                                                                               ACCEPTED
                                                                          06-14-00147-CR
                                                                SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                     1/25/2015 3:24:57 PM
                                                                          DEBBIE AUTREY
                                                                                   CLERK

                         NO. 06-14-00147-CR

                               IN THE                     FILED IN
                                                   6th COURT OF APPEALS
                    SIXTH COURT OF APPEALS           TEXARKANA, TEXAS
                                                   1/27/2015 3:24:57 PM
                     AT TEXARKANA, TEXAS
                                                       DEBBIE AUTREY
                   _______________________                 Clerk


                         Asim Shakur Rahim,
                             Appellant,

                                 v.

                      The State of Texas,
                            Appellee.
                 _______________________________
                      On Appeal from the
            County Court at Law, Lamar County, Texas
                   Hon. Bill Harris, Presiding
              _______________________________
                      APPELLANT’S BRIEF




Don Biard
State Bar No. 24047755
Counsel for Appellant




                ORAL ARGUMENT NOT REQUESTED
                         IDENTITY OF PARTIES AND COUNSEL
Defendant Below
Appellant in this Court

Randyael Dontrell Tyson

Counsel for Appellant:
     Don Biard                             (on appeal)
     State Bar No. 24047755
     38 First Northwest
     Paris, Texas 75460
     Tel: (903)785-1606
     Fax: (903)785-7580
     Email: dbiard@att.net

      Quincy Smith Brannan                 (at trial)
      State Bar No. 24077576
      3140 Clark Lane
      Paris, Texas 75460
      Tel: (903)715-4401
      Fax: (469)547-0686


Appellee in this Court

The State of Texas

Counsel for Appellee:
     Gary Young
     Lamar County Attorney’s Office
     119 N. Main Street
     Paris, Texas 75460
     Tel: (903)737-2458
     Fax: (903)737-2455


                                                           1
                                         TABLE OF CONTENTS


Identity of Parties and Counsel………………..........………………………………1

Table of Contents………………………..........…………………………………….2

Index of Authorities………………......………………………………………….....3

Issues Presented…………………………………………………………….………4

Summary of the Argument........................................................................................4

Statement of the Case………………………………….…………………………...5

Procedural History………………………....…………………………………….....6

Facts…………...…………..……………………………………………………..7-8

Argument and Authorities……………………......…………………….…….....9-17

Prayer……………………..……………………………………………………….18

Certificate of Service…………………......…………………………………..…...19

Certificate of Compliance With Rule 9.4(i)(3)........................................................20
                                          INDEX OF AUTHORITIES

                                                     Caselaw

Brown v. State, 477 S.W.2d 617 (Tex. Crim. App. 1972).......................................12

De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009)................................10

Harrison v. State, 241 S.W.3d 23 (Tex. Crim. App. 2007).....................................12

Jiminez v. State, 32 S.W.3d 233 (Tex. Crim. App. 2000).........................................9

Matthews v. State, 979 S.W.2d 720 (Tex. Crim. App. – Eastland 1998)...........10,13

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991)............................16

Tate v. State, 981 S.W. 2d 189 (Tex. Crim. App. 1998).........................................14

Thang Cuong Ngo v. State, 175 S.W. 3d 738 (Tex. Crim. App. 2005).....................9

U.S. v. Thomas, 134 F.3d 975 (9th Cir. 1998).........................................................14

Warner v. State, 245 S.W.3d 458 (Tex. Crim. App. 2008).............................9,15,16

Wilson v. State, 71 S.W.3d 346 (Tex. Crim. App. 2002)........................................12

Woodard v. State, 322 S.W. 3d 648 (Tex. Crim. App. 2010)....................................9

                         Statutes and Rules of Evidence
Tex. Pen. Code §22.01...............................................................................................6

Tex. R. Crim. Pro. Art. 103.001..............................................................................17

Tex. R. Evid. 404.....................................................................................................10

Tex. R. Evid. 405................................................................................................10,14
                                       Secondary Sources

Goode, Wellborn, & Sharlot, Guide to the Texas Rules of Evidence: Civil and
Criminal §405.2 (2d Ed. 1993)................................................................................14

                                                                                                                      3
                    SUBJECT MATTER OF ISSUES PRESENTED

I. Whether the trial court erred in instructing the jury that it could consider
evidence of extraneous offenses as evidence of Appellant’s character.

