                                                                      ACCEPTED
                                                                  01-14-00915-CR
                                                       FIRST COURT OF APPEALS
                                                               HOUSTON, TEXAS
                                                            9/14/2015 10:36:20 PM
                                                            CHRISTOPHER PRINE
                                                                           CLERK




        No. 01-14-00915-CR                      FILED IN
                                         1st COURT OF APPEALS
                                             HOUSTON, TEXAS
                  In the
                                         9/14/2015 10:36:20 PM
          Court of Appeals               CHRISTOPHER A. PRINE
                  for the                         Clerk
        First District of Texas
               at Houston

        

       No. 11-DCR-058577A
        In the 268th District Court
         Fort Bend County, Texas

        

        EDWIN ALVAREZ
                 Appellant
                   V.
     THE STATE OF TEXAS
            Appellee
        

       APPELLANT’S BRIEF

        


                 MANDY MILLER
                 Attorney for Edwin Alvarez
                 State Bar No: 24055561
                 2910 Commercial Ctr. Blvd., Ste. 103-201
                 Katy, TX 77494
                 (832) 900-9884
                 Fax: (877) 904-6846
                 mandy@mandymillerlegal.com



APPELLANT REQUESTS ORAL ARGUMENT
                     IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Counsel for the State:

             John Healy  District Attorney of Fort Bend County

             John Harrity  Assistant District Attorney on appeal

             Laurel Ellisor and Suzy Morton  Assistant District Attorneys at trial

      Appellant or criminal defendant:

             Edwin Alvarez

      Counsel for Appellant:

             Brian Middleton  Counsel at trial

             Mandy Miller  Counsel on appeal

      Trial Judge:

             Hon. Brady Elliot and Hon. Reagan Clark
                                            TABLE OF CONTENTS



IDENTIFICATION OF THE PARTIES ...........................................................................1

INDEX OF AUTHORITIES .................................................................................................3

STATEMENT OF THE CASE .............................................................................................5

STATEMENT OF FACTS .....................................................................................................5

SUMMARY OF THE ARGUMENT ...................................................................................8

APPELLANT’S FIRST POINT OF ERROR .....................................................................8

APPELLANT’S SECOND POINT OF ERROR ............................................................14

CONCLUSION ......................................................................................................................18

CERTIFICATE OF COMPLIANCE.................................................................................18

CERTIFICATE OF SERVICE............................................................................................19




                                                                2
                                         INDEX OF AUTHORITIES
CASES

Albrecht v. State,
  486 S.W.2d 97 (Tex. Crim. App. 1972)............................................................................11
Dowling v. United States,
  493 U.S. 342 110 S.Ct. 668, 674, 107 L.Ed.2d 708 (1990)............................................10
Elkins v. State,
  647 S.W.2d 663 (Tex. Crim. App. 1983) .........................................................................11
Ex parte Granviel,
 561 S.W.2d 503 (Tex. Crim. App. 1978) .....................................................................9, 10
Garcia v. State,
  563 S.W.2d 925 (Tex. Crim. App. 1978) .........................................................................17
Hammer v. State,
 296 S.W.3d 555 (Tex. Crim. App. 2009) .........................................................................12
Harris v. State,
 No. 14-14-00152-CR, 2015 WL 4984560 (Tex. App--Houston
 [14th Dist.], no pet. h. Aug. 20, 2015)..............................................................................12
In re Winship,
   397 U.S. 358 (1970).............................................................................................................13
Maynard v. State,
 685 S.W.2d 60 (Tex. Crim. App. 1985) .....................................................................10, 11
Montgomery v. State,
 810 S.W.2d 372 (Tex. Crim. App. 1990) .........................................................................17
Morris v. State,
 833 S.W.2d 624 (Tex. App--Houston [14th Dist.] 1992, pet. ref’d)............................10
Mozon v. State,
 991 S.W.2d 841 (Tex. Crim. App. 1999) .........................................................................15
Parks v. State,
  746 S.W.2d 738 (Tex. Crim. App. 1987) ...................................................................10, 11
Salazar v. State,
  298 S.W.3d 273 (Tex. App.--Fort Worth 2009, pet. ref’d) .............................................9
State v. Vasquez,
  230 S.W.3d 744 (Tex. App.--Houston [14th Dist.] 2007, no pet.) ................................9



