By its verdict, the jury assessed punishment at confinement for sixty

(60) years in the Texas Department of Criminal Justice, Institutional

Division. See RR, Vol. 4, pg. 144; CR, pg. 83. The trial court pronounced

sentence (RR, Vol. 4, pgs. 145-146) and signed its judgment of conviction.


                                    -viii-
See CR, pgs. 93-94. Henry filed notice of appeal. See CR, pg. 92.




                                    -ix-
    STATEMENT REGARDING ORAL ARGUMENT

The State will waive oral argument. See Tex. R. App. P. 38.2.




                              -x-
             ISSUES PRESENTED IN REPLY

ISSUES PRESENTED IN REPLY NOS. 1 & 2: THE EVIDENCE
WAS LEGALLY SUFFICIENT FOR A RATIONAL JURY TO FIND
BEYOND A REASONABLE DOUBT THAT THE APPELLANT,
HENRY, WAS “ONE AND THE SAME” PERSON LINKED TO THE
PRIOR CONVICTIONS.

ISSUE PRESENTED IN REPLY NO. 3: THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN EXCLUDING THE
APPELLANT’S EVIDENCE OF HIS “DIMINISHED CAPACITY”
DURING THE GUILT-INNOCENCE PHASE OF THE TRIAL.

ISSUE PRESENTED IN REPLY NO. 4: THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN DENYING THE APPELLANT’S
REQUESTED JURY INSTRUCTION ON “DIMINISHED
CAPACITY.”




                        -xi-
                      CAUSE NO. 06-14-00130-CR

                                 IN THE

                          COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

                 ALVIN PETER HENRY, JR., Appellant

                                    V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

      ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
                   LAMAR COUNTY, TEXAS
   TRIAL COURT NO. 25589; HONORABLE BILL HARRIS, JUDGE
____________________________________________________________


  APPELLEE’S (STATE’S) BRIEF
____________________________________________________________

TO THE HONORABLE SIXTH COURT OF APPEALS AT
TEXARKANA:

      COMES NOW, the State of Texas, by and through the elected County

and District Attorney of Lamar County, Gary D. Young, and the Lamar

County and District Attorney’s Office, respectfully submits its Appellee’s

(State’s) Brief under Rule 38.2 of the Texas Rules of Appellate Procedure.

      Unless otherwise indicated, Alvin Peter Henry, Jr. will be referred to


                                    -1-
as “the appellant” or “Henry” and the State of Texas as “the State.”

                         STATEMENT OF FACTS

      Factual Background: Christmas Eve, December 24, 2013.

      On December 24, 2013 (RR, Vol. 4, pg. 17), Jeremy Massey, a peace

officer and sergeant with the Reno Police Department, (Sergeant Massey)

was working the day shift on Christmas eve from 8:00 to 5:00. See RR, Vol.

4, pgs. 15, 18, 34. Sergeant Massey received a call from the Lamar County

Sheriff’s Department that the Paris Police Department was investigating a

shoplifter. See RR, Vol. 4, pgs. 17, 19, 35. The shoplifter had found the

employees and left the scene eastbound on Highway 82 towards Reno in a

maroon Ford passenger car. See RR, Vol. 4, pg. 19. Reno, Texas was in

Lamar County. See RR, Vol. 4, pg. 19.

      After getting the information from the Paris Police Department,

Sergeant Massey left the office on Blackburn Street, turned from Blackburn

onto Highway 82 westbound, and immediately saw the car. See RR, Vol. 4,

pg. 19. Sergeant Massey turned around (RR, Vol. 4, pg. 23; State’s Exhibit

1), and tried to stop the car; but the car did not stop. See RR, Vol. 4, pg. 20.

Pursuit began eastbound towards Clarksville.        See RR, Vol. 4, pg. 21.

Sergeant Massey was “already going 106” and the vehicle was making no


                                      -2-
effort to pull over. See RR, Vol. 4, pg. 23. The highest speed reached

“around 120, 120-ish.” See RR, Vol. 4, pg. 21.

      At that time, Sergeant Massey was trying to lawfully detain or arrest

the driver. See RR, Vol. 4, pgs. 24, 33. The pursuit came into downtown

Blossom, where the speed limit was 45 and Sergeant Massey was going 40

miles over the limit. See RR, Vol. 4, pg. 24. See also State’s Exhibit 1. The

car began driving on the wrong side of the road, and cars were having to get

over on the shoulder. See RR, Vol. 4, pg. 25.

      The pursuit went into Red River County. See RR, Vol. 4, pg. 26. In

Detroit, the car ran a red light and speed was up to 113 miles an hour. See

RR, Vol. 4, pg. 26. In Detroit or Clarksville, dispatch advised Sergeant

Massey over the radio that Henry was driving the car. See RR, Vol. 4, pg.

33.

      Earlier, Sergeant Massey had a dispatcher radio ahead for assistance,

and a state trooper deployed tire spikes. See RR, Vol. 4, pgs. 21-22; State’s

Exhibit 1. State Trooper Matt Kuhlengel (Trooper Kuhlengel) had “set up

the spikes right there on the opposite side of the bridge.” See RR, Vol. 4, pg.

