                                                                                      ACCEPTED
                                                                                   01-15-00366-cr
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                            11/25/2015 3:22:54 PM
                                                                            CHRISTOPHER PRINE
                                                                                           CLERK

                      NO. 01-15-00366-CR
      IN THE COURT OF APPEALS FOR THE FIRST APPELLATE
                                                          FILED IN
                    JUDICIAL DISTRICT OF TEXAS     1st COURT OF APPEALS
                                                       HOUSTON, TEXAS
                         HOUSTON, TEXAS            11/25/2015 3:22:54 PM
                                                   CHRISTOPHER A. PRINE
                                                            Clerk
_________________________________________________________________

                   TRACE ROGERS SMITH, Appellant

                                    V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

    ON APPEAL FROM THE 207TH JUDICIAL DISTRICT COURT OF
                  COMAL COUNTY, TEXAS

                   Trial Court Cause No. CR2014-093
        Honorable Jack Robison, and Don Burgess, Judges Presiding


                      BRIEF FOR THE APPELLEE

                                                         Jennifer A. Tharp
                                                  Criminal District Attorney

                                                                           By
                                                         Laura Burton Bates
                                                             SBN: 24035014
                                         Assistant Criminal District Attorney
                                            150 N. Seguin Avenue, Suite #307
                                                              (830) 221-1300
                                                          Fax (830) 608-2008
                                                 New Braunfels, Texas 78130
                                                LKBTEXAS@GMAIL.COM
                                                       Attorney for the State


Oral argument is waived unless requested by the Appellant

                                    i
           NAMES OF ALL PARTIES
          Appellant – Trace Rogers Smith
           Appellee – The State of Texas

           Attorneys for the Appellant
              Mr. Manuel Rodriguez
                879 W. Southcross
              San Antonio, TX 78211
                     At Trial

              Mr. Atanacio Campos
                  496 S. Castell
            New Braunfels, TX 78130
                   On Appeal

            Attorneys for the Appellee

                  Ms. Chari Kelly
        Assistant Criminal District Attorney
               Ms. Jacqueline Doyer
        Assistant Criminal District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
         150 N. Seguin Avenue, Suite 307
           New Braunfels, Texas 78130
               For the State at Trial

              Ms. Laura Burton Bates
        Assistant Criminal District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
         150 N. Seguin Avenue, Suite 307
           New Braunfels, Texas 78130
              For the State on Appeal

              Ms. Jennifer A. Tharp
            Criminal District Attorney
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE
         150 N. Seguin Avenue, Suite 307
           New Braunfels, Texas 78130




                        ii
                                     INDEX

                                                         Page

I.     NAMES OF ALL PARTIES                                 ii

II.    INDEX                                               iii

III.   LIST OF AUTHORITIES                                viii

IV.    NATURE OF THE CASE                                   1

V.     STATEMENT OF FACTS                                   3

VI.    SUMMARY OF THE ARGUMENT                              9

VII. COUNTERPOINTS                                         10

       COUNTERPOINT NO. 1                                  10
       State’s Reply to Appellants’ Point of Error One

           NO BRADY VIOLATION OCCURRED FOR LATE
       DISCLOSURE OF A WITNESS’ PRIOR CONVICTION BECAUSE
       THE    INFORMATION     WAS      IMMATERIAL,    THE
       PROSECUTION’S CASE AGAINST APPELLANT WAS STRONG,
       AND THERE IS NO EVIDENCE THAT THE EXISTENCE OF THE
       PRIOR CONVICTION WOULD HAVE CHANGED THE
       OUTCOME OF THIS TRIAL.
       ACCORDINGLY, NO ERROR IS PRESENTED AND
       APPELLANT’S POINT OF ERROR NUMBER ONE SHOULD BE
       OVERRULED AND THE JUDGMENT AFFIRMED.


