                                                                           ACCEPTED
                                                                       03-14-00585-CR
                                                                               5991802
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                   7/9/2015 9:31:15 AM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
                        NO. 03-14-00585--CR

                   IN THE COURT OF APPEALS             FILED IN
                                                3rd COURT OF APPEALS
                             FOR THE                AUSTIN, TEXAS
         THIRD SUPREME JUDICIAL DISTRICT OF         TEXAS
                                                7/9/2015 9:31:15 AM
                            AT AUSTIN             JEFFREY D. KYLE
                                                        Clerk
__________________________________________________________________

                       NO. 13-2081-K277

               IN THE 277TH DISTRICT COURT
              OF WILLIAMSON COUNTY, TEXAS
__________________________________________________________________

                       LEOVARDO CANTOS,
                          APPELLANT

                                V.

                        STATE OF TEXAS,
                            APPELLEE
__________________________________________________________________

                       APPELLANT’S BRIEF
__________________________________________________________________
ORAL ARGUMENT REQUESTED

                               LINDA ICENHAUER-RAMIREZ
                               ATTORNEY AT LAW
                               1103 NUECES
                               AUSTIN, TEXAS 78701
                               TELEPHONE:     512-477-7991
                               FACSIMILE 512-477-3580
                               EMAIL: LJIR@AOL.COM
                               SBN: 10382944


                              ATTORNEY FOR APPELLANT
                                    TABLE OF CONTENTS


                                                                                                    PAGE

Parties to Trial Court’s Final Judgment...................................................... 3

Index of Authorities .................................................................................... 4

Statement of the Nature of the Case ........................................................... 5

Statement of the Point of Error................................................................... 6

Statement of Facts....................................................................................... 7

Summary of the Argument ......................................................................... 19

Point of Error Number One ........................................................................ 21

Prayer for Relief ......................................................................................... 29

Certificate of Service .................................................................................. 29

Certificate of Compliance........................................................................... 30




                                                       2
         PARTIES TO TRIAL COURT’S FINAL JUDGMENT

         In accordance with Tex.R.App.Proc. 38.1(a), Appellant certifies

that the following is a complete list of the parties and their counsel:

         (a) the State of Texas represented by:

             Mr. Josh Reno, Assistant District Attorney
             Williamson County District Attorney’s Office
             405 Martin Luther King, Suite 1
             Georgetown, Texas 78626

             Ms. Jackie Borcherding, Assistant District Attorney
             Williamson County District Attorney’s Office
             405 Martin Luther King, Suite 1
             Georgetown, Texas 78626

       (b) Mr. Leovardo Cantos represented by:

             Mr. Alfonso C. Hernandez – trial attorney
             Attorney at Law
             507 W. 10th Street
             Austin, Texas 78701

             Mr. Rene Vargas – trial attorney
             Attorney at Law
             507 W. 10th Street
             Austin, Texas 78701

             Ms. Linda Icenhauer-Ramirez - appellate attorney
             Attorney at Law
             1103 Nueces
             Austin, Texas 78701




                                        3
                                  INDEX OF AUTHORITIES

CASES                                                                                                 PAGE

Albrecht v. State, 486 S.W.2d 97, 100-101 (Tex.Cr.App. 1972) ............... 24

Carter v. State, 145 S.W.3d 702 (Tex.App.-Dallas 2004, pet. ref.)............ 23

Dekneef v. State, 379 S.W.3d 423, 433 (Tex.App.-Amarillo 2012,
      pet. ref.)........................................................................................... 26

Elkins v. State, 647 S.W.2d 663 (Tex.Cr.App. 1983) ......................... 23, 24

Escort v. State, 713 S.W.2d 733 (Tex.App.-Corpus Christi 1986,
      no pet.) ....................................................................................... 25, 28

Gigliobianco v. State, 210 S.W.3d 637, 641-641 (Tex.Cr.App.
      2006) ................................................................................................. 26

Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Cr.App. 1991)
   (opinion on rehearing) ........................................................................ 24

Powell v. State, 63 S.W.3d 435, 438 (Tex.Cr.App. 2001) ......................... 24

Williams v. State, 662 S.W.2d 344, 346 (Tex.Cr.App. 1983)...............23, 24


STATUTES

V.T.C.A. Penal Code, Sec. 22.02(a)(1) ...................................................... 7


COURT RULES

Tex.R.App.Proc. 38.1(a)............................................................................. 3

Tex.R.Ev. 403 ................................................................................. 24, 26, 28

Tex.R.Ev. 404(b) ....................................................................... 21, 22, 23, 24


                                                        4
TO THE HONORABLE JUDGES OF SAID COURT:

        COMES NOW Leovardo Cantos, appellant in this cause, by and

through his attorney and files this his brief on original appeal.

