                                                                       ACCEPTED
                                                                  13-13-00349-CR
                                                    THIRTEENTH COURT OF APPEALS
                                                          CORPUS CHRISTI, TEXAS
                                                            1/27/2015 11:55:21 AM
                                                                 DORIAN RAMIREZ
                                                                           CLERK

         CAUSE NO. 13-13-00349-CR

        IN THE COURT OF APPEALS             FILED IN
                                    13th COURT OF APPEALS
                                 CORPUS CHRISTI/EDINBURG, TEXAS
 FOR THE THIRTEENTH       JUDICIAL DISTRICT
                                    1/27/2015 11:55:21 AM
                                      DORIAN E. RAMIREZ
                                             Clerk
       AT CORPUS CHRISTI, TEXAS
          ADRIAN BARRERA,
             APPELLANT

                    vs.

          THE STATE OF TEXAS,
               APPELLEE

ON APPEAL FROM THE 138th DISTRICT COURT
TRIAL COURT CASE NUMBER 2011-DCR-2796-B

          ____________________

       APPELLANT'S REPLY BRIEF
              ________

      ORAL ARGUMENT REQUESTED

              Philip T. Cowen
        Law Office of Philip Cowen
             500 E. Levee Street
             Brownsville, Texas
             Tel. 956-541-1691
             Fax. 956-541-6872
        State Bar Number: 24001933
       ATTORNEY FOR APPELLANT

              January 27, 2015

 _______________________________________
                                       TABLE OF CONTENTS
                                                                                                     Page
      Table of Authorities..........................................................................         iii
      Notice of Parties................................................................................      iv
      Statement on Oral Argument.............................................................                 v
      Preliminary Statement.......................................................................            1
      Statement of Facts............................................. ..............................          2
      Issues Presented ..... ......................................................................           3
      Summary of the Argument.................................................................                4
      Argument............................................................................................     5

Issue#1. The State Mis-characterizes the Evidence and the Rule when....... 5
it argues that because the state decides to dismiss a charge after indictment, the
accomplices will never be accomplices as a matter of law.

Issue#2. The State’s points on Issues 2 through 8 are merely distractions,.... 7
 attempting to get this court to ignore the law and facts of the issue. Appellant
stands by his brief and his framing of the issues and ask this court to overturn his
conviction.

      Prayer for Relief ..................................................................................     7

      Certificate OF Service............................................................................       8

      Certificate of Compliance......................................................................              9




                                                        ii
                             TABLE OF AUTHORITIES


State Cases

Chastain v. State, 97 Tex. Crim. 182, 260 S.W. 172 (1924)..............     5
Ex parte Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991)...............       5
Herrera v. State, 115 Tex. Crim. 526, 27 S.W.2d 211 (1930)...........       5
Smith v. State, 332 S.W.3d 425 (Tex. Crim. App. 2011).................      5
Solis v. State, 792 S.W.2d 95 (Tex. Crim. App. 1990).....................   4




                                            iii
                             NOTICE OF PARTIES:

      Appellant informs the Court that the following persons have an interest in

this case.

Hon. Luis Saenz
State Bar No.
Cameron County District Attorney
Hon. Rene Gonzalez
State Bar No. 08131380
Hon. Gustavo Garza
State Bar No. 07731700
Hon. Art Teniente
State Bar No. 24070730
Cameron County District Attorney’s Office
964 E. Harrison
Brownsville, Texas 78520
Hon. Jennifer Avendano State Appellant Attorney
State Bar No. 19058400
Cameron County District Attorney
974 E. Harrison
Brownsville, Texas 78520
Tel. (956) 544-0849
Fax (956) 544-0859

Hon. Dan Sanchez
State Bar. 24004064
501 E, Tyler
Harlingen, Texas 78520
Tel. 956-425-5297
Fax 956-399-0706

Philip T. Cowen
State Bar No. 24001933
500 E. Levee St.
Brownsville, Texas 78520
Tel. 956-541-1691
Fax 956-541-6872


                                         iv
                            Statement on Oral Argument

      A good discussion between the parties and this court will help sort out the

equities in order for this court to appropriately fashion appropriate remedies.

Issues 5 and 8 are unusual, and there does not seem to be very much recent case

law concerning these issues. A Cameron County jury convicted a person for

murder a few years ago, and the legislature responded by removing probation from

consideration by the jury and judge. Now, the new law catches up with us and an

error took place because no one remembered the law had changed, and jurors were

improperly stricken because they could not grant probation if a person was

convicted of murder. The prohibition in Rule of Evidence 605 is still an open

question in case law, at least as to what is the functional equivalent of testimony.

This court should find oral argument useful in making a determination as to how

to be handle these issues, as well as the other issues in this case.




                                           v
                          CAUSE NO. 13-13--00349-CR

                          IN THE COURT OF APPEALS

                    FOR THE THIRTEENTH JUDICIAL DISTRICT

                          AT CORPUS CHRISTI, TEXAS
                             ADRIAN BARRERA,
                                APPELLANT

                                         vs.

                             THE STATE OF TEXAS,
                                  APPELLEE

               ON APPEAL FROM THE 138th DISTRICT COURT
               TRIAL COURT CASE NUMBER 2011-DCR-2796-B

                              ____________________

TO THE HONORABLE JUSTICES OF THIS COURT:

       Comes now, ADRIAN BARRERA, hereinafter referred to as Appellant or

Barrera, who submits this brief, pursuant to the provisions of the Texas Rules of

Appellate Procedure, in support of his request for a judgment of acquittal, and, in

the alternative his request for a new trial and other remedies, in cause number

2011-DCR-2796-B.

                               Preliminary Statement

       The preliminary statement in the original brief is adopted for purposes of

this reply brief.

