                                                                                ACCEPTED
                                                                            14-14-00991-CR
                                                            FOURTEENTH COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                     10/27/2015 10:13:23 AM
                                                                      CHRISTOPHER PRINE
                                                                                     CLERK



                     No. 14-14-00991-CR
                             In the                        FILED IN
                       Court of Appeals            14th COURT OF APPEALS
                                                        HOUSTON, TEXAS
                            For the
                                                   10/27/2015 10:13:23 AM
                 Fourteenth District of Texas       CHRISTOPHER A. PRINE
                          At Houston                        Clerk
                  
                         No. 1356861
                  In the 176th District Court
                   Of Harris County, Texas
                  
                        BRYAN KOSSIE
                           Appellant
                               V.
                    THE STATE OF TEXAS
                            Appellee
                  
                STATE’S APPELLATE BRIEF
                  

                                       DEVON ANDERSON
                                       District Attorney
                                       Harris County, Texas

                                       ABBIE MILES
                                       State Bar No: 24072240
                                       Assistant District Attorney
                                       Harris County, Texas

                                       NICK SOCIAS
                                       Assistant District Attorney
                                       Harris County, Texas

                                       1201 Franklin, Suite 600
                                       Houston, Texas 77002
                                       Tel.: 713/755-5826
                                       FAX No.: 713/755-5809

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests

oral argument only if oral argument is requested by the appellant.


                     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.

      Complainant, victim, or aggrieved party:

             Byron Reado

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County

             Abbie Miles  Assistant District Attorney on appeal

             Nick Socias  Assistant District Attorneys at trial

      Appellant or criminal defendant:

             Bryan Kossie

      Counsel for Appellant:

             Joseph Salhab  Counsel on appeal

             Allen Isbell & Rhonda McLeon Chargois  Counsel at trial

      Trial Judge:

                        Hon. Stacey Bond  Presiding Judge


                                           i
                            TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT…………………………...…i

IDENTIFICATION OF THE PARTIES…………………………………….……..i

INDEX OF AUTHORITIES………………………………………………………iii

STATEMENT OF THE CASE……………………………………………………..1

STATEMENT OF THE FACTS…………………………………………………....1

SUMMARY OF THE ARGUMENT……………………………………………......2

REPLY TO APPELLANT’S FIRST ISSUE PRESENTED
The trial court did not abuse its discretion in admitting Mr. Lee’s prior inconsistent
statement into evidence because the record does not demonstrate that the State knew
that Mr. Lee would claim he had total memory loss, and Mr. Lee did offer some
testimony favorable to the State. If this Court finds that the trial court erred in
admitting Mr. Lee’s prior inconsistent statement, any error was harmless because the
trial court gave a limiting instruction to the jury regarding its use of the prior
inconsistent statement, and Mr. Lee’s identification of appellant as the shooter was
corroborated by the an additional witness and his DNA found at the scene…………3

CONCLUSION……………………………………………………………………12

CERTIFICATE OF SERVICE…………………………………………....……….13




                                          ii
                                     INDEX OF AUTHORITIES
Cases
Aranda v. State,
 736 S.W.2d 702 (Tex. Crim. App. 1987). ......................................................................... 4

Armstead v. State,
 977 S.W.2d 791 (Tex. App.—Fort Worth, 1998, pet. ref’d). ..................................... 6, 7

Barshaw v. State,
  342 S.W.3d 91 (Tex. Crim. App.2011). ............................................................................ 9

Campos v. State,
 317 S.W.3d 768 (Tex. App.--Houston [1st Dist.] 2010, pet. ref'd) ............................... 9

Casey v. State,
 215 S.W.3d 870 (Tex. Crim. App. 2007) .......................................................................... 3

Geuder v. State,
 142 S.W.3d 372 (Tex. App.--Houston [14th Dist.] 2004, pet. ref'd) ............................ 9

Hughes v. State,
 4 S.W.3d 1 (Tex. Crim. App. 1999). ............................................................................. 7, 8

Kelly v. State,
  60 S.W.3d 299 (Tex. App.—Dallas 2001, no pet.).......................................................... 7

Martinez v. State,
 327 S.W.3d 727 (Tex. Crim. App. 2010) ......................................................................... 3

Miranda v. State,
 813 S.W.2d 724 (Tex. App.—San Antonio 1991, pet. ref’d). ........................................ 4

Schutz v. State,
  63 S.W.3d 442 (Tex. Crim. App. 2001) ............................................................................ 9

