                                                                                       ACCEPTED
                                                                                  13-14-00684-CR
                                                                    THIRTEENTH COURT OF APPEALS
                                                                          CORPUS CHRISTI, TEXAS
                                                                             3/26/2015 2:25:51 PM
                                                                                DORIAN RAMIREZ
                                                                                           CLERK

                 CAUSE 13-14-00684-CR

IN THE THRITEENTH SUPREME JUDICIAL DISTRICT  OF TEXAS AT
                                          FILED IN
                                                                   --
                                        13th COURT
                                                          - - ----- OF APPEALS
                                     CORPUS CHRISTI/EDINBURG,
                                                      ---                      TEXAS
                 CORPUS CHRISTI,   TEXAS      - - ---- AM ------
                                          3/26/2015
                                            -
                                           - ID                 -2:25:51 PM
                                                                 -
                                       ---- VO ------
                                            DORIAN   - -         E. RAMIREZ
                                                ----
                                          ----               Clerk



               EUGENIO VALDEZ, APPELLANT
                                               RECEIVED IN
                                         13th COURT OF APPEALS
                                      CORPUS CHRISTI/EDINBURG, TEXAS
                          VS.             3/26/2015 2:25:51 PM
                                           DORIAN E. RAMIREZ
                                                  Clerk
                  THE STATE OF TEXAS




               APPELLANT’S AMENDED BRIEF

Trial Cause 14-04-27914-D; Victoria Co. District Court




                     Submitted by

                  W. A. (BILL) WHITE
                Attorney for Appellant
             POB 7422, Victoria, TX 77903
              (361) 575-1774 voice & fax
                     TBN 00788659


              NO ORAL ARGUMENT REQUESTED



                           1
                  IDENTITY OF PARTIES

    The parties are appellant, Eugenio Valdez, and the
State. Appellant was a resident of Victoria County
during trial.

    Appellant was represented at trial by James Beeler,
Attorney at Law, POB 1841, Port Lavaca, TX 77979.
Appellant is represented on appeal by W. A. (Bill)
White, Attorney at Law, POB 7422, Victoria, Texas
77903.

    The State was represented at trial by Jacquelyn
Johnson and Johna Stallings, ADAs, of the Victoria
County District Attorney’s Office, 205 N. Bridge St.,
Suite 301, Victoria, Texas 77901.

    Appellant’s counsel anticipates that the State’s
reply brief will be prepared and filed by Brendan Guy,
ADA, Victoria County District Attorney’s Office, 205 N.
Bridge St., Suite 301, Victoria, Texas 77901 or another
attorney at said office’s designation.




                           2
                      TABLE OF CONTENTS

                                               Page

Index of Authorities                            4

Appellant’s Brief                               5

Statement of the Case and Statement of Facts    5

Issue Presented                                 6

Summary of Argument                             6

Argument                                        6

Prayer                                          10

Certificate of Service                          11

Certificate of Compliance                       11




                              3
                 INDEX OF AUTHORITIES

Cases                                              Page

Jackson v. State, 287 S.W.2d 346 (Tex.App-Houston 2009)

                                                   10




                           4
                    CAUSE 13-14-00684-CR
                 Trial Cause 14-04-27914-D

EUGENIO VALDEZ, Appellant          IN THE THIRTEENTH

VS.                                COURT OF APPEALS AT

THE STATE OF TEXAS                 CORPUS CHRISTI, TEXAS


                 APPELLANT’S AMENDED BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

      COMES NOW APPELLANT, EUGENIO VALDEZ, through

counsel of record, W. A. (BILL) WHITE, Attorney at Law,

presenting:

       STATEMENT OF THE CASE AND STATEMENT OF FACTS

      Appellant was indicted by the Victoria County grand

jury in April 2014 for aggravated assault.   On

11/03/14, jury selection began, with trial on the

merits beginning 11/04/14.   Appellant pled “not

guilty”.   Appellant’s jury convicted him of aggravated

assault as alleged in the indictment on 11/05/14, and

punishment commenced on 11/06/14 before the same jury.

Appellant pled “not true” to two felony enhancement

paragraphs alleged in a State’s notice of intent.


                             5
Appellant did not testify at either stage of his trial.

After the jury found both enhancement allegations to be

true, it assessed punishment at 99 years in prison. The

trial judge then sentenced appellant to same. (RR Vol.

5, pp. 67 and 70).

    Appellant timely filed notice of appeal.



                      ISSUE PRESENTED

   THE PROSECUTION IMPORPERLY COMMENTED IN OPENING
STATEMENT AT GUILT/INNOCENCE ON APPELLANT’S SUBSEQUENT
                ELECTION NOT TO TESTIFY


                     SUMMARY OF ARGUMENT

    During opening statement at the guilt/innocence

phase of trial, the State made remarks which, given

that appellant later opted not to testify, constituted

an improper comment on his exercise of his right to

remain silent.



