                                                                                ACCEPTED
                                                                            03-14-00724-CR
                                                                                    6407219
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                        8/7/2015 2:31:49 PM
                                                                          JEFFREY D. KYLE
        No. 03-14-722-CR; 03-14-723-CR; 03-14-724-CR                                 CLERK


                        IN THE
                   COURT OF APPEALS               FILED IN
            FOR THE THIRD JUDICIAL DISTRICT AUSTIN,OF
                                           3rd COURT      APPEALS
                                                        TEXAS
                  OF TEXAS, AT AUSTIN      8/10/2015 9:59:49 AM
                                                      JEFFREY D. KYLE
                       MARK FRUGE                          Clerk

                         Appellant

                               v.

                      The State of Texas
                          Appellee

On Appeal In Case Number D1DC-13-200256; 13-200259; 13-200257
          From the 331ST District Court of Travis County
              The Hon. David Crain, Judge Presiding



            Brief on Appeal
                         Submitted by:

                 The Law Offices of Ariel Payan
                        1012 Rio Grande
                      Austin, Texas 78701
                       Tel. 512/478-3900
                       Fax: 512/472-4102
                    arielpayan@hotmail.com


                          Ariel Payan
                    State Bar No. 00794430

             Court-Appointed Attorney for Appellant

                Oral Argument Not Requested
                                                      Table of Contents


Certificate of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Point of Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Facts Relevant to Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Point of Error Restated.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Delivery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19




                                                                    i
                                    Certificate of Parties

      Pursuant to Rule 38.1(a), Rules of Appellate Procedure (“Tex.R.App.Pro.”), the

following is a complete list of the names and addresses of all parties to the trial court’s final

judgment and their counsel in the trial court, as well as appellate counsel, so the Clerk of the

Court may properly notify the parties to the trial court’s final judgment or their counsel, if

any, of the judgment and all orders of the Court of Appeals.

                                          Appellant

                                        Mark Fruge
                                    TDCJ-ID No.1302065
                                         Ellis Unit
                                       1697 FM 980
                                    Huntsville, TX 77343

Appellate Counsel:                              Trial Counsel:

Ariel Payan                                     Albert Duke Hildreth
1012 Rio Grande                                 Margaret Chen-Kercher
Austin, Texas 78701                             1301 Nueces St., Austin

                                        State of Texas

                                     Rosemary Lehmberg
                                       P.O. Box 1748
                                      Austin, TX 78767

Appellate Counsel:                              Trial Counsel:

Scott Taliaferro                                Matthew Foye
                                                David Levingston




                                               ii
                                            Index of Authorities


Federal Cases:

Gray v. Mississippi, 481 U.S. 648 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Uttecht v. Washington, 551 U.S. 1 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Victor v. Nebraska, 511 U.S. 1, 5 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Wainwright v. Witt, 469 U.S. 412, 521 (1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6



Texas Cases:

Delk v. State, 855 S.W.2d 700, 704 (Tex.Cr.App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . 15

Feldman v. State, 71 S.W.3d 738, 744 (Tex.Cr.App. 2002).. . . . . . . . . . . . . . . . . . . . 6, 10

Garrett v. State, 851 S.W.2d 853, 859 (Tex.Cr.App. 1993). . . . . . . . . . . . . . . . . . . . . . . 10

Geesa v. State, 820 S.W.2d 154, 162 (Tex.Cr.App. 1991). . . . . . . . . . . . . . . . . . . . . . . . 10

Jackson v. State, 992 S.W.2d 469 (Tex.Cr.App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . 15

King v. State, 29 S.W.3d 556, 568 (Tex.Cr.App. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ladd v. State, 3 S.W.3d 547, 562 (Tex.Cr.App. 1999), cert. denied, 529 U.S. 1070 (2000)
....................................................................... 6

Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Cr.App. 1990) (on rehearing). . . . . . 14

Murphy v. State, 112 S.W.3d 592, 597 (Tex.Cr.App. 2003). . . . . . . . . . . . . . . . . . . . . . 10

Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000). . . . . . . . . . . . . . . . . . . . . . . 10

