                                                                                                         ACCEPTED
                                                                                                    05-12-01199-CR
                                                                                          FIFTH COURT OF APPEALS
                                                                                                   DALLAS, TEXAS
                                                                                               2/11/2015 9:23:49 AM
                                                                                                         LISA MATZ
                                                                                                             CLERK




                                                                                                                           5th Court of Appeals
                                                                                                                            FILED: 2/11/2015
                                                                                                        Lisa Matz, Clerk
                                                                 Appellant Requests Oral Argument


                               No. 05-12-01199-CR

                            IN THE COURT OF APPEALS
                         FOR THE FIFTH DISTRICT OF TEXAS
                                AT DALLAS, TEXAS



                        MARK PATRICK MCCAY,
                                Appellant

                                            vs.

                          THE STATE OF TEXAS,
                                  Appellee


                        On appeal from Criminal District Court No. 4
                                  of Dallas County, Texas
                                  In Cause No. F11-00694-K



                    APPELLANT’S REPLY BRIEF
                   TO STATE’S AMENDED BRIEF

                                    Counsel of Record

Lynn Richardson                                                  Katherine A. Drew
Chief Public Defender                                            Assistant Public Defender
Dallas County, Texas                                             State Bar No. 06117800

                             Frank Crowley Courts Building
                            133 N. Riverfront Boulevard, LB-2
                                Dallas, Texas 75207-4399
                                 (214) 875-2360 (phone)
                                   (214) 875-2363 (fax)
                              Kathi.Drew@dallascounty.org

                               Attorneys for Appellant
                              LIST OF PARTIES

APPELLANT
Mark Patrick McCay

APPELLEE
The State of Texas

DEFENSE COUNSEL AT TRIAL
Jeff Buchwald
7849 Alto Caro
Dallas, Texas 75248

Karen Lambert
6060 N. Central Expressway, Suite 560
Dallas, Texas 75206

STATE’S ATTORNEY AT TRIAL
Donna Strittmatter & Amy Croft
Assistant District Attorneys
Dallas County District Attorney‘s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399

APPELLANT’S ATTORNEY ON APPEAL
Katherine A. Drew
Dallas County Public Defender‘s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399

STATE’S ATTORNEY ON APPEAL
Patricia Poppoff Noble
Dallas County District Attorney‘s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399


                                           ii
                                          TABLE OF CONTENTS

LIST OF PARTIES ................................................................................................... ii

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

Reply to State‘s Argument: Points of Error 1 and 2 ..................................................1
         The indictment did not allege that Bendtsen suffered from diminished
         capacity or that Appellant knew Bendtsen suffered from diminished
         capacity. ...........................................................................................................1

         The indictment did not allege exploitation of an elderly person. ....................4

         An “owner” was not alleged in the indictment. ..............................................4

         The property which was the subject of the alleged theft was not
         described. .........................................................................................................5

         Alleging an attempted theft does not excuse the deficiencies in the
         indictment. .......................................................................................................6
         The deficiencies in the indictment are not subject to a harm analysis
         or, in the alternative, are not harmless. ..........................................................8

Reply to State‘s Argument: Point of Error 3 ...........................................................12

         It is proper to consider expert opinion in evaluating the sufficiency ............12
         The video of the “Baylor will” does not support the State‟s theory of
         coercion. ........................................................................................................14
Reply to State‘s Argument: Point of Error 4 ...........................................................15

         The error is preserved for review. .................................................................15
PRAYER ..................................................................................................................16

CERTIFICATE OF SERVICE ................................................................................17

CERTIFICATE OF COMPLIANCE .......................................................................17



                                                             iii
                                   INDEX OF AUTHORITIES

Cases
Adams v. State,
  707 S.W.2d 900 (Tex. Crim. App. 1986) ...............................................................9
Alexander v. State,
  820 S.W.2d 821 (Tex. App.—Waco 1991, pet. ref‘d) ...........................................7
Buford v. State,
  111 S.W.2d 258 (Tex. Crim. App. 1937) ...............................................................7