VIII. CONCLUSION AND PRAYER                                18

IX.    CERTIFICATE OF SERVICE                              19

X.     CERTIFICATE OF COMPLIANCE                           19



                                        iii
                          LIST OF AUTHORITIES

CASE NAME                                                               PAGE

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)……….11

Hafdahl v. State, 805 S.W.2d 396, 399 (Tex.Crim.App. 1990)…………….........11

Hall v. State, 283 S.W.3d 137, 171 (Tex.App.—Austin 2009, no pet)……..........13

Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App. 2002)……………...….12

Jones v. State, 711 S.W.2d 35, 38 (Tex.Crim.App. 1986)………………………13

Pena v. State, 353 S.W.3d 797, 811 (Tex.Crim.App. 2011)……………………..11

Saldivar v. State, 980 S.W.2d 475, 485 (Tex.App.—Houston [14th Dist.]

      1998, pet. ref’d)…………………………………………………………...15

Thomas v. State, 841 S.W.2d 399, 404 (Tex.Crim.App.1992)(en banc)……...11,12

U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)……………...12

U.S. v. Bagley, 473 U.S. 665, 105 S.Ct 3375, 87 L.Ed.2d 481 (1985)…………...12

Webb v. State, 232 S.W.3d 109, 115 (Tex.Crim.App. 2007)………………….12,13




RULES AND STATUTES                                                      PAGE

TEX.PEN.CODE §19.03…………………………………………………………….1

TEX.PEN.CODE §20.04…………………………………………………………….1

TEX.PEN.CODE §22.021…………………………………………………………...1


                                       iv
TEX.PEN.CODE §29.03…………………………………………………………….1

TEX.PEN.CODE §37.09…………………………………………………………….1

TEX.R.EVID. 609…………………………………………………………………13




                     v
                          Cause No. 01-15-00366-CR


TRACE ROGERS SMITH         §IN THE COURT OF APPEALS
                           §
                 Appellant §
                           §
                           §
    v.                     § FOR THE FIRST
                           §
                           §
THE STATE OF TEXAS         §
                 Appellee §APPELLATE DISTRICT OF TEXAS

      ON APPEAL FROM THE 207TH JUDICIAL DISTRICT COURT
                  OF COMAL COUNTY, TEXAS
                 Trial Court Cause No. CR2014-093

To the Honorable Court of Appeals:

                           NATURE OF THE CASE

      Appellant was charged by indictment with one (1) count of Attempted

Capital Murder, one (1) count of Aggravated Kidnapping, one (1) count of

Tampering with Physical Evidence, one (1) count of Aggravated Sexual Assault,

and one (1) count of Aggravated Robbery. (TEX.PEN.CODE §§19.03, 20.04, 37.09,

22.021, and 29.03). (C.R. Vol.1, pp. 9-11). A jury was empaneled on February

23, 2015. See generally, (R.R. Vol. 2). Ultimately, on February 27, 2015, the

Appellant was found guilty by the jury of the counts of Attempted Capital Murder,

Aggravated Kidnapping, Aggravated Robbery, and Tampering with Physical

Evidence; Smith was found not guilty of Aggravated Sexual Assault. (C.R. Vol. 1,


                                        1
pp. 64-76). The punishment phase of the trial commenced immediately following

the pronouncement of the verdict, with the Appellant electing the jury to assess

punishment. Id.

      After hearing further evidence from both sides during the punishment phase,

the jury assessed punishment at forty-two years in the Institutional Division of the

Texas Department of Criminal Justice (TDCJ) for the Attempted Capital Murder

and Aggravated Kidnapping convictions, ten years in the Institutional Division of

TDCJ for the Aggravated Robbery conviction, and five years’ imprisonment in the

Institutional Division of TDCJ for the Tampering with Physical Evidence

conviction. (C.R. Vol. 1, pp. 64-76).




                                         2
                            STATEMENT OF FACTS

      On December 8, 2013, Appellant and his co-defendants participated in

tasing, stabbing, hog-tying, and kidnapping Dana Huth, and left her for dead in a

shed on a very cold night. They then proceeded to burn Huth’s personal belongings

she had brought with her.

      Dana Huth was romantically involved with a man named Travis Nealon.

