                                                                                         ACCEPTED
                                                                                     03-15-00540-CR
                                                                                             8225614
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                               12/14/2015 2:45:26 PM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK
                    THE THIRD
                 IN THE
                 IN           COURT OF
                        THIRD COURT  OF APPEALS
                                        APPEALS
                        AT AUSTIN,
                        AT         TEXAS
                           AUSTIN, TEXAS
                                                             FILED IN
LARRY DONNELL
LARRY DONNELL BOSWELL,
                 BOSWELL, JR.§                        3rd COURT OF APPEALS
                                                           AUSTIN, TEXAS
        Appellant            §§                       12/14/2015 2:45:26 PM
                             §§         CAUSE NO. 03-15-00540-CR
                                        CAUSE NO. 03—15—00540-CR
                                                          JEFFREY D. KYLE
V.                           §§         TRIAL COURT NUMBER
                                        TRIAL COURT NUMBER     Clerk
                                                                   72,904
                             §§
THE STATE
THE       OF TEXAS
    STATE OF TEXAS           §§
        Appellee             §§


                              OF APPELLANT
                        BRIEF OF
                        BRIEF    APPELLANT

    Appealed from the 27
    Appealed from     27"‘
                         th
                                                                  Texas
                            Judicial District Court, Bell County, Texas
                             John Gauntt, presiding
                     Hon. John
                     Hon.




                                           COPELAND LAW
                                           COPELAND      LAW FIRM
                                                              FIRM
                                                Box 399
                                           P.O. Box
                                           Cedar Park, Texas
                                           Cedar        Texas 78613
                                                              78613
                                                   512-215-8114
                                           Tel/Fax 512-215-8114

                                                 Copeland
                                           Erika Copeland
                                           Erika
                                                 Bar No. 16075250
                                           State Bar     16075250
                                           Attorney for Appellant




          HEREBY REQUESTS
APPELLANT HEREBY
APPELLANT        REQUESTS ORAL ARGUMENT
                          ORAL ARGUMENT
                               TABLE OF
                               TABLE    CONTENTS
                                     OF CONTENTS
                                                                 Page
                                                                 Page

Table of Contents
Table                                                            i-vii

Index of Authorities
Index                                                            viii-xii

I-1
      .                and Counsel
1. Identity of Parties and Counsel                               1

2. Statement        Case
   Statement of the Case                                         3

   Background
3. Background                                                    3

             Regarding Oral
   Statement Regarding
4. Statement                Argument
                       Oral Argument                             8

5. Issues Presented                                              9

           A.         One
                Issue One
                The trial court erred in admitting evidence
                The
           of prior bad acts acts over defense counsel‘s
                                                    counsel’s
                             Texas Rules of Evidence
           objections under Texas             Evidence 401,
           402, 403 andand 404(b).     Speciﬁcally, counsel
                              404(b). Specifically,
                                               was affiliated
           objected to testimony that Boswell was
           with any criminal street gang.

           B.         Two
                Issue Two
                The trial court abused its discretion by
                The                                        by
           denying Boswell‘s
                    Boswell’s motion for new trial
                                               trial based on
           a Brady             when the prosecution failed to
             Brady violation when
           disclose a witness‘ history of
                       witness’         of reprimands while
           serving as a police officer.

           C.         Three
                Issue Three
                The trial court abused its discretion by
                The                                         by
           denying Boswell‘s
                    Boswell’s motion for new trial
                                                trial based on
           a Brady            when the prosecution failed to
             Brady violation when
                      impeachment and bias evidence
           disclose impeachment
           concerning a State‘s
                            State’s witness that
                                               that included
           evidence of a history of of reprimands while the
           witness served as a police officer.
                                      officer.

B.        Summary of the Arguments
          Summary        Arguments                               11
                                          i
                     TABLE OF
                     TABLE OF CONTENTS,
                              CONTENTS, continued
                                                            Page
                                                            Page

         One-Restated
7. Issue One-Restated                                       11

            The trial court erred in admitting evidence
            The
     of
     of prior bad acts
                   acts over defense counsel‘s
                                     counsel’s objections
            Texas Rules of Evidence
     under Texas             Evidence 401, 402, 403  and
                                                 403 and
     404(b).    Speciﬁcally, counsel objected
     404(b). Specifically,                             to
     testimony that Boswell was was affiliated with any
     criminal street gang.

     (A)
     (A) Statement of Pertinent Evidence                    11

     (B)            Law
     (B) Applicable Law                                     13

            (1) AtAt trial, all relevant evidence is
            admissible unless excepted by         by the
            Constitution, statute or other rules.

            (2) Evidence of other crimes wrongs, or
            acts is not admissible to prove the character
            of a person in order to show
            of                          show conformity
            with the character.

                                  may be excluded if
            (3) Relevant evidence may
            its probative value is substantially
            outweighed byby a danger of unfair
            prejudice.

     (C)             Review
     (C) Standard of Review                                 15

            (1) AA trial
                   trial court‘s
                          court’s ruling is
                                         is reviewed for
                         discretion.
            an abuse of discretion.

            (2) AA trial
                   trial court‘s
                         court’s ruling will be upheld if
                                                       if
            within     the    zone      of    reasonable
            disagreement.
            disagreement.




                                    2
                TABLE OF CONTENTS,
                TABLE OF CONTENTS, continued
                                                        Page
                                                        Page

(D) Argument
(D) Argument                                            15

      (1) Evidence    of     Boswell‘s
                             Boswell’s         gang
                 was not relevant.
      membership was
      membership

                    Gang affiliation
             (a) Gang      afﬁliation evidence had
             no tendency to makemake probable the
                                      consequence.
             existence of any fact of consequence.

                    Gang
             (b) Gang        afﬁliation
                             affiliation   evidence
                            where there is no other
             relevant only where
             reason for the defendant to have acted
                          commit the crime.
             as he did to commit

           Even if
      (2) Even                      Rule 403 the
                 if relevant, under Rule
               was so prejudicial as to outweigh
      evidence was
      any probative value of the evidence.

                                           afﬁliation
             (a) Evidence of gang affiliation
             was a ―distraction‖ to
                   “distraction” to the jury.
                                        jury.

             (b) The        wasnot
                   The jury was  not equipped to
                                          of the
             evaluate the probative force of
             testimony.

(E)
(E)   Harm
      Harm                                              18

            Where error occurs in admitting
      (1) Where
      evidence of gang affiliation,
                           afﬁliation, reversal is
      required unless it
                       it is determined that the
      error did not affect Boswell‘s
                            Boswell’s substantial
      rights.
      rights.

             (a) Substantial rights are not
             affected if,
                       if, after examination of the
             record as a whole, a reviewing court
             has a fair assurance that the error did
                  inﬂuence the jury,
             not influence                 had but a
                                  jury, or had
             slight effect.

                               iii
        TABLE OF CONTENTS,
        TABLE OF CONTENTS, continued
                                               Page
                                               Page

     (b) A  A review here indicates the
     evidence contributed to
                          to Boswell‘s
                              Boswell’s
     guilty verdict.

           (1) TheThe State was
                            was the source
                        when itit introduced
           of the error when
           of
           irrelevant evidence of character
           conformity.

                 The State emphasized
           (2) The
           Boswell‘s
           Boswell’s gang affiliation
                             afﬁliation in
           closing arguments.

           (3) Every witness for the
           State spoke to or about
           Boswell‘s
           Boswell’s gang affiliation.

           (4) The State‘s
                         State’s   “gang
                                   ―gang
           expert‖
           expert” spent a great deal of
           time on Boswell‘s
                    Boswell’s role with a
           criminal street gang.

           (5) In      dramatic    fashion
                                      was
           before the jury, Boswell was
           ordered to partially disrobe to
           show what
           show  what were described as
                          when the same
           gang tattoos when         same
                      was available in
           evidence was
           photographs.
           photographs.

(2) Presentation of       the      offending
          was calculated to prejudice the
evidence was
jury, and as a result, the evidence likely
jury,
affected Boswell‘s
         Boswell’s substantial rights.




                       4
                    TABLE OF
                    TABLE OF CONTENTS,
                             CONTENTS, continued
                                                            Page
                                                            Page

         Two-Restated
7. Issue Two-Restated                                       20

           The trial court abused its discretion by
           The                                        by
      denying Boswell‘s motion for new trial
               Boswell’s                  trial based on
      a Brady  Violation when
        Brady violation   when the prosecution failed to
      disclose a witness‘
                  witness’ history of reprimands while
      serving as a police officer.

8. Issue Three-Restated                                     21

           The trial court abused its discretion by
           The                                         by
      denying Boswell‘s motion for new trial
               Boswell’s                   trial based on
      a Brady            when the prosecution failed to
        Brady violation when
                 impeachment and bias evidence
      disclose impeachment
      concerning a State‘s
                       State’s witness that
                                          that included
      evidence of a history of reprimands while the
      witness served as a police officer.
                                 ofﬁcer.

     (A)
     (A) Statement of Pertinent Evidence

     (B)             Review —
                  of Review
     (B) Standard of          New Trial
                            – New

            (1) AA reviewing court reviews a trial
            court‘s
            court’s ruling on a motion for new trial for
                         discretion.
            an abuse of discretion.
            (2) Trial Court would would not abuse its
            discretion in granting new new trial if the
            defendant articulated a valid claim,
            produced evidence supporting the claim,
                  showed prejudice to his substantial
            and showed
            rights.

     (C)            Law —– Brady
     (C) Applicable Law    Brady Violation

                 Due process requires prosecutorial
            (1) Due
                       of information material to guilt
            disclosure of
            or innocence that is favorable to the
            defendant.


                                    5
               TABLE OF CONTENTS,
               TABLE OF CONTENTS, continued
                                                     Page
                                                     Page

      (2) AA Brady                     when the
             Brady violation occurs when
      State suppresses, even inadvertently,
      evidence favorable to the defendant.

           The State has a duty to reveal Brady
      (3) The                             Brady
      material to the defense whether or not the
                            information.
      defense requested the information.

(D) Argument
(D) Argument

      (1) In Boswell‘s
              Boswell’s post-conviction hearing,
      the authenticity of the records containing
      impeachment/bias          evidence    was
                                            was
      acknowledged and the records were not
      furnished to the defense.

                 The documents indicated a
           (a) The
           basis for bias on the witness‘    part
                                    witness’ part
                                            when
           because his testimony at trial, when
                                           would
           added to his curriculum vitae, would
           promote his efforts to land a job with
               enforcement.
           law enforcement.

           The failure to disclose the records was
      (2) The                                  was
      ―material‖ (i.e.,
      “material”   (i.e., prejudicial to Boswell)
      when
      when viewed in light of other evidence
      presented at trial.

           (a) The only evidence of  of Boswell‘s
                                        Boswell’s
           involvement in the robbery presented
                    came from
           at trial came  from accomplices whowho
                 had a motive to testify favorable
           each had
           for the State.