Byrd v. State
  336 S.W.3d 242 (Tex. Crim. App. 2011) ...........................................................6, 9

Cook v. State,
  256 S.W.3d 846 (Tex. App.—Texarkana 2008, no pet.) .......................................7
Cook v. State,
  902 S.W.2d 471 (Tex. Crim. App. 1995) ...............................................................8

Croucher v. Croucher,
  660 S.W.2d 55 (Tex. 1983) ....................................................................................3

Epps v. State,
  811 S.W.2d 237 (Tex. App. – Dallas 1991, no pet.) ..............................................7
Gonzales v. State,
 No. 03-97-00484-CR, 1999 Tex. App. LEXIS 436 (Tex. App.—Austin Jan. 28,
 1999, no pet.) (not designated for publication) ..................................................7, 8
Green v. State,
  578 S.W.2d 411 (Tex. Crim. App. 1979) ...............................................................6

Rothermel v. Duncan,
  369 S.W.2d 917 (Tex. 1963) ..................................................................................3

Sorce v. State,
  736 S.W.2d 851 (Tex. App.—Houston [14th Dist.] 1987, pet. ref‘d) ....................7
Studer v. State,
  799 S.W.2d 263 (Tex. Crim. App. 1990) ...............................................................8
                                                       iv
Teal v. State,
  230 S.W.3d 172 (Tex. Crim. App. 2007) ...............................................................9

Thomas v. State,
  408 S.W.3d 877 (Tex. Crim. App. 2013) .............................................................16

Young v. State,
  675 S.W.2d 770 (Tex. Crim. App. 1984) ...............................................................7

Zillender v. State,
  557 S.W.2d 515 (Tex. Crim. App. 1977) .............................................................16

Statutes
TEX. CODE CRIM. PROC. art. 21.08 ................................................................ 3, 5, 6, 9
TEX. CODE CRIM. PROC. art. 21.09 .................................................................... 5, 6, 8

TEX. CODE CRIM. PROC. art. 44.01(c) ......................................................................12

TEX. ESTATES CODE § 251.001 ..................................................................................3
TEX. PENAL CODE § 31.03(c) ............................................................................ 15, 16
TEX. PENAL CODE § 31.03(e) .....................................................................................6

TEX. PENAL CODE ANN § 31.01(3)(E)........................................................................4

Rules
TEX. R. EVID. 401 .....................................................................................................16

TEX. R. EVID. 404(b) ................................................................................................15

Constitutional Provisions
TEX. CONST. art. I § 10 ...............................................................................................8

TEX. CONST. art. V § 12(b).........................................................................................8




                                                           v
    TO THE HONORABLE COURT OF APPEALS:

        COMES NOW Appellant, Mark Patrick McCay, and submits this Brief in

reply to the State‘s Amended Brief, which was filed on January 30, 2015.

                 Reply to State’s Argument: Points of Error 1 and 2

        With respect to the indictment, the State‘s Amended Brief continues to

suffer from the same infirmities as did its Original Brief. While prior indictments

had alleged diminished capacity, (CR1: 6; CR2: 12, 49, 142), the specific property

which was the object of the attempted theft, (CR2: 12, 49, 142), and the owner of

this property, (CR2: 12, 49, 142), the indictment on which the State proceeded to

trial did not contain any of these essential allegations.1 (CR1: 99). As such, it both

fails to state an offense and fails to provide constitutionally sufficient notice.

    The indictment did not allege that Bendtsen suffered from diminished capacity
         or that Appellant knew Bendtsen suffered from diminished capacity.

