                                                                                            ACCEPTED
                                                                                        03-14-00567-CR
                                                                                                7194905
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                   10/1/2015 4:29:15 PM
                                                                                      JEFFREY D. KYLE
October 15, 2015                 No. 03-14-00567-CR                                              CLERK


                                   IN THE
                              COURT OF APPEALS             RECEIVED IN
                       FOR THE THIRD JUDICIAL DISTRICT AUSTIN,OF
                                                      3rd COURT      APPEALS
                                                                   TEXAS
                             OF TEXAS, AT AUSTIN      10/1/2015 4:29:15 PM
                                                                  JEFFREY D. KYLE
                                    ARTY PRICE                         Clerk

                                      Appellant

                                          v.

                                  The State of Texas
                                      Appellee

                       On Appeal In Case Number 13-1650-K26
                   From the 26th District Court of Williamson County
                    The Hon. Billy Ray Stubblefield, Judge Presiding



                      Brief on Appeal
                                    Submitted by:

                            The Law Offices of Ariel Payan
                                   1012 Rio Grande
                                 Austin, Texas 78701
                                  Tel. 512/478-3900
                                  Fax: 512/472-4102
                               arielpayan@hotmail.com

                                      Ariel Payan
                                State Bar No. 00794430

                        Court-Appointed Attorney for Appellant

                           Oral Argument Not Requested
                                                      Table of Contents


Certificate of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

Point of Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

Facts Relevant to Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Certificate of Delivery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29




                                                                    i
                                    Certificate of Parties

      Pursuant to Rule 38.1(a), Rules of Appellate Procedure (“Tex.R.App.Pro.”), the

following is a complete list of the names and addresses of all parties to the trial court’s final

judgment and their counsel in the trial court, as well as appellate counsel, so the members

of the court may at once determine whether they are disqualified to serve or should recuse

themselves from participating in the decision of the case and so the Clerk of the Court may

properly notify the parties to the trial court’s final judgment or their counsel, if any, of the

judgment and all orders of the Court of Appeals.

                                          Appellant

                                        Arty Price
                            Michael Unit TDCJ-ID No. 1947862
                                     2664 FM 2054
                               Tennessee Colony, TX 75886

Appellate Counsel:                              Trial Counsel:

Ariel Payan                                     Ray Bass
1012 Rio Grande                                 120 West 8th St
Austin, Texas 78701                             Georgetown, TX78626

                                      State of Texas
                                         Jana Duty
                              405 S. Martin Luther King Box 1
                                  Georgetown, TX 78626

Appellate Counsel:                              Trial Counsel:
                                                Geoffrey Puryear
John Prezas                                     Lauren McLeod




                                               ii
                                                     Index of Authorities


Federal Cases:

California v. Trambetta, 467 U.S. 479 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Chambers v. Mississippi, 410 U.S. 284 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Crane v. Kentucky, 476 U.S. 683 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105 (1974). . . . . . . . . . . . . . . . . . . . . . . 21

Gilmore v. Taylor, 508 U.S. 333, 343 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

In re Oliver, 333 U.S. 257, 273 (1948). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984).. . . . . . . . 11, 12, 14

United States v. McClure, 546 F.2d 670 (5th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Herrera, 600 F.2d 502, 505 (5th Cir. 1979). . . . . . . . . . . . . . . . . . . . . . 19

Washington v. Texas, 388 U.S. 14 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Webb v. Texas, 409 U.S. 95 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 2542 (2003). . . . . . . . . . . . . . . . 14

Williams v. Taylor, 529 U.S. 362, 395-99, 120 S.Ct. 1495, 1514–16 (2000). . . . . . . . . 15

Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 1514–15, 146 L.Ed.2d 389 (2000)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14



Texas Cases:

Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Cr.App. 1994).. . . . . . . . . . . . . . . . . . . . . . 23


                                                                     iii
Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App. 1984). . . . . . . . . . . . . . . . . . 23, 25

Andrews v. State, 159 S.W.3d 98, 102 (Tex.Cr.App. 2005). . . . . . . . . . . . . . . . . . . . . . 14

Brown v. State, 122 S.W.3d 794, 798 (Tex.Cr.App. 2003), cert. denied, 541 U.S. 938, 124
S.Ct. 1678 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Burge v. State, 443 S.W.2d 720, 724 (Tex.Cr.App. ), cert. denied, 396 U.S. 934, 90 S.Ct.
277 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Clark v. State, 878 S.W.2d 224 (Tex.App.- Dallas 1994). . . . . . . . . . . . . . . . . . . . . . . . 25

Ex parte Lane, 303 S.W.3d 702, 707 (Tex.Cr.App. 2009). . . . . . . . . . . . . . . . . . . . . . . . 11

Garcia v. State, 960 S.W.2d 329, 333 (Tex.App.--Corpus Christi 1997, no pet.). . . . . . . 7

Hernandez v. State, 952 S.W.2d 59, 74 (Tex.App.--Austin 1997), remanded on other
grounds, 957 S.W.2d 851 (Tex.Cr.App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Herron v. State, 86 S.W.3d 621, 632 (Tex.Cr.App. 2002). . . . . . . . . . . . . . . . . . . . . . . . 26

Jackson v. State, 548 S.W.2d 685, 695 (Tex.Cr.App. 1977). . . . . . . . . . . . . . . . . . . . . . 24

Jackson v. State, 756 S.W.2d 82, 85 (Tex.App.—San Antonio 1988), rev'd on other grounds,
772 S.W.2d 117 (Tex.Cr.App. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Jordan v. State, 883 S.W.2d 664, 665 (Tex.Cr.App. 1994). . . . . . . . . . . . . . . . . . . . . . . . 7

Koehler v. State, 679 S.W.2d 6, 9 (Tex.Cr.App. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . 22

Lagrone v. State, 84 Tex.Crim. 609, 615-16, 209 S.W. 411, 415 (1919).. . . . . . . . . . . . 24

Lair v. State, 265 S.W.3d 580, 594 (Tex.App.–Houston [1st Dist.] 2008, pet. ref'd). . . 14

Livingston v. State, 782 S.W.2d 12, 14 (Tex.App.—Dallas 1989, pet. ref'd). . . . . . . . . 24