(R.R. Vol. 3, pp. 43). Nealon was simultaneously romantically involved with

Heather Richards, who is one of Appellant’s co-defendants in this case. Id. Huth,

Richards, Clint Barkley, Sheena Hopkins, Kayla Lardieri, and the Appellant all

went to “hang out” at Mike Chapin’s house on December 8, 2013, only bringing

her black backpack with her. Id at 50-1. While they were there, Chapin, also

known as “Big Mike,” told Huth that Richards and Lardieri wished to speak with

her in the back bedroom, and sent Huth in to see them. Id at 51. In that back

bedroom, Richards and Lardieri began to scream at Huth and call her names,

accusing her of being a “snitch” and also of having a romantic involvement with

Nealon at the same time Richards was romantically involved with him. Id at 53-4.

They then had Huth remove all her clothes to check her for a “wire.” Id at 54.

Lardieri proceeded to wrap a t-shirt around her hand and inserted her covered hand

into Huth’s vagina to check for a wire. Id at 54-55.




                                         3
      Richards then tased Huth and both Richards and Lardieri began stabbing

Huth. (R.R. Vol. 3, pp. 55-6). They stabbed Huth on her right hand, right side, the

back of her neck, inner thighs, and the back of her legs, for a total of eight stab

wounds. Id at 57-8. After they stabbed Huth, they kicked her in the side of her head

and her ribs. Id at 62. Throughout the attack, Hopkins videotaped the entire

incident on her cell phone. Id at 56. Huth was able to get to the bedroom door,

trying to escape, and broke a vase in the hallway. Id at 63. Appellant appeared and

pushed Huth back into the bedroom and told the other girls they needed to “wrap it

up.” Id.

      Hopkins sat on Huth while Richards and Lardieri handcuffed Huth’s feet, as

well as handcuffing and shackling Huth’s hands. Id at 63, 65. They proceeded to

“hog-tie” Huth’s hands and feet by using shackles to connect the handcuffs at her

hands and feet. Id at 65. Huth’s hands were taped together, and a gag made from a

tennis ball was inserted into her mouth. Id at 66. She was also blindfolded with an

eye mask. Id. The Appellant carried her to a shed, and Chapin told the group to

make sure they locked the door. Id at 68.

      In the shed by herself, Huth was able to release her shackles around her

wrists, and took off her gag and blindfold; she was not able to release the

handcuffs around her feet. Id at 70. While her feet were still shackled, she was able

to climb out a small window that was about six feet off the ground to get out of the


                                            4
shed. Id. She crawled naked along the cold, wet grass until she was able to get to a

neighbor’s house across the street. Id at 72. She crawled up to the front porch and

used her head to knock on the door. Id at 73. No one answered so Huth borrowed a

blanket and crawled into one of the vehicles on the property to get out of the cold.

Id at 74.

       A few hours later, Huth heard Richard’s vehicle drive back up to Chapin’s

property; Richard’s SUV had a distinct sound as if it was missing a muffler. Id at

75. Huth heard the others go look in the shed and realize she was missing. Id. Later

the next morning, Huth honked the horn of the vehicle she was in to get the

attention of Mariah Denman, who lived on the property where Huth was hiding. Id

at 139. Denman, after noticing Huth’s condition, called the police and Huth was

flown to University Hospital in San Antonio for medical treatment of her injuries.

Id at 140.

       Clint Barkley, a friend of the Appellant, testified at trial that he was at

Chapin’s house on the night of the attack and witnessed Appellant going “in and

out” of that back bedroom repeatedly. (R.R. Vol. 3, pp. 203). He stated it sounded

like a “wrestling match” was going on in that back room and he could hear the

taser going off repeatedly. Id at 202-203. He stated that Appellant was “guarding”

that door behind which the assault was occurring. Id at 207-8. As he was preparing




                                         5
to leave the property, he saw Chapin and the Appellant standing in front of a shed

outside the house. Id at 207.

      Michael James, a friend of the Appellant, testified at trial that he had viewed

the video Hopkins made of the attack on Huth. (R.R. Vol. 3, pp. 143, 145-6). He

stated that in the video, he saw Huth get tackled, and Lardieri make a stabbing

“gesture” and then actually stab Huth. Id at 146, 149.

