                                                                                          ACCEPTED
                                                                                     03-13-00852-CR
                                                                                             3498146
                                  SEE AMEND BRF                            THIRD COURT OF APPEALS
                                  FLD ON 3/5/15                                       AUSTIN, TEXAS
December 31, 2014                                                              12/16/2014 9:23:24 AM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK
                          Case No. 03-13-00852-CR




                    IN THE THIRD COURT OF APPEALS




                                                                   RECEIVED IN
                                                             3rd COURT OF APPEALS
                       GREGORY LOPEZ, Appellant                   AUSTIN, TEXAS
                                                             12/16/2014 9:23:24 AM
                                      vs.                        JEFFREY D. KYLE
                                                                      Clerk

                     THE STATE OF TEXAS, Appellee




                     Appeal from Cause No. CR20 12-396
                     From the 22nd Judicial District Court
                           of Comal County, Texas




                                                David K. Sergi
                                                Texas Bar No. 18036000
                                                DAVID K. SERGI &
                                                ASSOCIATES
                                                329 S Guadalupe
                                                San Marcos, TX 78666
                                                Tel: 512.392.5010
                                                Fax: 512.392.5042
                                                E-Mail: davidsergilaw.com
                                                A ttorney for Appellant



                                      1
                 IDENTITY OF PARTIES AND COUNSEL

APPELLANT
Mr. Gregory Lopez

APPELLEE
The State of Texas

DEFENSE COUNSEL AT TRIAL
David K. Sergi
State Bar No. 18036000
P.O. Box 887, San Marcos, Texas 78666
Tel: (512)-392-5010
Fax: (512) 392-5042
E-Mail: davidsergilaw.com


STATE’S ATTORNEY AT TRIAL
Mr. Sammy McCrary
Comal County District Attorney’s Office
150 North Seguin Avenue, New Braunfels, Texas, 78130
Tel: (830) 221-1300
Fax: (830) 608-2008.

APPELLANT’S ATTORNEY ON APPEAL
David K. Sergi
State Bar No. 18036000
P.O. Box 887, San Marcos, Texas 78666
Tel: (512)-392-5010
Fax: (512)392-5042
davidsergi1aw.com

STATE’S ATTORNEY ON APPEAL
Mr. Sammy McCrary
Comal County District Attorney’s Office
150 North Seguin Avenue, New Braunfels, Texas, 78130
Tel: (830) 221-1300
Fax: (830) 608-2008




                                        2
                             TABLE OF CONTENTS

Identity of Parties                                                         .2

Table of Contents                                                            3

Index of Authorities                                                         4

Statement of the Case                                                        5

Statement Regarding Oral Arguments                                           6

Issues Presented                                                             6

Statement of the Facts                                                       7

Argument and Authorities                                                     9

      Point of Error Number One

       Prosecution made an impennissible comment alluding to the Appellant ‘s
      failure to test Ift resulting inprosecutorial misconduct            11


         Point of Error Number Two

      The trial court erred in denying Defense ‘s motion for directed verdict
after a properly sustained objection after the prosecution made the
impermissible comment during his final closing argument violating the
Appellant ‘s state andfederal Constitutional right to remain silent         18

Conclusion                                                                 22

Prayer                                                                     23

Certificate of Service                                                     24

Certificate of Compliance                                                  25


                                         3
                               Index ofAuthorities

Cases
Archie v. State, 340 S.W.3d 734 (Tex. Crim. App. 2011)               16, 19
Brown v. Mississippi, 297 U.S. 278, 286 (1936)                            17
Brown v. State, 814 S.W.2d 477, 479 (Tex. App.-DalIas 1991, pet. refd)...13
Carlock v. State, 8 S.W.3d 717,724 (Tex. App. Waco 1999 pet. ref’d)....19
                                               -