                                                                 3
Turner v. State,
  754 S.W.2d 668 (Tex. Crim. App. 1988) ...................................................................10, 11
United States v. Lovasco,
 431 U.S. 78397 S.Ct. 2044, 2049, 52 L.Ed.2d 752 (1977) .............................................10
Univ. of Tex. Med. Sch. at Houston v. Than,
 901 S.W.2d 926 (Tex. 1995).................................................................................................9
Williams v. State,
 662 S.W.2d 344 (Tex. Crim. App. 1983) ...................................................................10, 11


STATUTES

TEX. CRIM. PROC. CODE ANN. § art. 38.072 (West Supp. 2014)......................................13
TEX. CRIM. PROC. CODE ANN. § art. 38.37 (West Supp. 2004-05)..................................11
TEX. CRIM. PROC. CODE ANN. art. 38.37 §2(b) (West Supp. 2014) ............................9, 12
TEX. PEN. CODE ANN. § 22.011 (West Supp. 2014)..........................................................13
TEX. PEN. CODE ANN. § 22.021 (West Supp. 2014)..........................................................13


OTHER AUTHORITIES

Senate Comm, on Criminal Justice, Bill Analysis, Tex. S.B. 12,
  83d Leg. R.S. (2013)............................................................................................................12
RULES

TEX. R. APP. P. 38.2(a)(1)(A)....................................................................................................1
TEX. R. EVID. 403 ...................................................................................................................15




                                                                  4
TO THE HONORABLE COURT OF APPEALS:


                         STATEMENT OF THE CASE

      Appellant was charged by indictment with sexual assault of a child. (CR 22). A

jury convicted appellant of the charged offense and sentenced him to 20 years

confinement in the Institutional Division of the Texas Department of Criminal

Justice. (CR 287).


                           STATEMENT OF FACTS

      Yaneira Flores, whose family is originally from Honduras, spent her early years

in New York with her family. (RR III 113, 117). Appellant, also Honduran, lived

with his family across the street from Flores. (RR III 113, 117). Flores grew up with

appellant and considered him like a brother. (RR III 113, 115). When appellant’s

family moved to Houston for work, Flores’ family followed. (RR III 115).

      When the complainant, C.A., was 10 years old, she moved from Honduras to

Houston to live with Flores, her aunt. (RR III 18, 109). Flores also raised C.A.’s

three siblings. (RR III 20, 108). The children called appellant “Uncle Edwin.” (RR

III 22). Appellant was C.A.’s favorite uncle and she considered him a father-figure.

(RR III 32, 33).

      Appellant had a long-time girlfriend, Shawndra Gipson. (RR III 23, 118).

Shawndra and appellant raised Shawndra’s nieces, S.G. and J.G., and nephew, G.J.

(RR III 119). Flores and the children in her household would often socialize with

                                         5
appellant, Shawndra, and S.G., J.G., and G.J. (RR III 119). Flores would often let

C.A. and her siblings spend the night with Shawndra and appellant. (RR III 121).

       When appellant and Shawndra broke up, appellant moved from an apartment

to a home in Richmond, Texas. (RR III 25, 123). Even after the breakup, all of the

children would go to appellant’s home for sleepovers. (RR III 26, 124). The children

would make pallets out of blankets in an upstairs bedroom and sleep there. (RR III

38).

       In the summer of 2008, when C.A. was 14 years old, she was asleep at her

aunt’s home. (RR III 34, 64). After going out, appellant stopped by the home and

asked if any of the kids wanted to come sleep at his house. (RR III 34). C.A.,

thinking other kids were there, agreed. (RR III 35, 36). When they arrived at

appellant’s home, C.A. went upstairs to the kids’ room to go back to sleep. (RR III

38).

       C.A. testified that appellant asked her to come in his room to watch a movie.

(RR III 39). C.A. laid on appellant’s bed, on her stomach, with her feet towards the

pillow. (RR III 40). She fell asleep shortly after the movie started. (RR III 41). C.A.

testified that she woke up to appellant sitting by her side and rubbing her legs with his

hands. (RR III 42, 43). She claimed that appellant began kissing her neck and taking

her clothes off. (RR III 44, 46). Appellant then took her pants and underwear off

and placed his penis in her vagina. (RR III 47). C.A. testified that she attempted to




                                           6
push appellant away, but he held her arms down. (RR III 49). Afterwards, C.A. took

a shower and fell asleep in the kids’ room. (RR III 56).

