                                                                         ACCEPTED
                                                                     01-13-00416-CR
                                                          FIRST COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                                                               12/21/2015 9:12:55 AM
                                                               CHRISTOPHER PRINE
                                                                              CLERK


             No: 01-13-00415-CR
             No: 01-13-00416-CR
             No: 01-13-00417-CR                     FILED IN
                                             1st COURT OF APPEALS
                                                 HOUSTON, TEXAS
                                             12/21/2015 9:12:55 AM
    IN THE TEXAS COURT OF APPEALS            CHRISTOPHER A. PRINE
                                                      Clerk
         FIRST JUDICIAL DISTRICT

             HOUSTON, TEXAS


           JAVIER NOEL CAMPOS
             Defendant - Appellant

                      vs.
           THE STATE OF TEXAS
             Plaintiff - Appellee

 APPELLANT'S BRIEFS ON REMAND FROM
THE TEXAS COURT OF CRIMINAL APPEALS

    Appealed from the 184TH District Court
            Harris County, Texas

         Trial Court Cause Numbers:

                   1308988
                   1328806
                   1328807

               WAYNE T. HILL
            Texas Bar No: 09656300
      4615 Southwest Freeway, Suite 600
              Houston, Texas 77027
   Tel: (713) 623-8312 Fax: (713) 626-0182
               wthlaw@aol.com


        Oral argument is not requested
                       IDENTITY OF PARTIES AND COUNSEL

Presiding Judge at Trial
Honorable Jan Kroeker
184th Judicial District Court
1201 Franklin
Houston, Texas 77002

Attorneys for State

At trial:
Gregg Houlton
Tiffany Johnson
Assistant District Attorneys
1201 Fannin
Houston, Texas 77002

On Appeal:
Eric Kugler
Clinton A. Morgan
Assistant District Attorneys
1201 Franklin
Houston, Texas 77002

Attorney for Appellant

At trial:
Diana Olvera
Danilo Lacayo
Public Defender's Office
1201 Franklin, 13 1h Floor
Houston, Texas 77002

On appeal:
Wayne T. Hill
4615 Southwest Freeway, Suite 600
Houston, Texas 77027

The Appellant
Javier Noel Campos




                                     11
                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                   11


TABLE OF CONTENTS                             111


INDEX OF AUTHORITIES                          lV


ISSUE BEFORE THE COURT ON REMAND                  v

SUMMARYOFARGUMENT                             v

STATEMENT OF THE CASES                            1

PROCEDURAL HISTORY OF THE CASES                   1

STATEMENT REGARDING ORAL ARGUMENT                 2

STATEMENT OF FACTS RELATING TO REMAND             2

ARGUMENT AND AUTHORITIES                      3

PRAYER FOR RELIEF                            10

CERTIFICATE OF WORD COUNT COMPLIANCE         11

CERTIFICATE OF SERVICE                       11




                                111
                             INDEX OF AUTHORITIES

STATUTES

Texas Rules of Evidence - 404(b)                    10
Texas Rules of Evidence - 609(b)                    3,4,5,7,8,10
Texas Rules of Appellate Procedure - 44.2(a)        8,10
Texas Rules of Appellate Procedure - 44.2(b)        8,10
Texas Rules of Appellate Procedure - 81 (b)         9
Federal Rules of Evidence - 609(b)                  8,9

CASE LAW

Battles v. State                                    6
Brown v. State                                      9,10
Butler v. State                                     4,6,8,9
Hankins v. State                                    4
Hernandez v. State                                  4,9
Jones-Jackson v. State                              5
Kotteakos v. U.S.                                   9
Leyba v. State                                      4
Meadows v. State                                    1,4,5,7
Miller v. State                                     7
Mireles v. State                                    6
Theus v. State                                      2,4,5,6,7
U.S. v. Bensimon                                    7
U.S. v. Brown                                       8
U.S. v. Cathery                                     8




                                          IV
                     ISSUE BEFORE THE COURT ON REMAND

POINT OF ERROR #9 (on original submission)

THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO CROSS
EXAMINE APPELLANT CONCERNING A CONVICTION WHICH WAS MORE
THAN TEN YEARS OLD [Appendix# 1] (R-VI-68-73)

The Texas Court of Criminal Appeals has instructed this Court to consider the
admissibility of the challenged remote conviction in Appellant's case in light of the
opinion issued by the Court of Criminal Appeals in Meadows v. State, 455 SW3d 166
(Tex. Crim. App. 2015)

                        SUMMARY OF THE ARGUMENT

        Because there has been no showing of compliance with Rule 609(b) TRE which
prohibits the admission of a prior conviction to impeach a witness if more than ten ( 10) years
has elapsed since the date of conviction or release of the witness from confinement imposed
for that conviction unless the court determines, in the interest of justice, that the probative
value ofthe conviction supported by specific facts and circumstances substantially outweighs
its prejudicial effect, Appellant is entitled to a new trial.