McClory v. State, 510 S.W.2d 932, 934 (Tex.Cr.App. 1974). . . . . . . . . . . . . . . . . . . . . 25

McIntire v. State, 698 S.W.2d 652, 658 (Tex.Cr.App. 1985).. . . . . . . . . . . . . . . . . . . . . . 6


                                                                 iv
Miller v State, 36 S.W.3d 503 (Tex.Cr.App. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Miller v State, 42 S.W.3d 343 (Tex.App.-Austin 2001).. . . . . . . . . . . . . . . . . . . . . . 19, 20

Posey v. State, 966 S.W.2d 57, 60 (Tex.Cr.App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . 23

Reyes v. State, 849 S.W.2d 812, 816 (Tex.Cr.App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . 6

Rivera v. State, 123 S.W.3d 21, 31 (Tex.App.–Houston [1st Dist.] 2003, pet. ref'd). . . 14

Sandoval v. State, 929 S.W.2d 34, 36 (Tex.App.--Corpus Christi 1996, pet. ref'd). . . . . 7

Shanklin v. State, 190 S.W.3d 154, 165 (Tex.App.–Houston [1st Dist.] 2005, pet. dism'd)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Sharpe v. State, 648 S.W.2d 705, 706 (Tex.Cr.App. 1983). . . . . . . . . . . . . . . . . . . . . . . 24

Sparks v. State, 943 S.W.2d 513, 517 (Tex.App.—Fort Worth 1997, pet. ref'd).. . . . . . 22

State v. Evans, 843 S.W.2d 576, 578-79 (Tex.Cr.App. 1992). . . . . . . . . . . . . . . . . . . . . . 6

State v. Read, 965 S.W.2d 74, 77 (Tex.App.--Austin 1998, no pet .). . . . . . . . . . . . . . . . 6

Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex.Cr.App. 1973).. . . . . . . . . . . . . . . . . 6

Wallace v. State, 106 S.W.3d 103, 108 (Tex.Cr.App. 2003). . . . . . . . . . . . . . . . . . . . . . . 7

Ward v. State, 156 Tex.Crim. 472, 243 S.W.2d 695, 696–97 (1951). . . . . . . . . . . . . . . 25



Cases from Other Jurisdictions:

Commonwealth of Pennsylvania v. Greene, 366 A.2d 234, 237 (Penn.S.Ct. 1976). . . . 18

New Mexico v. Duncan, 830 P.2d 554, 558 (New Mexico Ct. App. 1990).. . . . . . . . . . 18




                                                                      v
Federal Constitution:



Texas Constitution:



Texas Statutes / Codes:

T.R.E. 401, 402. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Tex. Code Crim. Proc. Ann. art. 36.14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Tex. Code Crim. Proc. Ann. art. 38.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Tex.Code Crim. Proc. Ann. art. 36.19.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 25

Tex.R.App. P. 21.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Tex.R.App. P. 21.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Tex.R.App. P. 21.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Tex.R.App. P. 21.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6



Other References:

TEX. DISCIPLINARY R. PROF. CONDUCT 1.15(c) (1990). . . . . . . . . . . . . . . . . . . . 14




                                                                vi
                                  Preliminary Statement

      Pursuant to Tex.R.App.Pro. 38.1(d), the following is a brief general statement of the

nature of the cause or offense:

      Appellant, Arty Price, was charged by indictment with the offense of
      aggravated assault with a deadly weapon, family violence enhanced, a felony,
      in Cause No. 13-1650-K26 in the 26th District Court of Williamson County,
      Texas. He was convicted in said cause and was sentenced to 65 years
      incarceration and a 10,000 dollar fine. Motion for New Trial was filed and
      ruled upon and, Notice of Appeal was timely given.

                                     Point of Error

      Pursuant to Tex.R.App.Pro. 38.1(e), the following are the points upon this appeal is
predicated:

      THE TRIAL COURT ERRED IN FAILING TO ALLOW A HEARING
      ON APPELLANT’S MOTION FOR NEW TRIAL AND IN FAILING TO
      GRANT THE MOTION.

      THE TRIAL COURT ERRED IN PREVENTING APPELLANT FROM
      PRESENTING EVIDENCE OF HIS DEFENSE.


      THE TRIAL COURT ERRED IN FAILING TO PROPERLY INSTRUCT
      THE JURY AND SUCH WAS HARMFUL TO APPELLANT




                                            vii
                                  No. 03-14-00567-CR

                                    IN THE
                               COURT OF APPEALS
                        FOR THE THIRD JUDICIAL DISTRICT
                              OF TEXAS, AT AUSTIN

                                     ARTY PRICE
                                       Appellant

                                            v.

                                   The State of Texas
                                       Appellee

                        On Appeal In Case Number 13-1650-K26
                    From the 26th District Court of Williamson County
                     The Hon. Billy Ray Stubblefield, Judge Presiding



                       Brief on Appeal
TO THE HONORABLE JUDGES OF THE THIRD COURT OF APPEALS:

      COMES NOW, Arty Price, Appellant in the above styled and numbered cause, by and

through Ariel Payan, his undersigned attorney of record, and respectfully files this “Brief

on Appeal,” filed pursuant to Tex.R.App.Pro. 38.1, and would pursuant to 38.1(f) show the

Court as follows:

                               Facts Relevant to Appeal

      On August 30, 2014, Round Rock Police Department Officer Ben Johnson was

dispatched to 1652 Bayland Rd for a disturbance. On arrival he found the victim, Migdalia


                                            1
“Mig” Pena, in the care of her neighbors. (R.R. Vol. 7, pg. 33). She had severe injuries and

required immediate medical attention. The victim was transported by EMS and Johnson

interviewed the neighbors, he then went to 1704 Bayland where the victim resided. Johnson

entered the premises and searched it, finding nothing out of place or any sign of a

disturbance. (R.R. Vol. 7, pg. 40-41). He later went to the hospital and interviewed the

victim.

      The victim lives there with one of her sons, and has been living with Appellant for

several months, whom she has been dating since January. (R.R. Vol. 7, pg. 126). The

victim described that she works as a physician assistant for a maxillofacial surgery physician

in town. (R.R. Vol. 7, pg. 123). The home she lives in is in both her name and the name of

her husband Ezequiel Astacio, who used to play baseball for the Astros. (R.R. Vol. 7, pg.

