                                                                              ACCEPTED
                                                                          06-14-00130-CR
                                                               SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                     5/14/2015 4:24:06 PM
                                                                         DEBBIE AUTREY
                                                                                   CLERK

                        NO. 06-14-00130-CR
_________________________________________________________________
                                                         FILED IN
                                                  6th COURT OF APPEALS
                  IN THE COURT OF APPEALS           TEXARKANA, TEXAS
                                                  5/14/2015 4:24:06 PM
                        SIXTH DISTRICT                DEBBIE AUTREY
                                                          Clerk

                     AT TEXARKANA, TEXAS
_________________________________________________________________

             ALVIN PETER HENRY, JR., APPELLANT

                               V.

                THE STATE OF TEXAS, APPELLEE
_________________________________________________________________

                APPEAL IN CAUSE NUMBER 25589

                    IN THE DISTRICT COURT

                   SIXTH JUDICIAL DISTRICT

                   OF LAMAR COUNTY, TEXAS
_________________________________________________________________

            APPELLANT’S MOTION FOR REHEARING
________________________________________________________________

                           Gary L. Waite
                           State Bar No. 20667500
                           104 Lamar Ave.
                           Paris, Texas 75460
                           Telephone (903) 785 - 0096
                           Fax: (903) 785 - 0097
                           ATTORNEY FOR THE APPELLANT
                                      TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii-iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

GROUND ONE

This Court erred in it’s holding that the Trial Cout did not abuse it’s discretion in
denying Appellant his right to put on evidence of diminished capacity at the
guilt/innocence phase of the trial.

GROUND TWO

This Court erred in it’s holding that the trial court did not err in failing to give
Appellant’s requested jury charge on diminished capacity.

ARGUMENT AND AUTHORITY UNDER GROUNDS
ONE AND TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-5

GROUND THREE

 This Court erred in finding that the evidence is sufficient to prove that appellant
was one and the same person who had been convicted in a prior offense relied
upon by the State for enhancement of punishment.

GROUND FOUR

This Court erred in finding that the evidence is sufficient to prove that appellant
was one and the same person who had been convicted in prior offenses relied upon
by the State as extraneous offenses.

ARGUMENT AND AUTHORITY UNDER GROUNDS
THREE AND FOUR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6-8

 CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
                                  ii
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                   iii
INDEX OF AUTHORITIES

CASES

 Dugar v. State, ____S.W.3d ____(Tex. App. Houston [14 th Dist] 2015)
(2015 WL 1632690). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Jackson v. State, 160 S.W.3d 568 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . .4

Krajcovic v. State, 393 S.W.3d 282 (Tex.Crim. App 2013). . . . . . . . . . . . . . . . .4-5

Mays v. State, 318 S.W.3d 368 (Tex Crim App. 2010). . . . . . . . . . . . . . . . . . . . . . 3

Prihada v. State, 352 S.W.3d 796 (Tex. App.–San Antonio 2011). . . . . . . . . . . . .7

Reyes v. State 394 S.W.3d, 809(Tex. App.–Amarillo 2013). . . . . . . . . . . . . . . . . . 7

Ruffin v. State, 270 S.W.3d 586 (Tex Crim App. 2008). . . . . . . . . . . . . . . . . . . 3, 4

Shaw v. State, 243 S.W.3d 647 (Tex Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . .5

Smith v. State, 314 S.W.3d 576 (Tex. App.–Texarkana 2010, no pet). . . . . . . . . . .3




                                                         iv
                                NO. 06-14-00130-CR

STATE OF TEXAS                               §   IN THE
                                             §
VS.                                          §   SIXTH COURT
                                             §
ALVIN PETER HENRY, JR.                       §   OF APPEALS
                                             §

                 APPELLANT’S MOTION FOR REHEARING

TO THE HONORABLE JUDGES OF SAID COURT:

      Now comes Alvin Peter Henry, Jr., appellant in the above styled and

numbered cause, and moves the Court to grant his Motion for Rehearing it’s

Opinion and Judgment affirming Appellant’s conviction dated April 16, 2015, and

for good cause shows the following:

                 ISSUES PRESENTED FOR REHEARING

GROUND ONE

      This Court erred in it’s holding that the Trial Cout did not abuse it’s

discretion in denying Appellant his right to put on evidence of diminished capacity

at the guilt/innocence phase of the trial.