        During the summer of 2009, a mutual friend, Kimberly Holmes, brought a

concern she had regarding appellant’s behavior to Flores’ attention. (RR III 125). As

a result of this conversation, Flores called C.A. and asked her whether anything had

ever happened between C.A. and appellant. (RR III 129). C.A. denied that anything

ever occurred. (RR III 74, 129). Flores then told C.A. that appellant was claiming

that C.A. had approached him inappropriately. (RR III 129). C.A. became upset and

said it was a lie and told Flores appellant assaulted her. (RR III 130).

        Appellant was indicted for sexually assaulting C.A. (CR 22). Appellant was

tried in August of 2013, but the jury could not unanimously decide whether appellant

was guilty of the offense. In March 2013, the State filed a motion to admit evidence

of extraneous acts of sexual abuse committed by appellant on S.G. and J.G.1 in

accordance with article 38.37 of the Texas Code of Criminal Procedure. (CR 63).

After a hearing and over appellant’s objections, the trial court granted the State’s

motions and allowed the admission of the extraneous evidence. (RR 38.37 hearing;

CR 64).

        During trial, S.G. and J.G. testified to sexual abuse they allegedly suffered at the

hands of appellant. (RR IV 5-140). Appellant lodged objections challenging the
1S.G. and J.G. testified to several instances of sexual abuse committed by appellant both in Harris and Fort
Bend County. Because appellant does not challenge the sufficiency of the evidence to support a finding of
admissibility under Texas Code of Criminal Procedure 38.37, a detailed account of the allegations is
unnecessary for the purposes of this brief.


                                                     7
constitutionality of the statute, that the evidence’s probative value was substantially

outweighed by the danger of unfair prejudice, and that the statute ---ex post facot----?

(RR III 133; RR IV 18). The jury was provided a limiting instruction that they could

only consider the evidence if it was found to be true beyond a reasonable doubt. (RR

IV 6, 157). The jury convicted appellant of the charged offense and sentenced him to

20 years confinement in the institutional division of the Texas Department of

Criminal Justice. (CR 287).


                       SUMMARY OF THE ARGUMENT

      Article 38.37 of the Texas Code of Criminal Procedure is unconstitutional

because it violates defendants’ right of due process and due course of law under the

Fourth Amendment of the United States Constitution, Article 1, § 19 of the Texas

Constitution, and Article 1, § 1.04 of the Texas Code of Criminal Procedure by

depriving them the right to a fair trial, by infringing on the presumption of innocence,

and by lowering the State’s burden of proof.

      Additionally, the trial court erred in allowing testimony that appellant sexually

abused two other girls who were not the complainant in the present case because any

probative value of the evidence was substantially outweighed by the danger of unfair

prejudice. The balancing test required to admit evidence under Rule 403 of the Texas

Rules of Evidence weighs in favor of excluding the extraneous evidence.




                                           8
                       APPELLANT’S FIRST POINT OF ERROR

        The trial court erred in allowing evidence of extraneous sexual assaults allegedly

committed by appellant to be admitted during the guilt/innocence phase of the trial

because the statute authorizing the admission is unconstitutional2.                          Article 38.37

§(2)(b) provides:

        Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and
        subject to Section 2-a, evidence that the defendant has committed a
        separate offense described by Subsection (a)(1) or (2) may be admitted in
        the trial of an alleged offense described by Subsection (a)(1) or (2) for
        any bearing the evidence has on relevant matters, including the character
        of the defendant and acts performed in conformity with the character of
        the defendant.

TEX. CRIM. PROC. CODE ANN. art. 38.37 §2(b) (West Supp. 2014)

        Article 38.37 § (2)(b) of the Texas Code of Criminal Procedure violates

appellant’s right to due process as guaranteed under the Fifth and Fourteenth

amendments, and due course of law as guaranteed by Article 1, § 19 of the Texas

Constitution and Article 1, § 1.04 of the Texas Code of Criminal Procedure3.

Specifically, the statute violates appellant’s right to a fair trial by causing him to be

tried not only for the offense charged. It also infringes on appellant’s presumption of

innocence, and lessens the State’s burden of proof.




3 Texas’ due course of law guarantees the same protections as the federal Due Process Clause. State v.
Vasquez, 230 S.W.3d 744, 750-51 (Tex. App.--Houston [14th Dist.] 2007, no pet.). The two clauses are nearly
identical and contain no meaningful distinctions in their respective clauses. Salazar v. State, 298 S.W.3d 273,
279-80 (Tex. App--Fort Worth 2009, pet. ref’d) (citing Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d
926, 929 (Tex. 1995)).