Pondexter v. State, 942 S.W.2d 577, 584 (Tex.Cr.App. 1996). . . . . . . . . . . . . . . . . . . . 16


                                                        iii
Rankin v. State, 953 S.W.2d 707, 741 (Tex.Cr.App. 1996). . . . . . . . . . . . . . . . . . . . . . 14

Rogers v. State, 853 S.W.2d 29, 33 (Tex.Cr.App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . 16

Stafford v. State, 813 S.W.2d 503, 506 (Tex.Cr.App. 1991). . . . . . . . . . . . . . . . . . . . . . 14

Theus v. State, 845 S.W.2d 874, 881 (Tex.Cr.App. 1992). . . . . . . . . . . . . . . . . . . . . . . . 15

Wyatt v. State, 23 S.W.3d 18, 25 (Tex.Cr.App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . 16



Cases from Other Jurisdictions:



Federal Constitution:

United States Constitution, Sixth, and Fourteenth Amendments. . . . . . . . . . . . . . . . . . . 6




Texas Statutes / Codes:

Tex.R.Crim.Evid. 404(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Tex.Code Crim. Proc. Ann. art. 35.16(b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Tex.R.Crim.Evid. 401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Tex.R.Evid. 404.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15




                                                               iv
                                  Preliminary Statement

      Pursuant to Tex.R.App.Pro. 38.1(d), the following is a brief general statement of the

nature of the cause or offense:

      Appellant, Mark Fruge, was charged by indictment with the offense of
      aggravated assault with a deadly weapon, a felony, in Cause No. 13-200256;
      Aggravated Robbery in 13-200259; Attempted Capital Murder, and aggravated
      assault of a public servant in 13-200257 in the 331th District Court of Travis
      County, Texas. He was convicted in said cause and was sentenced to life
      incarceration. Notice of Appeal was timely given.

                                     Point of Error

      Pursuant to Tex.R.App.Pro. 38.1(f), the following are the points upon this appeal is
predicated:

      THE TRIAL JUDGE ERRED IN GRANTING THE STATE’S
      CHALLENGE FOR CAUSE, DENYING APPELLANT A FAIR AND
      IMPARTIAL JURY.

      THE TRIAL COURT ERRED IN ALLOWING THE STATE TO
      IMPEACH A WITNESS WITH APPELLANT’S PRIOR CONVICTION
      AND/OR BAD ACT




                                            v
                   No. 03-14-722-CR; 03-14-723-CR; 03-14-724-CR

                                    IN THE
                               COURT OF APPEALS
                        FOR THE THIRD JUDICIAL DISTRICT
                              OF TEXAS, AT AUSTIN

                                    MARK FRUGE
                                      Appellant

                                            v.

                                   The State of Texas
                                       Appellee

         On Appeal In Case Number D1DC-13-200256; 13-200259; 13-200257
                   From the 331ST District Court of Travis County
                       The Hon. David Crain, Judge Presiding


                        Brief on Appeal
TO THE HONORABLE JUDGES OF THE THIRD COURT OF APPEALS:

      COMES NOW, MARK FRUGE, Appellant in the above styled and numbered cause,

by and through Ariel Payan, his undersigned attorney of record, and respectfully files this

“Brief on Appeal,” filed pursuant to Tex.R.App.Pro. 38.1, and would pursuant to 38.1(g)

show the Court as follows:

                               Facts Relevant to Appeal

      On January 14, 2013 Abraham Martinez was working for the armored car service

Guarda. (R.R. Vol. 6, pg. 269). He had arrived at the Capital Plaza Fallas Discount Store


                                             1
in Austin, on his route to pick up cash deposits. (R.R. Vol. 6, pg. 271). As he was leaving

the store with the deposits he ran into a man standing near the exit holding a gun. The

suspect demanded the bag and Martinez’ weapon. The suspect took the weapon and bag and

then said “so you know this is serious”, fired two to three rounds into the area around the

cash register. Id. Two women at the register yelled at the suspect. (R.R. Vol. 6, pg. 273).

The suspect ran out of the store and Martinez called 911. At trial Martinez could not

identify anyone. (R.R. Vol. 6, pg. 279).