128). Astacio currently lives in Philadelphia, and the victim has not seen him since 2010.

The victim has two children, their father is Felix Pillot, who is very involved in his son’s life

and is often at the victim’s home. (R.R. Vol. 7, pg. 129).

      The victim testified at trial that the argument that ended in the assault started on

August 29, a Thursday night. She was getting off work early so that she could go to her

son’s football game, this was something that was very important to her. (R.R. Vol. 7, pg.

131). She did not expect Appellant to go to the game, and was therefore quite surprised

when he told her he wanted to go. The victim did not want to be late and was quite angry

with Appellant when she got to the house and he was not ready to walk out immediately.


                                               2
(R.R. Vol. 7, pg. 133). Appellant drove and had to stop for gas, while at the station he also

got some food for himself. The victim started to argue with him at this point, and started

yelling at him for the remainder of the drive. (R.R. Vol. 7, pg. 136). They get to the game

and according to the victim, Appellant has had enough of her yelling and pushes her out of

the vehicle. (R.R. Vol. 7, pg. 137-8). The victim landed on the concrete and messed up

both knees on her jeans. (R.R. Vol. 7, pg. 138). The victim tells him make sure to pack up

all his stuff and move out of the house by the time she gets home. The victim sits in the

bleachers near Pillot who is there watching the game. Appellant shows up and sits next to

her. The victim tries to go home with Pillot, but he will not drive her. She eventually gets

in the vehicle with Appellant and they drive home together.

      The next morning the victim calls in sick to work, so that she can ‘work it out’ with

Appellant at home. (R.R. Vol. 7, pg. 145). Later in the day she talks to a friend of hers from

work, Jaime Cruz, she talks to her in Spanish because she knows Appellant does not speak

Spanish. (R.R. Vol. 7, pg. 147). As evening arrives, Appellant is telling her “I’m sick,

something is wrong with me and I need help, can you please help me”, the victim testified

that she did not want to hear it because Appellant was being “disrespectful in all the senses”.

(R.R. Vol. 7, pg. 151-2). The victim makes dinner for both of them and she ends up falling

asleep on the couch. She testified that she woke up when Appellant grabbed her and threw

her to the hard tile ground. (R.R. Vol. 7, pg. 158). Appellant then starts punching and

kicking her, and eventually drops his body weight on her. (R.R. Vol. 7, pg. 159). Appellant


                                               3
then puts his hands on her throat and squeezes. (R.R. Vol. 7, pg. 161). Appellant eventually

asks her if she wants to go to the hospital, and tries to get her to leave the house. (R.R. Vol.

7, pg. 167). The victim runs out the door and flees to the neighbor’s house.

       Greg White, his wife Alustree White, and their daughter Chandra White are over at

the house that night. Chandra is outside and first sees the victim, she rings the doorbell

multiple times to get her parents downstairs. The parents come down and find the victim

on the ground next to their car. (R.R. Vol. 7, pg. 72). Appellant pulls up in his vehicle and

tells them that the victim needs to go to the hospital. (R.R. Vol. 7, pg. 76). He gets out of

his car and starts to approach them, at which point Greg tells his daughter to go get his gun,

and Appellant returns to his vehicle. (R.R. Vol. 7, pg. 77). At which point Appellant says

“my death is on your hands”, or something to that effect. (R.R. Vol. 7, pg. 78).

       The victim sustained serious injuries, including broken facial bones, bruises and

contusions, as well as requiring surgery to fix an ulcerated colon, which required removal

of part of her intestines. The victim continued to have multiple reconstructive surgeries and

has lost some vision in her eye. (R.R. Vol. 7, pg. 174-181). Appellant was convicted of

aggravated assault with a deadly weapon, family violence. At punishment he received a 65

year sentence and a 10 thousand dollar fine from the jury. Appellate counsel was appointed

and a motion for new trial with supporting affidavits was timely filed and presented to the

trial court. The trial judge ordered affidavits to be filed. Trial counsel filed an affidavit, and

then the defense filed another affidavit from a witness. The trial judge did not rule on the


                                                4
motion, which was automatically denied by operation of law. Notice of appeal was timely

filed and this appeal follows.




                                 Summary of the Argument

        Pursuant to Tex.R.App.Pro. 38.1(g), the following is a brief summary of the argument

presented in this appeal:

        The trial court erred in failing to grant a hearing on Appellant’s motion for new trial.

Trial court also erred in failing to grant Appellant’s motion for new trial for ineffective

assistance.

        The trial court erred in not allowing Appellant to present evidence of his defense to

the jury, and by limiting the scope of the evidence that was allowed to be presented to the

jury.

        The trial court erred in not granting the Appellant’s request to modify the language

in the charge at guilt/ innocence, and said denial was harmful to Appellant.




                                                5
                                 Point of Error Restated


      THE TRIAL COURT ERRED IN FAILING TO ALLOW A HEARING
      ON APPELLANT’S MOTION FOR NEW TRIAL AND IN FAILING TO
      GRANT THE MOTION.


      The trial judge erred in failing to hold a hearing on Appellant’s motion for new trial.

See Tex.R.App. P. 21.1. A motion for new trial is a prerequisite to presenting a point of

error on appeal only when necessary to adduce facts not in the record. See id. Tex.R.App.

P. 21.2. Various grounds for granting a new trial are enumerated, but are not exclusive.

See, State v. Evans, 843 S.W.2d 576, 578-79 (Tex.Cr.App. 1992); State v. Read, 965

S.W.2d 74, 77 (Tex.App.--Austin 1998, no pet .). "The State may oppose in writing any

reason the defendant sets forth in the motion for new trial." Tex.R.App. P. 21.5. In hearing

the motion for new trial, the trial judge may receive evidence by affidavit or through live

testimony. See id. rule 21.7. If the sworn motions or affidavits are offered and admitted

into evidence they may serve as the basis for a granting a new trial. See McIntire v. State,

698 S.W.2d 652, 658 (Tex.Cr.App. 1985). Motions for new trial and their affidavits and any

state sponsored controverting affidavits are pleadings, unless offered and admitted into

evidence. See Id. at 658; Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex.Cr.App. 1973).