        Despite the State‘s recognition that the indictment fails to allege either that

Bendtsen lacked testamentary capacity and/or that Appellant knew she lacked

testamentary capacity and/or suffered from diminished capacity, both concepts

form the core of the State‘s arguments that the indictment both alleged an offense

and provided adequate notice:



1
  The State now recognizes that these allegations were deleted prior to trial but argues that this
language was ―not legally essential to plead the offense.‖ (State‘s Amended Brief at p. 3).
                                                1
    ―Here, the State could offer and rely on evidence of diminished capacity
     because it was relevant under the remaining allegations in the modified
     indictment.‖ (State‘s Amended Brief at p. 4) (emphasis added).

    ―Nor is the State precluded from relying on evidence of MaryEllen‗s
     diminished capacity as proof of Appellant„s specific intent to unlawfully
     change the ownership of her property upon her death.‖ (State‘s Amended
     Brief at p. 4) (emphasis added).

    ―MaryEllen could not effectively consent to any decision to change the
     transfer of her property at the time the last will was drawn and signed
     because she very obviously lacked the ability to make informed and rational
     decisions related to the disposition of her property.‖ (State‘s Amended Brief
     at p. 6-7) (emphasis added).

    ―The State would show from the existing circumstances that Appellant knew
     of MaryEllen„s diminished capacity, and that he caused her to execute a
     purported will in his favor despite his knowledge that she had not done this
     while competent. (State‘s Amended Brief at p. 7) (emphasis added).

    ―Evidence would show that Appellant caused an elderly woman known to
     him to have diminished capacity to make informed and rational decisions
     about the reasonable disposition of her property, to execute such a will.‖
     (State‘s Amended Brief at p. 8) (emphasis added).

These arguments, made by the State to support the indictment, are essentially

arguments more appropriately made, if at all, in support the State‘s theory that the

evidence was sufficient to show that Appellant committed attempted theft. Nothing

that the evidence at trial ultimately showed or failed to show can be used to uphold

the indictment, which did not allege a lack of testamentary capacity or that

Appellant knew that Bendtsen suffered from any form of diminished capacity,

testamentary or otherwise. (CR1: 99).


                                         2
       The State‘s theory was that Appellant committed a crime when he, by

unalleged means, somehow ―caused‖ Bendtsen to execute the ―Baylor will‖ and

then filed that will for probate. The State was not alleging theft from an estate,

which it, perhaps, could have legally done. See TEX. CODE CRIM. PROC. art. 21.08

(stating ―[w]hen the property belongs to the estate of a deceased person, the

ownership may be alleged to be in the executor, administrator or heirs of such

deceased person, or in any one of such heirs‖). In essence, the State charged

Appellant with conduct which is not criminalized by any specific statute.

       Assuming, arguendo, that it is an offense to attempt ―theft by will,‖ a point

which Appellant does not concede, then the indictment must, of necessity, have

alleged that Bendtsen lacked testamentary capacity or that her testamentary

capacity was undermined by undue influence.2 These are not mere ―evidentiary

facts,‖ but essential pleadings. If the State intended to rely on evidence that

Bendtsen either lacked testamentary capacity or that Appellant exercised undue

influence, it should have so alleged in the indictment. Because the indictment

alleged neither, it failed to state an offense.




2
  To prevail in any will contest in a civil court, a litigant must show either that the testator lacked
testamentary capacity or, having testamentary capacity, was subjected to undue influence. See
Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex. 1983); Rothermel v. Duncan, 369 S.W.2d 917,
922 (Tex. 1963); see also TEX. ESTATES CODE § 251.001.
                                                  3
         The indictment did not allege exploitation of an elderly person.

      The State, despite recognizing the lack of this allegation in the indictment,

continues to argue that this prosecution is ―a case of exploitation of an elderly

individual that our Legislature has manifested an intent to prohibit and to penalize.

TEX. PENAL CODE ANN § 31.01(3)(E) (providing consent is not effective if given

by an elderly person who by reason of advanced age is known by the actor to have

a diminished capacity to make informed and rational decision about the reasonable

disposition of property)‖. (State‘s Amended Brief at 8) (emphasis added). If the

State had wished to rely on this theory, it certainly could have done so. Indeed, a

prior indictment had included this language; yet, the State moved to strike that

language prior to trial. (CR1: 6; RRSupp5: 4). Having voluntarily abandoned the

―exploitation of the elderly‖ theory, the State cannot now rely upon that theory,

either to uphold the indictment or to support the conviction.

