                                                                           ACCEPTED
                                                                       01-15-00043-CR
                                                            FIRST COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                                                                  10/5/2015 1:01:11 PM
                                                                 CHRISTOPHER PRINE
                                                                                CLERK

                       NO. 01-15-00043-CR

                   IN THE COURT OF APPEALS            FILED IN
                                               1st COURT OF APPEALS
                                                   HOUSTON, TEXAS
                              FOR THE          10/5/2015 1:01:11 PM
                                               CHRISTOPHER A. PRINE
                   FIRST DISTRICT OF TEXAS             Clerk


                       HOUSTON, TEXAS

                  DEJESUS FOBBS, APPELLANT

                                VS.

                THE STATE OF TEXAS, APPELLEE


               REPLY BRIEF FOR THE APPELLANT


                     CAUSE NUMBERS 22,960
            IN THE 356TH JUDICIAL DISTRICT COURT OF
                     HARDIN COUNTY, TEXAS


SEARS & BENNETT, LLP
JOEL H. BENNETT
STATE BAR NO. 00787069
1100 NASA PARKWAY, SUITE 302
HOUSTON, TEXAS 77058
(281) 389-2118
FAX (866) 817-5155

Attorneys for DEJESUS FOBBS
                         LIST OF PARTIES

Presiding Judge                     Honorable Steven Thomas

Appellant                           Dejesus Fobbs

Appellee                            The State of Texas

Attorney for Appellant              Ms. Stella Morrison
    (Trial only)                    4231 Lakeshore Drive
                                    Port Arthur, Texas 77642

                                    Mr. Bryan Laine
                                    1045 Redwood
                                    Kountze, Texas 77625

Attorney for Appellant              Mr. Joel H. Bennett
    (Appeal only)                   Sears & Bennett, LLP
                                    1100 Nasa Parkway, Ste 302
                                    Houston, Texas 77058

Attorney for Appellee               Mr. David Sheffield
    (Trial and Appeal)              Mr. Bruce Hoffer
                                    Ms. Kendra Walters
                                    Hardin County District
                                    Attorney’s Office
                                    P. O. Box 1409
                                    Kountze, Texas 77625

Attorney for Appellee               Ms. Sue Korioth
    (Appeal only)                   P.O. Box 600103
                                    Dallas, Texas 75630

                   CITATION TO THE RECORD

Clerk’s Record ...................... C.R. (volume and page)

Reporter’s Record ................... R.R. (volume and page)


                             ii
                      TABLE OF CONTENTS

                                                     PAGE

List of Parties ..................................   ii

Table of Contents ...............................    iii

List of Authorities   ...........................     v

Appellant’s Reply to Issue No. Two ............       7

    APPELLANT’S    COMPLAINT     REGARDING    THE
    IMPROPER ADMISSION OF THE FIREARM AND
    MAGAZINE WAS PROPERLY PRESERVED.          THE
    EXTRANEOUS   OFFENSE    WAS   NOT   NECESSARY
    CONTEXTUAL     EVIDENCE     AND     THEREFORE
    INADMISSIBLE.

Statement of Facts .............................     12

Summary of Argument ............................     12

Conclusion and Prayer ..........................     12

Certificate of Service .........................     13




                            iii
                     LIST OF AUTHORITIES


CASES
Devoe v. State, 354 S.W.3d 457 (Tex. Crim. App. 2011) .8

Mayes, 816 S.W.2d at 86 n. 4 ......................... 10

Peters v. State, 93 S.W.3d 347, 353-54 (Tex. App.—
 Houston [14TH Dist.] 2002, pet. ref’d)............9, 11

Rogers v. State, 853 S.W.2d 29, 33-34 (Tex. Crim. App.
 1993) ............................................9, 10

RULES
Tex. Rule Evid. 404(b) ........................ 8, 10, 11




                           iv
                  NO.     01-15-00043-CR



                           IN THE

                    COURT OF APPEALS

                          FOR THE

                FIRST DISTRICT OF TEXAS

                     HOUSTON, TEXAS


                DEJESUS FOBBS, Appellant

                             v.

              THE STATE OF TEXAS, Appellee


     Appealed from the 356TH Judicial District Court
                 of Hardin County, Texas
                    Cause No. 22,960


             REPLY BRIEF FOR THE APPELLANT


TO THE HONORABLE COURT OF APPEALS:

    Now comes DEJESUS FOBBS, by and through his attorney

of record Joel H. Bennett, of Sears & Bennett, LLP, and

files this reply brief.


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      Appellant        relies       on    his     original     brief     for      the

merits      of     Issues       Numbers          One,      Three,     and     Four.

Appellant’s Reply Brief is in response to Issue No. Two.

       APPELLANT’S REPLY REGARDING ISSUE NUMBER TWO

      APPELLANT’S    COMPLAINT     REGARDING    THE
      IMPROPER ADMISSION OF THE FIREARM AND
      MAGAZINE WAS PROPERLY PRESERVED.          THE
      EXTRANEOUS   OFFENSE    WAS   NOT   NECESSARY
      CONTEXTUAL     EVIDENCE     AND     THEREFORE
      INADMISSIBLE.

                      ADDITIONAL STATEMENT OF FACTS

      No additional statement of facts is needed.

                       SUMMARY OF REPLY ARGUMENT

      The   State’s      response          to    Appellant’s        Second    Issue

attempts         intermingle         the         extraneous         offenses      of

possession       of    the    firearm       and    the     possession        of   the

synthetic marijuana.            Appellant’s issue is restricted to

the    introduction            of        the      handgun      and     magazine.

Appellant’s           issue         was         properly      preserved,          as

affirmatively         stated    by        the    trial   court.        The    State

wholly failed to explain how the presentation of the

evidence would have been incomplete or curtailed by the

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exclusion of the extraneous offense.

