                                                                   ACCEPTED
                                                               03-14-00530-CR
                                                                       5235884
                                                    THIRD COURT OF APPEALS
                                                               AUSTIN, TEXAS
                                                          5/11/2015 3:48:37 PM
                                                             JEFFREY D. KYLE
                                                                        CLERK

          03-14-00530-CR
                                               FILED IN
      IN THE THIRD COURT OF APPEALS     3rd COURT OF APPEALS
                                            AUSTIN, TEXAS
          SITTING IN AUSTIN, TEXAS
                                        5/11/2015 3:48:37 PM
                                          JEFFREY D. KYLE
                                                Clerk
 ON APPEAL FROM CAUSE NO. D-1-DC-14-904026
427th DISTRICT COURT, TRAVIS COUNTY, TEXAS


     GRAHAM SONNENBERG
                            Appellant
                   VS.

          STATE OF TEXAS
                            Appellee



    APPELLANT’S BRIEF

    ORAL ARGUMENT NOT REQUESTED



                  Filed by:
                  Don Morehart SBN 14423700
                  LAW OFFICE OF DON MOREHART
                  316 West 12th Street, Suite 313
                  Austin, Texas 78701
                  Telephone 512.551.0404
                  Telecopier 512.551.0405
                  Don@MorehartLaw.com
PARTIES AND COUNSEL TO THE CASE:

GRAHAM SONNENBERG                 Ms. Rosemary Lehmberg
Appellant/Defendant               Travis County District Attorney
TDCJ # 01950692                   Attorney for the State
Daniel Unit                       P.O. Box 1748
938 South FM 1673
Snyder, TX 79549

Mr. Don Morehart                  Ms. Kelly A. Gier
Law Office of Don Morehart        Assistant District Attorney
Attorney for Appellant            Trial Counsel for State
316 West 12th Street, Suite 313   P.O. Box 1748
Austin, Texas 78701               Austin, Texas 78767
T: 512-551-0404                   T: 512-854-9400
F: 512-551-0405



Mr. Jon Evans                     Mr. James F. Booher
Trial Counsel for Appellant       Assistant District Attorney
806 West 11th Street              Trial Counsel for State
Austin, TX 78701                  P.O. Box 1748
T: 512-476-4075                   Austin, Texas 78767
                                  T: 512-854-9400

Mr. Jesus M. Salinas
Trial Counsel for Appellant
806 West 11th Street
Austin, TX 78701
T: 512-476-4075




                                                                    2
                               03-14-00530-CR
                      IN THE THIRD COURT OF APPEALS
                          SITTING IN AUSTIN, TEXAS

__________________________________________________________________

                        APPELLANT’S BRIEF
__________________________________________________________________


TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:

      This is an appeal from jury verdicts of Guilty for one count of aggravated

assault with a deadly weapon involving family/dating violence, and for one count

of subsequent offense assault by strangulation with family/dating violence. The

jury verdicts on punishment were sixteen years confinement for the first count

(aggravated assault) and twenty years confinement for the second count

(subsequent assault by strangulation). The trial court imposed sentence in

accordance with the jury’s verdicts, and ran the sentences concurrently. There was

no arguable error in the trial of this case which could potentially result in a reversal

of the convictions and sentences.




                                                                                       3
                                      TABLE OF CONTENTS


TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

        Procedural Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
        Factual Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

SUMMARY OF THE ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 17

ARGUABLE POINT OF ERROR NUMBER ONE . . . . . . . . . . . . . . . . . . . . . . 18
    FACTS AND ARGUMENTS RELEVANT TO ARGUABLE
    POINT OF ERROR NUMBER ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ARGUABLE POINT OF ERROR NUMBER TWO . . . . . . . . . . . . . . . . . . . . . . 21
    FACTS AND ARGUMENTS RELEVANT TO ARGUABLE
    POINT OF ERROR NUMBER TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