              STATEMENT OF THE NATURE OF THE CASE

        Appellant was charged by indictment in this cause on February 18,

2014.     The indictment alleged that appellant committed the offense of

aggravated assault with serious bodily injury.      It also contained a deadly

weapon allegation.    (C.R. 11)      Jury selection occurred on July 28, 2014.

(R.R. V, pp. 24-215)         On July 29, 2014, appellant entered a plea of not

guilty.   (R.R. VI, p. 16)     On July 31, 2014, after hearing the evidence and

the argument from counsel, the jury deliberated and returned a verdict of

guilty of the offense of aggravated assault.          The jury also made an

affirmative finding that appellant used a deadly weapon.             (R.R. X, pp.

122-123; C.R. 58-68)         Appellant elected to go to the trial court for

sentencing.    On August 11, 2014, after hearing the evidence and argument

from counsel, the trial court assessed appellant’s punishment at fifteen (15)

years imprisonment.     (R.R. XII, pp. 50; C.R. 79-82)       A motion for new

trial was filed on September 10, 2014.      (C.R. 76-77)   Notice of appeal was

filed on September 10, 2014.       (C.R. 78)   The trial court’s certification of

defendant’s right to appeal was filed on November 6, 2014.          (C.R. 86)


                                        5
         STATEMENT OF THE POINT OF ERROR


POINT OF ERROR NUMBER ONE

    THE TRIAL COURT ABUSED ITS DISCRETION IN
    ADMITTING INTO EVIDENCE THE EXTRANEOUS
    OFFENSE WHEN THE RECORD CLEARLY SHOWED THAT
    THE PREJUDICIAL EFFECT OF THE EVIDENCE FAR
    OUTWEIGHED ITS PROBATIVE VALUE.




                        6
                          STATEMENT OF FACTS

      The indictment in this case alleged that appellant committed the

offense of aggravated assault with a deadly weapon and specifically alleged

that appellant:

      “on or about the 14th day of November, 2013, . . . intentionally,
      knowingly, or recklessly caused serious bodily injury to Juan
      Davila, by kicking or stomping Juan Davila with the
      defendant’s feet,” (C.R. 11)

V.T.C.A. Penal Code, Sec. 22.02(a)(1).       The indictment also contained

notice that the State would be seeking an affirmative finding of a deadly

weapon.     (C.R. 11)

      The evidence showed that both appellant and the complainant played

in a competitive amateur softball league in Round Rock, Texas.

Appellant had a reputation among softball players as being a very aggressive

and competitive player.    Appellant played for a team called FYC and the

complainant played for a team called TKO.       The two teams played each

other on the evening of November 14, 2013.         (R.R. VI, pp. 33-39, 115,

242; R.R. VIII, pp. 47-50)     Towards the end of the game, appellant and

the complainant were involved in a play at second base.       Appellant was

playing second base and the complainant was a base runner on first base.

Witnesses testified that when the batter hit the ball, the complainant ran

                                      7
towards second base, rounded second base and then fell down somewhere

between second and third base.     In an effort to get back to second base the

complainant dove back into second base headfirst.     In the process of diving

back into second base, the complainant’s shoulder made contact with

appellant’s knee.    (R.R. VI, pp. 42-48, 119-122, 242-244; R.R. VII, pp. 7,

33; R.R. VIII, pp. 51-54; 99-102; R.R. IX, pp. 35-36, 75-76; R.R. X, pp.

20-23)     One witness, Danny Teller, a player from appellant’s team

testified that after the complainant slid into appellant, appellant fell to the

ground and complained that his knee had been hurt in the collision.         He

testified that appellant got back to his feet and pushed the complainant down

as he was trying to get to his feet.       (R.R. VI, p. 48)     Umpire Gary

Clements described the play at second base as “incidental contact.”         He

testified that appellant was upset at the complainant after the play because

his knee had been hurt.     (R.R. VI, pp. 122-123)      All of the witnesses

testified that words were exchanged between appellant and the complainant.

Play resumed after the umpires admonished the two men.           (R.R. VI, pp.

49, 123-124, 161-163, 244; R.R. VII, p. 7)

      During the next half inning, the complainant’s team, TKO, took the

field with the complainant playing first base.      Danny Teller, appellant’s

teammate, testified that while his team was in the first base dug-out waiting


                                       8
to bat, he heard appellant say, “Yes, you have something coming to you.”