                  An “owner” was not alleged in the indictment.

      In an effort to excuse its failure to allege an owner, the State argues that the

allegation of ―any person‖ as the victim of Appellant‘s alleged attempted theft was

adequate because ―[t]here was only a class of persons affected that could be

identified as the victims of Appellant‘s conduct. That class included anyone who

would otherwise enjoy the legal right to possess whatever property constituted

MaryEllen‘s estate.‖ (State‘s Amended Brief at p. 15). As Appellant reads the

                                          4
State‘s arguments, the State is essentially arguing that the only class of persons

who could be affected by the ―Baylor will‖ were Bendtsen‘s heirs-at-law. Yet, the

State also argues that it was acceptable for the indictment to allege ―any person‖ as

the victim of the alleged theft because it is permissible to allege that an owner is

unknown. (State‘s Amended Brief at p. 15, citing to TEX. CODE CRIM. PROC. art.

21.08 which states as follows: ―where the ownership of the property is unknown to

the grand jury, it shall be sufficient to allege that fact.‖).

       The State cannot have it both ways. Either the heirs-at-law to Bendtsen‘s

estate were known or they were not. If known, those owners needed to be alleged

in the indictment. Similarly, if the owners were unknown to the grand jury, then

the indictment should have set forth that allegation. Moreover, under Article 21.08,

ownership could have been alleged in the heirs, executor or administrator of

Bendtsen‘s estate. The allegation of ―any person‖ is wholly insufficient, either to

allege an offense of attempted theft of an estate or to provide sufficient notice as to

the intended victim of the alleged attempted theft.

    The property which was the subject of the alleged theft was not described.

       The State argues that the global allegation of ―property‖ was sufficient to

describe anything that Bendtsen owned at her death; hence, the indictment alleged

a valid attempted theft. (State‘s Amended Brief at p. 16). While the Code permits a

―general classification‖ description of property in an indictment, TEX. CODE CRIM

                                             5
PROC. art. 21.09, that statute does not authorize no description of property at all.

Green v. State, 578 S.W.2d 411, 415 (Tex. Crim. App. 1979). This is particularly

true since proof of the identity of the property, as required by Article 21.09,

becomes a part of the State‘s burden of proof at trial. Id.

        The degree of theft with which a person is charged is dependent on the

valuation of the property taken. TEX. PENAL CODE § 31.03(e). The potential

punishment depends on the proven value of the property stolen. Id. The necessity

of a description of the property was crucial to a jury‘s determination in this case of

whether the aggregate value of the property was in excess of the value alleged.

    Alleging an attempted theft does not excuse the deficiencies in the indictment.

        The State endeavors to excuse all pleading deficiencies in the indictment on

grounds that a charging instrument for an attempted offense need only allege that

―the defendant (1) has the intent to commit the target offense, and (2) did an act

amounting to more than mere preparation that tended but failed to effect the actual

commission of the offense intended.‖3 (State‘s Amended Brief at p. 14). The

State‘s arguments wholly ignore the specific pleading requirements essential to

theft cases. Byrd v. State, 336 S.W.3d 242, 251-52 & n. 48 (Tex. Crim. App.

2011); TEX. CODE CRIM. PROC. arts. 21.08, 21.09.



3
 Appellant has answered most of the State‘s allegations in this regard in his Brief to this Court.
(Appellant‘s Amended Redrawn Brief at pp. 18-19, 21-22, 24-26).
                                                6
      Additionally, the State relies on cases which do not support its arguments.

