                                                                           ACCEPTED
                                                                       13-15-00070-CR
                                                       THIRTEENTH COURT OF APPEALS
                                                              CORPUS CHRISTI, TEXAS
                                                                   8/6/2015 8:05:23 AM
                                                                CECILE FOY GSANGER
                                                                                CLERK


                  NO. 13-15-00070-CR

                IN THE COURT OF APPEALS     FILED IN
                                     13th COURT OF APPEALS
                                    CORPUS CHRISTI/EDINBURG, TEXAS
         THIRTEENTH SUPREME             8/6/2015 8:05:23 AM
                              JUDICIAL DISTRICT
                                         CECILE FOY GSANGER
                                                Clerk
                FOR THE STATE OF TEXAS



                 JOSE BARBONTIN SALAS,
                       APPELLANT

                            VS.

                  THE STATE OF TEXAS,
                        APPELLEE


       ON APPEAL IN TRIAL COURT NO. 14-05-11,997

         FROM THE 24TH JUDICIAL DISTRICT COURT

                 DeWITT COUNTY, TEXAS

                   BRIEF FOR APPELLE

MICHAEL A. SHEPPARD               ROBERT C. LASSMANN
DISTRICT ATTORNEY                 ASST. DISTRICT ATTORNEY
DeWITT COUNTY COURTHOUSE          DeWITT COUNTY COURTHOUSE
CUERO, TEXAS 77954                CUERO, TEXAS 77954
STATE BAR #18230700               STATE BAR #11969900
(361) 275-2612                    (361) 275-2612
masheppard1@sbcglobal.net         rclassmann1@sbcglobal.net

                ATTORNEYS FOR APPELLEE

              ORAL ARGUMENT NOT REQUESTED
                   TABLE OF CONTENTS

Nature of the Case..................................2

Reply Point One
    THE PROSECUTOR DID NOT ASK IMPROPER COMMITMENT
    QUESTIONS DURING VOIR DIRE......................3

Reply Point Two
    DURING ITS CLOSING ARGUMENT, THE STATE MADE A
    VALID PLEA FOR LAW ENFORCEMENT..................3

Reply Point Three
    NO ERROR WAS COMMITTED WHEN A STATE’S WITNESS
    STATED THAT APPELLANT WAS ON PAROLE.............3

Statement of the Facts..............................4

Summary of the Arguments............................6

Reply Point One Restated............................7

Arguments and Authorities for Reply Point One.......7

Reply Point Two Restated............................12

Arguments and Authorities for Reply Point Two.......12

Reply Point Three Restated..........................14

Arguments and Authorities for Reply Point Three.....14

Prayer..............................................20

Certificate of Service..............................21

Certificate of Compliance...........................22
                         -i-
                        LIST OF AUTHORITIES

Case                                                     Page

Alba v. State 905 S.W.2d 581 (Tex.Crim.App. 1995).....   16

Allridge v. State, 850 S.W.2d 471 (Tex.Crim.App.
     1991), cert. denied 510 U.S. 831, 114 S.Ct.
     101, 126 L.Ed.2d 68 (1993).......................   7

Barajos v. State, 93 S.W.3d 48 (Tex.Crim.App. 2002)... 11

Borjan v. State, 787 S.W2d 53 (Tex.Crim.App. 1990).... 13

Chatman v. State, 509 S.W.2d 868 (Tex.Crim.App. 1974). 12

Gosch v. State, 829 S.W.2d 775 (Tex.Crim.App. 1991)... 16

Hawkins v. State, 135 S.W.3d 762 (Tex.Crim.App. 2004). 12

Hicks v. State, 545 S.W.2d 805 (Tex.Crim.App. 1977)... 13

Hicks v. State, 2002 WL 31388902 (Tex.App. - Houston
     [1st Dist.] 2012)................................. 18

Lane v. State, 933 S.W.2d 504 (Tex.Crim.App. 1996).... 15

Rhodes v. State, 450 S.W.2d 329 (Tex.Crim.App. 1970).. 13

Rodriguez v. State, 552 S.W.2d 451 (Tex.Crim.App.
     1977)............................................ 12

Shippy v. State, 556 S.W.2d 246 (Tex.Crim.App. 1977).. 13

Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App.
     2001)...........................................8,9, 11