II. Whether the evidence is sufficient to support the trial court’s order
requiring Appellant to pay costs of court.



                         SUMMARY OF THE ARGUMENT

First, over defense objection, the trial court allowed the state to cross examine
Appellant about prior instances of assault. The trial court then instructed the
jury that it could consider those prior bad acts for the purpose of showing
Appellant’s character for being a peaceable or law abiding person. Evidence
of prior bad acts may be properly considered for some purposes, such as to
prove intent or motive. However, it may not be considered by the jury to
prove Appellant’s character. Accordingly, the trial court erred in instructing
the jury that it could do so.

Second, there is insufficient evidence to support the trial court’s order
requiring Appellant to pay costs of court. The trial court ordered Appellant
to pay $302.00 in costs of court. However, the record does not contain a
certified bill of costs. Without a certified bill of costs Appellant cannot be
required to pay costs of court.




                                                                                  4
                           STATEMENT OF THE CASE


Nature of the Case:          Plea of Not Guilty to One Charge of Assault

Trial Court:                 The Honorable Bill Harris
                             County Court at Law, Lamar County, Texas

Trial Court Disposition:     A jury convicted Appellant and sentenced
                             Appellant to a 365 day jail term.




                                                                           5
                               PROCEDURAL HISTORY

       On April 2, 2014, Asim Shakur Rahim was charged by information with

Assault.1 The offense is a Class A misdemeanor.2 Jury selection was held on

August 5, 2014 and the case was tried to the jury on August 13, 2014. The jury

found Rahim guilty of the charged offense and sentenced him to 365 days in jail.3

The trial court ordered that Rahim also pay $302.00 in costs of court.4 Rahim

timely filed a notice of appeal.5




1
  CR, pg. 5
2
  Tex. Pen. Code §22.01
3
  CR, pg. 61
4
  CR, pg. 64
5
  CR, pg. 65
                                                                                    6
                                       FACTS

       Paris Police officers responded to a report of a disturbance at a convenience

store in Paris, Texas.6 Appellant, Asim Rahim, another man, Larry Solomon, and

other bystanders were standing outside the store.7 Officers interviewed Solomon.

He said that he was inside the store when Rahim came in and asked him to go

outside where they could talk. Once outside, Solomon said that Rahim accused

him of having an affair with his wife. Solomon denied having an affair. At some

point a fight ensued, Rahim punched Solomon, and threw him to the ground.8

       The officers also interviewed Rahim. Rahim said that he was inside the

store when Solomon arrived and asked him to go outside to talk. At some point,

Solomon began acting aggressively and pointed his fingers in Rahim’s face. So,

Rahim hit him.9

       Rahim testified at trial. He admitted that he had punched Solomon and that

they had gone to the ground in a struggle. He testified that he punched Solomon in

self-defense after Solomon “stepped up and pointed with his finger” in Rahim’s

face.10 Rahim also testified that he knew Solomon carried a pistol and was afraid

that Solomon would shoot him.11


6
  RR, pg. 31
7
  RR, pg. 31
8
  RR, pg. 32
9
  RR, pg. 38
10
   RR, pg. 225
11
   RR, pg. 225
                                                                                       7
       After direct examination during Rahim’s testimony, the state asked the trial

court for permission to bring up prior instances of assault that Rahim had allegedly

committed.12 After some discussion outside the presence of the jury, the trial court

permitted the state to do so.13

       During Rahim’s cross examination, the state questioned him about a Class C

misdemeanor assault to which Rahim had plead guilty and another assault charge

that had ultimately been dismissed.14

       The jury ultimately convicted Rahim of the charged offense and sentenced

him to serve 365 days in jail.