Chavez v. Martinez, 538 U.S. 760 (2003)                              17, 18
Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crirn. App. 1996)              13
Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995)         13, 15
Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.—Fort Worth 1997, pet.
reEd)                                                                     15
Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009)                   21
Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004)                    19
Longoria v. State, 154 S.W.3d 747,763-64 (Tex. App.—Houston [14th Dist.j
2004, pet. reEd)                                                         20
Ludwig v. State, 428 S.W.3d 344, 351 (Tex. App.—Amarillo 2014)19, 20,21
Madden v. State, 799 S.W.2d 683, 699 (Tex. Crim. App. 1990)               14
Montoya v. State, 744 S.W.2d 15,37 (Tex.Crim. App.1987)                   13
Mosleyv. State, 983 S.W.2d. 249 (Tex. C. App. 1998)                  19,21
Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011)            12
Sauceda v. State, 859 S.W.2d 469, 474 (Tex. App.—DaIlas 1993)            15
Weadv. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004)             12, 13


Statutes
U.S. Const. amend. V                                              12, 13, 17
Tex. Const. Art. 1, § 10                                                  13
TX R APP Rule 44.2(a)                                                     22
Tex. Pen. Code Ann. § 22.021                                               7
Tex. Crim. Proc. Code Ann. art. 38.07(a)                                  21
Tex. Crim. Proc. Code Ann. art. 38.08                                     12




                                           4
                             Statcmcnt of the Case

      This is a direct appeal from criminal cause number CR201 1-599 in the 207th

Judicial District of Coma! County. The Appellant, Gregory Lopez, was convicted

of Continuous Sexual Abuse of a Child. He was sentenced to fifty years in the

Texas Department of Criminal Justice.




                                        5
                         Statement Regarding Oral Argument

      Appellant requests oral argument in this case because he believes it will aid

the Court in making its determination as to the issues presented herein.

                                     Issues Presented

      Point of Error Number One
       Prosecution made an impermissible comment alluding to the Appellant ‘s
      failure to testi resulting in prosecutorial misconduct.

      Point of Error Number Two
        The trial court erred in denying Deft nse ‘s motion for directed verdict after
       a properly sustained objection after the prosecution made the
      impermissible comment during his final closing argument violating
      the Appellant ‘s state andfederal Constitutional right to remain silent




                                          6
                                           Statement of Facts

           The Appellant was convicted of continuous sexual assault of a child, A.M.,

and was sentenced to 50 years. See Tex. Pen. Code Ann.          §   22.021. The claimant

testified the Appellant touched her two times, one time on the buttocks while living

at a residence on Dollar Drive and the other while living at a residence on Solms.

Both residences are located in Comal County, Texas’.

           Mario Moreno, complainants grandfather, testified the Complainant has a

reputation for not always being truthful.2 The Complainant cried out by a text

message after she and her mother had been in an escalated verbal argument.3

Following the text message, the Complainant threatened her mother demanding her

mother choose either her or the Appellant.4

           Complainant’s aunt, Alicia Trejo, testified she had found the text message

on her brothers phone,5 and claimed the complainant cried out to her at that time

after she confronted the victim about the text message.6 Then Trejo testified she

had told the victim “if she did not like the situation she was in, all she would have


1   R.R.   Vol.   IV. 114:6-116:5, Oct. 16, 2013
2   R.R.   Vol.   IV at 176:5-9
    R.R.   Vol.   IV at 209:9-25
    R.R.   Vol.   IV at 208 :22-25
    R.R.   Vol.   V at 82:4-83:3
6   R.R.   Vol.   V at 86:18-19


                                                   7
to do is cry out,” in addition to that, she admitted “over the past 5 to 6 years you

have told [the complainant] that if she needs help, she can outcry and then things

will change”.7

       The Complainant admitted she was aware of the way CPS works and that

during previous opportunities to outcry she had not stated anything to CPS or

anyone else until the escalated fight with her mother occurred.8 In addition, on

several accounts the complainant testified about her dislike towards the Defendant

and how mad it made her.9

       In closing argument, the prosecutor, in his final closing argument

commented “And that brings you down to the case. I told you in the beginning

there’s usually two people present when this occurs that can testify about it.
                                     10
But you get to hear both sides.”          The Defense had objected to the prosecutions

comment, while the prosecution protested, “I can talk about anything that’s in the

charge,” the trial court sustained the objection)1 A motion for mistrial was

requested by the defense after the sustained objection, the motion for mistrial was

denied.’2 Following the denied motion for mistrial, the trial court provided



  R.R. Vol. V 5:19-21.)
8 R.R. Vol. IV at 127:2-129:2; 155:7-156:3
“R.R. Vol. IV at 140:9-13 See also R.R. Vol. IV at 143:7-13; R.R. Vol. IV at 149:7-19.; R.R.
Vol. IV at 157:10-12
10 R.R. Vol. VI at 45:16-20
‘ R.R. Vol. VI at 45 :21-46:21
12 R.R. Vol. VI at 46:23-47:1