Appellant has already distinguished the main case on which the State relies, Sorce

v. State, 736 S.W.2d 851, 856 (Tex. App.—Houston [14th Dist.] 1987, pet. ref‘d), in

its brief to this Court. (Appellant‘s Amended Redrawn Brief at pp. 21-22). Most of

the other cases on which the State relies do not involve theft offenses at all. Young

v. State, 675 S.W.2d 770, 770-71 (Tex. Crim. App. 1984) (attempted burglary);

Buford v. State, 111 S.W.2d 258 (Tex. Crim. App. 1937) (assault with intent to

rob); Cook v. State, 256 S.W.3d 846 (Tex. App.–Texarkana 2008, no pet.)

(attempted aggravated sexual assault of a child); Alexander v. State, 820 S.W.2d

821 (Tex. App.—Waco 1991, pet. ref‘d) (attempted capital murder); Epps v. State,

811 S.W.2d 237 (Tex. App.—Dallas 1991, no pet.) (attempted burglary of a

habitation). Hence, the holdings in those cases are not dispositive.

      A theft case on which the State does rely, Gonzales v. State, No. 03-97-

00484-CR, 1999 Tex. App. LEXIS 436 (Tex. App.—Austin Jan. 28, 1999, no pet.)

(not designated for publication), is also readily distinguishable. In Gonzales, the

defendant was indicted for a completed, as opposed to an attempted, theft. Id.,

1999 Tex. App. LEXIS 436 at * 8. The indictment listed specific amounts of

money allegedly stolen by the defendant and specifically alleged that the named

owner‘s consent was not effective because it was given by a person ―of advanced

age who was known by the Defendant to have a diminished capacity to make

                                          7
informed and rational decisions about the reasonable disposition of property.‖ Id.

at * 9. The owner was identified, the property described, and the theory of theft

from an elderly person alleged. Id. Additionally, the sufficiency of the indictment

in Gonzales was not challenged. Hence, Gonzales is wholly distinguishable from

the case at bar and cannot be relied upon to support the indictment.

 The deficiencies in the indictment are not subject to a harm analysis or, in the
                          alternative, are not harmless.

      The State continues to argue that, even if an allegation of an owner by name

and a description of the property is necessary to provide notice, then the error is

harmless as Appellant knew these matters and his defense was not impacted.

(State‘s Amended Brief at pp. 16-18).

      It is essential in any theft crime for an indictment to describe the property

stolen by name, kind, number, and the ownership of that property. TEX. CODE

CRIM. PROC. art. 21.09. Texas has a long history of demanding particularity in

pleading instruments. TEX. CONST. art. I § 10; TEX. CONST. art. V § 12(b) see

generally Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990). An indictment

must charge a person with the commission of an offense; the failure to do so

renders the document purporting to be an indictment void and deprives a trial court

of jurisdiction. Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995). The test

appears to be as follows: Can the district court and the defendant determine, from

the face of the indictment, that the indictment intends to charge a felony or other
                                         8
offense for which a district court has jurisdiction? Teal v. State, 230 S.W.3d 172,

181 (Tex. Crim. App. 2007).

      The indictment wholly fails to meet the proper requirements to allege a theft

offense. No owner‘s name, as required by both statute and case law, Article 21.08;

Byrd v. State, 336 S.W.3d 242, 251-52 & n. 48 (Tex. Crim. App. 2011), is alleged.

No description of the property which was the subject of the alleged attempted theft

is alleged. No description of any acts by which Appellant allegedly ―caused‖

Bendtsen to make the ―Baylor will‖ is alleged. And, the one act described with any

specificity, i.e., filing the will for probate, is not an illegal act. The requirement

that the indictment allege the ―commission of an offense‖ is wholly lacking. There

can be no harm analysis when the indictment fails to allege the commission of an

offense.

      Appellant recognizes that the Court of Criminal Appeals has established a

harmless error standard with respect to notice defects when the commission of an

offense is otherwise alleged. Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim.

App. 1986). Under this test, it must be determined (1) whether the indictment

failed to convey a requisite item of notice, (2) whether this failure impacted the

defendant‘s ability to prepare a defense, and (3) how great an impact. Id.