      "When an accused presents a motion for new trial raising matters not determinable

from the record, upon which the accused could be entitled to relief, the trial judge abuses

his discretion in failing to hold a hearing." Reyes v. State, 849 S.W.2d 812, 816


                                             6
(Tex.Cr.App. 1993). "A defendant need only assert reasonable grounds for relief which are

not determinable from the record in order to be entitled to a hearing." Jordan v. State, 883

S.W.2d 664, 665 (Tex.Cr.App. 1994). However, a trial judge does not abuse its discretion

in overruling a motion for new trial without a hearing unless the motion and supporting

affidavits state facts that, if true, would entitle the defendant to a new trial. See Hernandez

v. State, 952 S.W.2d 59, 74 (Tex.App.--Austin 1997), remanded on other grounds, 957

S.W.2d 851 (Tex.Cr.App. 1998). When a trial judge does not conduct a hearing on a motion

for new trial, an appellate court must determine whether the motion and affidavits show

reasonable grounds that would entitle a defendant to a hearing of the motion. See Jordan,

883 S.W.2d at 665; Garcia v. State, 960 S.W.2d 329, 333 (Tex.App.--Corpus Christi 1997,

no pet.); Sandoval v. State, 929 S.W.2d 34, 36 (Tex.App.--Corpus Christi 1996, pet. ref'd).

      To be sufficient to entitle the defendant to a hearing, the motion for new trial and

accompanying affidavits need not establish a prima facie case for a new trial. Wallace v.

State, 106 S.W.3d 103, 108 (Tex.Cr.App. 2003). Rather, they must merely reflect that

reasonable grounds exist for holding that such relief could be granted. Id. The purpose of

the hearing is to give a defendant the opportunity to fully develop matters raised in his

motion. Id. If the trial judge denies a hearing on the motion for new trial and the defendant

appeals from that denial, the appellate court must review the trial court's decision for abuse

of discretion. Id. If a defendant's motion and affidavit are sufficient to meet the statutory

requirements, a hearing on the motion is mandatory. Jordan, 883 S.W.2d at 665.


                                              7
      In the instant case, Appellant timely filed a motion for new trial with supporting

affidavit alleging five instances of ineffective assistance of counsel. The motion was

presented within 10 days of sentencing to the trial court, and the trial judge asked for

affidavits to be presented, by order signed September 23, 2014. See CR Supp Vol 1. The

trial court ordered responsive affidavit’s to be presented by the State and then asked for

counter affidavits from the defense. The State provided the affidavit from trial counsel, and

Appellant provided an additional affidavit from another witness. The trial court did not

order the requested hearing, and in the end refused to rule on the motion, despite repeated

requests from appellate counsel to issue a ruling.

      In the motion for new trial, Appellant alleged the following:

      A.     Defendant received ineffective assistance of trial counsel. Trial counsel failed
             to communicate with defendant regarding status of the case, what had been
             done, what was going to happen prior to trial. Trial counsel failed to notify
             defendant about what was happening in his case.

      B.     Defendant received ineffective assistance of trial counsel. Trial counsel failed
             to comply with client’s instructions regarding what trial strategy to use during
             trial, and when instructed to pursue a viable and specific trial strategy failed to
             follow the directives of his client.

      C.     Defendant received ineffective assistance of trial counsel. Trial counsel
             presented a defense to the jury that was directly contradicted by the evidence,
             and which the defendant told him to stop pursuing right after opening
             statement. Trial counsel refused and continued to present a defense which
             precluded defendant’s requested mitigation defense, and denied defendant his
             constitutional right to his defense.

      D.     Defendant received ineffective assistance of trial counsel. Trial counsel failed
             to call witnesses requested by defendant.


                                               8
      E.     Defendant received ineffective assistance of trial counsel. Trial counsel failed
             to investigate and present a mitigation case to the jury as requested by
             defendant.


See, CR pg., 126. Appellant’s affidavit, attached to the initial filing, contained facts that if

true substantiated the allegations contained in the motion. Specifically, Appellant alleged

that appointed counsel first spoke to him about the facts of his case the weekend before his

trial began. See, CR, pg., 131. Second, at that meeting Appellant informed trial counsel that

he wished him to pursue a specific trial strategy, which trial counsel ignored. Third,

Appellant had requested his previous retained attorney, Jody Sims, to get him mental health

experts appointed so as to assist in presenting a mitigation case at trial. Sims was removed

by the trial judge and trial counsel appointed so that new counsel could request expert

witnesses from the county. Experts were never requested. Finally, Appellant requested

witnesses be presented both at guilt and punishment, and provided trial counsel with names

and contact information. Said witnesses were never contacted, or called as witnesses.

Meledy Price, did appear, but she was never contacted by trial counsel, she appeared on her

own and was called as a witness.

      The State presented the affidavit of Appellant’s trial counsel. The affidavit denies the

allegations made by Appellant. Specifically, trial counsel avers that he met several times

with Appellant at the Williamson County Jail, for lengthy meetings wherein they discussed

the facts of his situation. Trial counsel states that he formulated the trial strategy he pursued

before the jury from information gathered at those meetings as well as other discovery. See
                                               9
CR Supp 2, pg. 3. Trial counsel also alleges that Appellant never instructed him to follow

a certain trial strategy, nor did he tell him to change strategy after the opening statement was

made. He offers no supporting information or documentation of his notification to

Appellant of his trial strategy. He goes on to state that Appellant provided him with a single

name to contact as a witness, and that individual was “Melody Price”[sic]. Trial counsel

goes on to state that he spoke to her in advance and that he got her to agree to appear at trial

and testify, as well as to provide clothing for Appellant at trial. Trial counsel also states that

Appellant’s assertions that he was not informed of trial dates, developments in his case, and

inform him regarding State’s evidence are also ‘not true’. Finally, trial counsel states that

he did not request the appointment of an investigator or an expert to review Appellant’s

sanity or his competency. “In [his] opinion such requests were not warranted by the facts

and circumstances of the case.” See, CR Supp 2, pg. 4.