                 The undisclosed records would
           (b) The                       would
           have undermined the testimony of the
           one witness who who bolstered the
           testimony of that of  of the various
                                        Various
                      witnesses.
           accomplice witnesses.

                             6
                     TABLE OF CONTENTS,
                     TABLE OF CONTENTS, continued
                                                             Page
                                                             Page

                  (c) TheThe undisclosed records would
                                                 would
                        undermined the testimony of a
                  have undermined
                           who gave information to the
                  witness who
                                         from the other
                  jury different in kind from
                  State‘s
                  State’s witnesses.
                          Witnesses.

                        (1) Here,       the  witness‘
                                             witness’
                        credibility could not be
                        attacked except through the
                        offending evidence.

                              The witness was
                        (2) The           was the sole
                                  much of the evidence
                               of much
                        source of
                        about Boswell‘s
                              Boswell’s gang activity.
                                             activity.

 9.   Prayer                                                 33

10.   Certificate of                           With Rule 9
                  of Service and of Compliance With          34




                                   7
                        INDEX OF AUTHORITIES
                        INDEX OF AUTHORITIES
Authorities                                                     Page
                                                                Page
                                    Supreme Court
                      United States Supreme Court cases

Brady v. Maryland
Brady    Maryland                                               9,20
      373 U.S. 83, 83 S. Ct. at 1194,
      373                                   ED. 2d
                                      10 L. ED.
                                1194, 10        2d 215 (1963)

Davis v. Alaska
Davis v. Alaska                                                 27
                              1105, 39 L.Ed.2d 347 (1974)
      415 U.S. 308, 94 S. Ct. 1105,

          US.
Giglio v. U.S.                                                  23,27
               150,92
      405 U.S. 150,                           104 (1972)
                                   31 L.Ed.2d 104
                    92 S. Ct. 763, 31


Kyles v. Whitley
      v. Whitley                                                22,29
           U.S.419,115
      514 U.S.                  1555, 131
                419, 115 S. Ct. 1555,             490(1995)
                                      131 L.Ed.2d 490 (1995)

Napue
Napue v. Illinois                                               28
          US. 264, 79 S. Ct. 1173,
     360 U.S.                                1217 (1959)
                             1173, 3 L.Ed.2d 1217

United States v.
United        v. Bagley                                         28,29
                                                 481 (1985)
                     105 S. Ct. 3375, 87 L.Ed.2d 481
       473 U.S. 667, 105

                                   Court of Appeals
                     United States Court    Appeals cases

Johnson v. Mills
Johnson v.                                                      30
     592 F.3d 730 (2010)

                  Texas Court of Criminal
                  Texas Court             Appeals cases
                                 Criminal Appeals

Authorities

Gigliobianco v. State                                           14,17,
          S.W.3d 637 (Tex. Crim. App. 2006)
      210 S.W.3d

Hammer v. State
Hammer v.                                                       14
          S.W.3d 555 (Tex. Crim. App. 2009)
      296 S.W.3d


                                    8
                      INDEX OF AUTHORITIES,
                      INDEX OF AUTHORITIES, continued
              Texas Court of Criminal
              Texas Court             Appeals cases, continued
                             Criminal Appeals

Authorities                                                        Page
                                                                   Page

Harm
Harm v. State                                                      24
             S.W.3d 403 (Tex. Crim. App.
         183 S.W.3d
         183                        App. 2006)

Herndon
Herndon v. State                                                   23,26,
         S.W.3d 901
     215 S.W.3d                  App. 2007)
                 901 (Tex. Crim. App.

Johnson v. State
Johnson v.                                                         18
     967 S.W.2d  410 (Tex. Crim. App.
          S.W.2d 410             App. 1998)
                                      1998)

King
King v. State                                                      17
      953 S.W. 2d 266 (Tex. Crim. App. 1997)
      953                              1997)

Little   v. State
         v.                                                        25
                                                                   25
         991   S.W.2d 864 (Tex. Crim. App. 1999)
          991 S.W.2d                       1999)

Martin
Martin v. State                                                    13,14
                            Crim. App. 2005)
      173 S.W. 3d 463 (Tex. Crim.
     173

Motilla v.
        v. State                                                   18
            S.W.3d 352 (Tex. Crim.
         78 S.W.3d           Crim. App. 2002)

Macias v. State
Macias v.                                                          16
     959 S.W.2d             App. —
           S.W.2d 332 (Tex. App.   Houston [14
                                 – Houston     th
                                           [14”‘         1997)
                                                  Dist.] 1997)

Pena
Pena v. State                                                      24
           S.W.3d 797 (Tex. Crim. App.
      353 S.W.3d
     353                          App. 2011)

Solomon
Solomon v. State                                                   18
                               App. 2001)
                         Crim. App.
     49 S.W.3d 356 (Tex. Crim.

         Fury
State v. Fury                                                      25
             S.W.3d 67 (Tex. App. —
         86 S.W.3d                  Houston [1
                                  – Houston      st
                                               [1S‘Dist.]
                                                    Dist.] 2005,
         pet. ref’d)
         per.
                                            ix
                                      vm-no
                                      viii
                     INDEX OF AUTHORITIES,
                     INDEX OF AUTHORITIES, continued
            Texas Court of Criminal
            Texas Court             Appeals cases, continued
                           Criminal Appeals

Authorities                                                            Page
                                                                       Page

         Thomas
State v. Thomas                                                        25
          S.W.3d 99 (Tex. Crim.
      428 S.W.3d                App. 2014)
                          Crim. App.

Vasquez v. State
Vasquez                                                                16
        S.W.3d 229
     67 S.W.3d   229 (Tex. Crim.
                           Crim. App. 2002)

Westbrook v. State
Westbrook                                                              32
        S.W.3d 103
     29 S.W.3d                   App. 2000)
                 103 (Tex. Crim. App.

                           Texas Court of Appeals
                           Texas Court    Appeals cases

Brumﬁeld
Brumfield v. State                                                     15
      18 S.W.3d
      18        921 (Tex. App. —
         S.W.3d 921              Beaumont 2000,
                               – Beaumont       pet. ref’d)
                                          2000,pet.

In
In the Matter ofC.F.C.
       Matter of C.F.C.                                                31
       1999 WL675440 (Tex. App. —
      1999  WL675440               – San Antonio, August
                                                  August 31,
       1999 (not designated
      1999       designatedforpublication»
                            for publication))

Grant v. State                                                         13
            WL 50254777, at *5
      2015 WL
      2015                   *5
            App. —– Houston
      (Tex. App.    Houston [14 th
                            [14‘h                        pet. ref’d)
                                   Dist.] Aug. 25, 2015, pet. ref’d)


Montgomery v. State
Montgomery v.
      821 S.W.3d
      821        14 (Tex. App. —Dallas
          S.W.3d 14            – Dallas 1991)
                                        1991)                          14

Newton v. State
Newton v.                                                              14
          S.W.3d 315 (Tex. App. —
     301 S.W.3d
     301                          Waco 2009,
                                – Waco       pet. ref’d)
                                       2009,pet.

      v. State
Ojeda v.                                                         16
      2004 WL2137653
     2004                      App.—E1 Paso, September 24, 2004,
            WL2137653 (Tex. App.—El
     (not designated for publication, pet. ref’d
                         publication, pet. ref’d 2005)
                     INDEX OF AUTHORITIES,
                     INDEX OF AUTHORITIES, continued
                   Texas Court of Appeals
                   Texas Court    Appeals cases, continued

Authorities                                                           Page
                                                                      Page

Tibbs v. State
Tibbs                                                                 15
       125 S.W.3d
      125                  App. —
           S.W.3d 84 (Tex. App. – Houston
                                  Houston [14 th
                                          [14”‘  Dist.] 2003,
      pet. ref’d)
      pet. ref ’d)

                                  Statutes

TEX. R. APP.
TEX.         PROC. 44(2)(b)
        APP. PROC.                                                    17

TEX. R. APP.
TEX.    APP. P. 21.3, (h)                                            22,23

TEX. PENAL
TEX.       CODE §19.03(a)(2), (b)(1)(West 2014)
     PENAL CODE                                                     3,31,32

     CODE CRIM.
TEX. CODE
TEX.            PROC. art. 37.071(1)(West 2014)
          CRIM. PROC.                                                 3, 9

TEX. R. EVID.
TEX.    EVID. 401,402,403,404(b)                                     9,1,13


                         Periodicals/Legal Journals

Stephen S. Troft                                                      29
                                                                      29

      Words of
      Words    Warningfor
            of Warning                  Using
                        for Prosecutors Using
                   Witnesses, 47 Hastings, I.J.
      Criminals as Witnesses,              1.]. 1391, 1395 (1966)
                                                1391, 1395




                                     xi
                                     xxi
                        THE THIRD
                     IN THE
                     IN           COURT OF
                            THIRD COURT  OF APPEALS
                                            APPEALS
                            AT AUSTIN,
                            AT         TEXAS
                               AUSTIN, TEXAS

LARRY DONNELL
LARRY DONNELL BOSWELL,
                 BOSWELL, JR.§
        Appellant            §§
                             §§                  CAUSE NO.
                                                 CAUSE NO. 03-15-00540-CR
                                                           03-15-00540-CR
V.                           §§                  TRIAL         NUMBER 72,904
                                                       COURT NUMBER
                                                 TRIAL COURT
                             §§
THE STATE
THE       OF TEXAS
    STATE OF TEXAS           §§
        Appellee             §§


                                     OF APPELLANT
                               BRIEF OF
                               BRIEF    APPELLANT

TO THE
TO     HONORABLE COURT
   THE HONORABLE COURT OF
                       OF APPEALS:
                          APPEALS:
                              OF PARTIES
                     IDENTITY OF
                  1. IDENTITY            AND COUNSEL
                                 PARTIES AND COUNSEL
      COMES NOW,
      COMES NOW, Larry Donnell Boswell, Jr., appellant, who
                                                        who would show the
                                                            would show

                                            follows:
Court that interested parties herein are as follows:

      LARRY DONNELL
      LARRY DONNELL BOSWELL,
                    BOSWELL, JR., appellant, TDCJ
                                             TDCJ No. 02011634,
                   FM 2054, Tennessee Colony, Texas 75886.
              2664 FM
Michael Unit, 2664

      ROBERT D. HARRIS,
      ROBERT                    ZACHARY BOYD,
                HARRIS, III and ZACHARY BOYD, trial attorneys for
           404 N. Main
appellant, 404                                             Box 870, Copperas Cove,
                  Main St., Belton, Texas, 76513, and P.O. Box

Texas, 76522, respectively..
              respectively..

      ERIKA
      ERIKA       COPELAND,
                  COPELAND,          appellate     attorney   for   appellant,   PO.
                                                                                 P.O.