26; State’s Exhibit 1. When Trooper Kuhlengel started pulling the spikes

across the road, the car evaded to the other lane to try to avoid his tires being


                                       -3-
spiked. See RR, Vol. 4, pg. 27.

      The car lost a tire. See RR, Vol. 4, pg. 21. See also RR, Vol. 4, pg.

27 (“Yeah, the tire just came off”); State’s Exhibit 1. But, the car continued

at a high rate of speed on a rim. See RR, Vol. 4, pg. 22. The wheel of the

car was cutting into the road because there was no tire. See RR, Vol. 4, pg.

27.

      Arrival of Law Enforcement from Red River County.

      As the pursuit continued through a residential area in Clarksville (RR,

Vol. 4, pgs. 27-28), Chief Deputy Quinton Wallace (Chief Deputy Wallace),

who worked for the Red River County Sheriff’s Office (RR, Vol. 4, pg. 40),

was the second car. See RR, Vol. 4, pg. 41. Chief Deputy Wallace passed

Sergeant Massey and pulled in behind the evading car. See RR, Vol. 4, pg.

28. Chief Deputy Wallace made contact with Henry a/k/a “Petey.” See RR,

Vol. 4, pg. 41. Eventually, the car stopped in Clarksville, a distance of about

25 or 30 miles from Reno (RR, Vol. 4, pg. 20), at a residence. See RR, Vol.

4, pg. 28.

      Sergeant Massey and Chief Deputy Wallace drew weapons, as they

approached the vehicle. See RR, Vol. 4, pgs. 29, 42. The driver, a large

man, was mad and yelling. See RR, Vol. 4, pgs. 29, 37. However, there was


                                      -4-
no physical fighting. See RR, Vol. 4, pg. 37. Henry’s demeanor changed

when Chief Deputy Wallace stepped in first. See RR, Vol. 4, pg. 44.

       In the car, Sergeant Massey found some steaks from Kroger’s and

Wal-Mart with no receipt. See RR, Vol. 4, pgs. 30, 31-32; State’s Exhibit 2.

Later, Sergeant Massey obtained information that when he had shoplifted

and the employees caught him, he threw one of the employees against the

wall to get away. See RR, Vol. 4, pg. 38. Chief Deputy Wallace took Henry

to the Red River County Sheriff’s Department. See RR, Vol. 4, pg. 43.

       Grand Jury Indictment, Later Amended by the State.

       On January 21, 2014, a grand jury in Lamar County returned an

original indictment that charged Henry with the felony offense of evading

arrest/detention with motor vehicle. See CR, pg. 5. The indictment further

alleged a deadly weapon,1 as follows:

              And it is further presented to said court that a deadly
       weapon, to-wit: a motor vehicle, that in the manner of its use or
       intended use was capable of causing death or serious bodily
       injury, was used or exhibited during the commission of the
       felony offense or offenses set out above.

See CR, pg. 5. The District Clerk assigned cause number 25589.


1
 At the time of trial, Sergeant Massey testified that a car driven at least 40 miles over the
speed limit in Blossom was capable of causing death or serious bodily injury. See RR,
Vol. 4, pgs. 24-25. Chief Deputy Wallace testified in a similar manner. See RR, Vol. 4,
pg. 43.

                                            -5-
      Subsequently, the State filed a motion to amend the indictment (CR,

pgs. 47-48), which the trial court granted by a signed order. See CR, pg. 54.

The amended indictment changed the name of the peace officer from

“Steven Hill” to “Jeremy Massey.” See CR, pg. 55.

      On May 14, 2014, Dr. David Bell, a licensed psychologist in the State

of Texas, (Dr. Bell) came to talk to Henry at the Lamar County jail. See RR,

Vol. 4, pgs. 72-73. Dr. Bell spent “probably 30 to 45 minutes.” See RR,

Vol. 4, pg. 87. Dr. Bell believed that Henry was mentally retarded. See RR,

Vol. 4, pgs. 74, 87. Dr. Bell found Henry to be competent (RR, Vol. 4, pg.

85), and sane. See RR, Vol. 4, pg. 86.

      Pre-Trial Proceedings and Jury Trial.

      On June 6, 2014, the State filed its first amended notice of intent to

seek enhanced sentence as a habitual offender. See CR, pgs. 45-46.

      On June 26, 2014, the trial court conducted a hearing “to address the

issue of a potential jury instruction and evidence before the jury at

guilt/innocence regarding the Defendant’s illness--mental illness and mental

retardation.” See RR, Vol. 2, pg. 4.

      On June 30, 2014, the trial court presided over the voir dire

proceedings. See RR, Vol. 3, pg. 5. On the following day, the jury trial


                                       -6-
commenced on July 1, 2014. See RR, Vol. 4, pg. 6. As witnesses, the State

called Sergeant Massey and Chief Deputy; and after their testimony, the

State rested. See RR, Vol. 4, pg. 44. Through defense counsel, Henry

rested. See RR, Vol. 4, pg. 48. Both parties then rested and closed. See RR,

Vol. 4, pg. 48.

      The trial court then read its charge to the jury. See RR, Vol. 4, pgs.