                                              v
                             STATEMENT OF THE CASES

       Appellant was tried on three separate indictments. Each indictment alleged the offense

of aggravated sexual assault of a child. The same person was named as the complainant in

each indictment. Cause No: 1308988 - (CR-I-26). Cause No: 1328806 - (CR-I-10) and

Cause No: 1328807 - (CR-I-10) A jury found Appellant guilty in each case and set his

punishment at sixty-eight (68) years in the Texas Department of Criminal Justice -

Institutional Division. Upon motion of the State, the trial court cumulated Appellant's

sentences as follows: The sentence in Cause No: 1308988 to be served first, and that the

sentence in Cause No: 1328806 run concurrent with the sentence in Cause No: 1308988, and

the sentence in cause No: 1328807 be cumulated; that is, stacked upon the other two

sentences, to be served when those two (1308988 & 1328806) are concluded. (R-XI-10)

                     PROCEDURAL HISTORY OF THE CASES

       Each of the cases noted above were appealed. On January 13, 2015, this Court

affirmed Appellant's three convictions. Appellant filed Petitions for Discretionary Review

in the Court of Criminal Appeals seeking to have this Court's holding set aside. On July 29,

2015, the Court of Criminal Appeals vacated this Court's judgment and remanded the cases

to this Court for reconsideration of Appellant's Point of Error Number 9 (only) in light of

Meadows v. State, 455 SW3d 166 (Tex. Crim. App. 2015). This Court was instructed to

consider the admissibility of the challenged remote conviction in Appellant's case in light

of the opinion issued by the Court of Criminal Appeals in Meadows.




                                             I
                   STATEMENT REGARDING ORAL ARGUMENT

       Appellant is not requesting oral argument in these cases.

                 STATEMENT OF FACTS RELATING TO REMAND

       The Statement of Facts recited herein will focus only on the issue remanded to this

Court by the Court of Criminal Appeals [Point of Error 9 on original submission] regarding

the admissibility of the challenged remote conviction during Appellant's appearance as a

witness during trial.

       Prior to trial, Appellant filed a Motion to Testify Free of Impeachment by Prior

Convictions [Appendix 1] - citing: Theus v. State, 845 SW2d 874 (Tex. Crim. App.1992)

as authority for that proposition. The motion was filed in response to the State's notice to

Appellant that it intended to offer evidence against Appellant concerning several prior

convictions (CR-I-112-115), including:

       1.     June 11, 1992 conviction for felony aggravated assault (2 counts).

       2.     May 20, 2004 conviction for misdemeanor harboring a runaway child.

       3.     February 10, 2006 conviction for misdemeanor assault family member.

       During the hearing on admissibility of prior convictions, the trial court recited her

application of the "tagging" rule in articulating her reasoning for permitting the State to

introduce a remote conviction from 1992 which was clearly more than ten ( 10) years old. (R-

VI-71) The trial court's reliance on the "tagging" [actually the"tacking"] rule revealed how

the court thought the other challenged misdemeanor convictions made the 1992 felony

conviction for two (2) counts of aggravated assault admissible, despite the express



                                             2
prohibition of this type ofimpeachment under Rule 609(b). The trial court alluded to having

performed a balancing test without providing any insight into how the admission of a remote

conviction was "in the interests of justice" or providing any specific facts and

circumstances establishing that the "probative value" of the remote conviction

substantially outweighed its prejudicial effect. (Emphasis supplied)

       The trial court overruled Appellant's motion and authorized the State to cross examine

Appellant (if he testified) about the above-cited prior convictions, including the remote ones

from 1992 - involving two (2) counts of aggravated assault.

       As set forth in Appellant's Brief on original submission [also see: Appendix# 2],

Appellant testified that he did not sexually assault the complainant. (R-VI-96) Additional

witnesses testified during the defense presentation.