12
   RR, pg. 241
13
   RR, pg. 243
14
   RR, pgs. 245-246
                                                                                      8
                            ARGUMENT AND AUTHORITIES

Issue No. 1 Restated: The trial court erred when it instructed the jury that it

could consider evidence of Appellant’s prior bad acts as evidence of

Appellant’s character.

                                  Standard of Review

       When there is error in the jury charge and there is a timely objection to the

charge, reversal is require if there is “some” harm.15 Where there is no timely

objection, reversal is required if there is “egregious” harm. 16 Errors that result in

egregious harm are those that affect “the very basis of the case,” “deprive the

defendant of a valuable right,” or “vitally affect a defensive theory.”17

                                         Analysis

a. The primary defense theory at trial was that Rahim acted in self-defense

       There was no dispute at trial that Rahim and the alleged victim, Solomon,

were in an altercation. The defense theory at trial, however, was that Rahim had

acted in self defense to protect himself from Solomon’s aggressive actions.

       Rahim testified in his own defense during guilt/innocence phase. During

cross-examination, the state asked the court for permission to inquire into Rahim’s




15
   Woodard v. State, 322 S.W. 3d 648, 659 (Tex. Crim. App. 2010)
16
   Woodard v. State at 659; Jiminez v. State, 32 S.W.3d 233, 238 (Tex. Crim. App. 2000)
17
   Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008); Thang Cuong Ngo v. State,
175 S.W. 3d 738, 750 (Tex. Crim. App. 2005)
                                                                                            9
past instances of aggressive conduct. The state told the court that Rahim had

previously been convicted of a Class C misdemeanor Assault.

         After some discussion, the trial court permitted the state’s inquiry. 18 The

trial court stated, “I believe the Defendant’s character for being a peaceful and law-

abiding citizen is in issue and considering the self-defense claim, the State offering

this evidence under 404 and 405, I believe that it is in fact relevant.”19

         During its cross examination of Rahim, the state asked the following:

         Q. Mr. Rahim, you have committed violent acts in the past, haven’t you.

         A. Well, I wouldn’t call them violent but I - - according to the charges,

ma’am, whatever you got me charged for.

         Q. So is that a yes?

         A. No, because it wasn’t violent. That really wasn’t about my wife. It was

my daughter.

         Q. In 2007 did you plead guilty to a Class C assault?

         ....

         Q. ...Did you plead guilty?

         A. Yes, ma’am. I pleaded guilty.

         ....

         Q. So this is the only time you ever hit anybody in your family?

18
     RR, pgs. 238-244
19
     RR, pg. 243
                                                                                        10
       A. No. I hit my son once, too, in his whole life. Think I choked - - you see

how big he was, I couldn’t choke him out.

       Before closing arguments in the guilt/innocence phase, the trial court

instructed the jury. The trial court’s instructions included:

       The State has introduced evidence of extraneous crimes or bad acts
       other than the one charged in the Information in this case. This
       evidence was admitted only for the purpose of assisting you, if it does,
       for the purpose of showing the Defendant’s motive, opportunity,
       intent, plan, knowledge in this case or his character for being a
       peaceable or law abiding person.”20

b. Specific instances of prior bad acts can be used as evidence of motive,

intent, plan, etc.

       As noted above, the trial court instructed the jury that it could consider

evidence of Rahim’s prior bad acts as evidence of the “Defendant’s motive,

opportunity, intent, plan, knowledge...”21 The evidence of Rahim’s prior offense is

permitted to serve as evidence of these factors.22 The trial court’s instructions on

this issue were not in error.

c. Specific instances of prior bad acts cannot be used as evidence of character.