GROUND TWO

      This Court erred in it’s holding that the trial court did not err in failing to

give Appellant’s requested jury charge on diminished capacity.
GROUND THREE

       This Court erred in finding that the evidence is sufficient to prove that

appellant was one and the same person who had been convicted in a prior offense

relied upon by the State for enhancement of punishment.

GROUND FOUR

      This Court erred in finding that the evidence is sufficient to prove that

appellant was one and the same person who had been convicted in prior offenses

relied upon by the State as extraneous offenses.

        ARGUMENT AND AUTHORITIES UNDER GROUNDS ONE AND
                          TWO

GROUND ONE (Restated)

      This Court erred in it’s holding that the Trial Cout did not abuse it’s

discretion in denying Appellant his right to put on evidence of diminished capacity

at the guilt/innocence phase of the trial.

GROUND TWO (Restated)

        This Court erred in it’s holding that the trial court did not err in failing to

give Appellant’s requested jury charge on diminished capacity.




                                             2
       Texas does not recognize diminished capacity as an affirmative defense.

Smith v. State, 314 S.W.3d 576, 590 (Tex. App.–Texarkana 2010, no pet) ( citing

Ruffin v. State, 270 S.W.3d 586 (Tex Cr. App. 2008) ). If evidence of a

defendant’s mental illness does not directly rebut a defendant’s mens rea, a trial

court is not required to give it. Mays v. State, 318 S.W.3d 368 (Tex Crim App.

2010) Appellant did put on evidence to rebut mens rea. In so doing, he was

entitled to have the jury consider his evidence.

       In this case the testimony of the psychologist was that Appellant was unable

to read, write, complete simple mathematics problems, identify his parents

occupations, or recite his birth date. Coupled with this was the statement that he

had told the psychologist that he was “psycho,” that he heard voices which urged

him to kill himself, and that he usually took antipsychotic medication, which he

stopped taking prior to the offense. The psychologist testified that Appellant had

the mental capacity of a teenager, while his cousin Dwayne Coleman testified that

he had the mental capacity of an 8 to 10 year old . There is testimony from

Appellant that he was not aware that the people chasing him were police officers.

This Court, presumably based on this testimony of the psychologist, Appellant’s

cousin, and Appellant, finds that the evidence established that Appellant had

diminished capacity. But then, despite this finding, the Court goes on to find that

                                       3
        the Appellant had the ability to make independent decisions, “albeit, . . .

poor ones.”

        This case is squarely on point with Ruffin v. State 270 S.W. 3d 586, 593

(Tex. Crim. App. 2008). The Appellant did not have the required state of mind at

the time of the offense. “As with the other elements of of the offense, relevant

evidence may be presented which the jury may consider to negate the mens rea

element[,] . . . includ[ing] evidence of a defendant’s history of mental illness,”

provided that the evidence is admissible under the Texas Rules of Evidence

(emphasis added) (Slip Op. P. 6) (quoting Jackson v. State, 160 S.W. 3d 568, 574-

75 ((Tex. Crim. App. 2005)). Evidence of whether Appellant suffers from

diminished capacity sufficient to determine that Appellant does not have culpable

mens rea is a fact issue to be determined by the jury. The finding by the trial court

that the evidence of diminished capacity should not be allowed because it could be

confusing to the jury could be made about any defensive evidence presented in any

case.

        If appellant had been allowed to put forth his defense, he would have been

entitled to a jury charge on the issue of diminished capacity (See Dugar v. State,

____S.W.3d ____(Tex. App. Houston [14 th Dist] 2015) (2015 WL 1632690) The

trial court must give a requested instruction on every defensive issue that is raised

                                        4
by the evidence. Krajcovic v. State, 393 S.W.3d 282, 286 (Tex.Crim. App 2013).