                                                S
curative instructions.13 The prosecution immediately followed the trial courts

instructions with the comment “You still get to hear from the Defendant because

he talked to the police.’4 In addition, the prosecution directly commented “he’s

admitted to this crime. He talks about touching this little girl,” and at the same time

he directly points out an exact time on the interrogation video admitted as exhibit

one.’5 In the final four paragraphs, the prosecutor reminds the jury and emphasizes

that the Complainant “sat here and she testified and told y’all what happened,’

and that she ‘sat right here and       []   told you what this man did to her.”6 After the

jury had found the Appellant guilty of continuous sexual assault, the Defense

renewed its motion for mistrial and the trial court denied its motion once again.’7

                                    Summary of the Argument

            This case must be reversed and rendered because of the prosecutors’ flagrant

violation of the Appellant’s right to silence. Remanded because under the Fifth and

Fourteenth Amendment of the United States and Texas Statutory law a Appellant

being accused with a criminal charge has the right not to self incriminate. In the

present case the prosecution had manifestly intended through an impermissible

comment, in his final closing argument, referring to pre-arrest and pre-Miranda

interrogation video alluding to the fact the Appellant failed to testify’ therefore
13   R.R. Vol. VI at 47:7-18
14   R.R.   Vol. VI at 47:22-23
‘    R.R.   Vol. VI at 50:10-18
‘    R.R.   Vol. VI at 51:5-13
17   R.R.   Vol. VII at 7:8-10:11


                                                   9
making an impermissible comment that is so prejudicial it is unable to cure the

july’s prejudicial effect. Second, the trial court abused its discretion when it denied

the defense’s proper objection to the prosecutorial misconduct after the prosecution

violated the Appellant’s Fifth Amendment right to remain silent. As a result, the

july rendered a verdict contrary to the law.

                                     Standard of Review

       As to the first point of error, review by the appellate courts on an adverse

ruling on a de   JIOVO   basis.

       On appeal, the appellate courts do not engage in their own factual review,

but rather decide whether the trial court’s conclusions were supported by the

record. If the trial court’s findings are supported by the record, appellate courts are

not at liberty to disturb them, and on review, address only the question of whether

the trial court improperly applied the law to the facts.

       When the posture of a case does not present issues of pure fact, or of mixed

questions of law and fact that turn on credibility or demeanor, and presents only

questions of the validity of the trial court’s legal rulings (as in the instant case), an

appellate court’s review is de novo.

      Regarding the second point of error is also reviewed on a tie novo basis.




                                            10
                           ARGUMENT AND AUTHORITIES

          Point of Error Number One
          Prosecution made an impermissible comment alluding to the Appellant ‘s
         failure to test Ift resulting in prosecutorial misconduct.

I. The Prosecutor made commentary alluding to the fact that Lopez failed to
testify therefore he had made an improper comment that is reversible error.

          In the prosecutor’s final closing argument he clearly made an impermissible

comment during his final closing argument when he claimed, “I told you in the

beginning there’s usually two people present when this occurs that can testii5’ about

it. One of them has a right not to.   .   .   .   But you get to hear both sides”.’8 In the

bench conference, it is clear by the record the prosecutor believed that it is

appropriate and proper to comment on the Appellants right to remain silent and

indicated he intentionally made the comment by his statement “I can talk about

anything that is in the charge.”9

          Upon hearing the prosecutors comment the defense appropriately objected to

the impermissible comment and requested to approach the bench.2° Following the

bench discussion the trial court sustained the objection and the defense

immediately requested for properjury instructions to disregard the last comment




‘    R.R. Vol. VI at 45
19   R.R. Vol. VI at 46
20   R.R. Vol. VI, at 45


                                                     11
followed by a request for mistrial.2’ While the court had given curative

instructions to disregard the last comment, it denied the request for mistrial.22

          The Texas Code of Criminal Procedures. Art. 38.08, states “any Appellant in

a criminal action shall be permitted to testify in his own behalf therein, but the

failure of any Appellant to    .   .   .   testify shall not be taken as a circumstance against

him, nor shall the same be alluded to or commented on by counsel in the cause.”