Box 399, Cedar Park, Texas 78613.
Box


Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                 11
      WILLIAM NELSON
      WILLIAM NELSON BARNES     BOB ODOM,
                     BARNES and BOB ODOM, Bell County Assistant
District Attorneys, trial and appellate attorneys, respectively, for appellee, the State

               Box 540, Belton, Texas 76513.
of Texas, P.O. Box
of




Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                     2
                        THE THIRD
                     IN THE
                     IN           COURT OF
                            THIRD COURT  OF APPEALS
                                            APPEALS
                            AT AUSTIN,
                            AT         TEXAS
                               AUSTIN, TEXAS

LARRY DONNELL
LARRY DONNELL BOSWELL,
                 BOSWELL, JR.§
        Appellant            §§
                             §§                CAUSE NO.
                                               CAUSE NO. 03-15-00540-CR
                                                         03-15-00540-CR
V.                           §§                TRIAL         NUMBER 72,904
                                                     COURT NUMBER
                                               TRIAL COURT
                             §§
THE STATE
THE       OF TEXAS
    STATE OF TEXAS           §§
        Appellee             §§

                            STATEMENT OF
                         2. STATEMENT    THE CASE
                                      OF THE CASE
      On June 11,
      On      11, 2015, a jury convicted Larry Donnell Boswell, Jr. of the capital


                                            TEX. PENAL
offense of murder. (R.R. 7, p. 74) and, see TEX.       CODE §19.03(a) (2)
                                                 PENAL CODE
(West 2014) (C.R. 1,         As the State had
                  l, p. 77). As           had not sought the death penalty, the trial

court sentenced Mr. Boswell to
                            to life
                               life in
                                    in the Texas Department of Criminal Justice‘s
                                                                        Justice’s


                                                                                   TEX.
Institutional Division without the possibility of parole. (R.R. 7, p. 75), and see TEX.

CODE CRIM.
CODE       PROC. art. 37.071(1) (West 2014). Boswell gave timely notice of
     CRIM. PROC.
appeal, and the trial court certified                    (CR. 1,
                            certiﬁed his right to do so. (C.R. 1, pp. 81, 130).
                                                                          130).


                                    BACKGROUND
                                 3. BACKGROUND

      Paul Sterling testified that he was                        Waco for a meeting
                                                            from Waco
                                      was called to Killeen from

with other members of
                   of the Gangster Disciples (hereafter ―G.D.‘s).
                                                        “G.D.’s). Once there,
                                                                       there, he


met      home used by
met in a home      by the gang as a clubhouse, and there, he testified,   was asked
                                                             testiﬁed, he was

to
to go ―hit
      “hit a lick‖
             lick” by
                   by the G.D.‘s “Governor”, Larry Boswell, Jr.
                          G.D.’s ―Governor‖,                        “Word.” (R.R.
                                                            Jr. aka ―Word.‖




Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                   3
5, p. 68). Sterling said that he understood ―hit
                                            “hit a lick‖    mean rob someone. Sterling
                                                   lick” to mean


                                                                               “Slim”
                                                                        “Red”, ―Slim‖
testified that he refused to undertake the task, but Ricky Brandon, aka ―Red‖,

                                                               “DC.” (Danny
                          “Horsehead” (Kevin Lee Stafford) and ―D.C.‖
(Stephen Mitchell Lewis), ―Horsehead‖

                                         home armed
Carruth) agreed to the task and left the home armed with a pistol and a rifle   Red’s
                                                                        riﬂe in Red‘s

                (RR. 5, pp. 69-70). Sterling said that the four were
white Suburban. (R.R.                                           were gone thirty to

                                            Red had been shot during the robbery.
forty minutes and returned to announce that Red

                                    when Red
According to the returning robbers, when Red had emerged
                                                 emerged unexpectedly from a

back bedroom of the house being robbed, Slim had
back bedroom                                 had panicked and accidentally shot

                                                        Red at the scene. By
                           announced that they had left Red
Red. (R.R. 5, p. 73). Slim announced                                      By the
                         member of the gang
time Boswell and another member        gang returned to retrieve Red, Sterling said,

the police had                                               Red’s body. (R.R. 5,
           had already arrived so they returned home without Red‘s             5,


pp.
pp. 74-75).

                       was targeted by
       Jamie Arrington was          by the would-be robbers}1 Arrington testified
                                           would-be robbers.

                                            was kicked in, and he, his girlfriend and
that sometime after midnight his front door was

                               gun point by
two daughters were accosted at gun
two                                      by four armed      He testified that they
                                                 armed men. He

bound him and his family with duct tape and eventually put them
bound him                                                  them in a bathtub while

          was searched for cash. (R.R. 5, pp. 27-29).
the house was                                                          The robbers threatened
                                                                       The



1
‘
 The prosecution suggested in argument that Arrington was
 The                                                     was targeted because he was    known to
                                                                                  was known
            home ill-gotten gain that he earned through illegal enterprise. (R.R. 7, p. 70).
keep in his home

Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                                 4
                                   them to disclose where
                  ﬁancee to induce them
Arrington and his fiancee                           where Arrington had hidden his

                                      testiﬁed that he heard a gunshot as he and
money. (R.R. 5, pp. 32-33). Arrington testified

                                                       were leaving, they warned
his family lay in the bathtub, and that as the robbers were                      him
                                                                          warned him

                         managed to get loose from
not to follow. Arrington managed              from his bindings, and he ran outside

   ﬁnd that three of the robbers had fled;
to find                                                                        home
                                               had drug the fourth outside his home
                                     ﬂed; they had

                                 from an apparent gunshot wound.
where he lay dead near his porch from
where                                                            (RR. 5, pp. 34-
                                                          wound. (R.R.

37).

       Terry Kaiser, a homicide detective with the Killeen Police Department,

                                                            man dead from a single
testified that on his arrival at the crime scene he found a man

        wound to the chest. (R.R. 5, pp. 102-106).
gunshot wound                            102-106)?2 Kaiser opined that the physical

evidence indicated to him          man had
                      him that the man had actually been
                                                    been shot in the house and his

body dragged to its last position near Arrington‘s
body                                   Arrington’s front porch. (R.R. 5,    130). No
                                                                         p. 130).
                                                                      5, p.


          by the robbers were ever recovered.
guns used by

       Daniel Carruth,    “D.C.”, testified
              Canuth, aka ―D.C.‖, testiﬁed that
                                            that Boswell (or “Word”) had become
                                                         (or ―Word‖)

the G.D.‘s “Governor” or leader when Boswell took over that
    G.D.’s ―Governor‖                                  that role after
                                                                 after the G.D.‘s
                                                                           G.D.’s

              was removed. (R.R. 5, p. 140).
former leader was                            On the night of
                                       140). On           of the 16 th
                                                                 16”‘, , Carruth

                              him and three other gang
testified, Boswell instructed him                      members to go
                                                  gang members                   He
                                                                  go hit a lick. He



2Ricky
2
 Ricky Brandon                                     man through fingerprint
                  was later identified as the dead man
        Brandon was                                            ﬁngerprint comparisons against a
                         known criminals.
fingerprint data base of known

Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                                5
             was ordered by
said that he was                                                          members
                                                                     gang members
                         by Boswell to act as look-out for the other gang

when
when they stormed into Arrington‘s        He said that after they entered the house,
                       Arrington’s house. He

    home’s occupants were accosted, tied with duct tape and put in the bath tub as
the home‘s

the house was searched for Arrington‘s
                           Arrington’s cash. (R.R. 5, p. 146).
                                                   5, p. 146). Carruth said that
                                                                            that


                                                             When he went
during the robbery he heard a gunshot from the back bedroom. When    went to

                saw that Slim had
investigate, he saw           had accidentally shot Red when the latter came
                                                    Red when            came

unexpectedly from a back bedroom. (R.R. 5, p. 147).         testiﬁed that he tried
                                              147). Carruth testified

to
to help Slim carry Red from the home back to
                                          to Red‘s SUV, but eventually they left
                                             Red’s SUV,                     left


                              when Red
his body near the front porch when Red proved too heavy for the two men to carry
                                                                two men

                                                                                Word
                                  148-149). After disclosure of the shooting to Word
to the get-away car. (R.R. 5, pp. 148-149).

on their
   their return to     gang’s clubhouse, Carruth said that
                to the gang‘s                         that Boswell and another gang


member, Beau, returned to
                       to the shooting to          Red’s body, but by
                                       to retrieve Red‘s                       was
                                                                   by then, it was

          The police were already on the scene. (R.R. 5, pp. 150-151).
too late. The                                                150-151).

           Bowman, a former police officer and expert on
      John Bowman,                                    on gangs in general and
                                                                          andthe
                                                                              the

                                                when Brandon
                                  testiﬁed that when
Gangster Disciples in particular, testified                  was identified
                                                     Brandon was identiﬁed his

                                                  who was
girlfriend eventually led police to Paul Sterling who was brought in for questioning.
                                                                         questioning.

Bowman said that he questioned Sterling who, after initially denying any knowledge
Bowman                                                                   knowledge

                                                knew about the night Red
of the crime, eventually told the police all he knew
of                                                                   Red was
                                                                         was shot,

          who was
including who was involved in the planning and execution of the botched robbery.

Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                 6
                                 Bowman also gave detailed testimony about the
                 Over objection, Bowman
(R.R. 6, p. 48). Over

G.D.‘s,
G.D.’s, their
        their origin,
              origin, evolution and history
                                    history as a violent street
                                                         street gang, their
                                                                      their corporate


                                             inﬂuence in the state. (R.R. 6, pp. 35, et.
structure and the nature and extent of their influence                               et.



seq.).
seq.).   Bowman identified
         Bowman identiﬁed Boswell as
                                  as the gang‘s           “Governor” since the
                                         gang’s leader or ―Governor‖

spring of 2012, and he described Boswell‘s
                                 Boswell’s ascent to his leadership role in the gang.

                   The trial court had
             58)}3 The
(R.R. 6, pp. 58).                              remove his shirt for the jury,
                                   had Boswell remove                   jury, and

Bowman presented a detailed explanation for the various tattoos covering Boswell‘s
Bowman                                                                   Boswell’s

      body and arms which
upper body                Bowman said had detailed meanings to other gang
                    which Bowman

                  pp.54-57 and see State‘s
members. (R.R. 6, pp.54-57
members.                                                    He concluded his
                                   State’s Exhibits 41-45). He


testimony by
          by discussing the level of cooperation he had received in his investigation

from       members of
from other members of the G. D.‘s.
                             D.’s.