       Appellant was then cross examined by the State regarding his 1992 conviction for two

(2) counts of felony aggravated assault. (R-VI-98) The jury found Appellant guilty on all

three charges and assessed his punishment at sixty-eight (68) years in prison. (R-XI-10)

                            ARGUMENT AND AUTHORITIES

       Rule 609 (b) of the Texas Rules of Evidence provides that evidence of a conviction

under this rule is not admissible if a period of more than ten years has elapsed since the

date of the conviction or of the release of the witness from the confinement imposed for that

conviction, which ever is the later date, unless the court determines, in the interest of

justice, that the probative value of the conviction supported by specific facts and

circumstances substantially outweigh its prejudicial effect. (emphasis supplied)



                                             3
       There is no dispute that Appellant's 1992 conviction for two (2) counts of aggravated

assault constitutes a remote conviction under Rule 609(b) of the Texas Rules of Evidence.

       On remand, this Court must look exclusively to the strictures of Rule 609(b ), not the

multiple factors set out in Theus v. State, 845 SW2d 874 (Tex. Crim. App. 1992). The

Theus case, which did not involve a remote conviction, interprets Rule 609( a), not Rule

609(b). Hernandez v. State, 976 SW2d 753 (Tex. App. [Houston, rt] 1998, pet. ref'd)

Interestingly, in a case where the defense attempted to impeach a prosecution witness with

remote convictions claiming they were admissible under the "tacking" doctrine, the State

argued in response that the tacking doctrine no longer exists under the holding in Hankins

v. State, 180 SW3d 177 (Tex. App. - Austin 2005, pet. ref'd). In Leyba v. State, 416

SW3d 563 (Tex. App. - Houston [14th Dist.] 2013, pet. ref'd) the court, in reliance upon

Hankins, held that the more rigorous "substantially outweighs" standard set out in Rule

609(b) applies exclusively in determining admissibility of convictions that are more than ten

(10) years old. This is precisely the Court of Criminal Appeals holding in Meadows, which

governs the disposition of this Point of Error on remand.

       As the proponent of evidence of a remote conviction, the State of Texas had the

burden to establish (and the trial court had the responsibility to find) that the admission of

the remote conviction (which was 21 years old in the instant case) was (1) in the "interests

of justice", (2) had "probative value", (3) and that the "probative value" was supported by

specific facts and circumstances, (4) showing that the "probative value" substantially

outweighed its prejudicial effect, before that evidence should have been admitted. Butler v.

State, 890 SW2d 951 (Tex. App. - Waco 1995, pet. ref'd)

                                             4
        In pressing for its use during cross examination of the Appellant, the prosecutor failed

 to establish how the admission of a twenty-one (21) year old conviction for two (2) counts

 of aggravated assault was in the "interests ofjustice". Likewise, the trial court did not explain

 how that evidence was admissible under Rule 609(b), instead focusing on the use of the

tacking rule to make the 1992 conviction admissible. This analysis is clearly erroneous in

light of the holding in Meadows. As this Court reviews this issue on remand, Appellant

submits that the first two requirements of Rule 609(b) ["in the interests of justice" and

"probative value"] have not been met. Additionally, the record is devoid of any evidence

that the purported "probative value" relied upon by the State [and the court in admitting it]

was supported by specific facts and circumstances showing that the purported "probative

value" substantially outweighed its prejudicial effect. This result is contrary to the holding

in Meadows and requires that Appellant be afforded a new trial. There is no valid argument

that the admission of the 1992 twenty-one (21) year old conviction for two (2) counts of

aggravated assault did not constitute error under Rule 609(b).

       Even if this Court views (as instructive) the nonexclusive list of factors courts use

when applying Rule 609(a) to weigh the probative value of a conviction against its

prejudicial effect as set forth in Theus v. State, 845 SW2d 874 (Tex. Crim. App. 1992)

including: (1) impeachment value of the prior crime, (2) the temporal proximity of the past

crime relative to the charged offense and the witness's subsequent criminal history, (3) the

similarity between the past crime and the offense being prosecuted, (4) the importance of the

witness's testimony, and (5) the importance of the witness's credibility, error is still shown

requiring reversal and a new trial. State v. Jones-Jackson, 443 SW3d 400 (Tex. App. -