                             -ii-
Stine v. State, 300 S.W.3d 52 (Tex.App. - Texarkana
     2009, pet. dism’d).............................. 18, 19

Wyatt v. State, 23 S.W.3d 18 (Tex.Crim.App. 2000)..... 17


Other References

Texas Rules of Evidence (Vernon’s Ann.)
     Rule 403........................................ 14, 16
     Rule 404(b)....................................14,15,16




                           -iii-
                CAUSE NO. 13-15-00070-CR

        _______________________________________

                IN THE COURT OF APPEALS

                        FOR THE

         THIRTEENTH SUPREME JUDICIAL DISTRICT

                       OF TEXAS

                AT CORPUS CHRISTI, TEXAS
        _______________________________________

                 JOSE BARBONTIN SALAS,
                       APPELLANT

                          VS.

                  THE STATE OF TEXAS,
                        APPELLEE
       _________________________________________

TO THE HONORABLE JUSTICES OF SAID COURT:

    COMES NOW, the State of Texas, the prosecuting

authority in Cause No. 14-05-11,997 in the 24th

Judicial District Court of DeWitt County, Texas, the

Honorable Jack Marr, presiding, and Appellee before the


                          -1-
Court of Appeals, and respectfully submits this brief

in reply to the brief filed by Appellant, Jose

Barbontin Salas, appealing his conviction for evading

arrest or detention with a vehicle and habitual felon.

    For convenience, the parties will be referred to as

"Appellant" and "State."   The Clerk's Record will be

designated as "(CR)" and the Reporter's Record will be

designated as "(RR)."

                  NATURE OF THE CASE

    Appellant was charged by indictment with the felony

offense of evading arrest or detention with a motor

vehicle and habitual felon in Cause No. 14-05-11,997

(CR. 7).

    On January 21, 2015, a jury found Appellant guilty

of evading arrest or detention with a vehicle as

alleged in the indictment.    (CR 90).    Appellant elected

to have the jury assess punishment.      After hearing



                             -2-
evidence, the jury found the enhancement paragraphs

true and assessed punishment at life imprisonment in

the Institutional Division of the Texas Department of

Criminal Justice with no fine.     (CR 96).   Thereafter,

the trial court sentenced Appellant in accordance with

the jury's findings.    (CR. 100-103).

       Appellant timely filed his Notice of Appeal.    (CR

98).

                       REPLY POINT ONE

       THE PROSECUTOR DID NOT ASK IMPROPER COMMITMENT

QUESTIONS DURING VOIR DIRE.

                      REPLY POINT TWO

       DURING ITS CLOSING ARGUMENT, THE STATE MADE A VALID

PLEA FOR LAW ENFORCEMENT.

                      REPLY POINT THREE

       NO ERROR WAS COMMITTED WHEN A STATE'S WITNESS

STATED THAT APPELLANT WAS ON PAROLE.



                             -3-
                 STATEMENT OF THE FACTS

                  Commitment Questions

    The District Attorney, Michael Sheppard, asked

whether the jury panel could justify assessing a

maximum sentence under the appropriate circumstances.

Appellant's trial counsel objected as to the word

"assess," stating that the word should be "consider."

Mr. Sheppard responded that consider and assess are the

same thing.   The Trial Court overruled Appellant's

objection and granted a running objection.     (2 RR 141).

Another running objection was granted as to the same

thing later during voir dire.    (2 RR 155).

                  Plea for Law Enforcement

    During its first closing argument, the State said,

"So we ask that as a conscience of our community that

you take this duty very..." at which point Appellant's

counsel objected as to improper argument as to what the



                           -4-
community desires.    (3 RR 123).   After discussion, the

trial court stated, "He has simply acknowledged that he

is arguing to them that they represent the community.

That's not improper.    So I'm noting your objection by

I'm overruling your objection...."    (3 RR 126).

            State's Witness/Appellant on Parole

During the questioning of Sheriff's Deputy Carl Bowen,

the State asked him what Appellant was running from, to

which Bowen replied that he was running from a Yoakum

Police Officer.   The next question elicited the

objected to answer.    Bowen was asked what Appellant

told him as to whether or not Appellant saw the officer

chasing him, and Bowen answered, "Yes.    He did.   He

said, man I saw him behind me and I didn't want to

stop. I'm on parole and I didn't want to go back to

jail."   At that time, Appellant's counsel objected.     (3

RR 88-9).