48-57; CR, pgs. 70-76. Following brief closing arguments (RR, Vol. 4, pgs.

57-58), the jury retired to begin its deliberations (RR, Vol. 4, pg. 58), and

later reached a verdict. See CR, pg. 77. By its verdict, the jury found Henry

guilty of the offense of evading arrest or detention with a motor vehicle, as

charged in the indictment. See RR, Vol. 4, pg. 60; CR, pg. 75. On the

special issue, the jury further found from the evidence beyond a reasonable

doubt that Henry did use or exhibit a deadly weapon during the commission

of the alleged offense, to-wit, a motor vehicle, that in the manner of its use

or intended use was capable of causing serious bodily injury or death. See

RR, Vol. 4, pg. 61; CR, pg. 76.

      Punishment Phase.

      At the beginning of the punishment phase, the State needed to get a

plea on the enhancement paragraphs (RR, Vol. 4, pg. 62), which were


                                     -7-
subsequently read and Henry entered his pleas of “not true.” See RR, Vol. 4,

pgs. 63-64.    The trial court then entered pleas of “not true” on those

allegations. See RR, Vol. 4, pg. 64.

        After opening statements (RR, Vol. 4, pgs. 64-66), the State offered

exhibits 3 through 15 into evidence. See RR, Vol. 4, pgs. 66-67. The trial

court asked for “any objection” and defense counsel stated in open court,

“No, sir.” See RR, Vol. 4, pg. 67. The exhibits were admitted. See RR,

Vol. 4, pg. 67. The State published these exhibits to the jury, and rested.

See RR, Vol. 4, pgs. 69-70.

        After presenting his case during the punishment phase, Henry rested.

See RR, Vol. 4, pg. 121. The State had no rebuttal. See RR, Vol. 4, pg. 121.

Both sides then rested and closed. See RR, Vol. 4, pg. 121.

        Following a recess, the trial court read its punishment charge to the

jury.   See RR, Vol. 4, pgs. 124-134; CR, pgs. 78-86.          After closing

arguments (RR, Vol. 4, pgs. 135-140), the jury retired to begin its

deliberations. See RR, Vol. 4, pg. 140. Through defense counsel, Henry

indicated he wanted to appeal. See RR, Vol. 4, pg. 141.

        Subsequently, the jury reached a verdict. See RR, Vol. 4, pg. 143;

CR, pg. 89. By its verdict, the jury assessed punishment at confinement for


                                       -8-
sixty (60) years in the Texas Department of Criminal Justice, Institutional

Division.   See RR, Vol. 4, pg. 144; CR, pg. 83.         The trial court then

discharged the jury and pronounced sentence. See RR, Vol. 4, pgs. 145-146.

      On July 1, 2014, the trial court signed a final judgment of conviction

by jury. See CR, pgs. 93-94. On the same day, Henry signed a handwritten

notice of appeal. See CR, pg. 92. The trial court also signed its certification

of the defendant’s right of appeal. See CR, pg. 91. On July 15, 2014, the

trial court signed an order appointing appellate counsel to represent Henry.

See CR, pg. 97.

      Proceedings in this Court of Appeals.

      On or about July 15, 2014, Henry filed his notice of appeal in this

Court. The District Clerk of Lamar County submitted the Clerk’s Record,

which this Court filed on or about August 15, 2014. After this Court granted

an extension of time, the official court reporter filed the Reporter’s Record

on or about October 2, 2014. The court reporter filed the exhibits on or

about October 6th.

      After this Court granted an extension of time, Henry submitted his

brief, which this Court received on or about December 5, 2014. On January

5, 2015, the State filed a motion for extension of time to file its brief, which


                                      -9-
this Court granted until February 4, 2015.

      The State filed, or will be filing, its brief on or before the February 4th

extended deadline.

                       SUMMARY OF ARGUMENT

      Henry’s four (4) issues/points of error should be overruled, and the

trial court’s final judgment of conviction should be affirmed for the

following reasons: First and secondly, the State adduced legally-sufficient

evidence for the jury, as the rational trier of fact, to find beyond a reasonable

doubt that Henry was “one and the same person” in (a) the previous felony

convictions used for enhancement and (b) the previous convictions used as

extraneous offenses.

      Third, the trial court did not abuse its discretion in excluding evidence

of Henry’s “diminished capacity” during the guilt-innocence stage of his

jury trial. There is no “diminished capacity” defense in Texas.

      Finally, the trial court did not abuse its discretion in denying Henry’s

proposed jury instruction (Defendant’s Exhibit 3) during the guilt-innocence

state of his jury trial because, again, there is no “diminished capacity”

defense in Texas. No error was shown, and no harm resulted. Accordingly,

the trial court’s final judgment of conviction should be affirmed.


                                      -10-
                  ARGUMENT AND AUTHORITIES

ISSUES PRESENTED IN REPLY NOS. 1 & 2: THE EVIDENCE
WAS LEGALLY SUFFICIENT FOR A RATIONAL JURY TO FIND
BEYOND A REASONABLE DOUBT THAT THE APPELLANT,
HENRY, WAS “ONE AND THE SAME” PERSON LINKED TO THE
PRIOR CONVICTIONS.