       Evidence of an extraneous crime or bad act “is not admissible to prove the

character of a person in order to show that he acted in conformity therewith.”23

20
   CR, pg. 55 (emphasis added)
21
   CR, pg. 55
22
   Tex. R. Evid. 404(b); De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).
23
   Tex. R. Evid. 404(b); Matthews v. State, 979 S.W.2d 720, 722 (Tex. Crim. App. – Eastland
1998).
                                                                                              11
       One of the reasons for allowing the state to inquire into Rahim’s prior bad

acts was that the court determined Rahim had testified that he was a peaceful and

law abiding person.24 As noted above, the trial court’s instructions stated, in part,

that the jury could consider Rahim’s prior bad acts as evidence of his “character

for being a peaceable or law abiding person.”25

       When admissible, proof of a defendant’s character may only be shown

through opinion or reputation evidence.26 The only way the state may attempt to

prove the defendant’s character is to present its own witnesses to testify as to either

their opinion of the defendant’s character or the reputation of the defendant’s

character in the community.

       The state may cross examine defense character witnesses with “did you

know” or “have you heard” type questions regarding specific instances of the

defendant’s conduct.27 When cross examining a defense witness with these types

of questions, the purpose is not to prove the defendant’s character – that may only

be done though reputation or opinion evidence – but to impeach the character

witness’s testimony.28




24
   RR, pg. 243
25
   CR, pg. 55
26
   Harrison v. State, 241 S.W.3d 23, 25 (Tex. Crim. App. 2007); Brown v. State, 477 S.W.2d
617, 620 (Tex. Crim. App. 1972).
27
   Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002).
28
   See Harrison at 25
                                                                                             12
       An instructive case on this issue is Matthews v. State.29 Matthews was

accused of injuring his daughter resulting in her hospitalization and was ultimately

convicted of causing serious bodily injury to a child. At trial, Matthews presented

several witness to testify that he was a nonviolent, peaceable and truthful person.

The state was allowed to rebut this testimony through one of Matthew’s former

high school teachers. The teacher testified that while Matthews was in high school

he had hit another student with a stool.30

       The court of appeals held that the trial court abused its discretion in allowing

this testimony. It stated:

              Evidence of an extraneous crime or bad act “is not admissible
       to prove the character of a person in order to show that he acted in
       conformity therewith”; but such evidence may be admissible for other
       purposes, such as showing motive, intent, or identity. Inquiry into
       specific instances of conduct is permissible on cross-examination of a
       character witness; however, proof of such specific instances of
       conduct is not admissible unless character or a character trait is an
       essential element of the charge, claim, or defense.31




29
   Matthews v. State, 979 S.W.2d 720 (Tex. App. – Eastland 1998).
30
   Id. at 722
31
   Id.
                                                                                      13
c. Character is not an essential element of the defense of self-defense.

       “In cases in which a person’s character or character trait is an essential

element of a charge, claim or defense, proof may also be made of specific

instances of that person’s conduct.”32 However, in criminal cases, character is

almost never an essential element of a charge or defense.33 The rare exception is

the defensive theory of entrapment where some courts have held that evidence of

the defendant’s predisposition is admissible under certain circumstances.34

       At trial, one of the reasons offered by the state for the introduction of

Rahim’s prior offenses was that it was admissible under Tex. R. Evide. 405(b)

because his character was an essential element of the charge or defense.35

However, even though Rahim introduced a self-defense theory at trial, his

character as a peaceable or law abiding person was not an essential element of the

defense of self-defense. Accordingly, the state was not allowed to prove his

character through specific instances of prior bad acts under Tex. R. Evid. 405(b).




32
   Tex. R. Evid. 405(b)
33
   Tate v. State, 981 S.W. 2d 189, 193, note 5 (Tex. Crim. App. 1998), citing Goode, Wellborn,
& Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal §405.2 (2d Ed. 1993)
34
   U.S. v. Thomas, 134 F.3d 975, 980 (9th Cir. 1998).
35
   RR, pg. 241
                                                                                             14
d. Because Rahim’s character was not an essential element of the charge or

his defense, the trial court erred instructing the jury it could consider specific

instances of prior bad acts as evidence of his character.

          As shown, there were only two permissible uses at trial for the evidence

concerning Rahim’s prior bad acts. One was to show Rahim’s motive or intent.

The other was to impeach Rahim’s own testimony concerning his character. It was

not permissible to use these specific instances as evidence of Rahim’s character

itself. Accordingly, the trial court erred in instructing the jury it could do so.

e. The trial court’s erroneous jury instruction caused “egregious harm” to

Rahim’s case.