                                                      9
      Appellant bears the burden to establish that a statute is unconstitutional. Ex

parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). And to establish a due

process violation, it is appellant’s burden to show that the challenged statute or rule

violates those “fundamental conceptions of justice which lie at the base of our civil

and political institutions and which define the community’s sense of fair play and

decency.” Dowling v. United States, 493 U.S. 342, 352-53, 110 S.Ct. 668, 674, 107

L.Ed.2d 708 (1990); United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2049, 52

L.Ed.2d 752 (1977) (citations omitted).

      An appellate court reviews the constitutionality of a statute in light of the

presumption of the statute’s validity. Ex parte Granviel, 561 S.W.2d at 511; Morris v.

State, 833 S.W.2d 624, 627 (Tex. App--Houston [14th Dist.] 1992, pet. ref’d). The

court will presume that the Legislature did not act unreasonably or arbitrarily in

enacting the statute. Ex parte Granviel, 561 S.W.2d at 511.

      An accused has the right to be tried only on the charged offense. Turner v. State,

754 S.W.2d 668, 671 (Tex. Crim. App. 1988); Maynard v. State, 685 S.W.2d 60, 66 (Tex.

Crim. App. 1985). He may not be tried for some collateral crime or for being a

criminal generally. Parks v. State, 746 S.W.2d 738, 739 (Tex. Crim. App. 1987);

Maynard, 685 S.W.2d at 66; Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App.

1983). Thus, evidence that the accused has committed other crimes wholly unrelated

to the offense charged is ordinarily inadmissible. Turner, 754 S.W.2d at 671; Maynard,

685 S.W.2d at 66. Such evidence is inherently prejudicial because the accused has not

                                           10
received notice that he will be called upon to defend against the extraneous charge,

and his propensity to commit crimes is immaterial to whether he is guilty of the

specific offense for which he is on trial. Turner, 754 S.W.2d at 672; Williams, 662

S.W.2d at 346; Elkins v. State, 647 S.W.2d 663, 665 (Tex. Crim. App. 1983).

      But, in certain circumstances, the general policy precluding the admission of

extraneous conduct must yield to other considerations. Turner, 754 S.W.2d at 672; see

also Albrecht v. State, 486 S.W.2d 97, 100-01 (Tex. Crim. App. 1972). This is because

some fact situations either mitigate the prejudicial effect of such evidence or justify

the admission of such evidence despite the danger of unfair prejudice. Turner, 754

S.W.2d at 672; Parks, 746 S.W.2d at 739.

      Prior to 2013, article 38.37 allowed for the admission of extraneous acts in the

trial of certain sexual offenses committed against a child under 17 years of age. TEX.

CRIM. PROC. CODE ANN. § art. 38.37 (West Supp. 2004-05). However, the extraneous

acts were limited to those committed against the accuser at trial and were admissible

to establish the state of mind of the defendant and the child and the relationship

between the defendant and the child. Id. On September 1, 2013, the Legislature

expanded the statute by permitting the admission of evidence that the defendant has

committed certain offenses against a non-victim of the charged offense for any

bearing the evidence may have on relevant matters, including the character of the

defendant and acts performed in conformity with the character of the defendant.

TEX. CRIM. PROC. CODE ANN. art. 38.37 §2(b) (West Supp. 2014).

                                           11
       Due to the heinous nature of sexual crimes against children, the legislative

history behind Section 2(b) reflects that it was enacted to “give prosecutors additional

resources to prosecute sex crimes committed against children.” Harris v. State, No. 14-

14-00152-CR, 2015 WL 4984560, at *5 (Tex. App.--Houston [14th Dist.], no pet. h.

Aug. 20, 2015) (citing Senate Comm, on Criminal Justice, Bill Analysis, Tex. S.B. 12,

83d Leg. R.S. (2013)). This Court also noted that “[t]he Court of Criminal Appeals

has also recognized that ‘[s]exual assault cases are frequently ‘he said, she said’ trials in

which the jury must reach a unanimous verdict based solely upon two diametrically

different versions of an event, unaided by any physical, scientific, or other

corroborative evidence.’” Harris, 2015 WL 4984560, at *5 (citing Hammer v. State, 296

S.W.3d 555, 561-62 (Tex. Crim. App. 2009)).