                     ARGUMENT AND AUTHORITIES

    In   the    State’s      Brief,    the    State    alleges     that

Appellant failed to preserve this error by failing to

object to the introduction of the synthetic marijuana

and the gun.     As set forth in the Statement of Facts in

Appellant’s Original brief, Appellant objected to the

introduction of the evidence of the gun and magazine

each and every time the State offered evidence of the

gun and magazine.       Appellant objected to the testimony,

the introduction of the photographs, and to the gun and

magazine itself. R.R.VI—29-20, 63-64, 75, and 78-79.

The trial court specifically held that Appellant had

preserved      his    objection       and    his      objection     was

abundantly clear.       R.R.VI—78-79.        The State argues that

Appellant   waived     any    objection      because    he   did   not

object to the introduction of the synthetic marijuana.

Appellant’s complaint involves the gun and magazine,

not the synthetic marijuana.


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     Additionally, the State argues that the evidence

was admissible as contextual evidence.                     But, the State

fails    to    argue      or    explain       how    the     evidence      was

necessary contextual evidence to explain the possession

of   the      cocaine.          Only    contextual         evidence     which

includes extraneous offenses that is necessary to the

jury’s     full    understanding        of    the   primary      offense    is

admissible.

     The    State    cites      Devoe    v.   State,       354   S.W.3d    457

(Tex.    Crim.     App.    2011)       for    the   position      that     the

evidence      of   the    gun   and     magazine     was    admissible      as

contextual evidence.            Appellant would submit that Devoe

supports his position, “But, under Rule 404(b), same-

transactional       contextual         evidence     is   admissible       only

when the offense would make little or no sense without

also bringing in that evidence, and it is admissible

‘only to the extent that it is necessary to the jury’s

understanding of the offense.’” Devoe v. State, at 469.

     The State make no argument or any explanation of how


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the jury’s understanding of the events surrounding the

primary offense would be limited or make “little or no

sense” without the admission of the evidence of the gun

and magazine.

       Additionally,         the       State     wholly      failed         to

distinguish Rogers v. State, 853 S.W.2d 29, 33-34 (Tex.

Crim. App. 1993) and Peters v. State, 93 S.W.3d 347,

353-54     (Tex.     App.—Houston        [14TH    Dist.]     2002,        pet.

ref’d).     Both of which require the exclusion of the gun

and magazine.       In Rogers, the Court of Criminal Appeals

held it was error to admit evidence of possession of

marijuana         that       was       found      along        with       the

methamphetamine.         The    Court     specifically       held,        “The

State     could     simply      have     described     the       events     of

appellant's       arrest    without      mentioning     that      marijuana

was found, in addition to methamphetamine. The jury's

understanding of the instant offenses would not have

been     impaired    or     clouded      had     the   State      described

appellant's        arrest      without     including       the     evidence


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concerning the marijuana. Such omission would not have

caused      the   evidence    regarding    the     instant   offenses

(burglary and possession of methamphetamine) to appear

incomplete.” Rogers v. State, 853 S.W.2d at 34.                  Just

as in the Rogers case, the omission of the gun and

magazine would not have caused the evidence regarding

the possession of the cocaine to appear incomplete.

      Similarly, the Fourteenth Court of Appeals held,

“And, it would have been a simple matter to describe

the    circumstances         surrounding     the     entry    without

mentioning the shotgun under the bed and the marijuana

cigarette burning in the ashtray. See Mayes, 816 S.W.2d

at 86 n. 4. In short, because the evidence did not

directly relate to a fact of consequence in the case

and   was    intended   to    prove   that   appellant       acted   in

conformity with a (bad) character, the evidence fell

within Rule 404(b)'s prohibition. Moreover, the shotgun

was not necessary to the jury's understanding of the

offense or the circumstances concerning the entry; it


10
was not admissible as an exception under Rule 404(b).

The     trial    court     erred     in    admitting       the     evidence.”

Peters v. State, 93 S.W.3d 347, 354.                         The State has

failed     to    explain    why     Appellant’s       case    is    factually

different that the Rogers case and the Peters case and

why   a    different       result    should       occur.         The    State’s

position on appeal is contrary to the well established

law of this State.

      For all the reasons given in Appellant’s brief and

this Reply brief, Appellant’s Second Issue should be

sustained,       Appellant’s       convictions        reversed,        and   the

case remanded for further proceedings.

                         CONCLUSION AND PRAYER

      WHEREFORE,      PREMISES        CONSIDERED,          the     Appellant,

DEJESUS    FOBBS,    prays     that       the    Judgment    of    the      Trial

Court     be    reversed    and    the    case    remanded       for    further

proceedings        consistent       with        the   judgment         of    this

Honorable Court.

                                     Respectfully submitted,

                                     SEARS & BENNETT, LLP
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                        _/s/ Joel H. Bennett_____________
                        JOEL H. BENNETT
                        Texas State Bar No. 00787069
                        1100 Nasa Parkway, Suite 302
                        Houston, Texas 77058
                        Telephone: (281) 389-2118
                        Facsimile: (866) 817-5155
                        joel@searsandbennett.com

                        ATTORNEY FOR DEJESUS FOBBS

                CERTIFICATE OF SERVICE

    I hereby certify that Appellant’s Brief has been
served upon Sue Korioth by email at suekorioth@aol.com
and the Hardin County District Attorney’s Office by
facsimile to 409-246-5142 on this the 5th day of
October, 2015.


                        _/s/ Joel H. Bennett_____________
                        Joel H. Bennett

              Certificate of Compliance

    In compliance with TRAP 9.4(i), I certify that the
word count in this reply brief is approximately 1383
words.

                        _/s/ Joel H. Bennett_____________
                        Joel H. Bennett




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