      A.    Standard of Review: Sufficiency of the Evidence.

      In evaluating legal sufficiency, this Court reviews all the evidence in

the light most favorable to the trial court's judgment to determine whether

any rational jury could have found the essential elements of the offense

beyond a reasonable doubt. See, e.g., Smith v. State, 401 S.W.3d 915, 920

(Tex. App.--Texarkana 2013, pet. ref’d) (Morriss, C.J.) (citing Brooks v.

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Hartsfield v.

State, 305 S.W.3d 859, 863 (Tex. App.--Texarkana 2010, pet. ref’d). This

Court examines legal sufficiency under the direction of the Brooks opinion,

while giving deference to the responsibility of the jury “to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” See Smith, 401 S.W.3d at 920

(citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Jackson,

443 U.S. at 318-19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim App.


                                    -11-
2007)).

      B.     Law: Proof of Prior Convictions.

      To establish that a defendant has been convicted of a prior offense, the

State must prove beyond a reasonable doubt that (1) a prior conviction

exists, and (2) the defendant is linked to that conviction. See Flowers v.

State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007); Smith, 401 S.W.3d at

920. The Flowers court noted that Texas law does not require “that the fact

of a prior conviction be proven in a specific manner,” and “any type of

evidence, documentary or testimonial, may suffice.” See Smith, 401 S.W.3d

at 920 (citing Flowers, 220 S.W.3d at 921); Cooper v. State, 363 S.W.3d

293, 296 (Tex. App.--Texarkana 2012, pet. ref’d) (no specific form of

evidence is required to prove that the prior conviction exists, the defendant is

linked to it, and the conviction is final). In its decision in Flowers, the Texas

Court of Criminal Appeals likened the process of proving up a prior

conviction to evidentiary pieces to a jigsaw puzzle and left the ultimate

decision of whether these “pieces fit together sufficiently to complete the

puzzle” with the trier of fact under the totality of the evidence. See id (citing

Flowers, 220 S.W.3d at 923).

      Whether the State met its burden of linking the conviction to the


                                      -12-
defendant was a matter of conditional relevancy.        See, e.g., Davis v.

State, 268 S.W.3d 683, 715 (Tex. App.--Fort Worth 2008, pet. ref’d) (citing

Smith v. State, 998 S.W.2d 683, 687 (Tex. App.--Corpus Christi 1999, pet.

ref’d); Wright v. State, 932 S.W.2d 572, 576 (Tex. App.--Tyler 1995, no

pet.); Rosales v. State, 867 S.W.2d 70, 72 (Tex. App.--El Paso 1993, no

pet.)). “That is, the relevance of a prior conviction is conditioned upon the

production of evidence sufficient to show that the defendant[] [is] one and

the same.” See Davis, 268 S.W.3d at 715.

      If, after all proof on the fact in question has been received, and the

evidence does not, in the aggregate, support a rational finding that the

defendant is the same person as the one previously convicted, then the fact-

finder should not be allowed to consider the evidence of the conviction. See

Davis, 268 S.W.3d at 716. In the case of evidentiary facts, it means that a

motion to strike should be granted to withdraw the evidence from

consideration. See id (citing Fuller v. State, 829 S.W.2d 191, 197 (Tex.

Crim. App. 1992), overruled on other grounds, Castillo v. State, 913 S.W.2d

529, 337 (Tex. Crim. App. 1995); Smith, 998 S.W.2d at 688)).

      If such evidence is lacking but the court nevertheless admits the

prior conviction, the defendant must object.     See Howard v. State, 896


                                    -13-
S.W.2d 401, 406 (Tex. App.--Amarillo 1995, pet. ref’d) (citing Rosales, 867

S.W.2d at 73 (holding that a motion to strike should be granted thereby

withdrawing the evidence from consideration); Ex parte Russell, 738 S.W.2d

644, 647 (Tex. Crim. App. 1986) (holding that one who wishes to complain

on appeal about the use of prior convictions admitted as evidence during the

punishment phase must make a timely objection); Logan v. State, 482

S.W.2d 229, 232 (Tex. Crim. App. 1972) (holding that in absence of an

objection, any error is waived)).

      C.     Waiver of Error: No Motion to Strike; No Objection.

      1.     No Motion to Strike.

      Here, when the State offered Henry’s prior convictions (exhibits 3

through 15) into evidence, the trial court asked for “any objection” and

defense counsel stated in open court, “No, sir.” See RR, Vol. 4, pg. 67.

The trial court admitted the exhibits. See RR, Vol. 4, pg. 67. When the

State rested (RR, Vol. 4, pg. 70), Henry did not file any motion to strike in

order to withdraw the evidentiary exhibits from consideration. See Fuller,

829 S.W.2d at 197; Davis, 268 S.W.3d at 716; Smith, 998 S.W.2d at 688.

By failing to file any motion to strike, Henry waived error, if any, and did

not preserve his appellate complaint.      See id; Tex. R. App. P. 33.1(a).


                                    -14-
Therefore, Henry’s first and second issues should be overruled.