       In response to this, Appellant produces the affidavit of Meledy Lynn Price (note the

spelling). Meledy’s affidavit gives specific dates and details recounting her interactions

with both trial counsel and Appellant during the relevant time period. See CR Supp 3, pg.

3-7. Meledy’s affidavit refutes trial counsel’s affidavit point for point, and offers other lay

person arguments that contradict his affidavit. Specifically, she states that trial counsel did

not request her to show up for trial, that she appeared without any prompting from him.

That she was sworn in as a witness before she even discussed the facts that she could testify

to with trial counsel. She supports these statements by recounting her cell phone records


                                               10
which memorialize each conversation she had with trial counsel, the dates, times, and how

long each conversation lasted, all of which were less than 3 minutes in length. See CR Supp

3 pg. 3-4. She goes on to state that trial counsel asked her to contact those witnesses the

morning of trial, which she agreed to do because some were family members. See CR Supp

3, pg. 4.

       The information provided in both of Appellant’s affidavits describe facts which are

not in the trial transcript, and as stated, if true, would require a new trial to be had. The

conclusory affidavit of trial counsel is refuted by the affidavit of Meledy Price, and is

supported by specific allegations of time and date, which evidence could have been

provided to the trial judge at a motion for new trial hearing. Finally, the testimony of all the

relevant parties and affiants could have and should have been subjected to cross examination

at an adversarial hearing. The trial judge should have granted a hearing on the motion for

new trial, or at the very least ruled on the motion presented with affidavit’s in support. The

question becomes was Appellant entitled to a new trial based on ineffective assistance of

counsel?

Ineffective Assistance of Counsel

       To be entitled to a new trial based on an ineffective assistance of counsel claim, a

defendant must show by a preponderance of the evidence that counsel's performance was

deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052 (1984); Ex parte Lane, 303 S.W.3d 702, 707 (Tex.Cr.App. 2009).


                                              11
The first prong requires the defendant to show counsel's performance fell below an objective

standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at

687–88, 104 S.Ct. 2052. The second prong requires the defendant to show that there is a

reasonable probability that, but for his counsel's errors, the result of the proceeding would

have been different. Strickland, 466 U.S. at 687, 694, 104 S.Ct. 2052.

      Here trial counsel’s performance failed to reach an objective standard of

reasonableness under prevailing professional norms. The failure to inform you client,

follow their directive regarding grand strategy of the case, failure to investigate the facts of

the case and failure to interview and call witnesses are all violations of ethical and practice

norms for the profession. As stated above, these issues were presented in the affidavits

provided to the trial court. The very question that these issues exist is one which should

require a hearing, and if shown require a new trial.

      The second Strickland prong is that but for these errors Appellant’s results of the

proceeding would have been different. Appellant wanted a mitigation strategy to be

presented. One where his mental health issues would be presented to the jury, where they

could see that Appellant was seeking help with those mental issues. It was for this reason

he had originally requested Mr. Simms request a court appointed mental health expert,

which led to his removal and the appointment of trial counsel. This information, as alleged

in Appellant’s affidavit was all provided to trial counsel at the beginning of his

representation. On the other hand, trial counsel’s strategy was to allege that Appellant did


                                              12
not commit the crime and it was done by the estranged husband, who lived in another state.

The basis of this strategy was a single statement made by the victim in the hospital that

referenced her ‘husband’ as the perpetrator, and was later corrected multiple times to state

‘boyfriend’. This was further refuted by the three eyewitnesses other than the victim who

saw Appellant at the house moments after the assault, as well as one witness observe him

grab the victim prior to the assault. But the most glaring problem was the issue of

Appellant’s sandal. The victim stated that she was kicked by Appellant, she had distinctive

bruising on her face and body which was photographed, and said photos introduced at trial.

Appellant, when he was arrested, was wearing sandals. These sandals contained a unique

tread pattern which matched the size shape and outline of the bruises on the victim’s body.

This information was provided in the discovery, and presumably to trial counsel, and the

State argued that these were the shoes that Appellant used to strike the victim. In light of

this information, which should have been discovered prior to trial, the defense of ‘some

other dude did it’ is farcical. As such it affected Appellant’s ability to ask for mercy at

punishment. Further, trial counsel’s strategy at punishment failed to present the requested

mental health analysis and review of Appellant’s mental state at the time of the assault.

Evidence of mitigation which was entirely unexamined, as per trial counsel’s own affidavit.



      Finally, trial counsel also stated that he was never provided any potential mitigation

witnesses other than Meledy Price. Meledy states in her affidavit that she was never


                                            13
contacted about testifying, and that she showed up on her own to do so. Further that trial

counsel asked her to contact the other witnesses that were provided to trial counsel by

Appellant. The delegation of the important task of developing mitigation evidence was

inconsistent with trial counsel's professional obligation to conduct a reasonable

investigation into his client's background and to evaluate whether the information

discovered would be helpful in mitigating against the State's evidence on punishment. See

Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 1514–15, 146 L.Ed.2d 389 (2000);

Rivera v. State, 123 S.W.3d 21, 31 (Tex.App.–Houston [1st Dist.] 2003, pet. ref'd); TEX.

DISCIPLINARY R. PROF. CONDUCT 1.15(c) (1990).

      For the punishment phase, the appellate court’s inquiry is whether there is a

reasonable probability that the assessment of punishment would have been less severe in the

absence of defense counsel's deficient performance. Wiggins v. Smith, 539 U.S. 510, 534,

123 S.Ct. 2527, 2542 (2003); Lair v. State, 265 S.W.3d 580, 594 (Tex.App.–Houston [1st

Dist.] 2008, pet. ref'd). Prejudice is established if the probability that the outcome would

have been different is “sufficient to undermine confidence in the outcome” of the

proceeding. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Andrews v. State, 159 S.W.3d

98, 102 (Tex.Cr.App. 2005). The “ultimate focus” is whether “the result of the particular

proceeding is unreliable because of a breakdown in the adversarial process that our system

counts on to produce just results.” Strickland, 466 U.S. at 696, 104 S.Ct. at 2069.