Tex. Crim. Proc. Code Ann. art. 38.08. Under the Fifth Amendment “No person..

     shall be compelled in any criminal case to be a witness against himself, U.S.

Const. amend. V-Self Incrimination. The Texas Court of Appeals holds “a

comment on a Appellant’s failure to testify violates both the state and federal

constitutions as well as Texas statutory law.” Randolph v. State, 353 S.W.3d 887,

891 (Tex. Crim. App. 2011).

          In order for a comment to be impermissible, “the implication that the State

referred to the Appellant’s failure to testify must be a clear and necessary one.” Id.

When assessing whether the Appellant’s Fifth Amendment right has been violated,

the courts have held “it must view the State’s argument from the jury’s standpoint

and resolve any ambiguities in the language in favor of it being a permissible

argument. Id.

          The Fifth Amendment generally prohibits a prosecutor from making adverse

21   R.R. Vol. VI at 46
22   R.R. Vol. VI at 46


                                                    12
comment about a Appellant’s decision not to testify at trial. Weadv. State, 129

S.W.3d 126, 130 (Tex. Crim. App. 2004). An argument, combined with physical

actions, can be of such a character that the jury would naturally and necessarily

take it to be a comment on the Appellant’s failure to testify. U.S. Const. amend. V;

Tex. Const. art. 1,   §   10. The Texas Court of Criminal Appeals went on to hold

“Our law is clear that commenting upon the Appellant’s non-testimonial courtroom

behavior to establish guilt is improper argument. Wead at 128. Generally a

“Permissible july argument is limited to four areas: 1) summation of the evidence;

2) reasonable deductions from the evidence; 3) responses to opposing counsel’s

argument; and, 4) pleas for law enforcement.” Dinkins v. State, 894 S.W.2d 330,

357 (Tex. Crim. App. 1995).

      The Court holds it “must reverse a conviction if a prosecutor makes an

impermissible comment on an accused’s failure to testify and directs the jury’s

attention to the absence of evidence that only the Appellant can supply. Brown v.

State, 814 S.W.2d 477, 479 (Tex. App.-Dallas 1991, pet. refd). Even more so, the

prohibition against commenting on a Appellant’s silence at trial is rarely cured

through an instruction. Montoya v. State, 744 S.W.2d 15, 37 (Tex.Crim.

App.1987), overruled on other grounds by Cockrell v. State, 933 S.W.2d 73, 89

(Tex. Crim. App. 1996). In order to determine whether the comment was

permissible or impermissible, the court must determine whether the statements in



                                            13
question were manifestly intended as, or from their character the jury would

naturally and necessarily take the statements as a comment on the Appellant’s

failure to testii3’. Madden            i   State, 799 S.W.2d 683, 699 (Tex. Crim. App. 1990),

cert. denied, 111 S. Ct. 2912 (1991).

          In the present case there is no question that the prosecutor’s comments were

an impermissible comment alluding to the fact that Lopez failed to testii’ when the

prosecutor stated, “that brings us down to the case. I told you            .   .   .   there’s usually

two people present when this occurs that can testis’ about it. One of them has the

right not to.    .   .   .   But you get to hear both sides.”23 This is supported by the fact the

trial court sustained the objection indicating that it agreed it was an improper

comment and followed the sustained objection by not just simple instructions to

disregard the last comment, but a more thorough jury instruction to disregard the

prosecutions last comment. Furthermore, the trial court also indicated “the accused

has the right to remain silent for any purpose: All the more, by the trial court

giving a detailed jury instruction, it implicitly acknowledged the prosecution had

made a comment in which constituted an improper comment violating the

Appellant’s Fifth amendment. In fact the record is quite clear by the prosecutor’s

statement “I can talk about anything that is in the charge.”25, that he intended to



23   R.R. Vol. VI at 45
24   R.R. Vol. VI at 45-47
25   R.R. Vol. VI at 46


                                                      14
make the comment, which demonstrates his manifest intent. By the improper

comment from the prosecutor combined with his physical action of looking and

pointing to the defense table, it would be very unlikely from the standpoint of the

jury that it would not naturally and necessarily be taken to be a comment on the

Appellant’s failure to testify and should be considered an improper argument.