      The State argues that ―Appellant‘s defense was not in any way impacted by

the failure to name anyone as an owner who might take MaryEllen‘s property upon

                                          9
her death. Her daughter survived her and…he was well-prepared to meet Mary

Ellen‘s daughter in the courtroom.‖ (State‘s Amended Brief at 17). However, it is

significant that the State deliberately deleted any reference to Giron as the owner

of Bendtsen‘s estate just before trial. During trial, the State introduced evidence

that, upon her death, Bendtsen was survived by her daughter, two grandchildren,

her sister Ann, and her nephews John and Henry McClamrock, all of whom may

have had a greater right to possession of Bendtsen‘s property after her death than

Appellant.4 (RR5: 167-169). Evidence was also heard that, under the ―Florida

will,‖ if Giron had not survived Bendtsen, the estate would have gone to Giron‘s

children. (RR7: 212, 220; RR8: 30). This evidence not only expanded the scope of

the prosecution beyond Giron as an ―owner,‖ but also operated to confuse the jury,

which could well have believed, without guidance from the indictment, that all

members of Bendtsen‘s family were entitled to share in her estate. This is

particularly true since neither ―heirs‖ not ―heirs-at-law‖ was defined for the jury.

The failure to allege an owner cannot be considered harmless.

       The lack of a description of Bendtsen‘s property is equally not harmless. In

this regard, the State argues that ―Appellant may be fairly presumed to know the

property the last will purported to transfer to him.‖ (State‘s Amended Brief at 17).



4
 Appellant does not dispute that the only ―right‖ he had to any portion of Bendtsen‘s estate was
by virtue of the ―Baylor will.‖
                                              10
However, Bendtsen bequeathed ―all of my property of every kind and description

of which I may die seized or possessed, or in which I have an interest, whether

real, personal or mixed, and wherever situated‖ to Appellant and Burgess in the

―Baylor will.‖ (SX 5). The only exception was two specific bequests: ―real and

costume jewelry to Beatrice Ann Grayson, except for one brooch of her choice to

Rose Cline‖ and a ―cradle rocking chair‖ to Giron. (State‘s Exhibit 5). The

description of the property Bendtsen may have owned was all encompassing and

certainly expanded the scope of the prosecution beyond her 5/12 interest in the

house at 4949 Swiss Avenue. Evidence was heard that Bendtsen had social security

income and the interest from a bank account. (RR Supp: 28, 179). The jury heard

Giron testify that when she discovered that Appellant had filed an application to

probate a will, she thought he was ―attempting to steal everything.‖ (RR8: 44).

While the litigants may have focused on Bendtsen‘s interest in the Swiss Avenue

house, the jury could easily have looked beyond the house in considering what

―property‖ Appellant was allegedly attempting to steal.

      The lack of specifically required allegations in the indictment forced

Appellant to be prepared to defend against every possible contingency, despite the

fact that for years it had been clear that he was expected to defend against a theft

allegation concerning specific property allegedly taken from Giron alone. (CR2:

12, 49, 142). The impact of the last minute changes in the State‘s trial strategy vis-

                                         11
à-vis the indictment had to have adversely affected of Appellant‘s ability to

prepare a defense, particularly with respect to the potential for jury confusion. Any

other holding would render the specific pleading requirements for a theft

indictment meaningless.

                  Reply to State’s Argument: Point of Error 3

       It is proper to consider expert opinion in evaluating the sufficiency
                                  of the evidence.

      In its Amended Brief, the State continues to argue that Dr. Crowder, the

forensic psychiatrist, ―without a recognized field of expertise in whether one has

testamentary capacity, told the jury that MaryEllen had testamentary capacity when

the last will was executed. (RR9\166). This opinion testimony should never have

been admitted.‖ (State‘s Amended Brief at p. 62). The State almost appears to be

attempting to raise a cross-point on a ruling of law, TEX. CODE CRIM. PROC. art.