                            -5-
    After the object was lodged and discussion was had

at the bench, the Trial Court sustained Appellant's

objection and instructed the jury to disregard that

portion of the testimony that referred to Appellant

being on parole.    (3 RR 90-1).

                   SUMMARY OF THE ARGUMENTS

    It is the State's position that the prosecutor did

no ask improper commitment questions during voir dire.

The prosecutor used the words "consider" and "assess"

interchangeably.    The attorney did not attempt to bind

a juror to a verdict, but was merely asking the panel

whether or not they could consider the high end of the

range of punishment.    This is a proper line of

questioning the voir dire and did not require any

venireman to commit to any punishment.    As such, no

error was committed.

    Secondly, the State's argument during closing was



                             -6-
not error as it was a valid plea for law enforcement.

A jury is the conscience of the community.   The

prosecutor's statements during closing were not error.

    Finally, the Trial Court cured any error of the

State's witness informing the jury that Appellant was

on parole, which was why he was running from law

enforcement by instructing the jury panel to disregard.

The State would argue that the response was a valid

answer to a question and that the jury was entitled to

know that information.

                REPLY POINT ONE RESTATED

    THE PROSECUTOR DID NOT ASK IMPROPER COMMITMENT

QUESTIONS DURING VOIR DIRE.

     ARGUMENTS AND AUTHORITIES FOR REPLY POINT ONE

    An attorney cannot attempt to bind or commit a

prospective juror to a verdict based on a hypothetical

set of facts.   Allridge v. State, 850 S.W.2d 471 (Tex.



                           -7-
Crim.App. 1991), cert. denied 510 U.S. 831, 114 S.Ct.

101, 126 L.Ed.2d 68 (1993).

    The court of appeals analyzes the State's

questioning in light of Standefer v. State, 59 S.W.3d

177 (Tex.Crim.App. 2001), which set forth a three-prong

test to determine whether a voir dire question calls

for an improper commitment.

    The first prong of Standefer asks whether a

particular question is in fact a commitment question.

The court of appeals has held that when the question

posed by the State requires prospective jurors to

commit to convict a defendant or to resolve issues

concerning witness credibility under a particular set

of facts, then the first prong of Standefer is met.

    To address the second prong of Standefer, the court

of appeal must look to whether the commitment question

gives rise to a valid challenge for cause.



                          -8-
    Finally, the third prong of Standefer asks whether

the question included only “necessary facts.”

According to the court of appeals, the “key” to

understanding the third prong of Standefer is that a

hypothetical cannot contain too many case-specific

facts.

    In the case at bar, the prosecutor used the word

"consider" and "assess" interchangeably during voir

dire.    Assuming, arguendo, that the questions were

commitment questions, and going to the second prong of

the Standefer test, a challenge for cause could have

been lodged had a juror not agreed with the

prosecutor's questions as that juror would not have

been able to consider the high end range of punishment

(which did NOT happen in the case at bar).    Thus, the

second prong of Standefer has not been satisfied.      Even

if it had, the third prong of the test has not been



                            -9-
met.   The prosecutor did not inject specific facts in

the hypothetical.   The important part of the

prosecutor's questioning are the facts within the

questions.   Each one dealt with whether the juror could

consider (or assess) the high range of punishment for

this crime if Appellant was found to be a habitual

felon, which raised the maximum range of punishment

considerably.    The State did not attempt to commit the

prospective jurors in conjunction with specific facts

of the case because the questions were not

unnecessarily fact intensive, but only included those

facts necessary to determine whether a prospective

juror was challengeable for cause.

The State's commitment questions were not designed to

bind the prospective jurors to a position based on a

particular set of facts, but sought to elicit whether

the jurors could impartially follow the law in



                           -10-
considering or assessing the higher range of

punishment.

    In reviewing a trial court's ruling on an improper

commitment question during voir dire, the court appeals

uses an abuse of discretion standard.   Barajos v.

State, 93 S.W.3d 48 (Tex.Crim.App. 2002).   Standefer

even held that commitment questions concerning a

juror's ability to consider the full range of

punishment for a particular offense meet the definition

of a commitment question but are nevertheless proper.

Standefer at 181.

    For these reasons, Appellant's Point of Error No.

One should be denied and the trial court should be in

all things affirmed.