      Ann Marie Lozano was working at the Fallas Discount store on that date and was

standing near the cash registers during the robbery. (R.R. Vol. 7, pg. 17). The suspect was

three to four feet away when he fired into the cash registers, Lozano had thought she was

hit at the time. (R.R. Vol. 7, pg. 19). Lozano testified that the suspect was in the store for

less than ten seconds, and the three rounds fired hit the register drawer, the computer, and

the post by the register. (R.R. Vol. 7, pg. 22). Lozano identified Appellant as the suspect.

(R.R. Vol. 7, pg. 21). Theresa Shanklin was also working the cash registers that day.

Shanklin testified that after the suspect ran out of the store, she followed him trying to get

the armored car driver’s attention. (R.R. Vol. 7, pg. 44). She also identified Appellant as

the suspect. (R.R. Vol. 7, pg. 45). Shanklin testifed that the suspect did not point the

weapon at the cashiers, he pointed it at the cash register and wall. (R.R. Vol. 7, pg. 48).

      Officer Roosevelt Granderson, with APD, was on patrol nearby when he heard the

call go out that a robbery was in progress at Capital Plaza. (R.R. Vol. 7, pg. 79).


                                              2
Granderson received a description of the suspect and his vehicle and began pursuit. He

spotted the vehicle on the 183 service road, in traffic. (R.R. Vol. 7, pg. 85). Granderson had

his lights and siren on, and the vehicles in front of him were moving out of his path, except

for one, which was weaving in and out of traffic. Id. The suspect stopped, got out of his

vehicle and started firing at Granderson and Officer Pippen who had been following the

pursuit. (R.R. Vol. 7, pg. 89). The suspect ran out into a nearby wooded area and

Granderson and Pippen gave chase, which was when Granderson realized that he had been

shot in the knee. (R.R. Vol. 7, pg. 90). A search of the vehicle produced a pistol and a spare

magazine which had a label on it with Appellant’s name and an address off 290. (R.R. Vol.

7, pg. 124).

      Richard Harris was the assistant manager with Dollar General on Manor road on that

date. (R.R. Vol. 8, pg. 145). He was walking to his car when he saw a man approach him

with a pistol, who told him to get in the car and drive. (R.R. Vol. 8, pg. 146). The suspect

told Harris that he was not going to hurt him, he had done something he should not have,

and just needed to get out of the area. (R.R. Vol. 8, pg. 146-7). Harris drove down Manor

and pulled into a side street where the suspect got out and Harris called the police. (R.R.

Vol. 8, pg. 147-8).

      Appellant was arrested in the Rosemont Apartments soon thereafter. APD, spotted

him by a description given by Harris and other witnesses. When he was arrested, a Glock

hand gun was found as well as U.S. currency wrapped up in plastic. (R.R. Vol. 8, pg. 175).


                                              3
Appellant was convicted of aggravated assault with a deadly weapon, aggravated assault

against a public servant, and aggravated robbery, the jury found him not guilty of attempted

capital murder. Appellant was sentenced to life in prison in all three cases. This appeal

follows.




                               Summary of the Argument

      Pursuant to Tex.R.App.Pro. 38.1(h), the following is a brief summary of the argument

presented in this appeal:

      The trial court erred in granting the State’s challenge to a veniremember who could

follow the law, but required a higher threshold to be presented for the State to reach its

burden of proof.

      The trial court erred in allowing the admission of an extraneous offense over

objection. The State introduced evidence of a car jacking that was committed after all the

evidence on the charged offenses was presented but before Appellant was captured.

Evidence presented of the car jacking was not relevant to any issue in controversy at trial.




                                             4
                                 Point of Error Restated

      THE TRIAL JUDGE ERRED IN GRANTING THE STATE’S
      CHALLENGE FOR CAUSE, DENYING APPELLANT A FAIR AND
      IMPARTIAL JURY.