Teller testified that he batted and got on second base.       Appellant was the

next batter and hit the ball to the pitcher.     The pitcher fielded the ball and

made an under-handed throw to the complainant who was playing first base.

However, because the throw was short, the complainant had to take a step or

two in front of the first base bag in order to catch the ball.        Witnesses

testified that as appellant ran towards first base, he threw his hands up into

the complainant’s face and ran the complainant over.              Umpire Gary

Clements said that appellant was initially jogging towards first based and

then within his last four or five steps accelerated as he charged the

complainant.    The complainant was knocked down and after appellant

knocked the complainant down, he turned out towards the fence.

Witnesses testified that the complainant got to his feet, still holding the

softball.    It appeared as if the complainant was going to throw the softball

at appellant but then the complainant apparently changed his mind and threw

the ball towards the appellant’s foot.       Danny Teller, Umpire Clements and

Marty Jenkins testified that the ball hit the ground and never hit the

appellant.   Two other players, John Crowder and Karl Holdren, testified

that the ball ricocheted off of appellant and when that occurred, appellant

turned around and went back towards the complainant.          Gabriel Orozco, a


                                         9
defense witness, testified that the complainant threw the ball and it hit

appellant in the thigh.   Teller and Clements testified that the two men then

came together and began “jawing” at each other.      Both men were agitated.

Teller and Orozco testified that the two men began throwing punches.

Clements testified that the complainant never swung at appellant.

Clements and Jackson testified that appellant struck the complainant and

knocked him to the ground.      Teller testified that by this time other players

had run up to the two men and blocked Teller’s view, but he did see that the

complainant was on the ground and he saw someone kicking the

complainant.      Umpire Clements testified that he saw appellant kick the

complainant in the head.        He also testified that he never saw the

complainant swing at appellant or pull out any kind of weapon before he was

kicked.    Douglas Peterson, who played on the complainant’s team echoed

the testimony of Teller and Clements.       He testified that the complainant

never made a move towards appellant.             After appellant shoved the

complainant to the ground the last time, he saw appellant kick the

complainant in the face and shoulder area with a hard kick.     Then appellant

jumped on top of the complainant.     Peterson testified that he ran over and

knocked appellant off of the complainant.     Peterson testified that appellant

was the aggressor.    Karl Holdren also testified that appellant tackled the


                                      10
complainant and then got up and kicked the complainant hard in the face two

times.     Marty Jackson, another softball player told the jury that he did not

see appellant kick the complainant in the head but afterwards he saw red

marks on the complainant’s head.              Off duty police officer Brian

Hollywood, who was a pick up player in the game, also testified that he saw

appellant kick the complainant “unbelievably hard.” (R.R. VI, pp. 49-59,

128-148, 245-252; R.R. VII, pp. 8-20, 35-43; R.R. VIII, pp. 55-61; 102-106;

R.R. IX, pp. 36-39, 78-83; R.R. X, pp. 24-35)

         Both men were ejected from the game for fighting and appellant was

told to leave the area, which he did.       The complainant, although ejected

from the game, stayed outside the fence and watched the conclusion of the

game.       (R.R. VI, pp. 60-61, 253; R.R. IX, pp. 40-42, 84-85)

         Witnesses testified that it is against the rules to make contact with

another player in amateur softball.         (R.R. VI, pp. 56, 92-93, 113-114;

R.R. VIII, p. 84, 98)      All but one witness, defense witness Andria White,

testified that appellant was the aggressor and that the complainant did

nothing to provoke appellant’s attack.       (R.R. VI, p. 73; R.R. VIII, pp.

85-87; 107)       White, who was watching the game, testified that the

complainant’s slide into second base was a very aggressive slide and she

considered it a dirty play.    (R.R. X, p. 43)    Brian Hollywood, the police


                                       11
officer who was playing in the game and who was off duty at the time

testified that he believed appellant had assaulted the complainant and so he

called the Round Rock police and an officer responded to the softball field.