44.01(c), though the State‘s arguments are not presented in that fashion.

      Dr. Crowder was a Board Certified psychiatrist engaged in both teaching at

UT Southwestern Medical School and clinical work. (RR9: 155-156). He testified

that he consulted on legal cases and worked on ―testamentary capacity cases, will

contests.‖ (RR9: 156). He had testified in 30-50 cases regarding testamentary

capacity. (RR9: 157). These credentials were not contested by the State.

      Moreover, while that State made multiple objections to aspects of Dr.

Crowder‘s testimony, (RR9: 164, 165, 167, 168, 170, 172, 173), the State made no
                                         12
objection to Dr. Crowder‘s opinion regarding Bendtsen‘s testamentary capacity or

to the evidence that it was based on a continuity of intent:

      Q. (By Mr. Buchwald) Based on your review of the records and your
      review of the tape and everything else that you reviewed in this case,
      do you think Mary Ellen Bendtsen had testamentary capacity to
      execute her will on February 22nd, 2005?

      A. If I were to look at the tape alone, I wouldn‘t have necessarily
      known. I don‘t think it‘s detailed enough. Um, if -- if the collateral
      information I have is accurate and it seems to be, then her continuity
      of intent was to leave the house to Mark and Justin. So, I would say if
      you take into account the fact that she had through a period of years
      told people, I want to leave the house to Mark and Justin, when you
      take that into account, I would say, yes, she had testamentary capacity
      on that date.

      Q. What would -- could you explain to the jury what continuity of
      intent means?

      A. What I mean by that is: Is the person changing all time? If a person
      left a house to a son, say in three or four different wills, and then on
      the day of their death someone drops in and let‘s say it‘s a – it‘s a TV
      personality, and everything goes to the TV personality. That‘s highly
      suspect because that‘s not what the person's intent was through time.

      If a person has intended through time to give an estate to one
      particular person, that‘s been relatively consistent or repeated multiple
      times, it‘s more trustworthy, and I tend to trust a person on the last
      day, even if it‘s toward the end of life, or if there‘s some deficits, I
      tend to trust that a lot more than a dramatic change from a previous
      intent.

(RR9: 166-167). The State cannot be heard to complain about the admission of

testimony to which it did not object. Nor can the State dismiss Dr. Crowder‘s




                                          13
opinion as unreliable because it failed to challenge his credentials or expertise in

this area.

    The video of the “Baylor will” does not support the State’s theory of coercion.

         In its Amended Brief, the State continues to argue as follows: ―The State

encouraged the jurors to ask: If Appellant hadn‗t been in the hospital room on

February 22nd, 2005, would MaryEllen have executed that will? ―No‖ is the

obvious answer after viewing that gruesome recording of MaryEllen executing her

will.‖ (State‘s Amended Brief at p. 59).

         Appellant disagrees with the State‘s characterization of the video. (SX 1)

Yes, Bendtsen was in a hospital bed in an emergency room, a venue where few

people look their best. While Bendtsen appears tired and frail in the video, she

does not appear incompetent or ―out of it.‖ Her voice was firm and audible. She

was asked ―yes‖ or ―no‖ questions, which she answered clearly. She answered that

she did not want her money or her house to go to her daughter, but rather wanted

―Justin and Mark‖ to have them.5 When asked where she wanted her ashes to go

after her cremation, she supplied her address on Swiss Avenue without prompting.

         Nor does anyone appear to be coercing Bendtsen. Indeed, at one point when

she was equivocal, Olsen told her that she needed to say ―yes‖ or ―no;‖ obviously




5
    Bendtsen was clearly referring to Appellant and Justin Burgess. (SX 1).
                                                 14
she was being afforded the option to refuse to sign the document or to answer

Olsen‘s questions in such a way as to make the signing of the ―Baylor will‖

unfeasible. While the will was propped up for her to make her mark and her hand

was guided towards it, Bendtsen was not propped up or aided, other than to help

make her mark.6 Rather than Olsen restraining her hand, it appears that Bendtsen

is, in fact, patting Olsen‘s hand, as if to reassure him and/or to seek or give

comfort.