3 Bowman’s testimony was admitted over objection, and itit became one of
  Bowman‘s                                                                        of the subjects of
                                                                                                   of
Boswell‘s motion for new trial
B0swell’s                    trial as well as the subject of
                                                          of issues to
                                                                    to follow in
                                                                              in this
                                                                                 this brief.
                                                                                      brief. Evidence
                                                more detail below.
pertinent to those issues will be discussed in more


Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                                 7
               STATEMENT REGARDING
            4. STATEMENT REGARDING ORAL ARGUMENT
                                   ORAL ARGUMENT
                                                    would aid the Court in reaching
      Appellant Counsel believes that oral argument would

its decision and, therefore Counsel requests such argument.




Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                8
                                             PRESENTED
                                      ISSUES PRESENTED
                                   5. ISSUES

      ONE
ISSUE ONE
ISSUE

          The trial court erred in admitting evidence of prior bad acts over defense
          The

counsel‘s                  Texas Rules of Evidence
counsel’s objections under Texas                                 and 404(b).
                                          Evidence 401, 402, 403 and

                                                        was affiliated with any
Speciﬁcally, counsel objected to testimony that Boswell was
Specifically,

                                                                                14-
criminal street gang and to any evidence related to any such gang. (R.R. 5, pp. 14-

15).
15).


      TWO
ISSUE TWO
ISSUE

          The trial court abused its discretion by
          The                                   by denying Boswell‘s            new trial
                                                           Boswell’s motion for new

      on a Brudy4
based on                    when the prosecution failed to disclose a witness‘
           Brady4 violation when                                      witness’ history

of reprimands while serving as a police officer.
of                                      ofﬁcer.

      THREE
ISSUE THREE
ISSUE

          The trial court abused its discretion by
          The                                   by denying Boswell‘s            new trial
                                                           Boswell’s motion for new

      on a Brady
based on                   when the prosecution failed to disclose impeachment
           Brady violation when                                    impeachment and

bias evidence concerning a State‘s
                           State’s witness that included evidence of a history of


                                                ofﬁcer.
reprimands while the witness served as a police officer.




"4
     Brady
     Brady v. Maryland, 83 S. Ct. 1194,
                                  1194, 10                                           ―Brady.‖
                                                                           hereafter“Brady.”
                                        10 L.Ed.2d 215, 373 U.S. 83 (1963) hereafter

Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                              9
                      SUMMARY OF
                      SUMMARY        ARGUMENTS
                                 THE ARGUMENTS
                              OF THE
      The trial court erred in
      The                   in admitting evidence of Boswell‘s
                                                     Boswell’s gang affiliation
                                                                    affiliation as
                                                                                as


                                     The evidence was
              gang related evidence. The
well as other gang                                was irrelevant and offered only

proof of Boswell‘s
proof of                                                                          The
         Boswell’s character and that he acted in conformity with that character. The

         was irrelevant because it
evidence was                                          make probable the existence
                                it had no tendency to make



of any fact of consequence.
of             consequence. There were other reasons beside gang-affiliation for

                                   commit the charged crime. Moreover, even if
Boswell to have acted as he did to commit                                   if


relevant, the probative value of the offending evidence, if      was substantially
                                                         if any, was


           by the danger of unfair prejudice as the jury was
outweighed by                                                    shown to have been
                                                         was not shown

equipped necessarily to evaluate the probative force of all the gang related

           As a result, there was
testimony. As                 was a clear disparity between its probative value and

the danger of unfair prejudice.

      Boswell‘s
      Boswell’s motion for new trial
                               trial was predicated in
                                                    in part on Brady
                                                               Brady violations.

The State, however
The                                                                             “gang
           however inadvertently, failed to provide disciplinary records of its ―gang

expert‖,                 ofﬁcer, who
expert”, a former police officer, who testified extensively about street gangs, their

origins and evolution, and particularly
                           particularly Boswell‘s
                                        Boswell’s affiliation
                                                  affiliation and standing within a


                                          would have provided evidence of the
               Those disciplinary records would
specific gang. Those

witness‘
witness’ bias because his record of participation in other trials as an expert on gangs

                          was reflected
    gang related subjects was
and gang                                                       which he used to
                              reﬂected in his curriculum vitae which


Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                  l0
                                                                                    10
promote
promote his efforts to secure another job with law enforcement. The records also
                                                   enforcement. The

        impeachment evidence because they detailed misstatements of
offered impeachment                                              of fact he had

made to his superiors and thus undermined
made                                                                 The evidence
                               undermined his veracity as a witness. The

was                                           was different in kind from
was material to Boswell because his testimony was                   from other

                 was no
witnesses, there was                     impeachment evidence, and his testimony
                     no other source for impeachment

bolstered that
          that of
               of the State‘s
                      State’s accomplice witnesses.


                                    ONE RESTATED
                              ISSUE ONE
                           7. ISSUE     RESTATED
      The trial court erred in admitting evidence of prior bad acts over defense
      The

counsel‘s                  Texas Rules of Evidence
counsel’s objections under Texas                                 and 404(b).
                                          Evidence 401, 402, 403 and

                                                        was affiliated with any
Speciﬁcally, counsel objected to testimony that Boswell was
Specifically,

                                   14-15).
criminal street gang. (R.R. 5, pp. 14-15).

STATEMENT OF
STATEMENT              EVIDENCE
             PERTINENT EVIDENCE
          OF PERTINENT
                                                            was affiliated
      Defense counsel objected to any evidence that Boswell was afﬁliated with any

street
street gang, as
             as well as to                          “gang” or ―gang
                        to the use of such terms as ―gang‖          member” in
                                                              “gang member‖

                                                      was not relevant and noted
describing him. Counsel complained that such evidence was

that
that Boswell‘s
     Boswell’s indictment before the jury
                                     jury did not allege organized criminal activity.
                                                                            activity.


As a result, any alleged gang appellation, affiliation
As                                                                was irrelevant.
                                           afﬁliation or activity was

                                                          would be overwhelmingly
Moreover, counsel argued that any evidence of that nature would

prejudicial to
prejudicial to Boswell‘s
               Boswell’s case and   would certainly
                                          certainly outweigh any probative     value

Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                11
                                                                                  l 1
        by the offending testimony. (R.R. 5, pp. 14-16).
offered by                                               The State countered that
                                                 14-16). The

Boswell‘s                  was admissible ―to
Boswell’s gang affiliation was                show motive, opportunity, intent, plan,
                                          “to show


preparation, knowledge, identity, absence of mistake or accident, or other

enumerated causes.‖
           causes.” In fact,
                       fact, the State urged, Boswell‘s
                                              Boswell’s gang affiliation
                                                             affiliation was ―part
                                                                             “part


of
of what made him a party
                   party to
                         to this
                            this offense…‖,
                                 offense...’, and further,
                                                5
                                                  further, that
                                                           that Boswell‘s
                                                                Boswell’s gang

affiliation
afﬁliation was how one of the State‘s           “knows the defendant so identity
                              State’s witnesses ―knows                  identity


comes into play as well.‖
                   well.” (R.R. 5, p. 16).
                                5, p. 16).


      The trial
          trial court denied Boswell‘s
                             Boswell’s motion to exclude evidence of Boswell‘s
                                                                     Boswell’s

gang affiliation.
gang                         18). As
     afﬁliation. (R.R. 5, p. 18). As a result, the jury heard extensive testimony in

                          of the trial as detailed above; including testimony as noted
the guilt/innocence phase of

that Boswell was            member of
             was not only a member of the Gangster Disciples, but that he was, in

fact,
fact, its           “Governor” and the one who had ordered the robbery the subject
      its leader or ―Governor‖


                                                           RR. 5, pp. 63, 68, 79-80;
of this offense. See, e.g., testimony of: Paul Sterling at R.R.
of

                  RR. 5, pp. 140-144,
Daniel Carruth at R.R.       140-144, 157. The evidence also included, again as
                                      157. The

                                                         remove his shirt before the
           of an order from the trial court that Boswell remove
the result of

jury, a description
jury,                 and explanation by
                                      by the State‘s
                                             State’s gang ―expert‖,
                                                          “expert”, John Bowman, of
                                                                                 of

Boswell‘s
Boswell’s various tattoos.
                  tattoos. (R.R. 6, pp. 26 et.
                                 6, pp.                   speciﬁcally, at pp. 41, 54,
                                           et. seq., and, specifically,



and 58,
    58, as well as State‘s
                   State’s Exhibits 41-45 (photos of
                                                  of Boswell‘s
                                                     Boswell’s tattoos).




Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                 12
                                                                                   12
           LAW
APPLICABLE LAW
APPLICABLE

                                                                               by the
       At trial, all relevant evidence is admissible unless otherwise excepted by

                                       TEX. R. EVID.
Constitution, statute, or other rules. TEX.    EVID. 402. ―Relevant
                                                          “Relevant evidence‖
                                                                    evidence” is
                                                                              is


deﬁned as evidence having ―any
defined                   “any tendency to
                                        to make the existence of any fact
                                                                     fact that
                                                                          that is


of consequence to the determination of
of                                                more probable or less probable
                                    of the action more

than it
     it would be without the evidence.‖ TEX. R. EVID.
                             evidence.” TEX.    EVID. 401.

       Evidence of other crimes, wrongs, or acts is not admissible to prove the

                                  show action in conformity with the character.
character of a person in order to show                                          TEX.
                                                                     character. TEX.


   EVID. 404(b). However, such evidence may
R. EVID.                                may be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident. Martin
                                   Martin v.        173 S.W. 3d
                                          v. State, 173              466 (Tex.
                                                             3d 463, 466

      App. 2005) (citing Rule
Crim. App.                                                  may introduce
                         Rule 404(b)). Accordingly, a party may

extraneous offense evidence if
                            if (apart from character conformity) it
                                                                 it logically serves



   make more
to make more or less probable an elemental fact, an evidentiary fact that inferentially

leads to an elemental fact, or defensive evidence that undermines an elemental fact.

Id.
Ia’.



                         may be excluded if
       Relevant evidence may             if its probative value is substantially


                                                                 TEX R. EVID.
                           among other things, unfair prejudice. TEX
           by a danger of, among
outweighed by                                                           EVID.

              Grant v. State, No. 14-13-01077-CR
403; and see, Grant                              WL 50254777, at *5
                                  14-13-01077-CR WL              *5 (Tex. App.
                                                                          App.


Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                  l3
                                                                                    13
—– Houston
   Houston [14 th
           [14"‘         Aug. 25, 2015, no
                  Dist.] Aug.           no pet.
                                           pet. h.). In its seminal decision in

Montgomery                                         identiﬁed four non-exclusive
Montgomery v. State, the Court of Criminal Appeals identified

factors to be considered in determining whether evidence should be excluded under

Rule 403. Those factors were:
Rule                    were: (1) the probative value of the evidence; (2) the

potential to impress the jury in   some irrational, yet indelible, way; (3) the time
                                   some

needed to develop the evidence; and, (4) the proponent‘s                        The
                                             proponent’s need for the evidence. The

                                                      Waco reviewed the
Court of Criminal Appeals and the Court of Appeals at Waco

Montgomery
Montgomery decision in Gigliobianco v.        210 S.W.3d
                                    v. State, 210             641-42 (Tex.
                                                  S.W.3d 637, 641-42

Crim. App. 2006)(footnotes citations omitted) and Newton               S.W.3d 315,
                                                                   301 S.W.3d
                                                  Newton v. State, 301

             App. —
322-23 (Tex. App.
322-23              Waco 2009, pet.
                  – Waco       pet. ref’d)(footnote citations omitted). In

Gigliobianco, the Court restated the pertinent factors as follows:
                                                          follows:

      [A]              when undertaking Rule
      [A] trial court, when               Rule 403 analysis, must
                                                               must balance (1) the
                                                      of evidence along with (2) the
      inherent probative force of the proffered item of
      proponent‘s need for that
      proponent’s            that evidence against (3)
                                                   (3) any tendency of the evidence
      to suggest decision on an improper basis, (4) any tendency ofof the evidence to
                                              main issues, (5) any tendency of the
      confuse or distract the jury from the main
      evidence to be given undue
                             undue weight byby a jury that has not been equipped to
      evaluate the probative force of the evidence, and (6) the likelihood that
                                         consume an inordinate amount
      presentation of the evidence will consume                   amount ofof time or
      merely repeat evidence already admitted. Of Of course, these factors may
                                                                            may well
      blend together in practice.
                        practice.
                                       --Gigliobianco at 641-42.




Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                14
                                                                                  14
      Rule 403, the Court of Criminal Appeals wrote in Newton,
      Rule                                                       Newton, ―envisions
                                                                           “envisions
                                  when there is a ‗clear disparity between
      exclusion of evidence only when              ‘clear          between the degree
                                                                      ”
      of
      of prejudice of the offered evidence and its
                                                its probative value.‘
                                                              value.’ ‖


                                       --Newton at 322-23 (quoting Hummer
                                       --Newton                    Hammer v.
                                                                          v.

                                           S.W.3d 555, 568 (Tex. Crim.
                                State, 296 S.W.3d                   Crim. App.
                                2009)).
STANDARD OF
STANDARD    REVIEW
         OF REVIEW
      An appellate court reviews a trial
      An                           trial court‘s
                                         court’s ruling under the Rules of Evidence


for an abuse of discretion. Martin               S.W.3d at 467. If
                                             173 S.W.3d
                            Martin v. State, 173                              was
                                                                If the ruling was


        on any theory of law applicable to the case, in light of what
correct on                                                            was before the
                                                                 what was

trial court at the time the ruling as made, a reviewing court must uphold the

judgment.     A trial
judgment. Id. A trial court‘s
                      court’s ruling on the admissibility of
                                                          of evidence will be upheld

                      was within the zone of reasonable disagreement. Id.
as long as the ruling was

ARGUMENT
ARGUMENT

      Evidence of Boswell‘s gang membership
                  Boswell’s gang            was not relevant. Here, the evidence
                                 membership was

of gang affiliation
of                                    make probable the existence of any fact of
        afﬁliation had no tendency to make                                    of

                                   was introduced simply in an attempt to connect
consequence. Rather, that evidence was

                     show his bad character.
             gang to show
Boswell to a gang                            The State could have presented a clear
                                  character. The


and understandable case explaining that Boswell participated in, or even authored,

the plan to
         to rob Arrington of the latter‘s
                                 latter’s ill-gotten
                                          ill-gotten gains without interjecting


unnecessary information about gangs or Boswell‘s
                                       Boswell’s affiliation
                                                 affiliation with a gang. Had the




Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                l5
                                                                                  15
State presented its case without the evidence of Boswell‘s gang relationship, the jury
                                                 Boswell’s gang

                                                                      of the night
could have undoubtedly followed and understood the sequence of events of

                                                  was not same
of the robbery. Moreover, the offending testimony was
of                                                        same transaction

                                                                   Rule 404(b).
contextual evidence, and thus not admissible as an exception under Rule

Indeed, as Houston‘s
           Houston’s 14
                     14”‘
                        th
                           District Court of Appeals noted, it
                                                            it is only in situations



                                                                            commit
where there is no other reason for the defendant to have acted as he did to commit
where

                                              come in during the guilt-innocence
a crime that gang-affiliation evidence should come

stage of a trial, and that was                        Tibbs v. State, 125
                           was not the case here. See Tibbs               S.W.3d 84
                                                                      125 S.W.3d

      App. —
(Tex. App.   Houston [14
           – Houston     th
                     [l4“‘               pet. ref’d),
                            Dist.] 2003, pet.                             by Justice
                                              ref’cl), concurring opinion by

Anderson, citing Brumﬁeld
Anderson,                                                        App. —
                                        S.W.3d 921, 925-26 (Tex. App.
                                     18 S.W.3d
                 Brumfield v. State, 18                                 Beaumont
                                                                      – Beaumont

      pet. ref’d)
2000, pet.                   supplied). Boswell‘s
           ref ’d) (emphasis supplied). Boswell’s gang affiliation was not part of
                                                       afﬁliation was           of the

                                                      why the murder
                               of the explanation for why
reason for the murder, or part of                             murder occurred as it
                                                                                 it



did.
did. In fact,
        fact, Brandon‘s                               way itit did if
              Brandon’s death could have occurred the way          if a number of
                                                                               of

                                                        commit a robbery. In that
                                  had simply decided to commit
people randomly gathered together had

scenario, Boswell could still be guilty of the offense as an accomplice, and clearly,

whether he and the men      whom he associated for the robbery were members
                   men with whom                                    members of
                                                                            of

              would play no
  gang or not would
a gang                                           See e.g., Macias
                         no role in the offense. See       Macias v. State, 959

S.W.2d           App. —– Houston
S.W.2d 332 (Tex. App.    Houston [14 th
                                 [l4“‘         1997) and cf.
                                        Dist.] 1997)     cf the unpublished opinion

of Ojeda v.
of       v. State, 2004                  App.—El Paso, September 24, 2004, pet.
                        WL2l37653, (Tex. App.—El
                   2004 WL2137653,                                         pet.


Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                 l6
                                                                                   16
ref’d, 2005 (not designated for
ref’d, 2005                 for publication)                           was
                                publication) (gang-membership evidence was

                                    was not used as character conformity evidence)
specifically linked to the case and was

    Vasquez v.
and Vasquez              S.W.3d 229
            v. State, 67 S.W.3d                 App. 2002).
                                229 (Tex. Crim. App.

      Even if
      Even                    Rule 403 the evidence of
           if relevant, under Rule                  of Boswell‘s
                                                       Boswell’s gang affiliation
                                                                      affiliation


was                                             Value of the evidence. None
was so prejudicial as to outweigh any probative value                       of the
                                                                       None of

pertinent factors cited above as dispositive of a      Rule 403 analysis justify
                                                       Rule              justify the

admission of the offending evidence. Rather, the jury’s View during trial
                                                 jury‘s view        trial of
                                                                          of a

          man disrobed at the order of the trial court to expose his tattoos must have
shirtless man

                         on the jury.
had a substantial impact on     jury. Besides the obvious potential tendency to

                               reﬂection on the import of such a display (after all, the
distract the jury from a sober reflection

      had photos of the tattoos it
State had                                     shown the jury) the offending evidence
                                it could have shown



                                                                             was a
suggested a jury decision could rationally be based on the fact that Boswell was

                                                     sufﬁciency of evidence adduced
gangster as his tattoos indicated rather than on the sufficiency

                                           To bolster that improper basis for the
to prove his association with the robbery. To

jury‘s decision, the State presented to
jury’s                               to the jury an expert    whose testimony about

Boswell‘s
Boswell’s gang involvement in general and in
                                          in Killen in            was the
                                                    in particular was


centerpiece of the State‘s
                   State’s case. All of that evidence allowed the jury the opportunity


                                                  when the jury
                                     undue weight when
to give the testimony an inordinate, undue                      was not equipped
                                                           jury was

                                                                        S.W.3d at
                                                                    210 S.W.3d
to evaluate the probative force of the testimony. See Gigliobianco, 210

Cause No.  03-l5-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                   l7
                                                                                     17
641-42. Considering the trial testimony about gangs in general, testimony about

Boswell‘s
Boswell’s relationship to
                       to gang activity
                               activity in
                                        in particular,
                                           particular, as
                                                       as well as the accomplice


                                                                       which resulted
testimony that Boswell, as the leader of the gang, planned the robbery which

   Brandon’s death, there is
in Brandon‘s              is a clear disparity
                                     disparity between the danger of unfair prejudice

                                                                    As a result, the
          from the complained-of testimony and its probative value. As
resulting from

trial
trial court abused its
                   its discretion by
                                  by overruling Boswell‘s Rule 403 objection to
                                                Boswell’s Rule

testimony concerning Boswell‘s
                     Boswell’s alleged gang affiliation.

HARM
HARM

      Where the trial court erred in admitting evidence of Boswell‘s
      Where                                                Boswell’s gang affiliation,

reversal is required, unless after examining the record, it
                                                         it is determined that the error



did not affect
        affect Boswell‘s
               Boswell’s substantial rights. TEX. 4. APP.
                                     rights. TEX.         PROC. 44(2) (b); King
                                                     APP. PROC.            King

v.                 2d 266, 271
v. State, 953 S.W. 2d                      App. 1997).
                           271 (Tex. Crim. App. 1997). Substantial rights are not

         by the erroneous admission of evidence if,
affected by                                     if, after examining the record as a



                                                                     inﬂuence the jury,
whole, a reviewing court has a fair assurance that the error did not influence    jury,

   had but a slight effect. Solomon
or had                      Solomon v.           S.W.3d 356, 365 (Tex. Crim. App.
                                    v. State, 49 S.W.3d



2001). In assessing the likelihood that the jury’s
                                            jury‘s decision was adversely affected by
                                                                                   by

the error, the appellate court should consider everything in the record, including any

testimony or physical evidence admitted for the jury’s
                                                jury‘s consideration, the nature of

                                                                             how the
the evidence supporting the verdict, the character of the alleged error, and how

Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                   18
                                                                                     18
error might be considered in connection with other evidence in the case. See Motilla

             S.W.3d 352, 355 (Tex. Crim. App. 2002); Schutz v.
v. State, 78 S.W.3d                                                      S.W.3d
                                                            v. State, 63 S.W.3d



     444-45 (Tex. Crim. App.
442, 444-45                         The reviewing court should examine
                        App. 2001). The                        examine the entire

                               much as possible, the probable impact of the error upon
trial record and calculate, as much                                               upon

the rest of the evidence. Coble v. State, 330 S.W.3d 253 (Tex. Crim.
                                          330 S.W.3d                 App. 2010);
                                                               Crim. App.