       This Court, in Harris, has taken the Court of Criminal Appeals’ dicta out of

context. In Hammer, the Court reversed the court of appeals and found that the trial

judge abused her discretion in excluding some of the evidence appellant offered to

demonstrate the complainant’s motive to falsely accuse him of molestation. Hammer,

296 S.W.3d at 558.         Unlike in Harris, the Court was not considering the

constitutionality of a statute allowing for the admission of extraneous acts against a

defendant. And in noting that sexual assault cases are frequently “he said, she said,”

the Hammer Court impressed the importance of allowing evidence that may bear upon

the credibility of the complainant and aid in the defense to the charged offense. Id., at




                                             12
562. The statement was not made to note the difficulties the State may have in

maintaining its burden of proof.

      The difficulty in proving that a criminal offense occurred cannot be

justification for intruding on a defendant’s constitutional rights. Children are a special

section of society deserving of more protection due to their vulnerability and inability

to protect themselves. However, the Legislature has, and does, account for this by

making crimes against children punishable with higher penalties and allowing for the

admission of outcry witness testimony. See, e.g., TEX. PEN. CODE ANN. § 22.021

(West Supp. 2014) (aggravated sexual assault of a child is punishable as a first degree

felony); see also TEX. PEN. CODE ANN. § 22.011 (West Supp. 2014) (sexual assault of a

child is punishable as a second degree felony); TEX. CRIM. PROC. CODE ANN. § art.

38.072 (West Supp. 2014) (allows for the admission of particular hearsay statements in

certain crimes against children).

      What jury could acquit a defendant whom it did not believe committed the

charged offense, when there is evidence that the defendant committed other acts of

abuse on other complainants? Thus, the statute permits the jury to assume the

defendant is guilty of the charged offense simply because he allegedly committed

other similar acts, in violation of In re Winship. 397 U.S. 358, 364 (1970) (State must

prove all elements of the charged offense beyond a reasonable doubt in order to

obtain a conviction in accordance with the due process clause). The statute also




                                            13
allows the State to convict appellant based on a burden of proof less than beyond a

reasonable doubt and infringes on a defendant’s presumption of innocence.

        The admission of extraneous acts is inherently harmful. However, appellant

suffered actual harm, as evidenced by a prior mistrial. Appellant was tried for the

same offense in August 2013, prior to the enactment of article 38.37. That trial

resulted in a hung jury. On March 3, 2014, a hearing was held to determine whether

the extraneous testimony would be allowed before the jury. (RR 38.37 hearing). The

evidence was admitted over objection and appellant was subsequently convicted.

Evidence at both trials was presumably identical, except for that admitted pursuant to

article 38.374. Thus, appellant was clearly harmed by the extraneous evidence.

        Although society’s interest in protecting those least capable of protecting

themselves is righteous and noble, it must not be at the cost of denying citizens basic,

fundamental constitutional rights. This is especially in light of the fact that the

Legislature has found ways to protect minors without encroaching on the right to a

fair trial. Article 38.37 violates appellant’s right to due process and due course of law.

Accordingly, his conviction should be reversed and this cause remanded to the trial

court for a new trial.




4 In order to assess the harm suffered as a result of the evidence admitted pursuant to article 38.37, appellant
requested that the appellate record be supplemented with the record from the first trial. This Court denied
appellant’s request.


                                                       14
                 APPELLANT’S SECOND POINT OF ERROR

      Extraneous evidence may be excluded if its probative value is outweighed by a

danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or

needlessly presenting cumulative evidence. TEX. R. EVID. 403. Even if extraneous

evidence is admissible under article 38.37, such admission must yield to Texas Rule of

Evidence 403. S.G. and J.G. testified that appellant committed multiple acts of sexual

abuse with them over the course of several years. The trial court erred in admitting

the testimony of S.G. and J.G. because its probative value was substantially

outweighed by danger of unfair prejudice.

      The relevant factors in determining whether the prejudice of an extraneous

offense substantially outweighs its probative value include: (1) how compellingly the

extraneous-offense evidence serves to make a fact of consequence more or less

probable; (2) the potential the evidence has to impress the jury “in some irrational but

nevertheless indelible way”; (3) the time the proponent will need to develop the

evidence, during which the jury will be distracted from consideration of the indicted

offense; and (4) the force of the proponent’s need for this evidence to prove a fact of

consequence, i.e., whether the proponent has other probative evidence available to

him to help establish this fact, and whether this fact is related to an issue in dispute.

Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999).




