                                                                        ACCEPTED
                                                                   01-14-00606-CR
                                                         FIRST COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                              1/16/2015 1:37:10 PM
                                                               CHRISTOPHER PRINE
                                                                            CLERK



                        NO. 01-14-00606-CR
                                                  FILED IN
                                           1st COURT OF APPEALS
                 IN THE COURT OF APPEALS       HOUSTON, TEXAS
      FOR   THE FIRST JUDICIAL DISTRICT OF 1/16/2015
                                           TEXAS1:37:10 PM
                   AT HOUSTON, TEXAS       CHRISTOPHER A. PRINE
             ___________________________           Clerk


               TRIAL COURT NO. 1370103
     IN THE 179TH JUDICAL DISTRICT COURT
          KRISTIN M. GUINEY, PRESIDING JUDGE
              OF HARRIS COUNTY, TEXAS
          ___________________________

                     WILLIAM DELACRUZ
                          Appellant

                                 V.

                     THE STATE OF TEXAS
                           Appellee

                      APPELLANTS BRIEF

(a)(1) APPELLANT’S COUNSEL: PAUL DECUIR, JR.
                        TBN: 05712500
                        P.O. BOX 9687
                        HOUSTON, TEXAS 77213
                        (281) 409-9692
                        (713) 450-2773 FAX
                        E-MAIL: paul.decuir@yahoo.com

(2) APPELLEES COUNSEL: ALAN CURRY
                       HARRIS      COUNTY       ASSISTANT
                       DISTRICT ATTORNEY
                       1201 FRANKLIN, SUITE 600
                       HOUSTON, TX 77002

(b) Notice of Appeal filed on September 9, 2014

(c) Oral Argument is NOT Requested.



                                  1
                    TABLE OF CONTENTS



1. COVER SHEET FOR APPELLANTS BRIEF------------1

2. TABLE OF CONTENTS--------------------------------------2

3. IDENTITIES OF PARTIES AND COUNSEL------------3

4. INDEX OF AUTHORITIES----------------------------------4

5. STATEMENT OF CASE---------------------------------------6

6. ISSUES PRESENTED-----------------------------------------6

7. ISSUE NUMBER ONE-----------------------------------------7

8. ISSUE NUMBER TWO----------------------------------------10

10. CONCLUSION AND PRAYER-------------------------------12

12. CERTIFICATE OF SERVICE-------------------------------13




                                2
       IDENTIES OF PARTIES AND COUNSELS

APPELLANT: WILLIAM Delacruz
           HARRIS COUNTY JAIL
           1200 BAKER STREET
           HOUSTON, TEXAS 77702
           713-252-8157

ATTORNEY FOR APPELLANT:

            PAUL DECUIR, JR.
            TBN: 05712500
            P.O. BOX 9687
            HOUSTON, TEXAS 77213
            281-409-9692
            713-450-2773-FAX
            e-mail: paul.decuir@yahoo.com

APPELLEE:   STATE OF TEXAS

APPELLEES ATTORNEY:

            ALAN CURRY
            ASSISTANT DISTRICT ATTORNEY
            1201 FRANKLIN, 6TH FLOOR
            HOUSTON, TEXAS 77002




                         3
                 INDEX OF AUTHORITIES
CASES:                                            PAGE
    DELK V. STATE, 855 S.W. 2d 700------------------- 10

     HERNANDEZ V. STATE, 351 S.W. 3d 156-----------10

RULES OF EVIDENCE

     TEXAS RULES OF EVIDENCE--------------------------8




                      O. 01-14-00606-CR

                              4
         IN THE COURT OF APPEALS
FOR THE FIRS TJUDICIAL DISTRICT OF TEXAS
           AT HOUSTON, TEXAS
     ___________________________

          TRIAL COURT NO. 1370103
IN THE 179TH JUDICAL DISTRICT COURT
     KRISTIN M. GUINEY, PRESIDING JUDGE
         OF HARRIS COUNTY, TEXAS
     ___________________________

           WILLIAM DELACRUZ
                Appellant

                   V.