      Article 35.16 of the Texas Code of Criminal Procedure provides that a challenge for

cause may be made by the State if a potential juror has a bias or prejudice against any phase

of the law upon which the State is entitled to rely for conviction or punishment. Tex.Code

Crim. Proc. Ann. art. 35.16(b)(3). To show error in the trial court's grant of the State's

challenge for cause, an appellant must show either that the trial court applied the wrong

legal standard in sustaining the challenge or that the trial court abused its discretion in

applying the correct legal standard. Ladd v. State, 3 S.W.3d 547, 562 (Tex.Cr.App. 1999),

cert. denied, 529 U.S. 1070 (2000). A criminal defendant has the right to an impartial jury

drawn from a venire that has not been tilted in favor of the state by selective prosecutorial

challenges for cause, and such a process violates a defendant’s rights under the United

States Constitution, Sixth, and Fourteenth Amendments. Wainwright v. Witt, 469 U.S. 412,

521 (1968).

      When reviewing a trial court's decision to grant or deny a challenge for cause, a

reviewing court must look at the entire record to determine if there is sufficient evidence to

support the court's ruling.     Feldman v. State, 71 S.W.3d 738, 744 (Tex.Cr.App.

2002)(overruled on other grounds). The appellate courts give great deference to the trial

court's decision because the trial judge is present to observe the demeanor of the


                                              5
veniremember and to listen to his tone of voice. Id. Particular deference is given when the

potential juror's answers are vacillating, unclear, or contradictory. Id.; King v. State, 29

S.W.3d 556, 568 (Tex.Cr.App. 2000).

      In the instant case, the State asked for veniremember 12, Mr. Jason Samaniego-Krant

to be called up. When asked why by the trial judge the prosecutor made this statement:

“He’s said he couldn’t follow the law when it comes to the burden of proof. He said he had

to be 100 percent certain.” (R.R. Vol. 6, pg. 190). Up until this point Samaniego-Krant had

made several statements to the attorney’s during voir dire, but he had never used these

words as relayed by the prosecutor. On this particular issue Samaniego-Krant had

previously stated:

            I believe that we’ve been talking about incarceration, taking years of
      someone’s life that I would have to be absolutely certain. The level of false
      convictions are incorrect, and with convictions these days I would feel horrible
      about sending someone to prison for something that was doubtful.

(R.R. Vol. 6, pg. 88-89). In response to questioning by the defense, the veniremember

stated the following:

             It just kind of sounds to me like in talking about reasonable doubt, it
      almost sounds to me like you’re trying to prove innocence instead of proving
      guilty. It just sounds backwards to me like you’re trying to prove innocence
      – you’re guilty until proven innocent. It just sounds like that to me.

(R.R. Vol. 6, pg. 136). These were the only comments on the burden of proof made by the

veniremember prior to being brought to the bench for individual questioning.




                                             6
         At the bench the state inquired of the veniremember and the following exchange took

place:

State:         Mr. Samaniego, I know when [the prosecutor] was questioning you about the
               burden of proof and reasonable doubt and beyond a reasonable doubt, you had
               made the comment that you would need to be 100 percent certain

Krant:         Yeah.

State:         And you understand that the law is beyond a reasonable doubt. There is
               actually – while there is no definition for beyond a reasonable doubt, there is
               case law that says it’s not 100 percent certainty. Would you be able to follow
               the law and listen to a case and determine guilt or innocence based on beyond
               a reasonable doubt, or would you need 100 percent certainty?

Krant:         In my personal beliefs, spirituality and opinion I just feel that I’m taking into
               consideration someone else’s livelihood, I would need to be pretty darn certain.

Court:         Okay. And when you say that, would you need to be 100 percent certain?

Krant:         Yes.

....

Defense:       When you say “100 percent certain,” are you attributing that to beyond a
               reasonable doubt level or – I’m not sure what – because you say you have to
               be pretty confident.

Krant:         If I’m going to commit (sic) somebody to a crime, then I would want to be 100
               percent certain that that crime was committed beyond a reasonable doubt.

Defense:       Okay. And is that what you require – are you – there is not percentage to
               beyond a reasonable doubt. Now, for some people it might be 100 percent.

Krant:         Right.

Defense:       The point is, are you going to hold the State to its burden, or are you going to
               require the State to a higher burden than what they’re required?


                                                7
Krant:       I would hold someone innocent until proven guilty, not the other way around,
             which to me is how it sounds with our discussion. It sounds like people are
             trying to prove innocence instead of guilt.