                                            14
      “The sentencing process consists of weighing mitigating and aggravating factors, and

making adjustments in the severity of the sentence consistent with this calculus.” Shanklin

v. State, 190 S.W.3d 154, 165 (Tex.App.–Houston [1st Dist.] 2005, pet. dism'd). Thus, the

adversarial process is hindered if the fact finder is denied access to powerful mitigating

evidence, leaving only the aggravating factors for its consideration. See Williams v. Taylor,

529 U.S. 362, 395-99, 120 S.Ct. 1495, 1514–16 (2000)(holding that defendant was

prejudiced by counsel's ineffectiveness in not investigating or presenting mitigating

evidence, including “nightmarish” childhood, repeated past sexual assaults during his youth,

extremely low IQ, and several positive character references from professionals in

community who had witnessed defendant excel in structured environments).

      When defense counsel presents “no evidence of mitigating factors ... to balance

against the aggravating factors presented by the State” and fails to do so because he did not

investigate mitigating factors or contact potential mitigation witnesses, there is prejudice.

Shanklin, 190 S.W.3d at 165. Prejudice exists, in that context, because there is not even a

possibility of the fact finder considering mitigating evidence. See id. at 165–66 (“We

conclude that appellant has demonstrated prejudice in this case.... [D]efense counsel's failure

to interview or call a single witness, other than appellant, deprived him of the possibility of

bringing out even a single mitigating factor.”); Lair, 265 S.W.3d at 595–96.

      Here trial counsel presented a single witness, Meledy Price. The questions asked of

Meledy involved Appellant’s prior probation and the facts surrounding that. No mitigation


                                              15
evidence was presented through this witness about Appellant’s mental status or health, or

history as it related to positive attributes of his life. No mitigation evidence was presented,

no other evidence was introduced by the defense at trial. Prejudice exists, because there

is not even a possibility of the fact finder considering mitigating evidence which was never

investigated or presented.

      Trial counsel’s failure to investigate, consult, and follow the strategic directives of

his client are ineffective. The strategy used at trial failed to take into account the State’s

evidence, and the failure to investigate or present mitigation evidence harmed Appellant’s

case before the jury and failed to mitigate the aggravating factors presented and said failure

prejudiced Appellant’s case. The trial judge abused its discretion in overruling Appellant’s

motion for new trial without a hearing. Appellant would respectfully request that this Court

so find and reverse and remand for a new trial based upon ineffective assistance of trial

counsel, failing that Appellant would request this Court remand for a motion for new trial

hearing.




      THE TRIAL COURT ERRED IN PREVENTING APPELLANT FROM
      PRESENTING EVIDENCE OF HIS DEFENSE.



                                              16
      The United States Constitution guarantees that criminal defendants will have "a

meaningful opportunity to present a complete defense." Gilmore v. Taylor, 508 U.S. 333,

343 (1993); Crane v. Kentucky, 476 U.S. 683 (1986); California v. Trambetta, 467 U.S. 479

(1984). The Supreme Court described the different ways an individual can avail themselves

of this in Washington v. Texas, 388 U.S. 14 (1967):

      The right to offer the testimony of witnesses, and to compel their attendance
      if necessary, is in plain terms the right to present a defense, the right to present
      the defendant's version of the facts as well as the prosecution's to the jury so
      it may decide where the truth lies. Just as an accused has the right to confront
      the prosecution's witnesses for the purpose of challenging their testimony, he
      has the right to present his own witnesses to establish a defense. This right is
      a fundamental element of due process of law.


Id., at 19, 87 S.Ct. 1920. This principle has been invoked in cases where courts have

intimidated defense witnesses into silence, see e.g., Webb v. Texas, 409 U.S. 95 (1972), and

where courts have excluded otherwise admissible evidence. See Crane v. Kentucky, 476

U.S. at 693; Chambers v. Mississippi, 410 U.S. 284 (1973).

      In Chambers, the trial court applied the rules of evidence to bar the admission by the

defendant in support of his defense that another man, McDonald, admitted he had committed

the crimes. 410 U.S. at 287. The Supreme Court reversed, explaining that "the right of an

accused to due process is, in essence, the right to a fair opportunity to defend against state

accusations. The right to call witnesses in one's own behalf has long been recognized as

essential to due process." Id. at 294. Furthermore, Justice Black described the right to

present evidence in one's own defense as a critical component of our criminal justice system:
                                              17
      A person's right to reasonable notice of a charge against him, and an
      opportunity to be heard in his own defense - - a right to his day in court - - are
      basic in our system of jurisprudence, and these rights include, as a minimum,
      a right to examine the witnesses against him, to offer testimony, and to be
      represented by counsel.


In re Oliver, 333 U.S. 257, 273 (1948). It is the calling of witnesses and the presentation

of evidence which is the fundamental core of our legal system. The accused has a

fundamental right to present evidence of a defense as long as the evidence is relevant and

is not excluded by an established evidentiary rule. See Chambers v. Mississippi, 410 U.S.

at 302; New Mexico v. Duncan, 830 P.2d 554, 558 (New Mexico Ct. App. 1990);

Commonwealth of Pennsylvania v. Greene, 366 A.2d 234, 237 (Penn.S.Ct. 1976). If a

defendant can show a need for a particular witness a trial court must allow that witness to

testify, unless that testimony falls under the evidentiary rules of exclusion.

      Evidence must satisfy two requirements to be considered relevant: first, materiality,

and second, probative. See, T.R.E. 401, 402. For evidence to be material it "must be shown

to be addressed to the proof of a material proposition, i.e., 'any fact that is of consequence

to the determination of the action.' 'If the evidence is offered to help prove a proposition

which is not a matter in issue, the evidence is immaterial.'" 1 Steven Goode et al., Texas

Practice: Guide to the Texas Rules of Evidence: Civil and Criminal § 401.1 (2d ed. 1993 &

Supp. 1995). If the proponent establishes that the proffered evidence is material, Rule 401

also requires that the proponent establish the evidence is probative, i.e., the proffered

evidence must tend to make the existence of the fact "more or less probable than it would
                                             18
be without the evidence." Id. The proffered evidence is relevant if it has been shown to be

material to a fact in issue and if it makes that fact more probable than it would be without

the evidence.