A defensive issue is raised by the evidence if there is some evidence, regardless of

the source, on each element of a defense that, if believed by the jury, would

support a rational inference that the element is true. See Shaw v. State, 243 S.W.3d

647, 657-58 (Tex Crim. App. 2007). In Shaw, the Court, explains that a jury charge

is given when a defense is supported by(or raised) if there is evidence in the record

making a prima facie case for the defense. “ A prima facie case is that “minimum

quantum of evidence necessary to support a rational inference that an allegation of

fact is true (citation omitted).” A defendant bears the burden of production with

respect to a defense. But of course a “burden of production” is nothing more than

making a prima facie case. Once presented, a defendant is entitled to his requested

jury charge on the defense.




                                             5
       GROUND THREE (Restated)

        This Court erred in finding that the evidence is sufficient to prove that

appellant was one and the same person who had been convicted in a prior offense

relied upon by the State for enhancement of punishment.

GROUND FOUR (Restated)

       This Court erred in finding that the evidence is sufficient to prove that

appellant was one and the same person who had been convicted in prior offenses

relied upon by the State as extraneous offenses.

ARGUMENT

           This Court’s opinion states that during the punishment phase, Henry

“admitted that he was convicted of and went to prison for (1) aggravated assault of

a police officer and (2) aggravated robbery.” (Emphasis added)(Slip Op. P. 11).

The undersigned attorney has looked through the testimony of appellant, and has

not found that he admitted being “convicted of” these offenses. He was never

asked about convictions, only whether he had been to or went to prison for certain

offenses. He readily admitted he had been to prison several times. 1There is a

distinction between being convicted of an offense and having been to prison for an

offense. Likewise, Coleman’s testimony was that Henry had spent a vast majority


       1

       Appellant admitted that he had pleaded guilty to four different assaults, but never was he
asked specifically about the offenses used for enhancement. (RR, Vol. 4, p. 111, ll 13-14)
                                                  6
of his life in prison, and that he was imprisoned in 1989 for aggravated assault and

again in 2002 for aggravated robbery, not whether he had been convicted. (Slip Op.

P. 11); RR, vol 4, p. 109, l 23-p. 110, p. 17). Coupled with appellant’s plea of

“Not True,” it was incumbent upon the state to prove that appellant had been

convicted of these offenses, not merely incarcerated for them. Appellant’s legal

name is Alvin Peter Henry, Jr. None of the Judgments, including the ones used

for enhancement, identify Alvin Peter Henry named therein as the same person on

trial in this case.

       Also, the state argued in closing, and the Court adopts, in it’s opinion the

proposition that appellant has stipulated to his prior convictions. Appellant’s

attorney stipulated to the prior convictions, although it is not clear that he

stipulated that he was the same person who was convicted, only that the judgments

and sentences were valid certified copies. When appellant later entered a plea of

“Not True,” it became incumbent upon the state to prove that the person on trial is

the same person convicted and sentenced in each of the prior convictions.

Appellant relies upon the authorities presented in it’s brief; Reyes v. State 394

S.W.3d, 809, ,810-812(Tex. App.–Amarillo 2013), and Prihada v. State, 352

S.W.3d 796, 807 (Tex. App.–San Antonio 2011).

         Based on the foregoing argument and authorities, appellant requests the

                                           7
Court reconsider it’s judgment in this case, grant Appellant’s Motion for

Rehearing, reverse and remand this case for a new punishment hearing.

               CONCLUSION AND PRAYER

      Based on the foregoing argument and authority, this case should be reversed

and remanded for a new trial, or alternatively, remanded for a new punishment

hearing.



                                             Gary L. Waite
                                             104 Lamar Ave.
                                             Paris, Texas 75460
                                             (903) 785-0096
                                             (903) 785-0097




                                             By:_/s/Gary L. Waite
                                                Gary L. Waite
                                                State Bar No. 20667500
                                                garywaite@sbcglobal.net
                                                Attorney for Alvin Peter Henry,
                                               Jr.




                                             8
                            CERTIFICATE OF SERVICE

      This is to certify that on May 14, 2015, a true and correct copy of the above

and foregoing document was served on the County Attorney's Office, Lamar

County, 119 N. Main, Paris, Texas 75460, by personal delivery.




                                      /s/ Gary L. Waite
                                      Gary L. Waite




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