Johnson                      410 (Tex. Crim. App. 1998).
                      S.W.2d 410
Johnson v. State, 967 S.W.2d                      1998).

      A review of the evidence here indicates the admission of Boswell‘s
      A                                                        Boswell’s gang

                                                           because:
afﬁliation contributed to his guilty verdict. That follows because:
affiliation

                 The State was
             (1) The                                   when it
                           was the source of the error when it introduced irrelevant



         of character conformity;
evidence of

             (2) The State
                     State emphasized Boswell‘s
                                      Boswe1l’s gang affiliation
                                                     afﬁliation in its closing

arguments at nearly every opportunity. See, e.g.,
                                            e. g., R.R. 7, pp. 33, 35, 36, 41, 44, 47,



48, 50 and 68;

                 The State elicited evidence from
             (3) The                         from every one of
                                                            of its witnesses that

        was affiliated
Boswell was                   was the leader of the Gangster Disciples. See
            afﬁliated with or was

“Background Evidence‖
―Background Evidence” and ―Statement
                          “Statement of Pertinent Evidence‖
                                                  Evidence” above;

             (4) The State‘s
                     State’s gang expert testified
                                         testified at
                                                   at length about gangs in general


and the Gangster Disciples specifically;
                           speciﬁcally; how the G.D.‘s
                                                G.D.’s and other gangs operated,

with what                                                how he determined that
     what criminal activities gangs were associated, and how

Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                 19
                                                                                   19
        was not only affiliated with but the leader of the G.D‘s.
Boswell was                                                G.D’s. He also not only

described various gang symbols and their meanings to the jury but pointed to tattoos

on Boswell‘s
   Boswell’s body that he said substantiated his claims after
                                                        after the trial
                                                                  trial court had


        remove his shirt before the jury.
Boswell remove                                                   Bowman at R.R.
                                    jury. See, testimony of John Bowman

6,
6, pp. 52 through 60 and State‘s
                         State’s Exhibits 41
                                          41 through 46.

         In sum, a great deal of the State‘s
                                     State’s case against Boswell consisted of evidence


concerning Boswell‘s                                                       Brandon’s
                     gang affiliation and not the robbery that resulted in Brandon‘s
           Boswell’s gang

                                     was calculated to prejudice the jury against
death. Presentation of that evidence was

Boswell as a bad gangster, and as a result, that evidence likely affected his

                                    At the very least, in light of the record as a whole,
substantial rights to a fair trial. At

             no fair assessment that the error in admission of the offending evidence
there can be no

did not influence                                     on their verdict. Solomon
        inﬂuence the jury or have but a slight effect on                Solomon v.
                                                                                v.



State,      S.W.3d at 365.
         49 S.W.3d

                                        TWO RESTATED
                                  ISSUE TWO
                               8. ISSUE     RESTATED
         The trial court abused its discretion by
         The                                   by denying Boswell‘s            new trial
                                                          Boswell’s motion for new

      on aaBrady5
based on                    when the prosecution failed to disclose a witness‘
           Brady5 violation when                                      witness’ history

of reprimands while serving as a police officer.
of                                      officer.




5
    Brady
    Brady v. Maryland, 83 S. Ct. 1194,                     US. 83 (1963 hereafter
                                       10 L.Ed.2d 215, 373 U.S.
                                 1194, 10                                         ―Brady).‖
                                                                        hereafter“Brady).”

Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                            20
                                  THREE RESTATED
                            ISSUE THREE
                         9. ISSUE       RESTATED
      The trial court abused its discretion by
      The                                   by denying Boswell‘s            new trial
                                                       Boswell’s motion for new

      on a Brady
based on                   when itit was
           Brady violation when          shown that the prosecution failed to disclose
                                     was shown

the disciplinary history of
                         of a former police officer who testified
                                                        testified as
                                                                  as the State‘s “gang
                                                                         State’s ―gang


expert‖
expert” where                      showed the witness‘s
        where the records not only showed     witness’s bias but offered substantial

basis for impeachment.

STATEMENT OF
STATEMENT              EVIDENCE
             PERTINENT EVIDENCE
          OF PERTINENT
      In post-conviction proceedings, Boswell argued that the State had failed to

disclose impeachment/bias evidence regarding its “gang expert‖
                                             its ―gang expert” witness, John

Bowman. Here, evidence is adduced related to both issues two
Bowman.                                                  two and three.

      Bowman, as noted above, testified
      Bowman,                 testiﬁed extensively about the Gangster Disciples

and his findings
        ﬁndings with regard to
                            to Boswell‘s
                               Boswell’s involvement with and leadership of that
                                                                            that


                                Bowman’s testimony was the last,
gang. (See, R.R. 6, pp. 26-79). Bowman‘s                   last, and arguably


                                  by the State. His testimony focused on the
most damning, testimony presented by

gang’s activities
gang‘s activities in
                  in Texas and in
                               in Killeen in particular, as well as
                                          in particular,         as Boswell‘s
                                                                    Boswell’s alleged

inﬂuence and power
influence                           He testified that Boswell was
             power within the gang. He                        was not just
                                                                      just a

member of
       of the gang but,
                   but, in
                        in fact,     “Govemor” or boss of the Gangster Disciples
                           fact, the ―Governor‖


in
in Central Texas. (R.R. 6,
                        6, p.
                           p. 58). Bowman testified
                              58). Bowman testified that
                                                    that ―these guys” have been
                                                         “these guys‖

               much criminal activity as any ―organization
involved in as much                          “organization in the history of Killeen.‖
                                                                             Killeen.”


Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                 21
                                                                                   21
(R.R. 6,
      6, p.
         p. 52).
            52). He identified
                    identiﬁed and interpreted Boswell‘s
                                              Boswell’s tattoos after
                                                                after the trial
                                                                          trial court


                   remove his shirt before the jury during trial —
ordered Boswell to remove                                        – a not innocuous

event when the State had photographs available for the jury’s
                                                       jury‘s inspection. (R.R. 6,

p. 54). Lastly,   Bowman testified that he actually aided in the murder
                  Bowman                                         murder investigation

itself, and, as a result, he reported on statements he personally took from one of the

participants in the robbery, Daniel Carruth (―D.C.‖)              owner of the house
                                            (“D.C.”) and from the owner

where the planning for the robbery allegedly occurred, Timothy Skobel.
where                                                          Skobel. (R.R. 6,

pp.
pp. 65-70).

      During the hearing on Boswell‘s
                            Boswell’s motion for new        Bowman acknowledged
                                                 new trial, Bowman acknowledged

        had been
that he had been disciplined by
                             by the Killeen Police Department while employed as a

                               He testified that he had, in fact, accepted a 56-day
sergeant with that department. He

                  from the Department followed immediately by
unpaid suspension from                                     by his retirement in

May, 2014, after he admitted to the Department that he had committed at least six
May,

Violations of the Department‘s
violations        Department’s policies.
                               policies. (See,
                                         (See, Defendant‘s
                                               Defendant’s Motion Exhibit A, C.R.

1, pp. 87, 96-123). That information had not been provided to
1,                                                         to Boswell‘s
                                                              Boswell’s counsel.

            Bowman mentioned those disciplinary actions during his testimony in
Neither had Bowman

trial. Finally, he acknowledged that the disciplinary actions were
                                                              were omitted from his

                                             when the State presented him
curriculum vitae (c.v.) provided to the jury when                     him as an

“expert” on gangs and gang activity.
―expert‖                   activity.      (See, R.R. 6,
                                                     6, p.
                                                        p. 27 (State‘s
                                                              (State’s Exhibit 36) and



Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell Boswell,
               Boswell, Jr.
                        Jr. v.           ofTexas
                            v. The State of

Brief of Appellant                                                                 22
Defendant‘s Motion (Exhibit B)
Defendant’s Motion          B) (C.R. 1,
                                     1, p. 125)).
                                           125)). Boswell argued that the omission

of
of that                  Bowman’s c.v.
   that information from Bowman‘s c.V. and the State‘s
                                               State’s failure
                                                       failure to
                                                               to disclose the


information before trial constituted violations of Brady
                                                   Brady and the dictates of its

progeny including Kyles v. Whitley,     US. 419
                           Whitley, 514 U.S. 419 (1995) and Giglio v. U.S., 405

U.S. 150,                31 L.Ed.2d 104
     150, 92 S. Ct. 763, 31                     Had the defense had
                                    104 (1972). Had             had this

information, Boswell‘s                 Bowman’s credibility
             Boswell’s counsel argued, Bowman‘s credibility could have been


                       shown to the jury.
impeached and his bias shown        jury. (R.R. 9, pp. 44-46). However, after

hearing testimony and argument of counsel, the trial
                                               trial court denied Boswell‘s
                                                                  Boswell’s motion

    new trial. (R.R.
for new        (RR. 9, p. 32).

APPLICABLE LAW —– NEW
APPLICABLE LAW        TRIAL
                  NEW TRIAL

      The                                        new trial for any of
      The trial court must grant the defendant a new               of the reasons

               TEX. R. APP.
articulated in TEX.                            “when the verdict
                       APP. P. 21.3, including ―when     Verdict is
                                                                 is contrary to
                                                                             to the


law and the evidence.‖
            evidence.” TEX. R .APP.
                       TEX. R                   “The trial
                              .APP. P. 21.3(h). ―The trial court retains the


              power to grant a new
discretionary power                                                         TEX. R.
                               new trial for any legal reason not listed in TEX.

APP. P. 21.3.‖
APP.                    Vigil, No.
        21.3.” State v. Vigil,     08-13-00273-CR, 2015
                               No. 08-13-00273-CR,      WL 2353507, at *3
                                                   2015 WL             *3 (Tex.

App. —
App.           May 15,
     – El Paso May              pet.)(not designated for
                   15, 2015, no pet.)(n0t            for publication). While ―[t]he
                                                         publication). While “[t]he


defendant need not establish reversible error as a matter of law before the trial court

may exercise its
may          its discretion in
                            in granting a motion for new trial
                                                         trial (,)
                                                               (,) … trial
                                                                     trial courts do


                                   new trial unless the defendant demonstrates that
not have the discretion to grant a new

Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                  23
                              ﬂawed and that the flaws
                was seriously flawed
his first trial was                              ﬂaws adversely affected his

                             trial.” Herndon
substantial rights to a fair trial.‖                       S.W.3d 901, 909 (Tex. Crim.
                                     Herndon v. State, 215 S.W.3d

App. 2007.

STANDARD OF
STANDARD    REVIEW— NEW
         OF REVIEW—     TRIAL
                    NEW TRIAL

        A reviewing court reviews the trial
        A                             trial court‘s
                                            court’s denial of a new trial
                                                                    trial for abuse of


                  v. Herndon,
discretion. State v.              S.W.3d at
                     Herndon, 215 S.W.3d at 906. In reviewing that
                                                              that denial,
                                                                   denial, ―[an
                                                                           “[an

appellate court] looks to the grounds pleaded by     movant in the motion and
                                              by the movant

                                                                         new trial.‖
determines whether any of those grounds provide a basis for granting the new trial.”


