                                                                           ACCEPTED
                                                                      06-14-00010-CR
                                                            SIXTH COURT OF APPEALS
                                                                 TEXARKANA, TEXAS
                                                                1/26/2015 10:56:34 AM
                                                                      DEBBIE AUTREY
                                                                               CLERK

            No. 02-13-00578-CR

                IN THE                               FILED IN
       SIXTH COURT OF APPEALS                 6th COURT OF APPEALS
                                                TEXARKANA, TEXAS
            Texarkana, Texas                  1/26/2015 10:56:34 AM
                                                   DEBBIE AUTREY
         CATRINA MALDONADO,                            Clerk
               Appellant,

                      V

          THE STATE OF TEXAS,
                Appellee.

Appealed from the 235th Judicial District Court
          Of Cooke County, Texas


       MOTION FOR REHEARING


                              HATCHER & HARRIS, P.C.
                              BELVIN R. HARRIS
                              Texas Bar No. 09052000
                              109 West California Street
                              P.O. Box 279
                              Gainesville, Texas 76240
                              Tel: (940) 665-3441
                              Fax: (940) 665-2000

                              ATTORNEY FOR APPELLANT
                              CATRINA MALDONADO




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            No. 02-13-00578-CR

       SIXTH COURT OF APPEALS
            Texarkana, Texas

         CATRINA MALDONADO,
               Appellant,

                      V

          THE STATE OF TEXAS,
                Appellee.

Appealed from the 235th Judicial District Court
          Of Cooke County, Texas


    MOTION FOR REHEARING


                              HATCHER & HARRIS, P.C.


                              /S/ BELVIN R. HARRIS
                              Texas Bar No. 09052000
                              109 West California Street
                              P.O. Box 279
                              Gainesville, Texas 76240
                              Tel: (940) 665-3441
                              Fax: (940) 665-2000
                              Billharris6605@att.net

                              ATTORNEY FOR APPELLANT
                              CATRINA MALDONADO




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                             No. 02-13-00578-CR

                         CATRINA MALDONADO,
                               Appellant,

                                      V

                           THE STATE OF TEXAS,
                                 Appellee.


                IDENTITY OF THE PARTIES & COUNSEL


CATRINA MALDONADO, (called “Maldonado” in this motion)

HATCHER & HARRIS, P.C.
BELVIN R. HARRIS, Attorney for Appellant
109 West California Street
P.O. Box 279
Gainesville, Texas 76240
Tel: (940) 665-3441
Fax: (940) 665-2000
Billharris6605@att.net

THE STATE OF TEXAS, Appellee, (called “the State” in this motion)

COOKE COUNTY DISTRICT ATTORNEY
JANICE WARDER, Attorney for Appellee
Cooke County Courthouse
101 South Dixon
Gainesville, Texas 76240
Tel: (940) 668-5466
Fax: (940) 668-5499




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                       INDEX OF AUTHORITIES

                                 CASES



Reese v. State, 33 S.W. 3d 238 (Tex. Crim. App. 2000)……………………… 7

Erazo v. State, 144 S.W. 3d 487 (Tex. Crim. App. 2004)……………………… 7, 9

Erazo v. State, 167 S.W. 3d 889 (Tex. App. Houston 14th 2005,
no pet.)…….………………………………………………………………………….7, 9

Texas Rules of Evidence, Rule 403………………………………………........... 9




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                         TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL………………………………..……3

INDEX OF AUTHORITIES……………………………………….…….…. 4

ISSUES PRESENTED………………………………………….…….……...…….... 6

ARGUMENT…………………………………………...……………..….…..7

   Issue 1:   The Court erred in its opinion and holding that

              the photographs' obvious prejudicial and admitted

              effect on the jury was outweighed by their

              probative value.............………………………....7

   Issue 2:   The Court erroneously held the trial court

              performed the balancing test required under

              Rule 403, Texas Rules of Evidence ...................9

PRAYER……………………………………………………………………………..10

CERTIFICATE OF SERVICE………………………………………………………11

CERTIFICATEOF COMPLIANCE………………………………………....11




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                      ISSUES PRESENTED FOR REVIEW


   Issue 1: The Court erred in its opinion and holding that the photographs' obvious

prejudicial and admitted effect on the jury was outweighed by their probative value.

   Issue 2: The Court erroneously held the trial court performed the balancing test

required under Rule 403, Texas Rules of Evidence.