Defense:     Okay.

Krant:       So I’m – yes I mean –

Defense:     Are you going to require the State – to hold the State to a higher burden of
             proof than beyond a reasonable doubt?

Krant:       No.

....

Court:       What does the Defense have to say on Samaniego?

Defense:     We’re going to object to that. He said he would hold the State to its burden
             and not more.

Court:       Okay. But he said 100 percent three times, so I’ll grant the State’s motion to
             strike for cause. I think he won’t follow the law that they’re entitled to follow.



(R.R. Vol. 6, pg. 192-195). The trial judge applied the wrong standard in this case, in that

he based his decision to grant the state’s challenge for cause on the number of times the

veniremember stated 100% versus a determination of whether the veniremember understood

the law and could not follow it. Further, the trial judge’s recollection of the testimony

presented was that the veniremember stated ‘100% certainty’ three times, when in fact those

were the prosecutor’s words, and Samaniego-Krant adopted the words used by the State but

did not initially phrase his response in that way. Nor as the questioning at the bench went

on, did he use the 100% language to describe the State’s burden of proof, but his belief in
                                              8
the evidence presented. This is the quintessential ‘higher threshold’ juror, not ‘higher

burden’. In Texas, jurors must decide what “proof beyond a reasonable doubt” means to

them. Murphy v. State, 112 S.W.3d 592, 597 (Tex.Cr.App. 2003). While it is no longer

required that trial courts define “reasonable doubt” for the jury, it is also not prohibited.

Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000) (overruling that portion of Geesa

v. State, 820 S.W.2d 154, 162 (Tex.Cr.App. 1991), which required trial courts to include a

particular instruction in the jury charge defining “beyond a reasonable doubt”). While

expressing its opinion that the better practice is to give no definition of “reasonable doubt”

to the jury, the Paulson Court acknowledged that, “the Constitution neither prohibits trial

courts from defining reasonable doubt nor requires them to do so as a matter of course.” Id.

(quoting Victor v. Nebraska, 511 U.S. 1, 5 (1994)).

      Thus, it is plain that prospective jurors may form their own definitions of proof

beyond a reasonable doubt and they are not challengeable for cause based upon the type and

amount of evidence they require to reach that level of confidence. Murphy, 112 S.W.3d at

598. There is nothing unlawful about differing thresholds of reasonable doubt among jurors.

See Garrett v. State, 851 S.W.2d 853, 859 (Tex.Cr.App. 1993).

      The test is whether the bias or prejudice would substantially impair the prospective

juror's ability to carry out his oath and instructions in accordance with law.” Feldman, 71

S.W.3d at 744. Before a prospective juror can be excused for cause on this basis, however,

the law must be explained to him and he must be asked whether he can follow that law


                                              9
regardless of his personal views.” Id. The proponent of the challenge has the burden of

establishing that the challenge is proper. Id. at 747. “The proponent does not meet his

burden until he has shown that the venireman understood the requirement of the law and

could not overcome his prejudice well enough to follow it.” Id. This veniremember stated

that he would be able to take the oath and follow the law as given by the trial judge, and

hold the State to their burden of proof and not more. Therefore, the trial judge should not

have granted the State’s challenge for cause.

      In Gray v. Mississippi, 481 U.S. 648 (1987), the Supreme Court addressed the issue

of a State challenge for cause which was erroneously granted. The State had lodged

for-cause or peremptory challenges against every juror who “expressed any degree of

uncertainty in the ability to cast ... a vote” for the death penalty, id., at 652, and quickly

exhausted all of its peremptory challenges. Id., at 653. The prosecution then challenged a

juror who had expressed no opposition to the death penalty and had said many times that she

could return a death sentence. The trial court denied the challenge. Id., at 654-655.

Arguing that the trial court had erroneously denied certain earlier challenges for cause, and

thus had forced the State to waste peremptory challenges, the prosecution sought to reopen

those previous challenges. The trial court refused to do so, but removed the current juror,

over objection from the defense. Id., at 655. On appeal all of the state judges agreed the

juror could not be excused for cause, but the appellate court held it was appropriate, under

the circumstances, to treat the challenge in question as a peremptory strike. 481 U.S., at


                                             10
656-657. The Supreme Court reversed, holding that the juror had been removed for cause

and that she was not substantially impaired under the controlling standards. 481 U.S., at

659. The error was not subject to harmlessness review, and thus the sentence could not

stand. Ibid, see also Uttecht v. Washington, 551 U.S. 1 (2007).