      2.     No Objection.

      Again, when the State offered Henry’s prior convictions (exhibits 3

through 15) into evidence, the trial court asked for “any objection” and

defense counsel stated in open court, “No, sir.” See RR, Vol. 4, pg. 67.

Under these circumstances, this Court must conclude that any objection was

waived. See Howard, 896 S.W.2d at 406 (and cited cases); Tex. R. App. P.

33.1(a). For this second reason, Henry’s first and second issues should be

overruled because he failed to preserve error, if any. See id.

      D.    Any Type of Evidence, Documentary or Testimonial, May
Suffice, and Was Legally-Sufficient in the Present Case.

      Even assuming error preservation, Texas law did not require “that the

fact of a prior conviction be proven in a specific manner,” and “any type of

evidence, documentary or testimonial, may suffice.” See Smith, 401 S.W.3d

at 920 (citing Flowers, 220 S.W.3d at 921); Cooper, 363 S.W.3d at 296. A

sufficient nexus between the defendant and a prior conviction may be shown

through circumstantial evidence. See Human v. State, 749 S.W.2d 832, 839

(Tex. Crim. App. 1988). One of the nonexclusive means of proving identity

for purposes of enhancement was by testimony of a witness who identified

the accused as the same person previously convicted. See Littles v. State,

                                      -15-
726 S.W.2d 26, 31 (Tex. Crim. App. 1987) (italics added in the opinion).

      As applied here, the appellant, Henry, testified during cross-

examination to the following:

            Q.    Well, you’ve been to prison for aggravated assault,
      haven’t you?

            A.     Yes.

            Q.    You’ve been to prison for aggravated robbery,
      haven’t you?

            A.     Yeah.

            Q.     You been to prison for theft, right?

            A.     Right.

            Q.    You’ve been to prison for possession of a
      prohibited weapon, right? Is that that right?

            A.     I don’t know about that.

            Q.     Been to prison for burglary of a building --

            A.     (Indicates.)

            Q.     -- right?

            A.     Yeah.

            Q.    Been -- on two different burglary of a buildings.
      You’ve been two different times for burglary of a building,
      right? You’ve been to prison for aggravated robbery, right?

            A.     (Indicates.)

                                     -16-
See RR, Vol. 4, pgs. 109-110.

      In addition to the testimony from Henry, Dr. Bell testified during

cross-examination to the following:

            Q.     -- right? But he’s been to prison for aggravated
      assault twice --

             A.     Yes.

             Q.     -- and for aggravated robbery once, and for three
      different family violence assaults or four assaults in the -- in the
      past year or two. He is a violent person, right?

             A.     He has a history of violence, yes.

See RR, Vol. 4, pg. 83. Finally, Dr. Bell testified before the jury that:

             Q.     He don’t want to go back to prison?

             A.     No.

             Q.     All right. And that’s one of the reasons he ran?

             A.     Yes.

See RR, Vol. 4, pg. 89.

      In addition to the testimony from Henry and Dr. Bell, Dewayne

Coleman, who owned Coleman’s Barbecue in Clarksville (RR, Vol. 4, pg.

113), testified during cross-examination to the following:

            Q.     Mr. Coleman, you know that Mr. Henry went to
      prison in 1989 for aggravated assault, right?

                                      -17-
            A.     Right.

            Q.     And then he went to prison in 2002 for aggravated
      robbery, right?

            A.     Okay.

            Q.    And the first time he went to prison was ‘78 from
      what I could find. That’s been 36 years. Fair to say he’s spent
      more time in prison than out of prison?

            A.     Yes.

             Q.     The vast majority of his -- of those 36 years he’s
      spent in prison, right?

            A.     Right.

See RR, Vol. 4, pgs. 119-120.

     1.     Legally-Sufficient Evidence Proved That Henry Was “One
and the Same” Person, Who Had Been Convicted in Two (2) Prior
Offenses for Enhancement of Punishment.

      In the present case, the State filed its first amended notice of intent to

seek enhanced sentence as a habitual offender. See CR, pgs. 45-46. In that

notice, the State identified two (2) prior felony convictions from Red River

County, Texas with dates of final adjudication in 1989 and 2002. See CR,

pg, 45. See also RR, Vol. 4, pgs. 63-64.

      a.    Prior Felony Conviction for Aggravated Assault in 1989.

      From the testimony of three separate witnesses above, including the


                                     -18-
testimony regarding prison from Henry himself, the jury could fairly resolve

conflicts in the testimony and weigh that evidence. See, e.g., Smith, 401

S.W.3d at 920 (and cited cases) (deference given to the responsibility of the

jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.”). From the

three pieces of testimonial evidence that Henry went to prison in 1989 for

aggravated assault (RR, Vol. 4, pgs. 83, 109 and 119) plus the separate piece

of evidence in State’s Exhibit 9, the jury could have drawn the reasonable

inference, see id, or fit the pieces together sufficiently, that (1) there was a

previous conviction for aggravated assault in 1989, and that (2) Henry was

“one and the same person” convicted in 1989 for aggravated assault. See

Flowers, 220 S.W.3d at 923 [the trier of fact looks at the totality of the

evidence admitted to determine 1) whether there was a previous conviction,

and 2) whether the defendant was the person convicted.]. See also Smith,

401 S.W.3d at 920 (deference given to the responsibility of the jury “to draw

reasonable inferences from basic facts to ultimate facts.”).