                                          1
                                Statement of Facts

      The Statement of Facts in the original brief is adopted for purposes of this

reply brief.




                                         2
                          STATEMENT OF THE ISSUES

      Issue#1. The State Mis-characterizes the Evidence and the Rule when it
argues that because the state decides to dismiss a charge after indictment, the
accomplices will never be accomplices as a matter of law.

      Issue#2. The State’s points on Issues 2 through 8 are merely distractions,
attempting to get this court to ignore the law and facts of the issue. Appellant
stands by his brief and his framing of the issues and ask this court to overturn his
conviction.




                                          3
                       SUMMARY OF THE ARGUMENT

      Appellant stands by his issues in his original brief. He argues that the state

mis-characterizes the facts and rule concerning accomplice witnesses, and that the

state should not be able to circumvent the rule by dropping charges in order to

sanitize testimony.




                                          4
                                    ARGUMENT

 Issue#1. The State Mis-characterizes the Evidence and the Rule when it argues
that because the state decides to dismiss a charge after indictment, the accomplices
will never be accomplices as a matter of law.

      Certainly if there is no evidence in a case that witness are accomplices, then

they are not accomplices. In this case, very simply, three co-defendants were

charged by indictment with the same murder as Appellant was charged with, and

for that reason an accomlice witness instruction was appropriate. One of them was

convicted, sentenced, served a sentence of probation, and then had it set aside on a

writ. The state, in its brief, admits that a witness who is indicted for the same

offense or a lesser-included offense as the accused is an accomplice as a matter of

law. Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991); Solis v. State,

792 S.W.2d 95, 97 (Tex. Crim. App. 1990); Herrera v. State, 115 Tex. Crim. 526,

27 S.W.2d 211,212 (1930); Chastain v. State, 97 Tex. Crim. 182, 260 S.W. 172,

173 (1924). The State contents that Smith v. State indicates that an accomplice is

no longer an accomplice if the state abandons the indictment against the

accomplice before he or she testifies. Smith v. State, 332 S.W.3d 425, 439-40

(Tex. Crim. App. 2011). In that case, the Court of appeals did not get to that

question. It is thus still not the law of the state that a person who was charged and

indicted and then had the charges dismissed are not accomplices as a matter of law


                                          5
if the charges are dismissed before the person testifies. The purpose of the rule is

met, as here, when the state chooses to indict a person, and not, as later, when the

state seeks to structure the trial of a defendant and then proceed to sanitize the

accomplices by dismissing the charge in order to have them testify substantively

against a defendant. This later scenario would undercut a great part of the

accomplice witness rule by having defendants bargain away their crimes, and for

the state to remain forever mum about the deal, in exchange for getting the biggest

bad guy. This is what happened in this case. The state wants to make its version of

Smith the rule. That is not the rule, and this court should not make it the law of the

land.

        In the last point, on this issue, the state argues that because defense counsel

did not ask for an accomplice witness instruction requiring the jury to determine

first if the witnesses were accomplishes the error was not preserved for appeal.

Appellant response that a request for an accomplice witness instruction is

sufficient to clue a trial court as to the fact that the jury is to determine whether

someone is an accomplice. The defense does not have to get into the finer points

of accomplice witness law to preserve error. The trial court, if it has any basis for

handing the issue to the jury, and an accomplice witness instruction is requested,

must charge to the jury, in some fashion, in order to meet the purposes of the

                                            6
statute.

      Issue#2. The State’s points on Issues 2 through 8 are merely distractions,
attempting to get this court to ignore the law and facts of the issue. Appellant
stands by his brief and his framing of the issues and ask this court to overturn his
conviction.

                                     Conclusion

       Appellant stands by his brief and his framing of the issues and ask this court

to overturn his conviction.

                                      PRAYER

       Issue 1 requires an acquittal if the court finds no corroborating evidence

other than accomplice witness testimony. If not, it requires remand for retrial as

the jurors were not informed as to the true nature of the accomplices when they

testified as ordinary witnesses.

       Issue 2, 3, 5, and 8 requires reversal and remand for retrial. And, Issue 6

and 7 require remand for re-sentencing. However, because the evidence is

insufficient to convict, following Issue 4, Barrera must be acquitted.

                          Respectfully Submitted by,

                          ____/s/Philip T. Cowen___
                          Philip T. Cowen
                          Law Office of Philip Cowen
                          500 E. Levee St.
                          Brownsville, Texas 78520
                          Tel. 956-541-6031

                                          7
                         Fax 956-541-6872
                         email: ptchb@att.net

                          CERTIFICATE of SERVICE

      This is to certify that on January 27, 2015 a true and correct copy of the

above and foregoing document was served on the District Attorney's office, the

Hon. Jennifer Avendano, Cameron County, 974 E. Harrison St., Brownsville,

Texas 78520, by email.



                         ____/s/Philip T. Cowen____
                               Philip T. Cowen




                                         8
                             Certificate of Compliance

      I certify that this brief was prepared with WordPerfect X4, in Time New

Roman 14 point type for the body of the brief, and 12 point type for footnotes and

long quotations from the transcript or from cases.

       I also certify that, according to the Wordperfect X4 program's word-count

function, the sections covered by TRAP 9.4(i)(1), (excluding any caption, identity

of parties and counsel, statement regarding oral argument, table of contents, table

of authorities, statement of the case, statement of issues presented, statement of

jurisdiction, statement of procedural history, signature, proof of service,

certification, certificate of compliance) contains 599 words.

      The pdf copy of this brief was scanned for viruses, and was found to be

virus free, using the latest version of Windows Security Essentials, Windows

Defender.


                          ____/s/Philip T. Cowen____
                                Philip T. Cowen




                                          9