          Rahim did not object at trial to the court’s proposed jury instruction.36

Accordingly, this court must review the trial court’s error under the more rigorous

“egregious harm” standard.37

          The trial court’s error caused Rahim egregious harm because it went to the

very heart of the case. It was uncontested at trial that Rahim had been in an

altercation with Solomon. The only issue was whether or not Rahim did so in self-

defense.

          Allowing the jury to consider his past bad acts, including a prior conviction,

as prima facie evidence that Rahim was a violent person struck a serious blow to

36
     RR, pg. 256
37
     Warner v. State at 462
                                                                                       15
his claim of self-defense. The trial court’s erroneous charge also violated the long-

standing fundamental principle that evidence of an extraneous crime is not

admissible to prove the character of defendant “in order to show that he acted in

conformity therewith.”38

         The trial court’s error went to “the very basis of the case” and was served to

“vitally affect a defensive theory”, namely the defense’s theory of self-defense.39

Accordingly, the trial court’s error resulted in egregious harm to Rahim’s case.




38
     Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991).
39
     Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008).
                                                                                      16
Issue No. 2 Restated: The record does not contain a certified bill of costs,

therefore, Rhaim cannot be made to pay costs of court.

         Tex. Code of Crim. Pro. Art. 103.001 states:

         A cost is not payable by the person charged with the cost until a
         written bill is produced or is ready to be produced, containing the
         items of cost, signed by the officer who charged the cost or the officer
         who is entitled to receive payment for the costs.

         The trial court’s judgment orders Rahim to pay costs of court in the amount

of $302.00.40 The record in this case does not contain a certified bill of costs.

Accordingly, the evidence is insufficient to support the trial court’s judgment in

this regard and Tyson cannot be charged with these costs.

                                      CONCLUSION

The trial court erred in instructing the jury that evidence of Rahim’s prior bad acts

could be considered as evidence of his character as a peaceable or law-abiding

person. This error directly affected the vital defense theory of self-defense and

went to the very basis of the defense case at trial. Accordingly, the trial court’s

error resulted in egregious harm to Rahim. Because of this, the judgment below

should be reversed and remanded to the trial court.




40
     CR, pg. 73
                                                                                      17
                                       PRAYER

Appellant asks this court to reverse the judgment below and remand to the trial

court for a new trial. If the judgment below is not reversed in its entirety,

Appellant asks this court to modify the judgment to remove the requirement that

Rahim pay $302.00 in costs of court.




                                               Respectfully Submitted,


                                               /s/ Don Biard
                                               ____________________________
                                               Don Biard
                                               State Bar No. 24047755
                                               38 First Northwest
                                               Paris, Texas 75460
                                               Tel: (903)785-1606
                                               Fax: (903)785-7580
                                               Email: dbiard@att.net
                                               Counsel for Appellant




                                                                                  18
                         CERTIFICATE OF SERVICE

I certify that on January 26, 2015 a copy of the foregoing Appellant’s Brief was
served to the following parties by hand delivery and email.



                                                 /s/ Don Biard
                                                 ___________________________
                                                 Don Biard


Attorney for Appellee:
Gary Young
Lamar County Attorney’s Office




                                                                                   19
   CERTIFICATE OF COMPLIANCE PURSUANT TO TEXAS RULE OF APPELLATE
                         PROCEDURE 9.4(i)(3)



TO THE HONORABLE COURT OF APPEALS:

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

Counsel for Appellant files this certification that Appellant’s brief is a computer-

generated document that contains 3,083 words. Counsel further certifies that he

relied on the word count of the computer program used to prepare this document.

                                Respectfully submitted,


                                ___/s/Don Biard___________________________
                                DON BIARD
                                State Bar No. 24047755
                                McLaughlin, Hutchison & Biard
                                38 First Northwest
                                Paris, Texas 75460
                                Tel: (903)785-1606
                                Fax: (903)785-7580
                                Attorney for Appellant




                                                                                  20