Sills v. State,
  846 S.W.2d 392 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d). ........................... 6




                                                          iii
Smith v. State,
 520 S.W.2d 383 (Tex. Crim. App. 1975). ......................................................................... 4

Smith v. State,
 734 S.W.2d 694 (Tex. App.—Houston [1st Dist.] 1987, no pet.). ............................... 10

United States v. Johnson,
 802 F.2d 1459 (D.C. Cir. 1986) ......................................................................................... 4

Whitehurst v. Wright,
 592 F.2d 834 (5th Cir. 1979) ............................................................................................... 4
Rules
TEX. R. APP. P. 9.4(g) .............................................................................................................. i
TEX. R. APP. P. 38.2(a)(1)(A) .................................................................................................. i
TEX. R. APP. P. 39.1 ................................................................................................................. i
Tex. R. App. P. 44.2(b) .......................................................................................................... 9
TEX. R. EVID. 607 ................................................................................................................... 4
TEX. R. EVID. 613(a). ............................................................................................................. 4




                                                                  iv
TO THE HONORABLE COURT OF APPEALS:


                          STATEMENT OF THE CASE

      Appellant was charged with murder (C.R. 14). Appellant entered a plea of not

guilty to the offense (C.R. 118-120; R.R.III 8-9, 11). The jury found appellant guilty

and sentenced him to confinement for forty-five years in the Institutional Division of

the Texas Department of Criminal Justice (C.R. 115; R.R.IV 72, R.R.V 42-43). A

written notice of appeal was timely filed (C.R. 118-120).

                        


                             STATEMENT OF FACTS

      The State challenges all factual assertions in appellant’s brief and presents the

following account of the facts.

      Officers Patrick Awomosu and T. Jabbar, of the Houston Police Department,

was called out to the shooting scene on June 9, 2012, at 1402 Calhoun (R.R.III 14,

20). Upon arrival, he saw Byron Reado, the complainant, being treated by EMS for

the gunshot wounds (R.R.III 15). Mr. Reado was pronounced dead shortly after

(R.R.III 15). Officers then proceeded to secure the scene and look for potential

witnesses until officers from the homicide division arrived (R.R.III 15). It was later

determined that Mr. Reado died from multiple gunshot wounds, with one gunshot

wound penetrating his heart and lungs R.R.III 67-68, 70, 78).
      Homicide investigators conducted a follow up investigation (R.R.III 54; R.R.IV

5-6). The investigation revealed that multiple witnesses identified appellant, as the

shooter (R.R.III 138-139, 115-116, 133; R.R.IV 8, 11-13). Appellant’s DNA was also

found on a sprite can found at the scene (R.R.III 33-34; R.R.IV 36). Shell cartridges

were found at the scene (R.R.III 31, 33). The casings were .40 caliber S & W rounds

that were all fired from the same firearm (R.R.III 103).

                        


                       SUMMARY OF THE ARGUMENT


      The trial court did not abuse its discretion in admitting Mr. Lee’s prior

inconsistent statement into evidence because the record does not demonstrate that

the State knew that Mr. Lee would claim he had total memory loss, and Mr. Lee did

offer some testimony favorable to the State. If this Court finds that the trial court

erred in admitting Mr. Lee’s prior inconsistent statement, any error was harmless

because the trial court gave a limiting instruction to the jury regarding its use of the

prior inconsistent statement, and Mr. Lee’s identification of appellant as the shooter

was corroborated by the an additional witness and his DNA found at the scene.

                        




                                           2
                         REPLY TO POINT OF ERROR


      Appellant argues that the trial court erred in admitting the recorded statement

of witness Raymond Lee into evidence under the guise that it was impeachment

evidence when in fact the State treated the recorded statement as substantive

evidence. However, the trial court did not err in admitting the recorded statement

because the State did not know that Mr. Lee would claim total memory loss, and

despite his alleged memory loss, appellant was able to offer some evidence favorable

to the State. If this Court finds that the trial court erred in admitting the complained

of evidence, any error was harmless because the trial court gave a limiting instruction

regarding use of Mr. Lee’s recorded statement. Additionally, another witness identified

appellant as the shooter, and appellant’s DNA was found at the scene, thus the

complained of statement was repetitive of additional evidence that was properly

before the jury for consideration. Appellant’s point of error should be overruled.