      When the trial court sustains an objection [for an improper comment] and

instructs the jury to disregard but denies a Appellant’s motion for a mistrial, the

issue is whether the trial court erred in denying the mistrial. Faulkner v. State, 940

S.W.2d 308, 312 (Tex. App.—Fort Worth 1997, pet. refd).

     B. In order to determine if prosecutorial misconduct is reversible error,
the Appellate Court must consider if instructions to disregard impermissible
comment would cure its prejudicial effect

      To determine whether the error by the trial court is reversible, the court of

appeals considers “whether the argument was extreme, manifestly improper,

injects new and harmful facts into the case, or violates a mandatory statutory

provision and is thus so inflammatory that instructions to disregard the argument

cannot cure its prejudicial effect.” Sauceda v. State, 859 S.W.2d 469, 474 (Tex.

App.—Dallas 1993, pet. ref d). And when an argument falls outside of these areas,

error occurs. Id. Generally the court holds that an instruction to disregard the

argument cures the error, Dinkins at 357 (1995), however, “Mistrial is the

appropriate remedy when.    .   .   curative instructions are not likely to prevent the jury



                                               15
from being unfairly prejudiced against the Appellant.” Archie v. State, 340

S.W.3d 734, 739 (Tex. Crim. App. 2011)

          Here in this case, there are several factors present that the trial court should

use to determine if there is reversible error. Even though the improper comment

made by the prosecutor was not extreme in the sense it was a direct statement

claiming Lopez did not testi& as a witness, it was extreme and manifestly

improper by the fact the prosecution looked at the jury for the entire closing

argument except at the point he made the improper comment, when he stated

“there’s usually two people present when this occurs that can testi& about it. One

of then has a right not to,”26, while turning and pointing at the defense table.

          It may be that the prosecution had a legitimate summation of the evidence

for most of the jury argument, but even afier the court instructed “the State not to

refer to the Appellant’s right to remain silent for any purpose,” 27the State blatantly

disregarded the courts instruction and continued its jury argument directly

indicating Lopez confessed to the crime and gave a specific time on the video,

17:13:55, along with a narration of what Lopez said, claiming it was Lopez

confessing. Yet, in fact it was Lopez denying it and claiming he was unaware that

he even touched her vagina and even if he possibly touched her vagina, it would




26   R.R. Vol. VI at 45
27   R.R. Vol. VI at 47


                                              16
have been only accidental and in no way purposeful for any reason as verified by

Detective Schroeder’s testimony.28

          As a result, the improper comment combined with this new fact that the

Appellant made a confession would be so inflammatory that any instructions to

disregard would not have cured its prejudicial affect. A confession would

exponentially strengthen the prosecutions case, making the improper comment a

clear and necessary one, especially because there is testimony from the victim’s

grandfather that Complainant is frequently dishonest.

          Finally, there was a clear violation of a mandatory statutory provision that a

Appellant has a state and federal constitutional right not to be a witness against

himself. See U.S. CONST. amend. V; TEX. CONST. art. I,           §   10. Under Chavez v.

Martinez, 538 U.S. 760 (2003), the Court ruled, “Statements compelled by police

interrogations of course may not be used against a Appellant at trial.” Chavez, at

767 (2003) (quoting Brown v. Mississippi, 297 U.S. 278, 286 (1936)), “but it is not

until their use in a criminal case that a violation of the Self-Incrimination Clause

occurs.” C’havez, at 767. The Court holds “It is well established that the

government may compel witnesses to testif’ at trial or before a grand jury, on pain

of contempt, so long as the witness is not the target of the criminal case in which

he testifies.” Chavez, at 767-68. The Court has continued to hold “we have long


28   R.R. Vol. IV at 17. 19


                                             17
permitted the compulsion of incriminating testimony so long as those statements

• cannot be used against the speaker in any criminal trial. Chavez, at 768.