                          -11-
                 REPLY POINT TWO RESTATED

    DURING ITS CLOSING ARGUMENT, THE STATE MADE A VALID

PLEA FOR LAW ENFORCEMENT.

       ARGUMENTS AND AUTHORITIES FOR REPLY POINT TWO

    Permissible areas of closing argument are (1)

summation of the evidence; (2) reasonable deductions

from the evidence; (3) answer to arguments of opposing

counsel; (4) plea for law enforcement; (5) matters of

common knowledge; and (6) accurate restatement or

clarification of jury instructions.   See Hawkins v.

State, 135 S.W.3d 762 (Tex.Crim.App. 2004).

    Informing jurors that they are the "last link in

law enforcement" has been held proper.   Chatman v.

State, 509 S.W.2d 868 (Tex.Crim.App. 1974); Rodriguez

v. State, 552 S.W.2d 451 (Tex.Crim.App. 1977).

    Likewise, informing jurors of the effect their

verdict will have on a particular segment of the




                            -12-
community, such as law enforcement, has been held

proper.   See Borjan v. State, 787 S.W.2d 53 (Tex.

Crim.App. 1990); Rhodes v. State, 450 S.W.2d 329

(Tex.Crim.App. 1970).

    The State is also allowed to inform the jurors

about deterring crime, i.e. tell the community that

this kind of crime should not be tolerated.   See Shippy

v. State, 556 S.W.2d 246 (Tex.Crim.App. 1977); Hicks v.

State, 545 S.W.2d 805 (Tex.Crim.App. 1977).

    In the case at bar, the prosecutor merely was

informing the jury that they are the conscience of the

community (a plea for law enforcement) and of their

civic duty.

    For these reasons, Appellant's Point of Error No.

Two should be denied and the trial court should be in

all things affirmed.




                           -13-
                     REPLY POINT THREE

       NO ERROR WAS COMMITTED WHEN A STATE'S WITNESS

STATED THAT APPELLANT WAS ON PAROLE.

    ARGUMENTS AND AUTHORITIES FOR REPLY POINT THREE

       Appellant complains that the trial court abused its

discretion in allowing the State to elicit evidence

regarding Appellant's status as a parolee for the

offense of evading arrest or detention with a vehicle

in violation of Texas Rules of Evidence 403 and 404(b).

At trial Officer Bowen testified, in response to the

question "and did he tell you that he saw cops chasing

him?    Answer:   "Yes,   He did.    He said, man, I saw him

behind me and I didn't want to stop.       I'm on parole and

I didn't want to go back to jail."        According to

Appellant, this testimony violates rules 404(b) and

403.




                              -14-
    An appellate court reviews a trial court's decision

to admit or exclude evidence for abuse of discretion.

Lane v. State, 933 S.W.2d 504, 519 (Tex.Crim.App.1996).

Rule 404(b) provides,

    "Evidence of other crimes, wrongs or acts is not
    admissible to prove the character of a person in
    order to show action in conformity therewith. It
    may, however, be admissible for other purposes,
    such as proof of motive, opportunity, intent,
    preparation, plan, knowledge, identity, or absence
    of mistake or accident, provided that upon timely
    request by the accused in a criminal case,
    reasonable notice is given in advance of trial of
    intent to introduce in the State's case-in-chief
    such evidence other than that arising in the same
    transaction."

Tex.R. Evid. 404(b).    The State contends that Bowen's

testimony was admissible to establish Appellant's

motive.   Although motive is not an element of evading

arrest or detention with a vehicle, the State is

entitled to offer evidence of motive, even if it

involves extraneous acts, if the evidence is relevant

as a circumstance tending to prove the commission of


                            -15-
the offense. Gosch v. State, 829 S.W.2d 775, 783

(Tex.Crim.App.1991).   Here, Appellant's desire to avoid

being incarcerated for violating his parole was the

triggering factor of the chain of events which

ultimately resulted in the evading arrest or detention

with a vehicle.

    However, evidence admissible under rule 404(b) is

still subject to exclusion under rule 403 if it is more

prejudicial than probative. Alba v. State, 905 S.W.2d

581, 585 (Tex.Crim.App.1995); Gosch, 829 S.W.2d at 783.