      From the totality of the evidence (testimony from three separate

witnesses + State’s Exhibit 9), the jury could have found these two elements

beyond a reasonable doubt. See Flowers, 220 S.W.3d at 923. Because these


                                      -19-
two elements could be found beyond a reasonable doubt, the various pieces

to complete the puzzle were necessarily legally sufficient to prove a prior

conviction. See id. Thus, Henry’s legal-sufficiency challenge should fail as

to the 1989 prior felony conviction.

      b.     Prior Felony Conviction for Aggravated Robbery in 2002.

      Just as equally, the State adduced three pieces of testimonial evidence

that Henry went to prison in 2002 for aggravated robbery (RR, Vol. 4, pgs.

83, 110 and 119) along with the separate piece of evidence in State’s Exhibit

10. Compare RR, Vol. 4, pgs. 83, 110 and 119 with State’s Exhibit 10.

Again, from this evidence, the jury could have drawn the reasonable

inference, or fit the pieces together sufficiently, that (1) there was a previous

conviction for aggravated assault in 2002, and that (2) Henry was “one and

the same person” convicted in 2002 for aggravated robbery. See Flowers,

220 S.W.3d at 923 [the trier of fact looks at the totality of the evidence

admitted to determine 1) whether there was a previous conviction, and 2)

whether the defendant was the person convicted.]. See also Smith, 401

S.W.3d at 920.

      From the totality of the evidence (testimony from three separate

witnesses + State’s Exhibit 10), the jury could have found these two


                                       -20-
elements beyond a reasonable doubt. See Flowers, 220 S.W.3d at 923.

Because these two elements could be found beyond a reasonable doubt, the

various pieces to complete the puzzle were necessarily legally sufficient to

prove a prior conviction. See id. As with the 1989 prior felony conviction,

Henry’s legal-sufficiency challenge should also fail as to the 2002 prior

felony conviction. In conclusion, Henry’s first issue/point of error should be

overruled.

      2.   Legally-Sufficient Evidence Proved That Henry Was “One
and the Same” Person, Who Had Been Convicted in Prior Offenses for
Extraneous Offenses.

      As with the prior felony convictions in 1989 and 2002, Henry testified

that he had been to prison for theft. See RR, Vol. 4, pg. 110. When asked

by the prosecutor, “You’ve been to prison for possession of a prohibited

weapon, right?,” Henry stated, “I don’t know about that.” See RR, Vol. 4,

pg. 110. But, the jury could fairly resolve conflicts in testimony, weigh the

evidence, and draw reasonable inferences from basic facts to ultimate facts.”

See Smith, 401 S.W.3d at 920. The jury could have disbelieved Henry’s

testimony as to the extraneous offense of possession of a prohibited weapon,

and found to the contrary. See id. Finally, Henry testified that “yeah,” he’s

been to prison for burglary of a building and “two different times for


                                     -21-
burglary of a building.” See RR, Vol. 4, pg. 110.

      Dr. Bell testified that Henry has “a history of violence, yes.” See RR,

Vol. 4, pg. 83. Dr. Bell also testified that Henry did not want to go back to

prison, and that’s one of the reasons he ran. See RR, Vol. 4, pg. 89. When

asked by the prosecutor, Coleman agreed with an affirmative “yes” that

Henry went to prison in ’78, and that he’s spent more time in prison than out

of prison, the vast majority of his 36 years. See RR, Vol. 4, pgs. 119-120.

      From the totality of the evidence (testimony from three separate

witnesses plus the other exhibits excluding State’s Exhibits 9 and 10), the

jury could have drawn the reasonable inference, or fit the pieces together

sufficiently, that (1) Henry had been previously convicted for other

extraneous offenses, and that (2) Henry was “one and the same person”

convicted in those extraneous offenses. See Flowers, 220 S.W.3d at 923;

Smith, 401 S.W.3d at 920. Thus, Henry’s legal-sufficiency challenge should

fail as to the other extraneous-offense-convictions, and his second

issue/point of error on appeal should be overruled.




                                     -22-
ISSUE PRESENTED IN REPLY NO. 3: THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN EXCLUDING THE
APPELLANT’S EVIDENCE OF HIS “DIMINISHED CAPACITY”
DURING THE GUILT-INNOCENCE PHASE OF THE TRIAL.

      A.     Standard of Review: Abuse of Discretion.

      This Court reviews a trial court’s ruling to admit or exclude

evidence under an abuse of discretion standard. See Mays v. State, 223

S.W.3d 651, 653 (Tex. App.--Texarkana 2007), rev’d, 318 S.W.3d 368 (Tex.

Crim. App. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1606; 179 L. Ed. 2d

506 (2011). A trial court abuses its discretion if it acts without reference to

guiding principles or rules. See Chiles v. State, 57 S.W.3d 512, 518 (Tex.

App.--Waco 2001, no pet.) (citing Lyles v. State, 850 S.W.2d 497, 502 (Tex.