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                                     ARGUMENT

                                           I.

           THE COURT ERRED IN ITS OPINION AND HOLDING
           THAT THE PHOTOGRAPH'S OBVIOUS PREJUDICIAL
             AND ADMITTED EFFECT ON THE JURY WAS
             OUTWEIGHED BY THEIR PROBATIVE VALUE

      The Court erred in its opinion and holding that the photographs' obvious

prejudicial and admitted effect on the jury was outweighed by their probative value.

To say such photographs of the child two weeks after he was injured by Johnny

Alexander did not unfairly impress the "jury in an irrational way" defies logic.

      Although the Court placed reliance on 2nd Court of Appeals precedent, it

completely disregarded precedent of the Court of Criminal Appeals. Even citing Erazo

v. State, 144 S.W. 3d 487 (Tx. Crim. App. 2004), the Court for some unknown reason

completely failed to follow its guidance. See Reese v. State, 33 S.W. 3d 238 (Tex.

Crim. App. 2000). The Court of Criminal Appeals performed a balancing test and held

a photograph inadmissible due to it being unduly prejudicial and remanded case to the

Court of Appeals for a harm analysis. The Court of Appeals held the error was

harmful stating "... we do not have fair assurance that the erroneously admitted

photograph did not influence the jury or that it influenced the jury only slightly in

assessing appellant's punishment."    Erazo v. State, 167 S.W. 3d 889 (Tex. App.

Houston 14th 2005, no pet.). The range of punishment as in this case was 5 years to


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99 years or life. Without the objectionable photographs, the jury could have assessed a

more lenient punishment.




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                                            II.

          THE COURT ERRONEOUSLY HELD THE TRIAL COURT
            PERFORMED THE BALANCING TESTS REQUIRED
             UNDER RULE 403, TEXAS RULES OF EVIDENCE.

      The Court erroneously held the trial court performed the balancing test required

under Rule 403, Texas Rules of Evidence.

      Some cases lay emphasis on the lack of time granted the trial court to rule on

objections under Rule 403, supra, which completely disregards that such rulings

should be made after taking the time to perform the proper balancing. After all, a

person's liberty is at stake. An appellate court should focus on the methodology the

trial court used rather than the result the trial court reached. Rule 403 and Erazo cases,

supra, do not require an appellate court to presume a proper test was performed by the

trial court when it was not. Using the court's reasoning in this case, there is little or no

need for any balancing test to be done since it assumed, proper or otherwise, the trial

court performed such test. This case exemplifies the lack of any balancing test.

Reciting by the court what the trial judge said and did should serve to negate there

having been some sort of balancing test conducted.            This court should grant a

rehearing and examine the record for any indication of a balancing test being

performed by the trial court.

      For whatever reason, the Court mentioned at page 4 of its opinion a "related"

case of State v. Johnny Alexander. Since it was mentioned, the Court should take note

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of a statement made by the State in that case, to wit:

      "This man hurt this little boy and killed him. ... Alexander prevented the

      mother from seeking medical treatment for Nathan..."

      "She (Nathan's mother) wanted to take the child to the doctor" (Reporter's

      Record of trial of Johnny Alexander, unknown page number. Since the

      Court mentioned the case, it apparently has reviewed the record.).


                                        PRAYER

              Maldonado prays that this court reverse the judgment of the trial court

 and remand for a new punishment trial.

                                                     Respectfully submitted,

                                                     Hatcher & Harris, P.C.


                                                     /s/ Belvin R. Harris
                                                     State Bar No. 09052000
                                                     Attorney for Catrina Maldonado




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                         CERTIFICATE OF SERVICE

      I certify that on January 26, 2015 , a true and correct copy of the

Brief for Appellant, was served to each person listed below by the method

indicated.

                                              /s/ Belvin R. Harris


Janice Warder
Cooke County District Attorney, Attorney for Appellee
Courthouse
101 South Dixon
Gainesville, Texas 76240
*Via E-Mail*

Sue Korioth
Sue Korioth, PC
P.O. Box 600103
Dallas, Texas 75360-0103
*Via E-Mail*



                      CERTIFICATE OF COMPLIANCE

      I certify that this document contains 1094 words, according to

Microsoft Word 2007 word counter, and in all other ways, conforms with

Texas Rule of Appellate Procedure 9.4(i) (3).


                                      /s/ Belvin R. Harris




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