                                               5
Eastland 2014) The impeachment value of this crime (aggravated assault - two (2) counts)

was low given that it did not involve deception. Mireles v. State, 413 SW3d 98 (Tex. App. -

San Antonio 2014, pet. ref' d) The temporal proximity of the prior conviction [21 years old]

provided no probative value for impeachment. Butler v. State, 890 SW2d 951 (Tex. App. -

Waco 1995, pet. ref'd). The similarity of the past crime (a multi-count aggravated assault)

and the offense being prosecuted (also a multi-count aggravated assault offense, albeit an

aggravated sexual assault of a child) created a danger that the jury convicted Appellant based

on a perception of past conduct rather than based on the facts of the charged offense.

Mireles v. State, 413 SW3d 98 (Tex. App. - San Antonio 2013, pet. ref'd); also see:

Battles v. State, 2006 WL 1029072, (Tex. App. - Eastland 2006, not designated for

publication) This factor also weighs against admission of the remote conviction. Appellant

presented other witnesses, along with his own testimony, in defense of the allegations lodged

against him. This made Appellant's role as a witness and his credibility less critical. Battles.

      Although the trial court noted for the record that a balancing test had been performed

regarding "all of these", the record is essentially silent as to her reasoning for admitting the

convictions against Appellant. As the court stated in Theus: While we refuse to require trial

courts to make such findings and conclusions, we feel that engaging in such exercise

constitutes the better practice. Therefore, we urge trial courts to enunciate on the record not

only whether the probative value of a conviction outweighs its prejudicial effect, but also

the rationale behind such a determination. This analysis was not done in the instant case, and

Appellant urges this reviewing Court to find that there was no basis for the admission of a

twenty-one (21) year old conviction. Probative value is determined by how likely the

                                               6
 evidence is to prove some fact, not how important proof of that fact is to the proponent's

 case. Accordingly, the probative value of the witness's conviction is measured by how well

 it demonstrates his lack of trustworthiness, not how badly the opposing party wants to

impeach him. U.S. v. Bensimon, 172 F3d 1121 (9th Cir. 1999)

       Whether to admit remote convictions lies within the trial court's discretion. Theus

v. State, 845 SW2d 874 (Tex. Crim. App. 1992) If the trial court's decision falls outside

the "zone of reasonable disagreement" it has abused its discretion. Theus and Miller v.

State, 196 SW3d 256 (Tex. App. - Fort Worth 2006, pet. rerd.)

       The comments below (made by the trial court when ruling on the admissibility of the

remote 1992 felony conviction) further reflect that there is no basis, in light of the holding

in Meadows, upon which this reviewing Court can affirm Appellant's convictions.

       When discussing the admissibility of a misdemeanor assault conviction, the trial

court commented: " Well, obviously I think a child would involve moral turpitude. And I

think ifone kind ofvictim makes it moral turpitude, another kind ofvictim does. I don 't think

that under the law that you can say the victim is willingly involved in moral turpitude. And

if it's a man or child it doesn't. I know I've read some ofthose cases before and !just think

that has to be common sense in the law    if assaulting a woman is a moral turpitude, you

would think that assaulting a minor child is moral turpitude. So your objection is overruled

on that one." (R-VI-70)

       When discussing the admissibility of a conviction for harboring a runaway, the trial

court, while reflecting on the application of Rule 609, made the following acknowledgment



                                             7
 on the record: "I don't see anything here that specifically mentions harboring a run away.

And I understand that's pretty prejudicial, but I think that's very important as to moral -

- so I'm going to allow it." (R-VI-71)

       Rule 609(b) required the trial court to conduct a different, and more stringent,

analysis than the court did when ruling on the admissibility of Appellant's remote (21 year

old) conviction. Appellant submits that this reviewing court cannot reasonably conclude that

the trial court acted within the "zone of reasonable disagreement". Under the circumstances,

the trial court abused its discretion when it admitted the prior remote convictions for the

purpose ofimpeachingAppellant's credibility. Butlerv. State, 890 SW2d 951 (Tex. App. -

Waco 1995, pet. ref'd)

       The Fifth Circuit, in construing Federal Rule 609(b), has stated "the legislative

history makes clear that convictions over ten years old will be admitted very rarely and only

in exceptional circumstances" U.S. v. Cathey, 591 F2d 268 (5th Cir. 1979) The mere fact

that the defendant's credibility is in issue - a circumstance that occurs whenever the

defendant takes the stand - cannot, by itself, justify admission of evidence of convictions

over ten years old. Such a rule would make the ten year limit in Rule 609(b) meaningless.