      Jerry Stovall, who was also present at Chapin’s house during the attack,

testified at trial that he witnessed Appellant, Huth, Lardieri, and “two other girls”

all go into that back bedroom on that night. (R.R. Vol. 4, pp. 27-8). He stated that

Huth was called into the back bedroom after the others were already in there and

then they were arguing. Id at 28. Stovall left Chapin’s house, but later the same

evening, Appellant and Lardieri came over to Stovall’s house, and Appellant had a

black backpack with him. Id at 29.

      Sheena Hopkins, one of Appellant’s codefendants, also testified regarding

the events of the attack. She testified that at Chapin’s house that night, Appellant

called Huth to come to that back bedroom to speak with Lardieri and Richards.

(R.R. Vol. 4, pp. 111). Hopkins echoed the testimony of the other codefendants,

stating that Richards began arguing with Huth and tased her. Id at 113-115. She

also informed the jury that Lardieri told Huth to disrobe, then proceeded to

vaginally check her for a wire, and then stabbed Huth in the leg. Id. Lardieri


                                         6
continued to stab Huth over and over again. Id at 116. Hopkins told the jury that

Appellant came into the back bedroom and told them to wrap it up. Id. Later on,

Hopkins went into the living room to retrieve some handcuffs because Huth kept

breaking through the electrical tape they originally used to bind her wrists. Id at

121. Appellant handed Hopkins the handcuffs from the living room. Id at 122.

Importantly, she testified that Appellant had her video the entire attack, and later,

after she watched the video, she witnessed Appellant holding a gun to Huth’s face

during the attack. Id at 129, 134.

      Appellant testified in his defense at trial. He informed the jury that, while at

Chapin’s house that night, he smoked marijuana and methamphetamines. (R.R.

Vol. 5, pp. 186). He, Lardieri, Hopkins, and Richards all went into the back

bedroom to continue smoking methamphetamines. Id at 189. Appellant left the

back bedroom and told Dana the other girls wanted her to go back to that bedroom

to be with them. Id. At some point, Appellant heard things getting “physical” in

that room. Id at 194. Lardieri came out and told Appellant that Huth was “bleeding

out.” Id at 195. Appellant stated Chapin asked if they wanted to take Huth to a pig

farm.” Id at 197. Appellant, seeing Huth bleeding, shackled, and handcuffed, tied

her “into the sheet” and carried her out to the shed. Id at 199-200. After Appellant

and Lardieri left Chapin’s house, Appellant burned Huth’s backpack, with all her




                                         7
belongings inside so no one would find Huth’s belongings and they wouldn’t get

caught. Id at 230.

      The gag and blindfold, as well as the black eye mask, were recovered at the

scene, and still had Huth’s hair attached. (R.R. Vol. 3, pp. 165, 166. ) The State

admitted 276 exhibits during its case in chief, ranging from photos of Huth’s

injuries and her medical records, to photos of the blood droplets that show the path

Huth crawled from the shed to the neighbor across the street, to the burnt remains

of her backpack that Appellant had burned after the attack. See generally, (R.R.

Vol. 3-4).




                                         8
                       SUMMARY OF THE ARGUMENT

      The Appellant has presented one (1) point of error for the Court’s review.

The State maintains that its failure to disclose a prior murder conviction on one of

its witnesses did not violate Brady because the State had no knowledge of such

conviction until well after Appellant’s trial had concluded and the prior conviction

occurred in Florida. Moreover, the prior conviction was immaterial under a Brady

analysis because there is no argument that impeachment of the witness based on

such conviction would have changed the outcome of the trial, considering the

witness was in custody and testified that he was sentenced to prison.

      For these reasons the State respectfully asks the court to overrule the

Appellant’s point of error and affirm, in all things, the conviction rendered by the

jury in this matter.