State   v.
        v. Fury, 186 S.W.3d 67, 73
                 186 S.W.3d                   — Houston
                                73 (Tex. App. – Houston [1 st
                                                        [l5‘Dist.]         pet. ref’d).
                                                                     2005,pet.
                                                              Dist.] 2005,      ref’d).


A trial
A trial judge ―cannot
              “cannot grant a new trial
                                  trial on mere sympathy, an inarticulate
                                                             inarticulate hunch, or


simply because he personally believes that the defendant is innocent or received a

    deal.” Herndon,
raw deal.‖                                                marks omitted].
                        S.W.3d at 907 [Internal quotation marks
           Herndon, 215 S.W.3d

Instead, even where                     new trial on interest of justice grounds, ―[a]
              where a defendant urges a new                                       “[a]


             new trial, whether for guilt or punishment, requires a valid legal claim.‖
motion for a new                                                                claim.”

                     S.W.3d 99, 107
         Thomas, 428 S.W.3d
State v. Thomas,                                            “To grant a new
                                107 (Tex. Crim. App. 2014). ―To         new trial

for a non-legal or legally
                   legally invalid reason is             discretion.” Hemdon,
                                          is an abuse of discretion.‖ Herndon, 215

S.W.3d at 907. While
S.W.3d         While the Court of Criminal Appeals has declined to set bright-line

rules for the appellate courts to use in assessing whether the trial court abused   its

                                         TEX. R. APP.
discretion on a ground not enumerated in TEX.    APP. P. 21.3, the Court of
                                                                         of


Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell Boswell,
               Boswell, Jr.
                        Jr. v.           ofTexas
                            v. The State of

Brief of Appellant                                                                  24
                                                                                    24
                               “a trial
Criminal Appeals has suggested ―a trial court would not generally abuse its
                                                                        its


                                    new trial if
discretion in granting a motion for new       if the defendant: (1) articulated a valid


                              new trial; (2) produced evidence or pointed to evidence
legal claim in his motion for new

                                                                showed prejudice to his
in the trial record that substantiated his legal claim; and (3) showed

                                          Rule 44.2 of the Texas Rules of
substantial rights under the standards in Rule                         of Appellate

Procedure.” Herndan,
Procedure.‖              S.W.3d at 909.
            Herndon, 215 S.W.3d

APPLICABLE LAW —– BRADY
APPLICABLE LAW          VIOLATIONS
                  BRADY VIOLATIONS

      Due process requires prosecutorial disclosure of information material to guilt
      Due

or innocence that is favorable to the defendant. Brady, 373 U.S. at 87-88, 83 S. Ct.

                                                                               would
   1196-97. This rule recognizes the reality that suppression of such evidence would
at 1196-97.

give the State an unfair advantage in ―shap(ing)
                                      “shap(ing) a trial
                                                   trial that bears heavily on the


defendant(;)‖
defendant(;)” the affirmative                                by Brady
                  afﬁrmative disclosure requirements imposed by Brady help to

avoid ―casting
      “casting the prosecutor in the role of an architect of a proceeding that does not

comport with standards of justice.”
                          justice.‖ Id. at 88, 83 S. Ct. at 1197.
                                                            1197.

      “A Brady
      ―A                        when the state suppresses, willfully or
         Brady violation occurs when

                                       defendant.” Harm
inadvertently, evidence favorable to a defendant.‖ Harm v.            S.W.3d 403,
                                                                  183 S.W.3d
                                                        v. State, 183



406                         A defendant states a proper Brady
406 (Tex. Crim. App. 2006). A                           Brady claim where: (1)
                                                                           ( 1)



―the
“the State fails
           fails to
                 to disclose evidence, regardless of the prosecution’s
                                                         prosecution‘s good faith
                                                                            faith or


bad faith;‖
    faith;” (2)
            (2) ―the
                “the withheld evidence is
                                       is favorable to
                                                    to him;‖
                                                       him;” (3)
                                                             (3) ―the
                                                                 “the evidence is


Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                  25
material, that is,
               is, there is a reasonable probability that had the evidence been



                              trial would have been different[;]‖
disclosed, the outcome of the trial                 different[;]” and (4)
                                                                      (4) ―the
                                                                          “the

evidence central to the Brady
                        Brady claim [is]               court.” Pena
                                    [is] admissible in court.‖ Pena v. State, 353

S.W.3d 797, 809 (Tex. Crim. App. 2011).
S.W.3d

      “The state‘s
      ―The state’s duty to reveal Brady                                  when the
                                  Brady material to the defense attaches when

information comes into
                  into the state‘s
                           state’s possession, whether or not the defense requested


    information.” Harm,
the information.‖ Harm, 183
                        183 S.W.3d at      “However, the state
                                   at 407. ―However,     state is
                                                               is not required to
                                                                               to


                                               appellant’s behalf, or furnish
seek out exculpatory evidence independently on appellant‘s

appellant with exculpatory or mitigating evidence that is fully
                                                          ﬁally accessible to appellant


from other sources.‖ Id. ―Favorable
           sources.” Id. “Favorable evidence is
                                             is any evidence that,
                                                             that, if
                                                                   if disclosed and


used effectively, may make the difference between
                  may make                between conviction and acquittal. It

                          and impeachment
includes both exculpatory and             evidence.” Id. ―Exculpatory
                              impeachment evidence.‖     “Exculpatory evidence

                               which tends to justify, excuse or clear the defendant
is testimony or other evidence which

from alleged fault    guilt.” Id
             fault or guilt.‖               “Impeachment evidence is
                              Id at 866-67. ―Impeachment          is that which
                                                                          which is

offered to dispute,
           dispute, disparage, deny, or contradict.‖                      S.W.2d 864,
                                                                      991 S.W.2d
                                        contradict.” Little v. State, 991


                     1999).
867 (Tex. Crim. App. 1999).

ARGUMENT
ARGUMENT

      In Boswell‘s                          Bowman admitted to the authenticity of
         Boswell’s post-conviction hearing, Bowman                              of

the records which formed the basis of the impeachment/bias evidence even as he

Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell Boswell,
               Boswell, Jr.
                        Jr. v.           ofTexas
                            v. The State of

Brief of Appellant                                                                  26
                                                                           records. (R.R.
tried to offer mitigation of his actions the subject of those disciplinary records.

                  was also established in the hearing that the prosecution,
       14-15). It was
9, pp. 14-15).                                                              however
                                                               prosecution, however

                                                                              (RR.
                                   impeachment/bias materials to the defense. (R.R.
inadvertently, did not provide the impeachment/bias

9, pp. 40-41).

      Brady
      Brady and its progeny such as Giglio require the state to disclose all material

evidence that could exculpate the defendant, including evidence that could be used

   impeach any of the prosecution witnesses or undermine the prosecution‘s
to impeach                                                   prosecution’s case.
                                                                           case.


Those requirements are so well established that it
Those                                           it should have controlled the post-



conviction court‘s
           court’s ruling on Boswell‘s
                             Boswell’s motion. Here, the records attached to
                                                                          to


Boswell‘s
Boswell’s motion for new trial                             Bowman’s personnel
                         trial consisted of documents from Bowman‘s


                                them prior to trial, he could have used to establish
file which, had Boswell receive them

bias on   Bowman’s part
          Bowman‘s part in
                        in testifying
                           testifying for the State.
                                              State. Boswell showed, for example,


that
that Bowman‘s                                                         Bowman
     Bowman’s curriculum vitae referenced a number of prior occasions Bowman

                                          Bowman’s trial testimony in this case would
had testified in gang-related cases; that Bowman‘s                              would

                                                                      Bowman was
pad that accomplishment, and, most importantly for showing bias, that Bowman was

using that curriculum vitae to promote
                               promote himself within the law enforcement field in

efforts to land another job in law enforcement.
                                   enforcement. (R.R. 9, pp.         With regard to
                                                         pp. 26-28). With

bias, a witness‘s
bias,   witness’s interest
                  interest or   motive to
                                       to testify
                                          testify is
                                                  is a critical
                                                       critical area of inquiry on cross-


examination. Davis
examination. Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105,
                                                      1105, 39 L.Ed.2d 347 (1974).


Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                    27
                                                                Bowman’s
      The records themselves included materials that undermined Bowman‘s

veracity under oath because the disciplinary actions centered on misstatements of

                 made to his superiors before his forced resignation. (R.R. 9, pp. 22-
fact that he had made

                                                        Supreme Court has noted
                impeachment evidence, the United States Supreme
23). Concerning impeachment

that,
that, ―[t]he jury‘s estimate of the truthfulness and reliability
      “[t]he jury’s                                  reliability of                 may
                                                                 of a given witness may

                                                       upon such subtle factors as the
                      of guilt or innocence, and it is upon
well be determinative of

possible interest
         interest of
                  of the witness in
                                 in testifying
                                    testifying falsely
                                               falsely that
                                                       that a defendant‘s
                                                              defendant’s   life
                                                                            life or liberty


    depend.” Napue
may depend.‖
may          Napue v. Illinois,
                      Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173,           1217
                                                             1173, 3 L.Ed.2d 1217

(1959).

      The key issue here is
                         is whether the evidence the subject of
                                                             of Boswell‘s
                                                                Boswell’s motion

    new trial was
for new       was ―material,‖
                  “material,” (i.e.,                                when viewed in light
                              (i. e., prejudicial to the defendant) when



of
of the other evidence presented at
                                at trial.
                                   trial. Evidence is
                                                   is deemed material ―only
                                                                      “only if
                                                                            if there


is a reasonable probability that, had the evidence been disclosed to the defense, the

                                                    A reasonable probability is a
                         would have been different. A
result of the proceeding would

probability sufficient
            sufﬁcient to
                       to undermine confidence in the outcome.‖
                                                      outcome.” United States            v.

             US                                                        The answer
                                                           481 (1985). The
                           105 S. Ct. 3375, 87, 87 L.Ed.2d 481
Bagley, 473 U.S. 667, 672, 105

                                                             would probably have
to the materiality issue though is not whether the defendant would

received a different verdict with the evidence,…―but
                                      evidence,...“but whether in its
                                                                  its absence he




Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell Boswell,
               Boswell, Jr.
                        Jr. v.           ofTexas
                            v. The State of

Brief of Appellant                                                                      28
received a fair trial, understood as a trial resulting in a verdict worthy of confidence.‖
                                                                              confidence.”