U.S. v. Brown, 603 Fd2 1022 (1st Cir. 1979)

       Rule 44.2(a) of the Texas Rules of Appellate Procedure mandates that an appellate

court reverse a judgment under review unless the court determines beyond a reasonable

doubt that the error made no contribution to the conviction. Rule 44.2(b) of the Texas

Rules of Appellate Procedure requires reversal only upon a showing that the appellant's



                                             8
 substantial rights were affected by the trial court error.

        In cases interpreting former Rule 8l(b) of the Texas Rules of Appellate Procedure,

the Courts held that reversal was required unless the court could determine beyond a

reasonable doubt that the erroneous admission of the prior conviction did not contribute to

the appellant's conviction. Butler v. State, 890 SW2d 951 (Tex. App. - Waco 1995, pet.

ref'd); Brown v. State, 1994 WL 325322 (Tex. App. - El Paso 1994)

        Cases interpreting current Rule 44.2(b) review the record to determine whether the

error affected one of the appellant's substantial rights. A substantial right is affected when

the error had a substantial and injurious affect or influence in determining the jury's verdict.

Hernandez v. State, 976 SW2d 753 (Tex. App. - Houston [Pt Dist.] 1998, pet. ref'd) If

one cannot say, with fair assurance, after pondering all that has happened without stripping

the erroneous action from the whole, that the judgment was not substantially swayed by the

error, it is impossible to conclude that substantial rights were not affected. Hernandez,

citing to: Kotteakos v. U.S. 328 U.S. 750 (1946) In determining whether the error was

harmless, the test is not whether a conviction could have been had without the improperly

admitted evidence but, rather, whether there is a reasonable possibility that the evidence

might have contributed to the conviction. Thus, if there is a reasonable possibility that

inadmissible evidence might have contributed to the conviction, then the error in admission

is not harmless error. In applying the test, the main consideration is the probable impact of

the evidence on the minds of the average jury. Battles.

      Appellant submits that the trial court abused its discretion when it allowed the State



                                              9
to cross examine Appellant concerning the remote 1992 felony aggravated assault case,

especially since the determination of admission of that crime was interrelated with the trial

court's focus on other misdemeanor convictions which the State may not have proven to

involve moral turpitude. [assault family member - not a female case, as well as the harboring

a runaway case]. The admission of the twenty-one (21) year old conviction for two (2)

counts of aggravated assault was used as pure propensity evidence of the kind eschewed in

Rule 404(b) of the Texas Rules of Evidence; Brown v. State, 1994 WL 325322 (Tex.

App. - El Paso 1994) The admission of this evidence allowed the State to produce

conformity evidence which did not constitute otherwise probative evidence at the guilt stage

of the trial. Appellant submits that whether the court applies Rule 44.2(a) or 44.2(b) of the

Texas Rules of Appellate Procedure, the result is the same - Appellant should be granted

new trials in these matters.

       WHEREFORE, PREMISES CONSIDERED, Appellant prays the Court review and

reconsider this Point of Error on remand and find that it was error to admit the remote

conviction pursuant to Rule 609(b) of the Rules of Evidence and further hold that the error

was harmful to Appellant. Appellant prays for new trials in each of the cases.




                                            IO
APPENDIX# 1
  r
          lJ         ORIGINAL                                                                              Plf
                                                                                           1~1~ 'l~i,416\fJ~
                                                                                                   f



                                 CAUSE NO. 132&806, 1328807, & 1308988                     I)   /qt?, 1!S>, 11ll'JJ~
         THE STATE OF TEXAS                                      §              IN THE DISTRICT COURT
                                                                 §
         v.                                                      §              HARRIS COUN1Y, TEXAS
                                                                 §
         JAVIER NOEL CAMPOS                                      §              184th JUDICIAL DISTRICT


         MOTION TO TESTIFY FREE OF IMPEACHMENT BY PRIOR CONVICTIONS


         TO THE HONORABLE JUDGE OF SAID COURT:

                   COMES NOW the Defendant in the above entitled and numbered cause, by and

       · through bis attorney of record, DIANA OLVERA, and respectfully moves this Honorable

        Court to allow the Defendant to testify free of impeachment by way of prior convictions;

        and in support thereof would show the Court as follows:

                                                            I.