Crim. App. 1993).

      If the court’s decision falls outside the “zone of reasonable

disagreement,” it has abused its discretion. See Mays, 223 S.W.3d at 654

(citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)

(op. on reh’g)). As long as the trial court’s ruling falls within the zone of

reasonable disagreement, this Court will affirm its decision. See Mays, 223

S.W.3d at 654 (citing Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.

2003)).

      B.     Law: No “Diminished Capacity” Defense in Texas.

                                     -23-
      There is no “diminished capacity” defense in Texas. See Mays, 318

S.W.3d at 381 (citing Ruffin v. State, 270 S.W.3d 586, 593, 596 (Tex. Crim.

App. 2008); Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim. App. 2005)).

“Texas does not recognize diminished capacity as an affirmative

defense, i.e., a lesser form of the defense of insanity.” See Hart v. State, 314

S.W.3d 37, 40 n. 1 (Tex. App.--Texarkana 2010, no pet.); Rhoten v. State,

299 S.W.3d 349, 355 n. 8 (Tex. App.--Texarkana 2009, no pet.).

      The general rule that proof that an accused suffers from a mental

weakness or emotional disturbance, short of the inability to distinguish right

from wrong, is not admissible at the guilt-innocence stage of trial. See

Jackson v. State, 115 S.W.3d 326, 328 (Tex. App.--Dallas 2003), aff’d, 160

S.W.3d 568 (Tex. Crim. App. 2005); Chiles, 57 S.W.3d at 519 n. 3 (citing

Cowles v. State, 510 S.W.2d 608, 609 (Tex. Crim. App. 1974). In addition

to this general rule, the Texas Court of Criminal Appeals held in Wagner v.

State, 687 S.W.2d 303 (Tex. Crim. App. 1984), as follows:

      Lack of normal impulse control is simply not a circumstance
      recognized by the Legislature to diminish the criminal
      responsibility of an accused or reduce his crime to a lesser
      included offense.

      We therefore find that, the issue of appellant’s sanity having
      been taken out of the case, appellant’s proffered evidence was

                                      -24-
      not material on the issue of his guilt, and its introduction at the
      guilt phase at trial would only have confused the jury -- the
      very evil sought to be averted in Cowles v. State, supra. The
      trial court did not err in refusing to admit this evidence and the
      panel was correct in overruling appellant’s contention in this
      regard on original submission.

See id. at 312.

      In Jackson, the court of appeals held, prior to being affirmed by the

Texas Court of Criminal Appeals, that “[t]he Wagner court declined to

accept appellant’s argument that evidence of his mental impairment was

admissible at the guilt-innocence phase of trial.” See Jackson, 115 S.W.3d

at 328 (citing Wagner, 687 S.W.2d at 311-12). In short, the court held that a

defendant’s “lack of normal impulse control is simply not a circumstance

recognized by the Legislature to diminish the criminal responsibility of an

accused or reduce his crime to a lesser included offense.” See Jackson, 115

S.W.3d at 328 (citing Wagner, 687 S.W.2d at 312).

      In Darnes v. State, 118 S.W.3d 916 (Tex. App.--Amarillo 2003, pet.

ref’d), which was decided soon after Jackson, the appellant’s first two issues

involved the exclusion of evidence during the guilt-innocence phase of the

trial relating to a mental condition of which he allegedly suffered

(“intermittent explosive disorder”).    See id. at 918.     According to the

appellant in Darnes, the evidence was relevant even though he was not

                                     -25-
claiming insanity. See id. This was supposedly so in Darnes because it

negated the mens rea averred by the State in the indictment. See id (italics

added in the opinion).

         In Darnes, the court of appeals overruled the appellant’s argument for

three reasons; the first of which reasoned that:

         First, the argument that evidence regarding one’s mental
         condition may be used to negate the mens rea involved in a
         specific intent crime was rejected in Wagner v. State, 687
         S.W.2d 303 (Tex. Crim. App. 1984). As stated by the Texas
         Court of Criminal Appeals in that opinion, “the issue of
         appellant’s sanity having been taken out of the case, appellant’s
         proffered evidence was not material on the issue of
         his guilt, and its introduction at the guilt phase . . . would only
         have confused the jury . . . .” Id. at 312; accord Warner v.
         State, 944 S.W.2d 812, 815-16 (Tex. App.--Austin 1997, pet.
         dism’d)2 (also holding the evidence in admissible).

See Darnes, 118 S.W.3d at 919.

         C.     Application of Law to the Present Case.

         In applying the Wagner rationale here, like in Darnes and Jackson,

any evidence of Henry’s mental impairment was not admissible at the guilt-

innocence phase of trial. See Jackson, 115 S.W.3d at 328 (citing Wagner,

687 S.W.2d at 311-12). Here, Henry’s lack of normal impulse control was

simply not a circumstance recognized by the Legislature to diminish the

criminal responsibility of an accused or reduce his crime to a lesser included
2
    969 S.W.2d 1 (Tex. Crim. App. 1998) (per curiam).

                                           -26-
offense. See Jackson, 115 S.W.3d at 328 (citing Wagner, 687 S.W.2d at

312).