Kyles v. Whitley,                    115 S. Ct. 1555,
         Whitley, 514 U.S. 419, 434, 115                          490 (1995).
                                                      131 L.Ed.2d 490
                                                1555, 131

      Evidence of Boswell‘s
                  Boswell’s actual involvement in the robbery came only from

            who each had
accomplices who                                                       One witness,
                     had a motive to testify favorably for the State. One

Paul Sterling,                          “ordered” the robbery, but Sterling never
     Sterling, claimed that Boswell had ―ordered‖


made that assertion in the initial statement he gave to police following his arrest.
made                                                                         arrest. (R.


                                                  had still not been
R. 5, p. 82). Further, at time of trial, Sterling had           been charged with any

                                      had refused to participate in the robbery. (R.R.
offense because, according to him, he had

                Danny Carruth, a participant in the robbery, also testified
5, pp. 64, 68). Danny                                             testiﬁed that Boswell

was the G.D.‘s
        G.D.’s leader who told him to
                                   to watch by
                                            by the door as three other robbers

entered Arrington‘s
        Arrington’s house to
                          to rob him. (R.R. 5,
                                            5, pp. 140,
                                                   140, 143).
                                                        143). Notably, despite his


admitted participation                             Brandon’s death, Carruth had not
         participation in the robbery resulting in Brandon‘s

                          murder at time of trial, and he admitted that he was
been indicted for capital murder                                               “hoping
                                                                           was ―hoping

to
to keep it
        it that way.” (R.R. 5,
           that way.‖       5, p.
                               p. 154).
                                  154). The last
                                            last witness for the State,
                                                                 State, the icing on the


State‘s
State’s cake as
             as it
                it were, was Bowman, the State‘s
                                         State’s gang expert. It     Bowman who
                                                              It was Bowman


provided a detailed analysis of the Gangster Disciples through the years, their

                                                                gang signs and tattoos
corporate structure, their criminal activities, their extensive gang

                damaging evidence as introduced in trial, a description of the G.D.s
and, perhaps as damaging

as the most                    gang in Killeen‘s
       most extensive criminal gang    Killeen’s history. (R.R. 6, pp. 35, 58).


Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                     29
Moreover, it     Bowman whose
             was Bowman
          it was        whose testimony bolstered that of              members
                                                       of the two gang members

who               whose interest and bias in favor of
who testified and whose                            of the State was shown during
                                                                was shown

cross-examination.            members’ testimony was crucial to proof of
cross-examination. Those gang members‘                                of

Boswell‘s
Boswell’s status
          status as
                 as leader of the G.D. gang and of
                                                of his involvement in
                                                                   in the planning


                As a result, any evidence from any source that tended to corroborate
of the robbery. As
of

or to bolster their testimony became crucial to
                                             to the outcome of
                                                            of the State‘s
                                                                   State’s case.
                                                                           case.


         Bowman’s testimony did not merely serve to provide insight into the gang‘s
Finally, Bowman‘s                                                            gang’s

            it also provided information to the jury different in kind to that of the
activities, it

State‘s
State’s other witnesses because it
                                it served to               members’ allegations
                                          to buttress gang members‘


against Boswell and to
                    to undermine the latter‘s
                                     latter’s attempts to
                                                       to prove that the witnesses‘
                                                                         witnesses’

        him gave self-serving and biased testimony.
against him

                     Johnson v.
      In the case of Johnson v. Mills, 592 F.3d 730 (2010), the court noted that



jurors often have a negative predisposition toward informants.
                                                   informants. ―Ordinary
                                                               “Ordinary decent

                                                                              who ‗sell
people are predisposed to dislike, distrust, and frequently despise criminals who ‘sell


out‘
out’ and become prosecution witnesses. Jurors suspect their
                                                      their motives from the


moment they hear about them
moment                 them in a case, and they frequently disregard their testimony

altogether as highly untrustworthy and unreliable....‖
                                       unreliable...” Id.
                                                       Id. citing Stephen S. Troft,

Words of
Words    Warning for
      of Warning                 Using Criminals as Witnesses,
                 for Prosecutors Using              Witnesses, 47 Hastings, L.J.




Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                  30
1391, 1395
1391,                                                                          made
      1395 (1966). In light of that, any evidence supporting such testimony is made

    more material.
the more material.


      In a case involving the exclusion of evidence of an officer‘s
                                                          ofﬁcer’s disciplinary

record, In the Matter of C.F.C., the Court of Appeals held that exclusion of such
               Matter of

                      was not error. 1999
evidence in that case was                 WL 675440, Tex. App. —– San Antonio,
                                     1999 WL

           1999 (not designated for
August 31, 1999                 for publication).
                                    publication). There, defense counsel learned

                                   had been reprimanded by
during trial that a police officer had                  by his department. Counsel

                          was admissible to impeach
argued that the reprimand was               impeach the officer and that the

reprimand demonstrated bias and a motive to
                                         to fabricate portions of the officer‘s
                                                                      off1cer’s


           The appeals court disagreed, but it
testimony. The                              it did so only after it
                                                                 it determined that



                                                                  which might
                    of the incidents the subject of the reprimand which
the probative value of

establish bias or a motive to fabricate testimony was marginal. It reached that
                                                  was marginal.

conclusion because the incidents that led to the reprimands had, in fact, occurred

after the offense the subject of its current trial. Thus, in that case, the court reasoned

                                                                              was not
that whether the officer had been disciplined for violating police procedures was

relevant to a motive for lying in the case before it. The relevance, the materiality of
                                                  it. The                            of

    impeachment/bias evidence was, he court reasoned, at best only theoretical.
the impeachment/bias

               WL
                675440 at *5.
C.F.C., 1999 WL 675440    *5.




Cause No.  03-l5-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                     31
                                                                                       31
                              980 S.W.2d
        In Saldivar v. State, 980                  App. —
                                  S.W.2d 475 (Tex. App. – Houston
                                                          Houston [14 th
                                                                  [l4“‘         1998,
                                                                         Dist.] 1998,

in a case where
          where defendant discovered an undisclosed conviction for a state‘s
                                                                     state’s witness,


                                                                                was
                                                           of prior convictions was
the court of appeals again found that undisclosed evidence of

                                     The appellate court reached that conclusion,
               impeachment purposes. The
immaterial for impeachment

however, only after it                           was able to accomplish his goal to
                    it determined that defendant was



impeach the witness‘
impeach     witness’ credibility by
                                 by using her prior inconsistent statements in lieu of

         of her convictions.
evidence of

        The             of Appeals, in DeLe0n
        The Third Court of                                   WL 3454101
                                       DeLeon v. State, 2015 WL 3454101 (Tex.

App. —         May 29, 2015
     – Austin, May                                             November 18,
                       2015 (petition for discretionary review November     2015
                                                                        18, 2015


(not designated for
                for publication)),
                    publication)), found that the relevance for bias in the case before

it
it was ―not
       “not plainly apparent.‖
                    apparent.” There, the court found that
                                                      that the State‘s
                                                               State’s motivation for


disclosing a recording to law enforcement did not have an effect
                                                          effect on the jury’s
                                                                        jury‘s

consideration. Apparently, the court reached that conclusion at least in part because,
consideration.

                                was able to challenge the witness‘
as its opinion noted, appellant was                       witness’ credibility in other

ways.

        Finally, in Milke
                    Milke v. Ryan, 711 F.3d 998 (2013), the United States Ninth
                             Ryan, 711

                                       prosecutor‘s failure to disclose a key testifying
Circuit Court of Appeals held that the prosecutor’s

detective‘s “long history of lies
detective’s ―long            lies and misconduct‖
                                      misconduct” violated appellant‘s
                                                           appellant’s due process


rights and reversed and remanded     new trial. In that case, which
                        remanded for new                      which noted inadvertent


Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                   32
                       enough for a Brady
failure to disclose is enough             Violation (citing Kyles as well as Strickler
                                    Brady violation

v.                      119 S. Ct. 1936,
v. Green, 527 U.S. 263, 119        1936, 144         287 (1999), the Court
                                         144 L.Ed.2d 287

                                       ﬁnd that the jury would
reiterated that it is not necessary to find                         come out
                                                         would have come

differently.
differently. It
             It suffices,
                sufﬁces, the Court wrote, that
                                          that there is
                                                     is a ―reasonable
                                                          “reasonable probability of a

different result.‖
          result.” Id.


      Where the State apparently deemed
      Where                      deemed testimony about the Gangster Disciples

sufficiently worthwhile that it         good deal of time in trial developing the
                             it spent a good



                    Bowman was
              where Bowman
evidence, and where        was the sole source of most of that damning
                                                               damning evidence,

                                                        As a result, the conclusion
                                         more apparent. As
the materiality of his testimony is even more

cannot be reached beyond a reasonable doubt that the erroneous exclusion of the

evidence did not necessarily contribute to
                                        to Boswell‘s
                                           Boswell’s conviction; rather,
                                                                 rather, the


                        of the admitted Brady
evidentiary suppression of                                        conﬁdence in
                                        Brady material undermines confidence

the outcome of Boswell‘s
               Boswell’s trial.

                                       PRAYER
                                   13. PRAYER

      WHEREFORE, Larry Donnell Boswell, Jr. prays that this honorable court
      WHEREFORE,

            remand this cause for retrial in accordance with its findings
reverse and remand                                               ﬁndings herein and

                                              may justly be entitled.
                                     which he may
for such other and further relief to which




Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell
      Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                                 33
                                      COPELAND LAW
                                      COPELAND     LAW FIRM
                                                         FIRM
                                           Box 399
                                      P.O. Box
                                                  TX 78613
                                      Cedar Park, TX 78613
                                      Phone: 512.897.8196
                                      Phone:
                                      Fax: 512.215.8114
                                             ecopeland63@yahoo.com
                                      Email: ecopeland63@yahoo.com
                                      Email:

                                      By: /s/ Erika Copeland
                                      By:
                                              Erika Copeland
                                              State Bar No. 16075250
                                                        No. 16075250
                                              Attorney for Appellant


                    CERTIFICATE OF
                    CERTIFICATE    SERVICE AND
                                OF SERVICE     OF
                                           AND OF
                       COMPLIANCE  WITH RULE
                       COMPLIANCE WITH  RULE 9
                                 December 14,
      This is to certify that on December                               copy of the
                                           14, 2015, a true and correct copy
                                                   Bob Odom,
                                   was served on Bob
                        document was
above and foregoing document                              Odom, Assistant District
Attorney of Bell County, P.O. BoxBox 540, Belton, Texas 76513, in accordance with
the Texas Rules of Appellate Procedure, and that the Brief of Appellant is in
compliance with Rule 9 of the Texas Rules of
                                           of Appellate Procedure and that portion
which
which must be included under Rule 9.4(i)(1) contains 7202 words.
                                                            words.



                                            /s/ Erika Copeland
                                                Erika Copeland




Cause No.  03-15-00540-CR
       No. 03-15-00540-CR
Larry Donnell Boswell,
               Boswell, Jr.
                        Jr. v. The State of
                            v. The       ofTexas
Brief of Appellant                                                              34