Hollywood also testified that a foot can be a deadly weapon if it causes

serious bodily injury.   (R.R. VIII, pp. 110-113)

        Danny Teller, Karl Holdren and Marty Jackson all testified that

shortly after the game, they looked at appellant’s Facebook account and saw

appellant had posted the following:

        “I guess next time you will think twice about taking out
        someone’s knee in softball.      Haha! How’s your face?
        Cause my foot is killing me!!! Not to mention how far u flew
        when u were “standing your ground.” Lmao.      U picked the
        wrong Mexican homeboy!!!”       (R.R. VI, p. 68)    (State’s
        Exhibit 2)

This posting was introduced into evidence by the State as State’s Exhibit 2

over appellant’s objection.     (R.R. VI, pp. 65-68; R.R. VII, pp. 44- 45;

R.R. VIII, pp. 62, 76)

        The complainant, Juan Davila, testified and told the jury that he

remembered playing in the softball game that night.            He testified that

when he dove back into second base, his shoulder collided with appellant’s

knee.     He told the jury that he did not know appellant and was not

intentionally trying to hurt him.   Davila testified about the play at first base.

He testified that after he caught the ball from the pitcher, he had his right

                                       12
foot on the first base bag.      He told the jury that he then stepped off the bag

and threw the ball to the shortstop.       He told the jury that he remembered

having words with appellant and he remembered throwing the ball down in

front of appellant.     Davila told the jury that he thought the ball hit appellant

after it bounced.       He testified that he did not remember hitting appellant.

The last thing he remembered was being on the ground.              Appellant told

the jury that he has no memory of the incident after that point.         (R.R. VI,

pp. 195-206)      The evidence showed that the complainant spent that night at

his girlfriend’s house.          The next morning the complainant’s sister

persuaded him to go the emergency room.            (R.R. VI, pp. 207-211)       At

the emergency room, doctors discovered that the complainant had suffered a

serious brain injury.      The complainant had to undergo major brain surgery

and was hospitalized for approximately one week.            He was then released

to a rehabilitation facility where he stayed for one month, followed by

months of outpatient therapy.        The evidence showed that he was not able

to return to work until May of 2014, some six months after the incident.

Appellant testified that as a result of his brain injury, he has memory issues,

his temper and impulsiveness is bad in that he overreacts to situations.       He

also has trouble navigating around town or even remembering where he has

parked his car.       Finally, the complainant told the jury that he has a blind


                                         13
spot in his peripheral vision.    (R.R. VI, pp. 214-226)       The complainant’s

friend and fellow ball-player, Doug Peterson testified that as a result of his

brain injury, the complainant’s personality is totally different and he has a

very bad memory.         (R.R. VI, pp. 254-255)           The complainant’s best

friend Karl Holdren testified that as a result of his injury, the complainant

has become angry, short-tempered and has memory issues.             (R.R. VII, p.

54)   Marty Jackson, another friend of the complainant also testified that the

complainant’s personality is different and that it takes him longer to react to

things like joking and teasing.    (R.R. VIII, p. 65)

      Dr. Ernest Gonzalez, a trauma surgeon, testified that on November 15,

2013, he was working at St. David’s Hospital in Round Rock when the

complainant came to the emergency room.            Dr. Gonzalez testified that

initially appellant was awake and able to converse although he said he was

not feeling well.    He was placed in ICU so that doctors could monitor his

condition overnight.      Dr. Gonzalez also had the complainant undergo a

CT scan.    This scan showed that the complainant had multiple fractures of

his foreface, his orbital roof, with bleeding in the subdural, as well as

bruising on the right frontal lobe of his brain tissue.     Dr. Gonzalez told the

jury that these injuries were caused by blunt force trauma.         Dr. Gonzalez

testified that as they monitored the complainant, his condition worsened and


                                        14
he had to undergo emergency brain surgery in order to evacuate the blood

from his brain.      He testified that the complainant probably would have

died without the surgery.       The complainant was discharged from the

hospital on November 22, 2013 and was put in inpatient rehabilitation

followed by outpatient rehabilitation.       Dr. Gonzalez testified that the

complainant’s injuries constituted serious bodily injury in that he faced a

substantial risk of death due to the injury to his brain.      The doctor also

testified that a foot used to kick someone in the head with the same resulting

injuries could be a deadly weapon.    (R.R. VIII, pp. 13-40)

      Rosie Hernandez, the complainant’s girlfriend, testified that the

complainant came home the night of the incident and seemed disoriented

and upset.     He told her that he had gotten into a fight and she could see

marks on his forehead.          Hernandez testified that the complainant

complained of a headache and he was up and down all night.            He also

began vomiting.       Hernandez told the jury that the next morning she saw

that the complainant’s right eye was turning purple.        Hernandez told the

jury that she left for work and later in the morning when the complainant

would not respond to her texts, she called his sister and asked her to check

on him.      They were able to persuade the complainant to go to the hospital

later in the day.   Hernandez testified that the complainant had to have brain


                                       15
surgery and was hospitalized for one week.          After being discharged from

the hospital, he spent about a month in a rehabilitation facility.    (R.R. VIII,

pp. 183-206)      Hernandez testified as to the changes in the complainant

after the incident.    She told the jury that it was as if he had lost his filter.