                          ARGUMENT

    During opening statement at guilt/innocence, the

State’s prosecutor stated:

                              6
    “January 18, 2014, it’s approximately 2:00 in the

morning.    The evidence is going to tell a story about

three individuals – three individuals covered in blood.

Only two of those three individuals remember what

happened and only one individual is responsible for the

entire incident.” (RR Vol. 4, p. 12, lines 14-19)

(italics added)

    Testimony during guilt/innocence established that

appellant (Eugenio Valdez aka “Tony”), the complaining

witness (Lorenzo Gonzales, Jr.), and a witness named

Lisa Lopez, all visited the Coyote Bar as a group in

Victoria County, Texas on the date alleged in the

indictment.   These are the “three individuals”.

    While in the bar, an unknown party struck appellant

with a pool stick.    Lorenzo and Lisa then tried to

drive appellant home, where he could better nurse his

wounds.    Inside the car on the way to appellant’s home,

appellant got angry with Lorenzo because he did not

help defend him against the person who hit him with the

stick.    Physical combat ensued between the two men,


                             7
with Lisa witnessing.    During this fight, Lorenzo was

cut deeply with a knife and went to a local emergency

room (ER).

    Testimony further revealed that appellant was

intoxicated at the ER.   According to a police officer

witness who arrived at the ER to investigate on the

night in question, appellant was too intoxicated to be

questioned. (RR Vol. 5, p. 151, lines 10-15)

    The prosecutor’s statement, “Only two of those

three individuals remember what happened …”, is a clear

reference to the complaining witness and to Lisa, the

eyewitness to the stabbing.       The implication that the

third individual (appellant) did not remember the

incident can be construed as a comment on why he would

later choose not to testify during guilt/innocence.

    Thus, the State asked the jury with these remarks

to speculate in advance as to why appellant might elect

not to testify later at guilt/innocence, in violation

of the court’s instructions.       Those instructions in the

court’s charge state, “In this case, the defendant has


                              8
elected not to testify, and you are instructed that you

cannot and must not refer to nor allude to that fact

throughout your deliberations, nor take it into

consideration for any purpose whatsoever as a

circumstance against the defendant.” (RR Vol. 4, p.

178, lines 2-7)

    In addition, by implying that appellant would not

later testify due to an inability to recall the event,

the State suggested that appellant was so intoxicated

on the night in question that he may have flown into a

chemically induced rage and did in fact commit the

crime alleged.    Thus, the State subtly used appellant’s

later election not to testify as evidence against him.

    While the State obviously could not have foreseen

with certainty that appellant would elect silence at

guilt/innocence, it gambled he might not, and could

later use his inability to speak with police at the ER

against him if he did in fact choose to testify (i.e.,

“How do you remember so well now, Mr. Appellant?”).




                             9
    Defense counsel at trial lodged no objection to

these remarks.

    To preserve error for review, a defendant must

timely object to the error during trial.        If the

objection is overruled, the defendant has preserved

error.   When the objection is sustained, and the

defendant desires to preserve argument that the error

incurably infected his right to a fair trial, he should

request an instruction to disregard and move for a

mistrial. See Jackson v. State, 287 S.W.3d 346, 353-354

(Tex.App.-Houston [14th Dist.] 2009, no pet.).

    Regardless, any comment by the State on an

accused’s right not to testify at trial is plagued with

constitutional infirmities.        Applying procedural bars

or the harmless error doctrine only encourages similar

remarks and arguments in future trials in all Texas

counties.   Accordingly, appellate counsel argues in

good faith for a change, extension, or modification of

existing law in the cause at bar.        The right to remain

silent at trial must remain inviolate.


                              10
                         PRAYER

    Appellant prays that conviction be reversed and

that this cause be remanded for new trial.

                                Respectfully submitted,

                                /s/ W. A. White
                                W. A. (BILL) WHITE
                                ATTORNEY FOR APPELLANT
                                POB 7422, Vict., TX 77903
                                (361) 575-1774 voice/fax
                                TBN 00788659

                 CERTIFICATE OF SERVICE

    I certify that a true and correct copy or duplicate

original of the foregoing has been provided to Brendan

Guy, ADA, Victoria Co. District Attorney’s Office, 205

N. Bridge, Suite 301, Victoria, TX 77901 via U.S. mail,

facsimile, electronic delivery, or hand-delivery on

this the 26th day of March 2015.

                                /s/ W. A. White
                                W. A. White


               CERTIFICATE OF COMPLIANCE

    I certify that this brief contains 1,244 words.

                                /s/ W. A. White
                                W. A. White


                           11