                                            15
      The first factor of the balancing test weighs in favor of excluding the evidence.

S.G. and J.G. testified that appellant sexually abused them on several occasions. (RR

IV 5-140). Their testimony did not establish that appellant committed the current

offense. And no expert did, or would be permitted to, testify that, because appellant

committed prior similar offenses, he was more likely to have committed the current

offense. Thus the testimony regarding the extraneous acts did not serve to make a

fact of consequence – whether appellant committed the charged offense – more or

less probable.

      Evidence of the extraneous acts, especially the lengths at which the State

emphasized it to the jury, provided an avenue for the jury to conclude that appellant

committed the charged offense in conformity with his character. S.G. and J.G.’s

testimony takes up 125 pages in the record. (RR IV 5-130). The time it took to

develop this evidence was extensive and distracted the jury from the charged offense.

The State informed the jury of the extraneous acts during opening statement. (RR III

13, 14). And it even went so far as to inform the jury that S.G. and J.G.’s testimony

could be used to determine appellant’s character and that character includes that “[h]e

likes to have sex with children, and he acted in conformity with that character when

he forced himself on [C.A.].” (RR V 7, 11, 13). The State further argued that “[w]hen

the defendant sexually assaulted [C.A.] he was exhibiting his true character, that’s who

he is. [S.G.] and [J.G.’s] testimony show his true character and his intent.” The State




                                           16
also argued that not only did the complainant deserve protection, but so did S.G. and

J.G. (RR V 29).

      The fourth factor weighs in favor of excluding the evidence. The State could

have proven its case with the testimony of C.A. alone. See Garcia v. State, 563 S.W.2d

925, 928 (Tex. Crim. App. 1978) (A complainant’s testimony alone is sufficient to

support the jury’s finding that sexual contact or penetration did in fact occur.). The

State even acknowledged that it had met its burden of proof with only C.A.’s

testimony.

      “The State has met [its] burden of proof in proving each of the elements
      of this offense beyond a reasonable doubt, and we did that at the end of
      [C.A.’s] testimony. We could have stopped the trial right then and there.
      Our burden would have been met. [C.A.’s] testimony proved each
      element of the offense, but we didn’t. You also heard from [S.G] and
      [J.G.] and they told in detail whether it was about touching, both over
      and under the clothes, whether it was the defendant putting his penis in
      their vagina. The State presented that evidence to you beyond a
      reasonable doubt, so you could see the true character of the defendant.”

      (RR V 37).


      The Rule 403 balancing test weighs in favor of excluding the extraneous

evidence. Therefore, the trial court erred in failing to exclude the evidence. See e.g.,

Montgomery v. State, 810 S.W.2d 372, 396-97 (Tex. Crim. App. 1990) (Admission of

evidence that defendant frequently walked around in front of his daughters naked and

with an erection was an abuse of discretion in prosecution of defendant for indecency

with a child, his daughters, inasmuch as State had no compelling need for the


                                           17
evidence either to prove specific intent or to shore up testimony of daughters,

evidence had only marginal probative value and danger of unfair prejudice was

substantial.). Appellant’s conviction should be reversed and this cause remanded for a

new trial.




                                  CONCLUSION

       Appellant respectfully urges this Court to sustain appellant’s points of error,

and remand the cause for a new trial.



                                        /S/MANDY MILLER
                                        Attorney for Edwin Alvarez
                                        2910 Commercial Center Blvd., Ste. 103-201
                                        Katy, TX 77494
                                        SBN 24055561
                                        (832) 900-9884
                                        FAX (877) 904-6846
                                        mandy@mandymillerlegal.com




                                          18
                       CERTIFICATE OF COMPLIANCE

      In accordance with the Texas Rules of Appellate Procedure, I hereby certify

that appellant’s supplemental brief, filed on February 11, 2015, has 3,470 words based

upon a word count under MS Word.


                                           /S/MANDY MILLER
                                           Attorney for Edwin Alvarez




                          CERTIFICATE OF SERVICE

      Appellant has mailed a copy of the foregoing instrument to counsel for the

State of Texas at the following address:

John Harrity
Fort Bend County District Attorney’s Office
john.harrity@fortbendcountytx.gov
                                      /s/MANDY MILLER
                                      Attorney for Edwin Alvarez
                                      2910 Commercial Center Blvd., Ste. 103-201
                                      Katy, TX 77494
                                      SBN 24055561
                                      (832) 900-9884
                                      FAX (877) 904-6846
                                      mandy@mandymillerlegal.com


Date: September 14, 2015



                                             19