         Here in this case it is obvious that Lopez is the target of the criminal case

and that he was at trial. The record clearly shows that Detective Schroeder used

known interrogation methods to compel the Appellant into making statements that

would eventually be used against him at trial.29 This is a clear violation of the

Appellants state and federal constitutional right not to testify. Since all the factors

the trial court look at to determine if the prosecutors comment was improper and it

is unlikely that the trial court’s instructions cured the affect of the prosecutor’s

comment, the trial court should have granted a mistrial, therefore the trial court

erred in denying the Appellant’s request for a mistrial.

         Point of Error Number Two
           The trial court erred in denying Defense ‘s motion for directed verdict after
          a properly sustained objection after the prosecution made the
         impermissible comment during his final closing argument violating
         the Appellant ‘s state andfederal Cons titutional right to remain silent.

II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENVED
THE DEFENSES MOTION FOR DIRECTED VERDICT AFTER THE
PROSECUTION HAD MADE IMPROPER COMMENT RESULTING IN
CONSTITUTIONAL ERROR.

     A. To be able to determine if the trial court had abused its discretion the
Appellate Court must do a harm analysis.
     A review of the facts of this case Finding that the trial court erred in denying

the Appellant’s motion for a mistrial and dismissal, a harm analysis is required.

29   R.R. Vol. IV at 20-24

                                             18
Carlock v. State, 8 S.W.3d 717,724 (Tex. App. Waco 1999 pet. ref ‘d). The
                                                  -




appeal court holds to evaluate whether the trial court abused its discretion in

denying a mistrial for improper jury argument it uses a three factor analysis from

Mosley v. State “(1) the severity of the misconduct (the magnitude of the

prejudicial effect of the prosecutor’s remarks), (2) the measures adopted to cure the

misconduct (the efficacy of any cautionary instruction by the judge), and (3) the

certainty of conviction absent the misconduct (the strength of the evidence

supporting the conviction).” Arc/ne, at 259 (Tex. Crim. App. 1998), citing Hmt’kins

v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004); Mosle v. State, 983 S.W.2d 249

(Tex.Crim.App. 1998).


      Under the first factor of the Mosley analysis appeal court   must   look at “the

severity of the misconduct (the magnitude of the prejudicial effect of the

prosecutor’s remarks).” Arc/ne, at 259 (Tex. Crim. App. 1998). “In analyzing the

‘severity’ or ‘magnitude’ of the prejudice, [the Courtj Iookjsj at the context of the

statement and whether the statement was ever referred to during the balance of the

trial:’ Ludwig v. State, 428 S.W.3d 344, 351 (Tex. App.—Amarillo 2014, no pet.).

      In regards to the context of the prosecutor’s comment, taking the entire final

jury argument as a whole, the improper comment was directed at the fact the

Appellant had not testified. It is only after the objection is made and sustained that

the Prosecutor refers to the interrogation of the Appellant. Had the Prosecutors


                                          19
intent been to actually refer to the interrogation as opposed to commenting on the

fact that the Appellant had not testified, then the Prosecutor would have responded

ot the objection by advising the Court that he was in fact referring to the

interrogation., By his silence in the face of the objection he has forfeited any right

to claim that his intent was otherwise. As a result, this factor weighs in favor of

reversal. This is a standard to which Texas Courts have held Defense attorneys for

decades.

        The second Mrndcy factor examines the measures adopted to cure the

misconduct, which has been described as the “efficacy of any cautionary

instruction by the judge.” Ludwig v. State, 428 S.W.3d 344, 351 (Tex. App.—

Amarillo 2014, no pet.). In most circumstances, an instruction to disregard

improper argument is considered a sufficient response by the trial court. Longoria

v. State, 154 S.W.3d 747,763-64 (Tex. App.—Houston [14th Dist.] 2004, pet.

refd). This is true even for comments on the Appellant’s failure to testify, except in

the most blatant cases. Longoria v. State, at 764 (2004). Even though the trial court

had given instructions to disregard the prosecutor’s comment,3° there could hardly

be a more “blatant example” of a prosecutor’s comment alluding to an accused’s

failure to testify. The prosecutor had unmistakably and by design waited until his

final jury argument to bring the attention of the jury of the fact the Appellant failed


°   R.R. Vol. VI at47


                                          20
to testify by stating “there’s usually two people present when this occurs that can

testify about it.          .   .   .   But you get to hear both sides,” knowing this would inject

harmful facts into the case. As a result, it is unlikely the trial court’s instruction

cured the impact of the prosecutor’s improper argument and this factor would

weigh in favor of reversal.