Standard of Review

      When reviewing a trial court’s decision on the admissibility of evidence the

proper standard of review is abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736

(Tex. Crim. App. 2010). An abuse of discretion only occurs when a decision “lies

outside the zone of reasonable disagreement.” Id.; Casey v. State, 215 S.W.3d 870, 879

(Tex. Crim. App. 2007). The trial court’s decision does not constitute an abuse of

discretion if the decision can be upheld on any theory of law. Id.


                                           3
Analysis

       A witness’ prior inconsistent statements are admissible to impeach a witness.

Aranda v. State, 736 S.W.2d 702, 707 (Tex. Crim. App. 1987). A witness can be

impeached by either party. See TEX. R. EVID. 607. The rule of admissibility of evidence

of prior inconsistent statements should be liberally construed and the trial judge

should have discretion to receive any evidence which gives promise of exposing

falsehood. See Smith v. State, 520 S.W.2d 383, 386 (Tex. Crim. App. 1975). Prior to

impeaching the witness with the prior inconsistent statement, the witness “must be

told the contents of such statement and the time and place and the person to whom it

was made, and must be afforded an opportunity to explain or deny such statement.”

TEX. R. EVID. 613(a).

        “There has always been a danger that a party may attempt to use a prior

inconsistent statement under the guise of impeachment for the primary purpose of

placing before the jury evidence which is not otherwise admissible and which may be

treated as substantial evidence.” Miranda v. State, 813 S.W.2d 724, 735 (Tex. App.—

San Antonio 1991, pet. ref’d). Texas Rule of Evidence 403 requires that

“impeachment by prior inconsistent statement may not be permitted where employed

as a mere subterfuge to get before the jury evidence not otherwise admissible.”

Whitehurst v. Wright, 592 F.2d 834, 839 (5th Cir. 1979); see also United States v. Johnson, 802

F.2d 1459, 1466 (D.C. Cir. 1986); See also Miranda, 813 S.W.2d at 735 (holding that to



                                              4
prevent against a “straw-man ploy…Courts should balance the probative value of

admitting the prior inconsistent statement for its legitimate impeachment purpose

against the danger of unfair prejudice created by the jury misusing the statement for

substantive purposes”).

      In the present case, witness Raymond Lee stated that he did not remember

giving a statement to police in which he identified appellant as the person who

murdered Mr. Reado (R.R.III 91). The State offered Mr. Lee’s prior recorded

statement into evidence (RR.R.III 106-107). Mr. Lee stated that the voice on the

recording sounded like his voice (R.R.III 107, 139). The trial court concurred that the

voice on the recording sounded like Mr. Lee’s voice (R.R.III 107). Mr. Lee

acknowledged that his name appeared on photospreads where he identified appellant

as the shooter, and another witness by name, but denied that the signature was his

(R.R.III 138). Appellant declined to cross examine Mr. Lee (R.R.III 139). The jury was

given a limiting instruction after the recording was played for the jury and then, again,

in the jury charge (R.R.III 139-140; C.R. 98). The limiting instruction stated that the

recording “was played for the purpose to impeach the witness with a prior

inconsistent statement…[ and] was admitted to aid [the jury] in considering Mr. Lee’s

testimony[, which is] only to be used for impeachment purposes[, and] cannot be and

should not be used [by the jury] as substantive evidence of those facts stated.”

(R.R.III 139-140).




                                           5
       Appellant cites Sills1 and Armstead2 in support of his argument that “the [S]tate

intended that the jury hear [Mr.] Lee’s statement and consider it as evidence which

would not have otherwise been admissible” when the State knew that Mr. Lee would

claim memory loss.3 In Sills, the witness refused to answer questions from the State.

Sills, 846 S.W.2d at 396. The State then questioned the witness regarding a prior

statement he made to police, going line by line throughout the entire written

statement asking “isn’t it true your statement reads” or “isn’t it true you further

stated.” Id. The witness neither agreed nor disagreed with any of the statements. Id.

This Court held that “[t]he trial court erred in allowing the prosecutor to use [the

witness’s] police statement after he repeatedly refused to answer” because the State

simply used the statement to put information in front of the jury that the witness

refused to repeat or deny from the witness stand. Id. These facts are quickly

distinguishable from the facts of the present case. In the present case, Mr. Lee did not

refuse to answer questions. To the contrary, he answered every question asked of him,

albeit claiming he did not remember giving the prior statement to police (R.R.III 137-

139). Thus the holding in Sills does not apply to the present case.