               The three (3) indictments in the instant cases charge the Defendant with th.e

        offense of Aggravated Sexual Assa:Ult of a Child, on or about July 15, 2005.                   l L ..f!,
                                                                                                  Ji'c;hrfs       b
                                                                                                                       f)
                                                                                                   /J 10".,-,- Dan; .•
                                                                                                         • 1ctc1i e1
                                                           rr                                      ~Y-         ~
                                                                                  lime:                    3 2013
               The· State of Texas has given notice to the Defendant that it may ~ek iOimgeach

       the Defendant with a prior conviction if he Wrtifies in the instant case-        Sp~~
       State has· given notice that the Defendant has been previously convicted of the following

       offenses:

o~                  January 29, 2009, convicted of felony PCS >4g < 200g.            tJ ~           r tJ ~L
/21.   ~JJehruary            28, 2006, convicted of misdemeanor (C) Displaying a Fictitious

v~ - Driver's License.               fLft)                                                                             "•

'f) uw.Jbl;}'ebruary 10, 2006, convicted ofmisdomeanor Assault Family Member (c/w                        1µ_/
                                       RECORDER'S MEMORANDUM                           Page l    of 4:
                                       Th!a lnstrurnoot Is t>f poor ql.\81\tf
                                             at the t1m11 of Imaging
                                                                                                   283
       ~afernale).                                                                                      .

#     {nJJ•Y 20, 2004, convicted ofmisdemeanor Harboring a RUI1l!Way Child, 1~
 ~~Vuune 11, 1992, convicted of felony Aggravated Assault DW. 2 counts. ~
          6. November 26, 1990, convicted of misdemeanor Trespass. ;c-0
                                                                                        0       ~ r:u1/MI._
                                                                                                ~7) j-(JI l,
  1                                               m.                                              {
          The Defendant requests that he be allowed t testify free from impeachment by

  prior convictions for the reason that the probative v: lue of admitting evidence of this

  prior conviction for the purpose of determining his credibility does not outweigh its

 prejudicial effect on the Defendant under TEX.R.EVID. 403 and 609; and Theus v. State,

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

                                              IV.

         The Defendant submits that the failure to allow the Defendant to testify free from

 impeachment by his alleged prior convictions denies the Defendant his right to a fair trial,

 and due process of law as guaranteed by the Fifth and Fourteenth Amendments to the

 United States Constitu.tion, and Art. I, Sec. 19 of the Texas Constitution.

                                             IV.

        The Defendant submits that the failure to allow the Defendant to testify free from

impeachment by his alleged prior conviction denies the Defendant his right to a fair trial,

and due process and due course of law as guaranteed by the Fifth and Fourteenth

Amendments to the UNITED STATES CONSTITUTION, and Art.            r,   Sec. 19 of the Texas

Constitution.

                                             V.

       Further, without waiving the foregoing requests, the Defendant submits that



                                                                            Page 2 of 4

                                                                                        284
   should this Honorable Court fail to grant his request to testify free from impeachment by

   prior convictions, that a fair means of allowing the State to impeach the Defendant

  without unduly prejudicing the Defendant would be to allow the State to refer to the prior

  convictions as "prior felony convictions" without specifically citing the offenses for

  which the Defendant was allegedly convicted.

          WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays-

  that this Honorable Court will grant this, the Defendant's Motion to Testify Free of

  Impeachment by Prior Convictions in all things; or in the alternative, that this Court

  schedule this matter for a hearing prior to trial on the merits and that at such hearing this.

 Motion will be in all things granted.