          THE STATE OF TEXAS
                Appellee

           APPELLANTS BRIEF




                   5
                      STATEMENT OF THE CASE


       Appellant was charged with a Second Degree Felony, AGGRAVATED

ASSAULT W/ DEADLY WEAPON. Trial was had to a jury of twelve and the

Appellant was adjudged Guilty and sentenced to a term of Four (4) years in the

Texas Department of Criminal Justice, Institutional Division. No fine was

accessed. The Appellant filed a Motion for New Trial based on the Discovery of

New Evidence and the denial of the trial Court to allow the Defendant to

introduce the criminal record of the Complainant once his character had been

placed in issue before the jury. The character of the complainant had been placed

in issue by two of the prosecution’s witnesses and the jury was led to believe that

the complainant was a fine upstanding individual who would not intentionally

harm anyone.




                           ISSUES PRESENTED

ISSUE ONE:

       When the State presents witnesses who describe the

complainant as a helpful person who would never harm

anyone, leaving the Jury with the impression that the

complainant is an upstanding member of the community,

should the Defendant be allowed to present the prior bad
                                         6
acts of the complaintant to refute the claim of the State?

ISSUE TWO:

     Does the discovery of records of the Defendants

WARRANT THE Court granting a new trial in order to

ascertain the Mental Competency of the Defendant at the

time of the offense and during the trial on the merits



ISSUE NO. ONE:

     ISSUE ONE:

     When the State presents witnesses who describe the

complainant as a helpful person who would never harm

anyone leaving the Jury with the impression that the

complainant is an upstanding member of the community,

should the Defendant be allowed to present the prior bad

acts of the complaintant to refute the claim of the State?

     ARGUMENY AND AUTHORITIES:



     When the State presents witnesses who describe the

complainant as a helpful person who would never harm anyone,

leaving the Jury with the impression that the complainant is an


                                  7
upstanding member of the community, should the Defendant be

allowed to present the prior bad acts of the complaintant to refute the

representation of the complainant and the claim by the State that the

Complainant was a nice, helpful person who would not harm anyone

and that the shooting of the Defendant, WILLIAM DELACRUZ was

an accident. (RR,Vo. 3, pgs. 25, line 19 thru page 26 line 25; Vol. 3,

page 109 thru page 113, line 25.). These representations by the State

gave the jury the impression that ADAM ORTIZ was a helpful, kind

individual who was mentally challenged and would not shoot anyone.

According to the witnesses for the State, Adam Ortiz would not

intentionally harm anyone.


      This representation by the State would lead a reasonable jury or

a jury made up of reasonable individuals to believe the Complaintant,

Adam Ortiz was a kind, helpful individual why would not

intentionally harm anyone thus causing the jury to find the Defendant

guilty, as the jury did in this case. The Defendant attempted to

introduce evidence of the prior “bad acts” of the Complainant ADAM

ORTIZ. (RR. Vol. 3 page 7, Line 17 thru page 120, line 4; Vol. 3 page

123 thru page 124, line 5; Vol. 4, page 2, line 2 thru page 6, line 12;

Vol. 4, page 76, line 16 ,thru page 79, line 22). On several occasions

                                    8
throughout the trial on the merits, the Defense sought to introduce

the criminal contacts with the police totaling 14 arrests, investigations

and contacts with the authorities. Some of the criminal contacts were

for drug offenses, Family Violence, Criminal Trespass, etc. The record

was introduced as an attachment to the Bill of Exceptions in the

Reporters Record. (RR., Vol. 4, page 76, line 10 thru page 79, line 22

The Texas Rules of evidence, specifically, Rule 4o5 prescribes the

methods of attacking the credibility of a witness. ADAM ORTIZ, even

though he is the complaintant, is subject to the same methods as

prescribed in the Rule. Once his character is placed before the jury,

his character is subject to attack by the opposing party. Here in the

testimony provided by the States witnesses, Mr. Tollette and Mrs.