       Appellant then urges this Court to look to Armstead in support of his argument

that “the [S]tate knew that [Mr.] Lee would claim memory loss, and that the [S]tate

called him as a witness with the intention of introducing otherwise inadmissible

1
  846 S.W.2d 392 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d).
2
  977 S.W.2d 791 (Tex. App.—Fort Worth, 1998, pet. ref’d).
3
  Appellant’s brief at 10-11.


                                                 6
evidence under the guise of impeachment.”4 In Armstead, the San Antonio Court of

Appeals held that “it was improper for the State to call [the witness] knowing that he

would feign a memory loss only to introduce facts into evidence by asking leading

questions.” Armstead, 977 S.W.2d at 796.

          “[T]he State’s knowledge that its own witness will testify unfavorably is a factor

the trial court must consider when determining whether the evidence is admissible

under Rule 403.” Hughes v. State, 4 S.W.3d 1, 5 (Tex. Crim. App. 1999). “…[G]rafting a

surprise requirement would contravene the plain language of Rule 607…” Id. at 5. In

the present case the prosecutor informed the trial court that he “I just now talked to

Raymond Lee just now and he tells me he suffers from amnesia and doesn’t

remember what happened…His exact words were he had a car accident, he now

suffers memory loss, and distinctly this murder case is what affects his memory.”

(R.R.III 76). As of a week before the trial, the State had no knowledge that Mr. Lee

was going to claim memory loss regarding the murder and his prior statement to law

enforcement and identification of appellant as the shooter (R.R.III 94). Given Mr.

Lee’s vacillation from a week prior to trial to the day he testified, the record does not

clearly indicated that the State unequivocally knew that Mr. Lee would claim total

memory loss once he took the witness stand. See Kelly v. State, 60 S.W.3d 299, 302

(Tex. App.—Dallas 2001, no pet.) (holding that “although the State ‘suspected’ its

witness could turn, it had no reason to know for certain….[and since the Court]

4
    Appellant’s brief at 12.


                                               7
cannot say the State in this case knew [the witness] would recant” the prior

inconsistent statement was admissible.).

      Rule 403 only requires exclusion of the prior inconsistent statement when “the

jury misuses the evidence by considering it for its truth.” Hughes, 4 S.W.3d at 5. In

Hughes, the Court held that since the State was unable to elicit any favorable testimony

from the witness, the primary purpose of calling the witness was to place before the

jury otherwise inadmissible evidence. Id. at 7. Using the same reasoning employed in

Hughes, the primary purpose of calling Mr. Lee as a witness was not under the guise of

impeachment because the State was able to elicit favorable testimony from Mr. Lee.

Mr. Lee made two identifications in the recording (R.R.III 138). Mr. Lee

acknowledged that his name appeared on the identifications, but claimed that the

signature was “not how [he writes his] name.” (R.R.III 138). As to the recording, Mr.

Lee stated that the voice on the recording “sounded like [him]” (R.R.III 139). Mr. Lee

acknowledged that that he identified the person that shot and killed Mr. Reado

(R.R.III 139). Since Mr. Lee did testify to this favorable evidence for the State, the

trial court did not err in concluding that the State had another legitimate reason for

calling him as a witness other than simply under the guise of impeachment.

      The trial court did not abuse its discretion in admitting Mr. Lee’s prior

inconsistent statement because the record does not indicate that the State knew Mr.

Lee would testify wholly inconsistent with his prior statement, and Mr. Lee did

provide some favorable testimony for the State, thus demonstrating that the State did

                                           8
not call Mr. Lee as a witness under the guise of impeachment. Appellant’s point of

error should be overruled.

Harm Analysis

       If this Court finds that the trial court abused its discretion in admitting Mr.

Lee’s prior inconsistent statement, such error was harmless. Violation of evidentiary

rules is reviewed for nonconstitutional error. Geuder v. State, 142 S.W.3d 372, 376 (Tex.

App.--Houston [14th Dist.] 2004, pet. ref'd). As nonconstitutional error, this Court

must review the erroneous admission under Rule 44.2(b) of the Texas Rules of

Appellate Procedure. Tex. R. App. P. 44.2(b); see Campos v. State, 317 S.W.3d 768, 779

(Tex. App.--Houston [1st Dist.] 2010, pet. ref'd) (the erroneous admission of a

hearsay statement constitutes nonconstitutional error). When an appellate court

applies Rule 44.2(b), it must disregard nonconstitutional error unless it affects the

appellant's substantial rights. Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim.