       In United States v. McClure, 546 F.2d 670 (5th Cir. 1977), the Fifth Circuit held that

the defendant's "right to present a vigorous defense required the admission of the proffered

testimony." Id., at 673. The Fifth Circuit did not find the evidence of coercive threats to be

irrelevant merely because they took place after the defendant committed the offense for

which he was on trial. See also United States v. Herrera, 600 F.2d 502, 505 (5th Cir. 1979).

The Fifth Circuit did not give an opinion on whether it believed the defendant's defense was

credible. The Fifth Circuit decided, instead, that "a jury could not properly convict him

absent the opportunity to hear the proffered testimony bearing upon the theory of defense

and weigh its credibility along with the other evidence in the case." McClure, 546 F.2d at

673.

       In Miller v State, 36 S.W.3d 503 (Tex.Cr.App. 2001), the Court of Criminal Appeals

determined that the refusal to allow the admission of evidence of duress was reversible

error. In that case the Court was faced with a situation where the defendant had introduced

some evidence of duress, and was attempting to introduce further evidence of coercion that

occurred several hours after the crime the defendant was charged with had been committed.

The Court held that preclusion of that evidence violated a defendant’s right to present a

defense and was therefore reversible. Miller 36 S.W. 3d at 508.


                                             19
      On rehearing the Third Court of Appeals in Miller v State, 42 S.W.3d 343

(Tex.App.-Austin 2001), held that the exclusion of the evidence of duress after the

commission of the charged crime could not be deemed harmless error. The Third Court

stated:

      But while we do not necessarily believe the jury would have acquitted [Miller]
      but for the court's error, we cannot state with fair assurance that the excluded
      testimony would have had no effect, or but slight effect, on the jury's
      consideration of [Miller's] affirmative defense. See Johnson v. State, 967
      S.W.2d 410, 417 (Tex. Crim. App. 1998) (conviction should not be overturned
      for non-constitutional error if appellate court, after examining whole record,
      has fair assurance that error did not influence jury, or had but slight effect). We
      intimate no opinion as to the credibility of [Miller’s] duress defense. We decide
      only that, on this record, [Miller] was harmed when the jury was not given the
      opportunity to hear testimony relevant to [her] defense and assess its credibility
      along with the other evidence in the case.


Miller 42 S.W.3d at 347. The Court noted that because a defendant bears the burden of

persuasion in proving an affirmative defense evidence supporting that defense must be

presented to a jury for the fact finder to decide what weight to give it. Id, at 346-347. The

Court did not believe that the precluded evidence would have acquitted Miller, but still

reversed and remanded for a new trial, solely because the evidence was precluded from

admission.

      In the instant case, the trial attorney’s strategy was to attempt to show that the victim

was assaulted by her estranged husband, Ezequiel Astacio, who lives in Philadelphia, and

that she is now trying to accuse Appellant to cover Astacio whose name on her home

mortgage. In an effort to accomplish this, the defense presents two prior Round Rock Police
                                              20
reports at that address. The first is from September 21, 2009 and the second was from

November 6, 2011, both involved the same victim as in this case. A hearing was held

outside the presence of the jury and the trial judge denied the defense the ability to discuss

the 2009 incident in its entirety, and denied the defense the ability to introduce the police

report of either incident. The defense was allowed to ask the victim about whether the 2011

incident occurred for impeachment purposes. (R.R. Vol. 8, pg., 9). The defense asked the

very limited scope of questions allowed by the trial judge, and made a bill of exceptions and

introduced the exhibits for the record only. (R.R. Vol. 9, pg. 6). (C.R. Vol. 1, pg 99, &

108).

        The reports and the 2009 incident all relate to the victim’s desire to protect Astacio,

which was trial counsel’s theory of the defense. The 2009 incident involved Astacio

engaging in a verbal argument and then breaking things at the home, and leaving. See (C.R.

Vol. 1, Ex BE-1A pg., 101). The report goes on to say that although Astacio did not hit her,

victim thought he was going to hit her, and was threatening to hit her . See (C.R. Vol. 1, Ex

BE-1A pg., 104). The 2011 incident again occurred at the home between Astacio and the

victim. The report states that Astacio had been physical with the victim in the past, that the

victim was hiding in her bedroom and that they are in the middle of a divorce. See (C.R.

Vol. 1, Ex BE-1B pg., 112). Finally, the report states that the victim asked the neighbor not

to call the police. Both of these incidents and the written reports go to the credibility of the

victim and the heart of the defense.


                                               21
      A party may always attack a witness's credibility by cross-examination that tends to

reveal biases, prejudices, or ulterior motives affecting the witness's testimony. Davis v.

Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105 (1974); Koehler v. State, 679 S.W.2d 6, 9

(Tex.Cr.App. 1984). The motive operating on a witness's state of mind while testifying is

not a collateral matter. “When the evidence shows bias or a motive for the witness to testify

untruthfully, there is an exception to the prohibition on cross-examination or extrinsic

evidence concerning a witness's specific instances of conduct.” Sparks v. State, 943 S.W.2d

513, 517 (Tex.App.—Fort Worth 1997, pet. ref'd).

      The evidence requested is material because it shows that the victim was trying to

protect Astacio, from police involvement, and according to the trial attorney’s defensive

strategy that would go to show that Astacio was the actual perpetrator in this crime. The

evidence presented by Appellant and sought to be admitted at his trial is probative to the

determination of the witnesses credibility and truthfulness in the presentation of the State’s

evidence. The Appellant respectfully requests that this Court so find, and reverse the case

back to the trial court for a new trial.




                                             22
      THE TRIAL COURT ERRED IN FAILING TO PROPERLY INSTRUCT
      THE JURY AND SUCH WAS HARMFUL TO APPELLANT


      The procedure to review jury charge error is prescribed in article 36.19 of the Texas

Code of Criminal Procedure. Tex.Code Crim. Proc. Ann. art. 36.19; see Almanza v. State,

686 S.W.2d 157, 171 (Tex.Cr.App. 1984). The court must determine: (1) whether error

actually existed in the charge, and (2) whether sufficient harm resulted from the error to

result in a reversal. See Posey v. State, 966 S.W.2d 57, 60 (Tex.Cr.App. 1998). The

standard of harm required for reversal depends on whether trial counsel objected. See

Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Cr.App. 1994). If a timely objection was made

at trial, then the appellate court needs only find "some harm." See Almanza, 686 S.W.2d

at 171. By contrast, if the first complaint of charge error is made on appeal, then the

appellate court must find "egregious harm." See id.