                                                Respectfully Submitted,

                                                ALEX BUNIN
                                                CHIEF PUBLIC DEFENDER


                                                     ~
                                                     AOL
                                                         ~'-----l-
                                                             VERA
                                                BN: 15278650
                                               Assistant Public Defender
                                               Harris County Public Defender's Office
                                               1201 Franklin) 131h Floor
                                               Houston, TX 77002
                                               Phone: 713-368-0016
                                               Fax: 713-368-9278
                                               Diana. Olvera@pdo.hctx.net

                              CERTIFICATE OF SERVICE

       L Diana Olvera, certify that a true and correct copy of the foregoing Motion has
betp hand delivere    the Assistant District Attomezin charge of this case on this
+day of                             , 2013.         ~             t
                                              ;!z;AOLVERA
                                                              9
                                                                            Page 3 of 4

                                                                                           285
                                   CAUSE NO. 1328806, 1328807, & 1308988

     THE STATE OF TEXAS                                  §           IN THE DISTRICT COURT
                                                         §
     v.                                                  §           HARRIS COUNTY, TEXAS
                                           ~···<
                                                         §
    ·JAVIER NOEL CAMPOS                                  §            184m JUDICIAL DISTRICT


      ORDER TO TESTIFY FREE OF IMPEACHMENT BY PRIOR CONVICTIONS

        ~·    ;   .

                                                   HAY 0 3 2013
                      Ort this _ _ day of - - - - - - · ' 2013, came to be heard and having

    considered the Defendant's Motion to Testify Free of Impeachment, and the evidence in

    supj?ort of the motion, and arguments of counsel, the Court hereby rules said Motion is:



                  _ _GRANTED; And therefore, it is further ORDERED, ADJUDGED AND

    DECREED that the State of Texas and its witnesses not mention, refer to, or elicit in any

    manner, any evidence that Defendant has been previously convicted. It is further

    ORDERED that the attorney for the State instruct Iris witnesses concerning the terms of

    this Order.




                  - -DENIED;... to which Defendant respectfully accepts.




~e_;h     ,.re                                nIDGESIIJlNG             /<'_/',,,   e-/~
                            /L
             !'--°
                       g
                                                                             Page 4 of 4

                                                                                        286
APPENDIX#2
          Appellant testified that he was 40 years old, having been born and raised in Pasadena,

  Texas. (R-VI-76) After reciting the members of his family, Appellant testified that he went

  through the Pasadena School system, but did not graduate from high school. Appellant

  obtained his GED in 1991. (R-VI-78)                He testified that he was a licensed journeyman
                                    "'"7"' . . ...



  electrician. (R-VI-7 8) Appell51-nt testified that he had no children of his own. (R-VI-81) He
                               I

  indicated that he met Complainant while living at the Embers Apartments. (R-VI-81) He
                  .. -


  testifie_d t~at he moved into the apaiiments in 2005 and moved with his friend along with his

  wife and three kids. (R-VI-82)    After living with "L" and his family, Appellant moved

 across the courtyard to "LD" and her kids. (R-VI-82) Appellant stated that he met "LC"

 (Complainant's mother) by socializing with everyone at the Embers Apa1iments. (R-VI-84)

  He described G's husband ("C") as always being "pilled out." (R-VI-84)                 Appellant

 remembered meeting the Complainant for the first time when several individuals were

 playing handball at apaiiment complex. (R-VI-86) He related that he saw the Complainant

 trying to help his father up off the ground one time when he was all "pilled out" and that is

 how he first tried to help the Complainant and his mother. (R-VI-87)              "G" ultimately

 allowed her son to go to L's apartn;ient. (R-VI-88)             Appellant testified that when the ·

Complainant would come home from school he would go directly to the apartment that he

was living in, along with "L" and her kids. (R-VI-89) He testified about how he would take

the kids on fishing trips and play different games with them at the apaiiment complex. (R-VI-

90) When Complainant moved away from the Embers Apartments, Appellant said that he

missed him because he was like a little son to him, just like "I" & "K". (R-VI-92) When

questioned about any alleged sexual contact with the Complainant, Appellant tearfully denied

all such a~tivity. (R-VI-96)
                                                 Wayne T. ·I
                                                 SBOT: 09656300
                                                 4615 Southwest Freeway, Suite 600
                                                 Houston, Texas 77027
                                                 Tel: 713-623-8312
                                                 Fax: 713-626-0182
                                                 E-mail: wthlaw@aol.com
                                                 Attorney for Javier Noel Campos

                          CERTIFICATE OF WORD COUNT

       Appellant's brief which contains 2756 words (according to the computer-generated

word count) is in compliance with Rule 9.4(i)(2)(B) T




                             CERTIFICATE OF SERVICE

       A copy of this Brief will be served on:

Harris County District Attorney's Office
Appellate Division
1201 Franklin, 6th Floor
Houston, Texas 77002.

Lisa C. McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711-3046

Signed this 21st day of December, 2015.




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