App.2011). An appellate court should not overturn a criminal conviction for

nonconstitutional error “if the appellate court, after examining the record as a whole,

has fair assurance that the error did not influence the jury, or influenced the jury only

slightly.” Id. (quoting Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App.2001)).

       In the present case, the trial court immediately gave a limiting instruction to the

jury regarding the admission of Mr. Lee’s prior inconsistent statement. The trial court

told the jury that Mr. Lee’s prior inconsistent statement “was played for the purpose

to impeach the witness with a prior inconsistent statement…[ and] was admitted to

                                             9
aid [the jury] in considering Mr. Lee’s testimony[, which is] only to be used for

impeachment purposes[, and] cannot be and should not be used for [the jury] as

substantive evidence of those facts stated.” A limiting instruction was also repeated in

the jury charge (C.R 98). Appellant argues that “[d]espite the curative instruction, it

cannot be concluded that [Mr. Lee’s] inadmissible statement did not contribute to

[appellant’s] conviction.”5 However, when reviewing nonconstitutional errors, errors

that had only a slight effect must be disregarded. Id. Appellant’s argument fails to take

into consider this standard when assessing harm.

          Cumulative evidence of the erroneously admitted evidence can render error

harmless. Smith v. State, 734 S.W.2d 694, 696 (Tex. App.—Houston [1st Dist.] 1987, no

pet.). In the present case, Mr. Lee was an eyewitness to the murder and identified

appellant as the shooter (R.R.III 138-139). However, Mr. Lee was not the only witness

to the murder. Ms. Wooten also saw the murder and observed appellant shoot and kill

Mr. Reado (R.R.III 113-116, 133). Ms. Wooten identified appellant as the shooter at

trial (R.R.III 115). Thus any prejudicial impact from erroneously admitting Mr. Lee’s

prior inconsistent statement was assuaged by the repetition of the same evidence by

another witness. Appellant still argues that Ms. Wooten’s testimony echoing Mr. Lee’s

identification of appellant as the shooter does nothing to mitigate the prejudicial

effect of admitting inadmissible evidence because “defense counsel sufficiently cross-



5
    Appellant’s brief at 13-14.


                                           10
examined [Ms. Wooten] as to discredit her in the eyes of the jury.”6 However,

credibility of the witnesses is the sole province of the jury, and the jury was entitled to

believe every word of Ms. Wooten’s testimony regardless of how lightly or heavily she

was cross examined. See Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st

Dist.] 2005, no pet.). The verdict of guilt indicates that the jury found Ms. Wooten’s

testimony credible. This credibility determination should not be upset by an appellate

court. Id.

          Additionally, further corroborating Mr. Lee and Ms. Wooten’s identification of

appellant as the person who murdered Mr. Reado is the evidence showing that

appellant’s DNA was found on a sprite can found at the scene (R.R.IV 36). Appellant

never offered a non-incriminating reason for why his DNA would be found at the

scene of the murder. Thus, there was substantial additional evidence pointing to

appellant’s guilt that rendered any potential harm from admitting Mr. Lee’s prior

inconsistent statement into evidence harmless. Appellant’s point of error should be

overruled.

                               




6
    Appellant’s brief at 13.


                                            11
                                 CONCLUSION

      It is respectfully submitted that all things are regular and that the conviction

should be affirmed.

                                                    DEVON ANDERSON
                                                    District Attorney
                                                    Harris County, Texas



                                                    /s/ Abbie Miles
                                                    ABBIE MILES
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                    1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 755-5826
                                                    TBC No. 24072240
                                                    Miles_abbie@dao.hctx.net
                                                    Curry_Alan@daohctx.net



                      CERTIFICATE OF COMPLIANCE

       The undersigned attorney certifies that this computer-generated document has

a word count of 3,176 words, based upon the representation provided by the word

processing program that was used to create the document.

                                                    /s/ Abbie Miles

                                                    Abbie Miles
                                                    Assistant District Attorney




                                         12
                          CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been mailed to the

appellant’s attorney at the following address on October 27, 2015:


      Joseph Salhab
      2028 Buffalo Terrace
      Houston, Texas 77019



                                                     /s/ Abbie Miles
                                                     ABBIE MILES
                                                     Assistant District Attorney
                                                     Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                     Houston, Texas 77002
                                                     (713) 755-5826
                                                     TBC No. 024072240
                                                     Miles_abbie@dao.hctx.net
                                                     Curry_Alan@dao.hctx.net


Date: October 27, 2015




                                          13