          The third Moslev factor considers the certainty of conviction absent the

misconduct, that is to say, the strength of the evidence supporting the conviction.

Ludwig v. State, 428 S.W.3d 344, 351 (Tex. App.—Amarillo 2014, no pet.) In the

present case it would be very’ unlikely that any reasonable jury would be able to

convict the Appellant beyond a reasonable doubt without the testimony and a

confession by the Appellant. Although it is well known that a jury can convict

based solely on the testimony of the complainant,Tex. Crim. Proc. Code Ann. art.

38.07(a), However without a confession from the Appellant, it is very unlikely that

the jury would have convicted based off that testimony alone.

         Here in this case, the “evidence related to child victim’s anger toward

Appellant     .   .   .   to show victim’s motive to falsely accuse Appellant of sexual

molestation,” Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009), is clearly

present throughout the record. Second, there was testimony by the claimant’s own

family claiming she has previously lied.31 Third, there is testimony from the


31   R.R. Vol. IV at 176:8-10


                                                           21
complainant’s aunt, Alicia Trejo, demonstrating she is source that may have

provoked the complainant to fabricate a false allegation.32 Most importantly, there

is testimony by the complainant indicating she is familiar with CPS and the

standard question that are asked each time regarding sexual abuse, giving the

complainant the present knowledge of the consequences when an allegation is

made.33 For all those reasons, it would be difficult to say that the evidence was so

overwhelming that without the improper comment by the prosecution that any

reasonable jury would have maintained a conviction.

          As a result, certainty of the conviction beyond a reasonable doubt by a

reasonable jury would be very unlikely considering the evidence in its entirety

absent the prosecutors misconduct. This factor, once again, weighs in favor of

reversal. Having analyzed the Mosley factors, it cannot be said beyond a

reasonable doubt that the trial court’s error was harmless. As a result, a reversal is

required. TX R APP Rule 44.2(a).

                                         CONCLUSION

          In light of the aforementioned discussion and analysis, it is clear that

reversible error occurred and that reversal must be granted and the case rendered

due to the severity of the harm, or, the alternative that the case be remanded for a

new trial.

32   R.R. VoI.V at 76-79, 83
     R.R. Vol. IV at 155:10-156:1


                                             22
                                  PRAYER FOR RELIEF

         Appellant request that this Honorable Court grant a reversal and rending of

the verdict in Appellants favor, or in the alternative that the case be remanded

because the prosecutor had made an impermissibly commented on the Appellant’s

failure to testify in the guilt/innocence phase of trial resulting in an incurable

prejudicial effect. And because the trial court abused its discretion by denying a

directed verdict after the prosecutorial misconduct that resulted in a Constitutional

Error.

         Appellant further requests any other relief to which he may be legally

entitled.

                                         Respectfully submitted,

                                         Sergi and Associates P.C.
                                         329 South Guadalupe Street
                                         San Marcos, Texas 78666
                                         Tel: 5123925010
                                         Fax: 512 3925042
                                         Email: DavidSergilaw.com



                                         By:/s/ David K. Sergi
                                            David K. Sergi
                                            State Bar No. 18036000
                                           E-Mail: davidsergilaw.com
                                           Attorney for Gregory Lopez




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                                 CERTIFICATE OF SERVICE

       I hereby certify that on the 15th day of December, 2014, a true and correct copy of

the foregoing brief was served via electronic filing to District Attorney’s Office, Comal

County, 150 North Seguin Street, New Braunfels, Texas 78130.



                                           /JDavid K. Sergi
                                           David K. Sergi




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         CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of the Texas
Rules of Appellate Procedure 9.4(i)(2)(A) because:

    i. This brief contains 3,964 words, excluding the parts of the
       brief exempted by TEX.R.AP.P. 9.4(I)(1)

This brief complies with the typeface requirements of
TEX.R.APP.P. 9.4(e) because:

    i. This brief has been prepared in a proportionally spaced
       typeface using Microsoft Work in 14 Pt. Times New Roman.




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