Appellate courts presume that the trial court engaged

in a balancing test under rule 403. In determining

whether the probative value of the evidence is greatly

outweighed by the danger of unfair prejudice, the trial

court should have weighed the following factors: (1)

its inherent probativeness, i.e., how compellingly

evidence of the extraneous misconduct serves to make




                           -16-
more or less probable a fact of consequence; (2) the

potential of the extraneous conduct to impress the jury

in some irrational but nevertheless indelible way; (3)

the amount of trial time needed by the proponent to

develop evidence of the extraneous misconduct such that

the jury's attention is diverted from the charged

offense; and (4) the degree of the proponent's “need”

for the extraneous misconduct. Wyatt v. State, 23

S.W.3d 18, 26 (Tex.Crim.App.2000).

    Here, the evidence of Appellant's parole status

explained why he evaded arrest.   Without the evidence

that Appellant was on parole and did not want to go

back to jail, the jury would have been unable to

understand why Appellant did not wish to be

apprehended.   The trial court granted Appellant's

objection as to the extraneous offense (even though the

underlying extraneous offense was never identified on




                           -17-
the record), granted a curative instruction and denied

Appellant's motion for mistrial. As such, the evidence

was not admitted before the jury as they were told to

disregard the same.

    As noted previously, the State never inquired into

the underlying facts concerning the underlying parole

crime.   And, the bulk of the testimony at trial

concerned Appellant's evading arrest or detention and

his eventual apprehension, not his status as a parolee

or any alleged violation of his parole. Finally, the

evidence of Appellant's guilt was substantial and not

rebutted by other evidence.   Therefore, even if the

trial court had committed error, any such error would

be harmless.   See also Hicks v. State, 2002 WL 31388902

(Tex.App. - Houston [1st Dist.] 2012).

    Appellant's reliance on Stine v. State, 300 S.W.3d

52 (Tex.App. - Texarkana 2009, pet. dism'd)is




                           -18-
misplaced.    The court in Stine upheld the conviction

and upheld the ADMISSION of extraneous parole

violations.    In the case at bar, the trial court did

not admit the extraneous offense of "parole" and

instructed the jury to disregard.    As in Stine,

evidence of guilt was overwhelming.    In Stine, the

actual felony and misdemeanor convictions were admitted

to the jury.    In the case at bar, only a reference to

"parole" was mentioned.    In Stine, the extraneous

offense testimony was solicited from the testifying

officer.   In the case at bar, the "parole" reference by

the testifying officer was not solicited.    Further, in

the case at bar, the "parole" factor was never

mentioned or argued by the State.

    For these reasons, Appellant's Point of Error No.

Three should be in all things denied and the trial

court should be in all things affirmed.




                            -19-
                       PRAYER

    WHEREFORE, PREMISES CONSIDERED, the State of Texas

asks this Honorable Court to affirm and uphold the

findings and rulings of the Trial Court.

                         Respectfully submitted,

                         MICHAEL A. SHEPPARD
                         District Attorney
                         24th Judicial District
                         DeWitt County Courthouse
                         Cuero, Texas 77954
                         (361) 275-2612
                         (361) 275-3282 [fax]



                          BY:/s/ Robert C. Lassmann
                              Robert C. Lassmann
                              Asst. Dist Attorney
                              State Bar No.11969900
                              Attorney for State




                          -20-
                 CERTIFICATE OF SERVICE

    I, Robert C. Lassmann, Assistant District Attorney,

24th Judicial District of Texas and Attorney for

Appellee, hereby certify that I have on this the 5th

day of August, 2015, delivered, by deposit in the U.S.

Mail, to Mr. David Alan Disher, at 1167 FM 2144,

Schulenburg, Texas 78956, as attorney for Appellant, a

true copy of the foregoing "Appellee's Brief", in Cause

No. 13-15-00070-CR styled "Jose Barbontin Salas,

Appellant vs. The State of Texas, Appellee."



                                 /s/ Robert C. Lassmann
                                 Robert C. Lassmann




                          -21-
              CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure

9.4(i)(3), I hereby certify that this brief contains

2,669 words (excluding the caption, table of contents,

table of authorities).    This is a computer-generated

document created in WordPerfect X6, using 14-point

typeface for all text, except for footnotes which are

in 12-point typeface.    In making this certificate of

compliance, I am relying on the word count provided by

the software used to prepare the document.


                           /s/ Robert C. Lassmann
                           Robert C. Lassmann




                            -22-