      In the instant case, trial counsel requested that the application paragraph of the charge

at guilt or innocence be modified. Trial counsel objected to the language on page 3-4,

specifically, “and used or exhibited a deadly weapon, namely, the defendant's hand or foot

or body, during the commission of the assault,". Counsel requested that the Court substitute

the following, "and used or exhibited his hand, foot, or body as a deadly weapon, during the

commission of the assault.". See (R.R. Vol. 8, pg. 195-6). The defense objected to the

language on the basis that it was am impermissible comment on the weight of the evidence.


                                             23
          Article 36.14 of the Code of Criminal Procedure prohibits a trial judge from

delivering a charge that expresses any opinion as to the weight of the evidence. Tex. Code

Crim. Proc. Ann. art. 36.14. The primary reason for the rule is that an instruction by the trial

judge to the jury on the weight of the evidence reduces the State's burden of proving guilt

beyond a reasonable doubt. Brown v. State, 122 S.W.3d 794, 798 (Tex.Cr.App. 2003), cert.

denied, 541 U.S. 938, 124 S.Ct. 1678 (2004). As recognized in Lagrone v. State, “[j]urors

are prone to seize with alacrity upon any conduct or language of the trial judge which they

may interpret as shedding light upon his view of the weight of the evidence, or the merits

of the issues involved.” Lagrone v. State, 84 Tex.Crim. 609, 615-16, 209 S.W. 411, 415

(1919). Therefore, trial judges must refrain from making any remark calculated to convey

to the jury their opinion of the evidence in a particular case. Tex. Code Crim. Proc. Ann.

art. 38.05. To the jury, the language and conduct of the trial court have a special and

peculiar weight. See Livingston v. State, 782 S.W.2d 12, 14 (Tex.App.—Dallas 1989, pet.

ref'd).

          The trial court's comment constitutes reversible error if such comment is either

reasonably calculated to benefit the State or to prejudice the defendant's right to a fair and

impartial trial. Sharpe v. State, 648 S.W.2d 705, 706 (Tex.Cr.App. 1983). To determine

whether the comment is either reasonably calculated to benefit the State or to prejudice the

defendant, the Court must first examine whether the trial court's statement was material to

the case. Burge v. State, 443 S.W.2d 720, 724 (Tex.Cr.App. ), cert. denied, 396 U.S. 934,


                                              24
90 S.Ct. 277 (1969). An issue is material if the jury had the same issue before it. See

Jackson v. State, 548 S.W.2d 685, 695 (Tex.Cr.App. 1977). A trial court improperly

comments on the weight of the evidence if it makes a statement that:

              (1) implies approval of the State's argument, Ward v. State, 156 Tex.Crim. 472,
              243 S.W.2d 695, 696–97 (1951);

              (2) indicates any disbelief in the defense's position, McClory v. State, 510
              S.W.2d 932, 934 (Tex.Cr.App. 1974);

              (3) diminishes the credibility of the defense's approach to its case, see, e.g.,
              Jackson v. State, 756 S.W.2d 82, 85 (Tex.App.—San Antonio 1988), rev'd on
              other grounds, 772 S.W.2d 117 (Tex.Cr.App. 1989).

Clark v. State, 878 S.W.2d 224 (Tex.App.- Dallas 1994).

      The language contained in the charge is in the assertive, meaning it is a statement of

fact and not couched as a question. As such it is a comment on the evidence presented at

the guilt/innocence phase of trial and should have been modified as requested.

      Whenever it appears by the record in any criminal action upon appeal [that a charge

error has occurred], the judgment shall not be reversed unless the error appearing from the

record was calculated to injure the rights of defendant, or unless it appears from the record

that the defendant has not had a fair and impartial trial. All objections to the charge and to

the refusal of special charges shall be made at the time of trial. Tex.Code Crim. Proc. Ann.

art. 36.19.

      Under Almanza v. State, 686 S.W.2d at 157 (Tex.Cr.App. 1984), the appropriate harm

analysis depends upon whether the defendant preserved error by bringing the improper


                                              25
omission to the trial court's attention. When the error is properly preserved, a reversal is

required if "some harm" is shown. But when the defendant has failed to preserve error, he

must show egregious harm. The difference in harm standards impacts how strong the

non-accomplice evidence must be for the error in omitting an accomplice witness instruction

to be considered harmless. Herron v. State, 86 S.W.3d 621, 632 (Tex.Cr.App. 2002).

      Here trial counsel objected and requested a specific charge. The Court should utilize

the ‘some harm’ standard in its analysis of this point of error. Appellant respectfully

requests that this Court render any and all relief to which he is entitled.




                                              26
                                          Prayer

      WHEREFORE, PREMISES CONSIDERED, ARTY PRICE, Appellant in the above

styled and numbered cause respectfully prays that this Court grant him any and all relief to

which he is entitled.

                                       Respectfully submitted,

                                       ARIEL PAYAN
                                       Attorney at Law
                                       1012 Rio Grande
                                       Austin, Texas 78701
                                       Tel. 512/478-3900
                                       Fax: 512/472-4102
                                       Arielpayan@hotmail.com

                                   by: /s/ Ariel Payan
                                       Ariel Payan
                                       State Bar No. 00794430

                                       Attorney for Appellant


                         Statement Regarding Oral Argument

                             Oral Argument is Not Requested


                               Certificate of Compliance
       By my signature above I hereby certify pursuant to T.R.A.P. 9.4(i)(3), the word count
for this document, as determined by the word processing program is        6755      .

                                        /s/ Ariel Payan
                                       Ariel Payan




                                            27
                                  Certificate of Delivery

      This is to certify that a true and correct copy of the above and foregoing “Appellant’s

Brief on Appeal” was hand-delivered, mailed postage pre-paid or transmitted via telecopier

(fax) or email to the office of the District Attorney of Williamson County, Texas; and to

Appellant at the address listed in the Certificate of Parties, on October 1, 2015.


                                         /s/ Ariel Payan
                                       Ariel Payan