      Appellant prays that this Court find that the granting of the State’s challenge for cause

did not meet the applicable standards, and find that the error is not subject to a harmless

error analysis, as was held in Gray v. Mississippi, and reverse this case.




                                             11
        THE TRIAL COURT ERRED IN ALLOWING THE STATE TO
        IMPEACH A WITNESS WITH APPELLANT’S PRIOR CONVICTION
        AND/OR BAD ACT


        During the direct examination of a state’s witness, the state introduced Appellant

alleged participation in an extraneous offense. The defense objected and the trial court

overruled the objections allowing the jury to hear the unfettered testimony. (R.R. Vol. 7,

pg. 40). The State introduced photos early in the guilt innocence phase of trial labeled ‘car

jacking.’ Appellant was never charged with this crime, one alleged to have occurred after

the robbery and the assaults were completed, but during his attempt to escape. The State

later presented testimony from Richard Harris, owner of the vehicle. (R.R. Vol. 8, pg 139).

Harris testified that a man ran up to him with a gun and told him to drive him out of the area.

Harris drove for 15 minutes and the man got out, he did not take anything or otherwise

threaten Harris. (R.R. Vol. 8, pg 158). Appellant was apprehended when APD officers ran

the license plate of the first vehicle he was in and traced it to the Rosemont Apartments.

(R.R. Vol. 8, pg 163). Officers went to the apartments and eventually saw a man matching

the descriptions given to them by various people and apprehended him. (R.R. Vol. 8, pg

170).




                                              12
      An extraneous offense is "any act of misconduct, whether resulting in a prosecution

or not, that is not shown in the charging papers." Rankin v. State, 953 S.W.2d 707, 741

(Tex.Cr.App. 1996). Generally, a defendant must be tried for the offense with which he is

charged. He may not be tried for a collateral crime or for being a criminal generally.

Tex.R.Crim.Evid. 404(b); Stafford v. State, 813 S.W.2d 503, 506 (Tex.Cr.App. 1991).

When the prosecution attempts to adduce evidence of "other crimes, wrongs, or acts," the

defendant must object in a timely fashion to preserve his complaint for appeal. Montgomery

v. State, 810 S.W.2d 372, 387 (Tex.Cr.App. 1990) (on rehearing). After objection, the

prosecution must satisfy the trial court that the other crime, wrong, or act has relevance apart

from its tendency to prove the defendant's character to show that he acted in conformity

therewith. Tex.R.Crim.Evid. 404(b). If the trial court decides that the evidence has "no

relevance apart from character conformity," then it is inadmissible. Montgomery, 810

S.W.2d at 387.

      The state may, however, persuade the trial court that an "other purpose" such as those

set forth in Rule 404(b) will be served by admission of the extraneous-offense evidence. Id.

at 387-88; Tex.R.Crim.Evid. 401, 404(b). The relevance may be that the evidence "tends

to establish some elemental fact, such as identity or intent; that it tends to establish some

evidentiary fact, such as motive, opportunity[,] or preparation, leading inferentially to an

elemental fact; or that it rebuts a defensive theory...." Montgomery, 810 S.W.2d at 387-88.




                                              13
If the trial court determines that the evidence is relevant, it must engage in the balancing test

of Rule 403. Id.

      Evidence of a person's character is not admissible at the guilt/innocence phase of the

trial to prove that he acted in conformity with his character. Tex.R.Evid. 404. This is due

to its inherent prejudice and tendency to confuse the issues. If, however, the defendant

creates what is purported to be a false impression about his nature as a law abiding citizen

or his propensity for committing criminal acts, then he has opened the door for his opponent

to present rebuttal evidence. See, Delk v. State, 855 S.W.2d 700, 704 (Tex.Cr.App. 1993).

This rebuttal evidence can consist of a defendant’s criminal history. Id.