Ortiz who described Adam Ortiz AS A SLIGHTLY MENTALLY

RETARDED INDIVIDUAL WHO WOULD NEVER INTENTIONALLY

HARM ANYONE, the State placed the character in issue. The Defense

should have been allowed to present evidence of ADAM ORTIZ’s

prior bad acts and prior contacts with the law. The representations of

the States witnesses describing ADAM ORTIZ could possibly, and

probably had a considerable impact on the twelve members of the

jury. The jury was left with the impression of a slightly mentally


                                    9
retarded individual who would never harm anyone. The testimony of

Adam Ortiz mother was intended to portray Adam Ortiz as a person

who was helpful and kind. The Defense should have been allowed to

present evidence that Adam Ortiz activities over the past several years

were acts of violence, a drug possessor, and a person capable of

committing violent acts upon others. The State puts before the jury

that ADAM Ortiz was slightly mentally challenged. That same jury

was entitled to know of Adam Ortiz past history of violence and drug

use. This testimony was introduced in order to establish a false

impression in the minds of the jury that Ortiz was a law abiding

citizen. The Defendant, William Delacruz should have been allowed

to refute this impression. Hernandez v. State 351 S.W. 3d, 156; Delk

v. State, 855 S.W. 2d 700



ISSUE NUMBER TWO:

     ISSUE NUMBER TWO:

     Does the discovery of records of the Defendants

WARRANT THE Court granting a new trial in order to

ascertain the Mental Competency of the Defendant at the

time of the offense and during the trial on the merits


                                  10
ARGUMENT AND AUTHORITIES:

      Prior to the trial on the merits, Defense counsel had visited with

the Defendant on many occasions. As none of these occasions play

any conduct which would have indicated that the Defendant had any

mental problems. During the trial on the merits, the Defendant

began displaying conduct which indicated that there was some defect

in his character. This became readily noticeable to the court staff as

well as the Judge and Prosecutors. His behavior got to the point that

the judge called for counsel to approach the bench and admonished

that if the Defendant continued his disruptive behavior he would be

removed from the courtroom and may be allowed to view the

proceedings via a video monitor. (RR Vol. page 21, line 7 thru page 22

line 9) The Defendant continued to display these actions throughout

trial on the merits. After the trial the Defendants parents indicated

that he was off his medication. After inquiry by Defense counsel, it

was discovered that the Defendant had been diagnosed as being

mentally deficient and prescribed medication for William Delacruz.

Prior to the trial, there was absolutely no indication that a mental

problem existed. In fact, there was an Armed Security Guard license

issued by the State of Texas. One of the requirements is that the


                                   11
applicant be free from any mental deficiency. William Delacruz had

such license. While we find no authority which addresses the

behavioral problem as in this case, it is a compelling reason for the

Presiding Judge who witnesses such behavior to inquire as to the

mental status of the Defendant. Such activity should have caused the

Presiding Judge to halt the proceedings and to continue the trial until

after a mental examination could be conducted. A report as to the

mental status of the Defendant a year prior to the incident was

attached to the Motion for New Trial but was discounted by the

Presiding when she denied the Motion for New Trial. (Clerks

Transcript-Vol. 1, pages 267 thru page 284).

        .

        WHEREFORE, PREMISES CONSIDERED, Appellant prays

that this Honorable Court reverse the decision of the Trial Court and

case.




                              Respectfully submitted,



                            PAUL DECUIR, JR.


                                   12
                             __________________________
                             PAUL DECUIR, JR.
                             ATTORNEY FOR APPELLANT
                             TBN: 05712500
                             P.O. BOX 9687
                             HOUSTON, TX 77213
                             (281) 409-9692
                             (713) 450-2773-fax
                             e-mail: paul.decuir@yahoo.com

                     CERTIFICATE OF SERVICE

II hereby certify that a true and correct copy of the foregoing
Appellants Brief has been sent to the Attorney for the State of Texas,
Harris County District Attorneys Office, Appellate Division 1201
Franklin Suite 600, Houston, TX 77002 on this 16th day of January,
2015.

                             PAUL DECUIR, JR.
                             ___________________________




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