                                         9
                                COUNTERPOINT

                   State’s Reply to Appellants’ Point of Error
                            Appellant’s Brief pp. 10-16

          NO BRADY VIOLATION OCCURRED FOR POST-TRIAL
      DISCLOSURE OF A WITNESS’ PRIOR CONVICTION BECAUSE
      THE    INFORMATION     WAS      IMMATERIAL,    THE
      PROSECUTION’S CASE AGAINST APPELLANT WAS STRONG,
      AND THERE IS NO EVIDENCE THAT THE EXISTENCE OF THE
      PRIOR CONVICTION WOULD HAVE CHANGED THE
      OUTCOME OF THIS TRIAL.
      ACCORDINGLY, NO ERROR IS PRESENTED AND
      APPELLANT’S SOLE POINT OF ERROR SHOULD BE
      OVERRULED AND THE JUDGMENT AFFIRMED.


      In his sole Point of Error, the Appellant contends that error occurred when

the State failed to turn over information that one of its witnesses had a prior

conviction for murder, and this information was material. (Appellant’s brief, pp.

10). Appellant objects that this error resulted “in an unfair trial for the defendant

and a verdict unworthy of confidence.” Id at 17.

      The State notified Appellant that it was made aware in a subsequent trial,

nearly four months following Appellant’s trial, of a prior murder conviction out of

Florida for its witness Clint Barkley. (C.R., Supp. Vol., pp. 4). The State included a

copy of the Florida Appellate Court decision reversing the original conviction and

remanding the case for a new trial. Id at 5. The State’s letter indicated Barkley’s




                                          10
case was retried and he was subsequently convicted a second time of murder. Id at

4.

      During the State’s case-in-chief during Appellant’s trial, Barkley testified

before the jury while he was in custody of the Comal County Jail. (R.R. Vol. 3, pp.

200). He informed the jury that he currently lived in the Comal County Jail and

had been sentenced to prison, as well as he had not been promised anything in

return for his testimony at Appellant’s trial. Id.

      Brady imposes on the State a Constitutional duty to disclose to a defendant

any material and exculpatory evidence. Hafdahl v. State, 805 S.W.2d 396, 399

(Tex.Crim.App. 1990); see also Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963). Brady does not dictate that the prosecution must disclose

exculpatory information to the defense that the State does not have in its

possession and that is not known to exist. Pena v. State, 353 S.W.3d 797, 811

(Tex.Crim.App. 2011), quoting Hafdahl, 805 S.W.3d at 399, n.3.

      Once the Court has determined Brady applies, the next question is whether

the evidence would be favorable to the defense. Thomas v. State, 841 S.W.2d 399,

404 (Tex.Crim.App.1992)(en banc). Favorable evidence is defined as any

evidence, that if disclosed and utilized, may be the difference between conviction

and acquittal. Id. Favorable evidence may include impeachment evidence as well

as exculpatory evidence. Pena, 353 S.W.3d at 811. Impeachment evidence would


                                           11
be used to “dispute, disparage, deny or contradict” a witness’ testimony. Thomas,

841 S.W.2d at 404.

      Failure to disclose evidence considered favorable violates due process only

if it is “material” to guilt or punishment. U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392,

49 L.Ed.2d 342 (1976). “The mere possibility that an item of undisclosed

information might have helped the defense, or might have affected the outcome of

the trial, does not establish ‘materiality’ in the constitutional sense.” Id. Thus, a

showing must be made on appeal that “in light of all the evidence, it is reasonably

probable that the outcome of the trial would have been different had the prosecutor

made a timely disclosure.” Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App.

2002).   When evaluating materiality, the strength of the Brady evidence is

balanced against the evidence supporting the conviction. Id at 613. It is also

important to consider how disclosure could have affected defense preparation. U.S.

v. Bagley, 473 U.S. 665, 105 S.Ct 3375., 87 L.Ed.2d 481 (1985).

      Appellant has the burden of showing that, in light of all the evidence, it is

reasonably probable that the outcome of his trial would have been different had the

State timely disclosed this prior conviction. Webb v. State, 232 S.W.3d 109, 115

(Tex.Crim.App. 2007). “Reasonably probable” is defined in this regards as one that

is sufficient to undermine confidence in the outcome of the trial. The mere

possibility that an item of undisclosed information might have helped the defense,


                                          12
or might have affected the outcome of the trial, does not establish materiality in the

Constitutional sense. Webb, 232 S.W.3d at 115. To rise to the level of reversible

error, Appellant must show that the favorable evidence could reasonably be taken

to put the whole case in such a different light as to undermine confidence in the

verdict. Hall v. State, 283 S.W.3d 137, 171 (Tex.App.—Austin 2009, no pet).