      When an extraneous offense is admitted in the guilt phase of a trial, failing to give a

limiting instruction at the time of admission may result in the jury drawing inferences about

the defendant's guilt based upon character conformity, a use of the evidence that was not

contemplated by the trial court. The danger then becomes that the improper inference drawn

cannot later be erased by an instruction in the charge. See, Jackson v. State, 992 S.W.2d 469

(Tex.Cr.App. 1999). A ruling permitting use of a prior conviction to impeach will be

reversed on appeal only upon a showing of a clear abuse of discretion. See Theus v. State,

845 S.W.2d 874, 881 (Tex.Cr.App. 1992).

      In the instant case, the State argued that this was unadjudicated extraneous evidence

of a completely separate crime, that was nonetheless relevant under 404(b) due to the fact




                                               14
that it was contextual evidence of flight, and therefore relevant and probative. (R.R. Vol.

8, pg 142). Appellant’s 403 objection was overruled as well.

      Evidence of another crime, wrong, or act also may be admissible as same-transaction

contextual evidence where “several crimes are intermixed, or blended with one another, or

connected so that they form an indivisible criminal transaction, and full proof by testimony,

..., of any one of them cannot be given without showing the others.” Wyatt v. State, 23

S.W.3d 18, 25 (Tex.Cr.App. 2000) (quoting Rogers v. State, 853 S.W.2d 29, 33

(Tex.Cr.App. 1993)). The jury is entitled to know all relevant surrounding facts and

circumstances of the charged offense. Id. But, under Rule 404(b), same-transaction

contextual evidence is admissible only when the offense would make little or no sense

without also bringing in that evidence, and it is admissible “only to the extent that it is

necessary to the jury's understanding of the offense.” Id. (quoting Pondexter v. State, 942

S.W.2d 577, 584 (Tex.Cr.App. 1996)).

      Here the evidence of the charged offense was presented in its entirety prior to the

extraneous offense. The capture of Appellant at the Rosemont apartments was also entirely

explained without the need of the extraneous. Therefore, the evidence of the car jacking had

no independent relevance to any fact in evidence, and therefore was unnecessary to assist

the jury to decide any question in controversy regarding the charged offenses. Pondexter,

942 S.W.2d at 584.




                                             15
      Because there was error the reviewing court should conduct a harmless error analysis.

The extraneous offense was offered for an impermissible character reason and was more

prejudicial than probative. As such this Court should find that the error was not harmless

and remand for a new trial.




                                            16
                                          Prayer

      WHEREFORE, PREMISES CONSIDERED, MARK FRUGE, Appellant in the above

styled and numbered cause respectfully prays that this Court grant him any and all relief to

which he is entitled.

                                       Respectfully submitted,

                                       ARIEL PAYAN
                                       Attorney at Law
                                       1012 Rio Grande
                                       Austin, Texas 78701
                                       Tel. 512/478-3900
                                       Fax: 512/472-4102
                                       arielpayan@hotmail.com

                                   by: /s/ Ariel Payan
                                       Ariel Payan
                                       State Bar No. 00794430

                                       Attorney for Appellant

                         Statement Regarding Oral Argument

                             Oral Argument is Not Requested



                               Certificate of Compliance

      I hereby certify pursuant to T.R.A.P. 9.4(i)(3), the word count for this document, as

determined by the word processing program is       3598                  .


                                           /s/ Ariel Payan
                                       Ariel Payan


                                            17
                                  Certificate of Delivery

      This is to certify that a true and correct copy of the above and foregoing “Appellant’s

Brief on Appeal” was delivered via email or hand-delivered, mailed postage pre-paid or

transmitted via telecopier (fax) to the office of the District Attorney of Travis County,

Texas; and to Appellant at the address listed in the Certificate of Parties, on August 7, 2015

      Party Served        Travis County District Attorney
                          Scott Taliaferro
                          Scott.taliaferro@co.travis.tx.us

      Appellant           Mark Fruge
                          TDCJ-ID No.1302065
                          Ellis Unit
                          1697 FM 980
                          Huntsville, TX 77343


                                         /s/ Ariel Payan
                                        Ariel Payan




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