She testified that the complainant now says inappropriate things.         He has

lost his sense of direction.     He is forgetful.    His mood fluctuates and he

often is sad and cries.     She also told the jury that he has a blind spot in his

eye and cannot see things, causing him to bump into things.           (R.R. VIII,

pp.   207-213)        The complainant’s sister, Patricia Cortez, told the jury

how she went to check on the complainant the morning after the incident.

He was disoriented and vomiting.         She testified that she drove him to the

hospital where doctors discovered that his brain was swelling and he had to

undergo emergency brain surgery.          She described the complainant as an

angry person since his brain injury.      (R.R. VIII, pp. 217-224)

      After both sides rested and closed, the State made an oral motion to

strike the “or stomping” language from the indictment.           The trial court

granted that request.       (R.R. X, p. 65)     The jury heard argument from

both sides, deliberated and then announced its verdict.          The jury found

appellant guilty of the offense of aggravated assault as alleged in the

indictment.    The jury also made an affirmative finding of a deadly weapon.


                                        16
(R.R. X, pp. 122-123; C.R. 58-68 )

         Appellant elected to go to the trial court for punishment.    The State

introduced into evidence various State’s Exhibits showing some of

appellant’s prior convictions:    State’s Exhibit 24 – a conviction for evading

arrest in Cause No. 08-07320-1 in County Court at Law No. 1 of Williamson

County on February 12, 2009; State’s Exhibit 25 – a conviction for felony

DWI in Cause No. D1-DC-09-907397 in the 331st District Court of Travis

County on July 26, 2010; State’s Exhibit 26 – a conviction for another

felony DWI in Cause No. D1-DC-10-201406 in the 331st District Court of

Travis County on July 26, 2010 and State’s Exhibit 27 – a conviction for

assault on a public servant in Cause No. D1-DC-10-201407 in the 331st

District Court of Travis County, Texas on July 26, 2010.          (R.R. XI, pp.

15-16)       The State also introduced State’s Exhibits 28, 29, 30 and 31 –

recordings of some of appellant’s phone calls from the Williamson County

Jail.     (R.R. XI, pp. 16-19)   The State then rested.

         Dr. Matthew Ferrara, a psychologist, testified for the defense.      He

told the court that he had evaluated appellant and found six mitigating

factors to consider when assessing punishment:                (1) he suffered

post-traumatic stress disorder that had occurred during his military service;

(2)     his loss of a paternal figure as a child (his father had died when he was


                                        17
in fifth grade); (3) his mother never showed him love; (4) he saw domestic

violence in his home between his parents; (5) he was a victim of sexual

abuse as a child; and (6) he has a substance abuse problem.            Dr. Ferrara

testified that there is treatment available for each one of these factors.      He

also testified that appellant will become less aggressive as he ages.

(R.R. XI, pp. 21-36)

         Appellant’s wife also testified and told the court that appellant was a

great husband and father and a good man.           She also testified that after the

incident when he learned how serious the complainant’s injuries were, he

was remorseful.       (R.R. XII pp. 6-9)     Appellant’s two sons and one of

their friends also testified as character witnesses for appellant.            (R.R.

XII, pp. 14-20)       The defense then rested and the State called Officer

Andrew McRae in rebuttal.         McRae testified that he had arrested appellant

twice for the offense of driving while intoxicated – once on April 21, 2009

and again on March 12, 2010.         He gave the details of each arrest to the

court.    (R.R. XII, pp. 22-33)     After McRae’s testimony, the State rested

and both sides closed.     (R.R. XII, pp. 33-35)        After      hearing      the

argument of counsel from both sides, the trial court assessed appellant’s

punishment at fifteen years imprisonment.      (R.R. XII, p. 50; C.R. 79-81)