Moreover, generally speaking, new evidence that is “merely cumulative,

corroborative, collateral, or impeaching is rarely of such weight as to bring about a

different result.” Jones v. State, 711 S.W.2d 35, 38 (Tex.Crim.App. 1986).

      In Hall v. State, the State failed to disclose a witness’ prior conviction from

New Zealand because evidence of that conviction was contained in a different file

in the District Attorney’s office for prosecution on different charges by a different

prosecution team. Hall, 283 S.W.3d at 177. The Court rejected the “prosecution

team” argument but held the undisclosed conviction in this case was immaterial.

Id. The Court determined there was sufficient other impeachment evidence for the

same witness and the State’s case against the appellant was strong; thus the

evidence would not have had a significant impact on the outcome of the trial. Id.

      A. FAVORABLE BUT IMMATERIAL

      Evidence that Barkley had a prior murder conviction would clearly be

admissible impeachment evidence under Rule 609, and thus would be considered

“favorable evidence” under this analysis. See TEX.R.EVID. 609. However, there is


                                          13
no evidence or indication that the State had any knowledge of the prior conviction

until a subsequent trial on one of Appellant’s codefendants. At that point, Barkley

volunteered the information; it was not discovered by either party prior to such

admission.

             1. STATE WAS UNAWARE OF THE PRIOR CONVICTION

      The State points out that this particular situation does not mandate that it

should have known of such prior conviction and was at fault for not disclosing

such information. The record has no facts relating to what was in the State’s file or

what was notated on Barkley’s criminal record. Moreover, the prior conviction was

not only from a different state but had even been overturned by a Florida Appellate

court and remanded for a new trial. Based on the record, there is no evidence the

State had any knowledge anywhere with any person in its office regarding the prior

conviction, and thus was not at fault for failing to disclose such information.

             2. BARKLEY      PRESENTED         PLENTY   OF   OTHER    IMPEACHMENT

                EVIDENCE ABOUT HIMSELF

      Furthermore, Barkley informed the jury in Appellant’s trial that he was

currently residing at the Comal County Jail and had been sentenced to prison. He

also informed the jury that he smoked marijuana and methamphetamines and

would have used drugs at Chapin’s house that night had they been offered to him.




                                          14
(R.R. Vol. 3, pp. 216). Factually, Barkley presented to the jury plenty of

impeachment evidence as to himself during the trial.

      In Saldivar v. State, the State failed to disclose prior theft convictions of one

of its witnesses at trial due to the theft convictions being listed underneath a

variation of the witness’ name, and thus did not show up on the original

background check. Saldivar v. State, 980 S.W.2d 475, 485 (Tex.App.—Houston

[14th Dist.] 1998, pet. ref’d). The Court determined that a more diligent search

would have discovered the prior convictions; however, the Court held the failure to

disclose the convictions was immaterial. Id at 486. The Court determined such

failure was immaterial because there was sufficient other impeachment evidence

for the same witness and the State’s case against the appellant was strong. Id.

             3. THE CASE AGAINST APPELLANT WAS STRONG

      The State’s case against Appellant was strong. The victim’s testimony that

she was tased, kicked, stabbed, shackled, gagged, blindfolded, hog tied, penetrated,

and left for dead in a shed was corroborated by each of Appellant’s five

codefendants and by the physical evidence located at the scene of the crime.

Appellant himself confessed to shackling Huth, tying her into a sheet, and carrying

her to the shed to leave her. He also admitted to burning Huth’s personal

belongings after the assault. Stovall and Barkley both testified that they saw

Appellant go in and out of the back bedroom.