        As in Darnes, any proffered evidence by Henry was not material on

the issue of his guilt, and its introduction at the guilt phase would only have

confused the jury. See Darnes, 118 S.W.3d at 919 (citing Wagner, 687

S.W.2d at 312; Warner, 944 S.W.2d at 815-16). Here, that was precisely the

concern of the trial court in the present case: “I hear what Mr. Young says

about mental illness in guilt / innocence, but I’d have some concerns as to

whether that would confuse the jury. I’ve got some concerns --[.]” See RR,

Vol. 2, pg. 12.

        In conclusion, the trial court’s June 26th ruling was consistent with the

binding case law addressing diminished capacity, and was not an abuse of

discretion. See Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim.

App. 1990) (op. on reh’g) (stating that appellate court reviews trial court’s

decision to admit or exclude evidence for an abuse of discretion). Therefore,

Henry’s third issue on appeal should be overruled.




                                       -27-
ISSUE PRESENTED IN REPLY NO. 4: THE TRIAL COURT DID
NOT ABUSE ITS DISCRETION IN DENYING THE APPELLANT’S
REQUESTED JURY INSTRUCTION ON “DIMINISHED
CAPACITY.”

      A.    Standard of Review: A Two-Step Process.

      A review of alleged jury charge error involves a two-step process.

See, e.g., Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.--Texarkana 2012,

no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App.

1994; Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009)).

Initially, this Court should determine whether an error occurred, and then

evaluate whether sufficient harm resulted from the error to require reversal.

See Wilson, 391 S.W.3d at 138 (citing Abdnor, 871 S.W.2d at 731-32).

      B.     The Appellant, Henry, Was Not Entitled to any Jury
Instruction.

      With his final issue, Henry contended that “[s]ince it was error not to

allow the testimony at the Guilt/Innocence phase, it was error not to give a

requested jury charge on diminished capacity . . .” See Appellant’s Brief,

pgs. 29-30. In his brief, Henry cited to Texas Pattern Criminal Jury Charges,

Defense, 201, Chapter 8, Section B 8.4 pp. 113-114. See Appellant’s Brief,

pg. 30. See also Defendant’s Exhibit 3.

      In Mays, however, the Texas Court of Criminal Appeals reasoned the


                                    -28-
following:

      In sum, the trial judge was not required to admit any expert
      testimony concerning appellant’s mental illness during the guilt
      stage because it did not directly rebut his culpable mens rea.[]
      Thus, appellant was not entitled to any jury instruction
      concerning that evidence. But having requested such an
      instruction, appellant has not shown that he suffered any harm
      when the trial judge gave the jury a legally correct, if
      unnecessary, instruction concerning the use of that evidence.

See Mays, 318 S.W.3d at 382 (footnote omitted) (bold added for emphasis).

      In applying the Mays rationale above to the present case, this Court

should hold that Henry was not entitled to any jury instruction during the

guilt-innocence stage of his trial. See id. In the present case, Henry was not

entitled to his proposed jury instruction in Defendant’s Exhibit 3 because the

trial judge was not required to admit any testimony (from Dr. Bell or

Coleman) concerning appellant’s mental illness during the guilt stage

because it did not directly rebut his culpable mens rea. See id.

      Because Henry was not entitled to any jury instruction, even as

proposed in Defendant’s Exhibit 3, no error occurred. See Wilson, 391

S.W.3d at 138 (citing Abdnor, 871 S.W.2d at 731-32). Because no error

occurred, sufficient harm did not result. See id. Therefore, Henry’s final

issue/point of error should be overruled, and the final judgment of

conviction should be affirmed.

                                     -29-
                                  PRAYER

      WHEREFORE PREMISES CONSIDERED, the State of Texas prays

that upon final submission without oral argument, this Court should affirm

the trial court’s final judgment of conviction, adjudge court costs against the

appellant, and for such other and further relief, both at law and in equity, to

which it may be justly and legally entitled.

                                 Respectfully submitted,

                                 Gary D. Young
                                 Lamar County & District Attorney
                                 Lamar County Courthouse
                                 119 North Main
                                 Paris, Texas 75460
                                 (903) 737-2470
                                 (903) 737-2455 (fax)


                                 By:________________________________
                                      Gary D. Young, County Attorney
                                      SBN# 00785298

                                 ATTORNEYS FOR STATE OF TEXAS

                   CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

the “Appellee’s (State’s) Brief” was a computer-generated document and

contained 7492 words--not including the Appendix, if any. The undersigned

attorney certified that he relied on the word count of the computer program,

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which was used to prepare this document.


                                       ______________________________
                                       GARY D. YOUNG
                                       gyoung@co.lamar.tx.us

                     CERTIFICATE OF SERVICE

      This is to certify that in accordance with Tex. R. App. P. 9.5, a true

copy of the “Appellee’s (State’s) Brief” has been served on the 2ND day of

February, 2015 upon the following:

            Gary L. Waite
            Attorney at Law
            104 Lamar Avenue
            Paris, TX 75460


                                       ______________________________
                                       GARY D. YOUNG
                                       gyoung@co.lamar.tx.us




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