                                        18
                     SUMMARY OF THE ARGUMENT

      In his sole point of error, appellant argues that the trial court abused

its discretion when it allowed the State to introduce an extraneous offense

into evidence because the prejudicial effect of that evidence far outweighed

any probative value that the evidence had.     As its last witness during the

guilt-innocence phase of the trial, the State brought in APD Officer Andrew

McRae who testified that while appellant was in his custody on another

charge, appellant threatened him with physical harm and in fact did kick the

police car door as the officer was opening it to remove appellant from the

vehicle. As a consequence the officer sustained a sprained wrist because he

was holding onto the door handle when appellant kicked the car door. The

State argued that they needed to use this extraneous offense to rebut

appellant’s theory of self-defense, to show his intent and to show his lack of

mistake.   Appellant asserts that the relevance of the extraneous offense

testimony did not outweigh the inherent prejudicial and inflammatory effect

of the testimony.     The prosecution put on overwhelming evidence of

appellant’s guilt.    Not only were there numerous eyewitnesses who

testified that it was appellant who kicked the complainant in the head, the

State introduced State’s Exhibit 2, a Facebook entry, appellant posted some

ten minutes after the attack, boasting of kicking the complainant in the face.


                                      19
The State did not need the extraneous offense at all.    The prejudicial and

inflammatory effect of the admission of the extraneous offense into evidence

was far greater than any probative effect.        The trial court abused its

discretion in allowing the extraneous offense into evidence.




                                     20
              POINT OF ERROR NUMBER ONE
THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING
INTO EVIDENCE THE EXTRANEOUS OFFENSE WHEN THE
RECORD CLEARLY SHOWED THAT THE PREJUDICIAL
EFFECT OF THE EVIDENCE FAR OUTWEIGHED ITS
PROBATIVE VALUE.

      During his opening argument defense counsel argued that appellant

was acting in self-defense when the complainant was injured.        (R.R. VI,

pp. 25-31)    On the second day of the evidence, the State announced that

because appellant had argued self-defense in his opening statement, he had

opened the door and thus the State should be allowed to introduce evidence

of appellant’s prior conviction for assault on a public servant.   The State

argued that appellant was not acting in self-defense but rather his motive

was to hurt the complainant after the incident at second base.     The State

argued that the extraneous offense should be admissible under Tex.R.Ev.

404(b) to show appellant’s intent and lack of mistake.   Appellant objected

on the basis that a theory of self-defense did not open the door to other

violent acts and even if it did, this evidence would be far more prejudicial

than probative.   The trial court asked the parties to provide her case law

and took the matter under advisement.     (R.R. VIII, pp. 5-11)    Later after

reading the case law, the trial court informed the parties that she would

allow the State to put on evidence regarding the actual incident but would

                                     21
not allow the jury to know that appellant had been convicted for that offense.

(R.R. VIII, pp. 126-128)     Immediately before the extraneous offense was

put before the jury, the defense renewed its objection to the admissibility of

the extraneous offense under Tex.R.Ev. 404(b) and also argued that

admission of this evidence would be more prejudicial than probative.      The

court after hearing the witness testify outside the presence of the jury

overruled appellant’s objection and ruled that she was admitting the

extraneous offense to rebut a defensive theory of self-defense.     She ruled

that the State could use the evidence to show lack of mistake and intent.

She did however restrict the State from introducing evidence as to why the

officer was arresting appellant or the fact that appellant had been convicted

of assaulting a public servant because of the this incident.    (R.R. IX, pp.

4-18)

        Immediately thereafter, Officer Andrew McRae of the Austin Police

Department was allowed to testify in front of the jury.   He told the jury that

on March 12, 2010, while on patrol, he arrested appellant.      Appellant was

put in the back of the patrol car.         McRae testified that while he was

transporting appellant, appellant threatened him:

              “Q.   . . . Can you tell the jury what statements the
        defendant was making to you?

             “A.    He made several statements.      “Open these doors.

                                      22
         See if I don’t punch you in the face.     Get someone else to
         open up this door. I swear to God you open this door, I’m
         going to fuck you up. I’m not even playing. Seriously, bro,
         when we get to the fucking station, get somebody else to open
         the fucking door because if you’re anywhere near me, ooh.”
         (R.R. IX, pp. 28-29)

McRae went on to testify that when they reached their destination, the

appellant had turned so that his back was facing away from the door.

When McRae opened the back door of the police car, appellant kicked the

door very hard causing McRae, who was holding the door handle to sprain

his wrist.     McRae told the jury that appellant’s action caused him pain in

his wrist that lasted for one or two days.       (R.R. IX, p. 29)      On cross,

defense counsel established that appellant had been asking Officer McRae to

be allowed to use the restroom and the officer had not allowed him to do so.

As a consequence, appellant had urinated all over himself.          (R.R. IX, pp.