                                           15
             4. WOULD NOT HAVE CHANGED THE OUTCOME OF THE TRIAL

      Furthermore, there is no evidence that this prior conviction, had it been

timely discovered and disclosed to the jury, would have changed the outcome of

the trial. Barkley already testified regarding his prison sentence he was facing, as

well as the fact that he used drugs routinely and would have used drugs at Chapin’s

house that night, had he been offered any. His testimony did not leave the

impression with the jury that he was a model citizen. Lastly, the codefendants and

witnesses’ testimony corroborated each other’s testimony. Discounting Barkley’s

testimony completely, Lardieri, Hopkins, Huth, Richards, and Stovall each testified

that Appellant was going in and out of the room in which the assault took place.

Four of these five testified that Appellant made some movement or comment in

furtherance of the attack, including his request to the girls to “wrap it up” and stick

a gun in Huth’s face back in the bedroom. Three of the five, plus Appellant each

testified that Appellant helped tie the handcuffs and shackles in order to hog-tie

Huth and get her to the shed. (R.R. Vol. 5, pp. 199).

             5. APPELLANT’S CLAIMS

      Appellant, in his brief, claims that the jury would have taken Barkley’s word

with more veracity than any other witness since he was not involved in the assault

and had not been using drugs that evening. (Appellant’s brief, pp. 15). The flaw in

this argument is that Barkley had already informed the jury that he was a felon and


                                          16
headed to prison. (R.R. Vol. 3, pp. 200). This was actually more information than

was tendered to the jury on the rest of the witnesses and co-defendants. The other

codefendants were merely asked if they had been promised anything in return for

their testimony, as well as if they understood what testimonial immunity was.

(R.R. Vol. 3, pp. 200-1 [Barkley]), (R.R. Vol. 4, pp. 106-7 [Hopkins]), Id at 145-6

[Richards], (R.R. Vol. 5, pp. 80-82 [Lardieri]). Not Richards, Lardieri, Hopkins,

nor Appellant testified that they either had been or were headed to prison. Thus,

arguably, the jury would believe Barkley the same as the rest of the witnesses who

testified, or give his testimony even less weight since he readily admitted to before

the jury that he was a felon. Importantly, there is no argument from Appellant how

such knowledge of Barkley’s prior conviction would have changed his trial

strategy or impacted his line of questioning of Barkley in any capacity.

      B. CONCLUSION

      The prior conviction was immaterial under the facts of this case, and

irrelevant considering the strength of the State’s case. There is no evidence or

demonstration that had Barkley’s prior conviction been timely discovered and

disclosed that it would have had any impact on the outcome of the trial.

Appellant’s Point of Error should be overruled and the judgment of the trial court

be in all things affirmed.




                                         17
                         CONCLUSION AND PRAYER

      Wherefore, premises considered, Appellee prays that this Honorable Court

of Appeals affirm in all matters the judgment of the trial court in this case.


                                               Respectfully submitted,

                                               _/s/ Laura Burton Bates_
                                               Laura Burton Bates
                                               Assistant Criminal District Attorney
                                               Comal County Criminal District
                                               Attorney’s Office
                                               150 N Seguin Street
                                               New Braunfels, Texas 78130
                                               Phone: 830-221-1300
                                               Fax: 830-608-2008
                                               LKBTEXAS@GMAIL.COM
                                               SBN: 24035014




                                          18
                         CERTIFICATE OF SERVICE

        I, Laura Burton Bates, attorney for the State of Texas, Appellee, hereby

certify that a true and correct copy of this brief has been delivered to the following

individual electronically, this 25th day of November, 2015.


                                                    _/s/ Laura Burton Bates_
                                                    Laura Burton Bates
Counsel for Appellant

Mr. Atanacio Campos
496 S. Castell
New Braunfels, TX 78130
atanacio@aol.com




                      CERTIFICATE OF COMPLIANCE

       I, Laura Burton Bates, hereby certify that this document was prepared in
MS Word and it does not exceed the allowable length for an appellate brief
pursuant to Tex. R. App. Pro. 9.4, as amended and adopted on November 30, 2012,
by Order of the Texas Court of Criminal Appeals. The approximate total of words
in this document, as calculated by the word processing software, is 4400 words.


                                                 _/s/ Laura Burton Bates_______
                                                    Laura Burton Bates




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