                   Reply to State’s Argument: Point of Error 4

                          The error is preserved for review.

       The State persists in arguing that Appellant has failed to preserve error on

the admission of the Farrington extraneous offense. (State‘s Amended Brief at pp.

69-70).

       An extensive sub rosa hearing was held concerning the admissibility of the

Farrington offense. (RR8: 126-250). The prosecutor made it plain that the evidence

was being offered under both TEX. PENAL CODE § 31.03(c) (similarity) and TEX. R.

EVID. 404(b) (disallowing evidence of other crimes, wrongs or acts to prove

character, but allowing such evidence for other purposes, such as proof of intent).

Defense counsel made multiple objections: relevancy, that Appellant was never



6
 It should be noted that in the video Bendtsen was not wearing her large glasses, which may
have impaired her vision. (SX 1; see also DX 7&8).
                                            15
charged with a crime vis-à-vis the Farringtons, improper character evidence,

remoteness under Section 31.03 (c), and the inflammatory, i.e., prejudicial nature

of the evidence. (RR8: 238-239, 250). The trial court ruled that the Farrington

offense was similar under the theft statute and that the probative value outweighed

prejudicial effect under Rule 403. (RR8: 248; RRSupp: 5, 6). The trial court fully

understood that defense counsel believed the evidence did not meet the standard of

admissibility under either Section 31.03(c) and/or Rules 401 and 404(b). The

objections voiced at trial comport to the arguments raised on appeal.

      In the alternative, even if certain words were not used in trial counsel‘s

objections, it is clear that the trial court, as well as the prosecutor, understood the

legal basis of counsel‘s objections, which is sufficient preservation. See Thomas v.

State, 408 S.W.3d 877, 884 (Tex. Crim. App. 2013); Zillender v. State, 557 S.W.2d

515, 517 (Tex. Crim. App. 1977). Appellant is entitled to have this point of error

addressed on the merits.

                                      PRAYER

      WHEREFORE, Appellant continues to pray that this Court will reverse his

conviction and enter an order of acquittal. Alternatively, Appellant prays that this

Court will reverse his conviction and order the indictment dismissed with

prejudice. In the further alternative, Appellant prays that this Court will reverse his

conviction and remand for a new trial.

                                          16
                                              Respectfully submitted,


                                              /s/ Katherine A. Drew
Lynn Pride Richardson                         Katherine A. Drew
Chief Public Defender                         Assistant Public Defender
Dallas County, Texas                          State Bar No. 06117800
                                              Dallas Co. Public Defender Office
                                              Frank Crowley Courts Building
                                              133 N. Riverfront Blvd., LB-2
                                              Dallas, Texas 75207-4399
                                              (214) 875-2360 (phone)
                                              (214) 875-2363 (fax)
                                              Kathi.Drew@dallascounty.org


                         CERTIFICATE OF SERVICE

       I hereby certify that a true copy of the foregoing brief was served on Patricia
Poppoff Noble, Dallas County Criminal District Attorney‘s Office (Appellate
Section), 133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by
electronic transmission and by hand delivery on February 11, 2015.

                                                    /s/ Katherine A. Drew
                                                    Katherine A. Drew


                      CERTIFICATE OF COMPLIANCE

       I hereby certify that in accordance with the terms of TEX. R. APP. P. 9.4(i)(1)
the word count in this document, which is based on the word count function of
Microsoft Word 2010, the software in which this document was prepared, is 4,107
inclusive of all contents except for the cover page, table of contents, index of
authorities, identity of parties, caption, signature, certificate of service, and
certificate of compliance.


                                                    /s/ Katherine A. Drew
                                                    Katherine A. Drew

                                         17