30-31)

         The general rule regarding the admissibility of extraneous offenses is

that an accused may not be tried for a collateral crime or for being a criminal

generally.     Tex.R.Ev. 404(b); Williams v. State, 662 S.W.2d 344, 346

(Tex.Cr.App. 1983); Elkins v. State, 647 S.W.2d 663, 665 (Tex.Cr.App.

1983); Carter v. State, 145 S.W.3d 702, 707 (Tex.App.-Dallas 2004, pet.

ref.).     Introduction of an extraneous offense is inherently prejudicial, and a

defendant’s “propensity to commit crimes” is not material to whether the

                                        23
defendant committed the specific offense charged.       Williams v. State, 662

S.W.2d at 346; Elkins v. State, 647 S.W.2d at 665.

      There are exceptions to the general rule barring admission of

extraneous offenses.     An extraneous offense committed by the accused

may be admissible “upon a showing by the prosecution both that the

[extraneous offense] is relevant to a material issue in the case; and the

relevancy value of the evidence outweighs its inflammatory or prejudicial

potential.”   (emphasis added).     Williams v. State, 662 S.W.2d at 346.

Thus an extraneous offense may be admissible to show the motive or intent

of the accused or to refute a defense theory.   See Tex.R.Ev. 404(b); see also

Powell v. State, 63 S.W.3d 435, 438 (Tex.Cr.App. 2001); Montgomery v.

State, 810 S.W.2d 372, 386 (Tex.Cr.App. 1991)(opinion on rehearing).

Albrecht v. State, 486 S.W.2d 97, 100-101 (Tex.Cr.App. 1972).       Even if it

is admissible, however, its relevance and materiality must still be shown to

outweigh its prejudicial effect.   See Tex.R.Ev. 403; Montgomery v. State,

supra; Williams v. State, 662 S.W.2d at 346.    A relationship must be shown

between the extraneous offense “and the evidence necessary to prove the

accused committed the crime for which he stands charged . . . .”     Albrecht

v. State, 486 S.W.2d at 100.

      Appellant asserts that the relevance of the extraneous offense


                                      24
testimony did not outweigh the inherent prejudicial and inflammatory effect

of the testimony.      The prosecution put on overwhelming evidence of

appellant’s guilt.    All of the eyewitnesses testified that it was appellant

who was involved in the altercation with the complainant.       Several of the

witnesses testified that they saw the appellant actually kick the complainant

in the head and there was no evidence introduced which showed that it was

anyone else or that appellant was justified in his action of kicking the

complainant in the head.     Furthermore, the State introduced into evidence

State’s Exhibit 2, a Facebook post which appellant posted on his Facebook

page some ten minutes after the incident.    It read:

      “I guess next time you will think twice about taking out
      someone’s knee in softball.      Haha! How’s your face?
      Cause my foot is killing me!!! Not to mention how far u flew
      when u were “standing your ground.” Lmao.      U picked the
      wrong Mexican homeboy!!!”       (R.R. VI, p. 68)    (State’s
      Exhibit 2)

A review of all of the evidence shows that the State put on more than enough

evidence about the incident alone to refute appellant’s self-defense theory.

As the Corpus Christi Court of Appeals wrote in Escort v. State, 713 S.W.2d

733 (Tex.App.-Corpus Christi 1986, no pet.), a case very similar to this in its

procedural posture:

      “The extraneous offense evidence was simply ‘overkill,’ and it
      went too far. 713 S.W.2d at 737.


                                      25
Where all if not most of the direct evidence adduced during the trial rebuts

the theory of self-defense and goes to prove an accused’s intent, the less

relevant is evidence involving a collateral offense between the accused and a

third party.   Considering the overwhelming evidence of appellant’s guilt

both from eyewitness accounts and appellant’s Facebook post, the evidence

regarding appellant’s unrelated act towards Officer McRae, could not have

been that helpful to the jury in resolving the issue of self-defense.   Thus

the relevancy of the extraneous offense is questionable.            Thus the

prejudice emanating from the admission of the extraneous offense far

outweighed any probative value that it could have had.

      In assessing whether potentially relevant evidence should be excluded

under Tex.R.Ev. 403 because its prejudicial nature substantially outweighs

its probative value, the appellate court must consider 1) the probative force

of the evidence, 2) the need for the evidence, 3) the tendency of the evidence

to suggest a decision on an improper basis, 4) the tendency of the evidence

to confuse or distract the jury, 5) the tendency of the evidence to be given

undue weight, and 6) the likelihood that the presentation of the evidence will

consume an inordinate amount of time or merely repeat evidence already

admitted.      Gigliobianco v. State, 210 S.W.3d 637, 641-641 (Tex.Cr.App.

2006); Dekneef v. State, 379 S.W.3d 423, 433 (Tex.App.-Amarillo 2012,


                                      26
pet.ref.).   The first four of those criteria clearly favored excluding the

testimony at issue.     Its probative value or relevance was marginal at best.

The State had little need for it. Attributing to an accused prior criminal

conduct is undoubtedly prejudicial and facilitates the jury's penchant to infer

present guilt from prior criminal conduct. In appellant’s case, the prejudicial

testimony came from the State’s last witness at guilt-innocence, a police

officer, called only for the purpose of soliciting that prejudicial testimony.

As for the last indicia, not much time was spent on presenting the evidence,

but the potentially unacceptable impact it had due to its timing is evident.

In addition both prosecutors emphasized the extraneous offense during their

closing arguments at guilt-innocence.         Prosecutor Jackie Borcherding

argued the following:

              “The defendant had the intent to assault Juan, and the
       reason why we know that is because he had statements made
       right before he assaulted Juan, and we know that in the past –
       You can consider an extraneous offense – the fact that he told
       Officer McRae in 2010 that essentially – the quote was, ‘I
       swear to God, you open this door, I’m going to fuck you up.
       I’m not even playing.       When we get to the fucking station,
       get somebody else to open the fucking door because if you’re
       anywhere near me, oh.’         And he carried through with his
       threat, and he kicked the door open, and it hurt Officer McRae.
       That shows his intent to hurt Juan, and the reason why is
       because in our case, he made threatening statements. ‘You’ll
       get yours.’ ‘You’ll have what’s coming to you.’          And he
       carried through with that threat by kicking – kicking again, this
       time Juan.      That extraneous offense is relevant to show you
       his intent, that he’s not defending himself. . . . “ R.R. X, pp.

                                       27
      89-90.

Prosecutor Josh Reno encouraged the jury not to consider the extraneous

offense as a tool to consider appellant’s intent but rather he urged the jury to

improperly consider the extraneous offense as evidence of appellant’s

assaultive character:

      “Yeah, we brought you an assaultive case that happened out of
      Austin.    He’s assaultive.   This defendant has an assaultive
      history, and you need to know that why?     Because now that
      we’ve proven our case beyond a reasonable doubt, he’s
      claiming self-defense.    He’s saying, ‘Yeah, I assaulted you,
      Juan, but I had to.     I had to.   I had to defend myself.’
      Really?    Really?” . . . This defendant makes threats, and
      then he makes good on them just like he did with Andrew
      McRae, the officer with the Austin Police Department.” (R.R.
      X, pp. 113-114)

      Reasonable minds cannot disagree over the application of Tex.R.Ev.

403 here; the prejudicial effect of disclosing that appellant had a prior arrest

and during that arrest assaulted a police officer far outweighed any minimal

probative value the evidence may have had.1      The trial court clearly abused

its discretion in admitting the extraneous offense.       This point of error

should be sustained.

1
  Appellant acknowledges that the trial court did submit a limiting
instruction regarding the extraneous offense testimony in its charge to the
jury.    (C.R. 58-68) However, appellant asserts that just as the Corpus
Christi Court of Appeals found in Escort v. State, 713 S.W.2d 733, 737-738
(Tex.App.-Corpus Christi 1986, no pet.), the instruction had no curative
value “in obviating the inflammatory effect of the inadmissible evidence”.


                                       28
                                     PRAYER

      Appellant respectfully requests that this Honorable Court sustain his

point of error and reverse the trial court and remand the case for a new trial.

                                        Respectfully submitted,

                                        /s/ Linda Icenhauer-Ramirez
                                        LINDA ICENHAUER-RAMIREZ
                                        Attorney at Law
                                        1103 Nueces
                                        Austin, Texas 78701
                                        (512) 477-7991
                                        FAX: (512) 477-3580
                                        SBN: 10382944
                                        Email: ljir@aol.com

                                        ATTORNEY FOR APPELLANT




                   CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief was computer generated and contains

5,834 words, as calculated by the word count function on my computer.

                                        /s/ Linda Icenhauer-Ramirez
                                        LINDA ICENHAUER-RAMIREZ




                                       29
                      CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of Appellant’s Brief on

Original Appeal served by e-service to John Prezas of the Williamson

County District Attorney’s Office on this the 9th day of July, 2015.

                                       /s/ Linda Icenhauer-Ramirez
                                       LINDA ICENHAUER-RAMIREZ




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