ARGUABLE POINT OF ERROR NUMBER THREE . . . . . . . . . . . . . . . . . . . . 23
    FACTS AND ARGUMENT RELEVANT TO ARGUABLE
    POINT OF ERROR NUMBER THREE . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

ARGUABLE POINT OF ERROR NUMBER FOUR . . . . . . . . . . . . . . . . . . . . . 25
    FACTS AND ARGUMENT RELEVANT TO ARGUABLE
    POINT OF ERROR NUMBER FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ARGUABLE POINT OF ERROR NUMBER FIVE . . . . . . . . . . . . . . . . . . . . . . 26
    FACTS AND ARGUMENTS RELEVANT TO ARGUABLE
    POINT OF ERROR NUMBER FIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26


                                                                                                                  4
NON-MERITORIOUS APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Attorney’s Certificate of Compliance with TRAP 9.4 . . . . . . . . . . . . . . . . . . . . . 33




                                                                                                          5
                                 TABLE OF AUTHORITIES

Case Law

Anders v. California, 386 U.S. 738 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-29

Bruns v. State, 924 S.W.2d 176 (Tex. App. — San Antonio 1996, no pet.) . . . . . 29

Douglas v. California, 372 U.S. 353 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Ex parte Davis, 957 S.W.2d 9 (Tex. Crim. App., 1997) . . . . . . . . . . . . . . . . . . . . 26

Flowers v. State, 220 S.W.3d 919 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . 22

High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978) . . . . . . . . . . 28

Jeffery v. State, 903 S.W.2d 776, (Tex. App. — Dallas 1995, no pet.) . . . . . . . . 28

Johnson v. State, 885 S.W.2d 641 (Tex. App. — Waco 1994, pet. ref'd) . . . . 28, 29

McCoy v. Court of Appeals, 486 U.S. 429 (1988) . . . . . . . . . . . . . . . . . . . . . 27, 28

Morales v. State, 32 S.W.3d 862 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . 24

Penson v. Ohio, 488 U.S. 750 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-29

Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) . . . . . . . . . . . . . . 29, 30

Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . 24


Statutes

Texas Code of Criminal Procedure Article 37.07(3) . . . . . . . . . . . . . . . . . . . . . . . 22

Texas Code of Criminal Procedure Article 37.09 . . . . . . . . . . . . . . . . . . . . . . . . . 21

Texas Penal Code Section 22.01(b-1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

                                                                                                        6
Texas Penal Code Section 22.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Texas Rule of Evidence 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21




                                                                                                             7
                         STATEMENT OF THE CASE

A.    Procedural Summary

      On October 29, 2012, Appellant Graham Sonnenberg was arrested by Austin

Police Officers and was charged with Assault by Strangulation with allegations of

Family Violence in cause number D1DC12205661 (CRv3p4). Bond was set at

$20,000.00 (CRv3p3). On February 26, 2013, a Travis County Grand Jury

returned an indictment in this cause number, accusing Appellant of Assault by

Strangulation with allegations of Family Violence (CRv3p16-19). On

February 12, 2014, this indictment was dismissed, and in lieu of a new indictment

in cause number D1DC13904091 (CRv3p23).

      On September 23, 2013, the events in question were re-indicted in cause

number D1DC13904091 (CRv2p4-7), which accused Appellant in four counts of

the following: Aggravated Assault with a Deadly Weapon and Family Violence,

Aggravated Assault with a Deadly Weapon and Family Violence, Assault by

Strangulation with Family Violence, and Assault with Family Violence

(CRv2p4-7). On November 5, 2014, this indictment was dismissed (see Appendix

6) in lieu of a new indictment in cause number D1DC14904026 (CRv1p6), which




                                                                                    8
was the indictment which finally went to trial on August 11, 2014 (RRv3p1).1

       On May 27, 2014, the events in question were re-indicted in cause number

D1DC14904026, which accused Appellant in two counts of the following:

Aggravated Assault with a Deadly Weapon and Family Violence, Assault by

Strangulation and Subsequent Offense Family Violence (CRv1p6).

       On August 11, 2014, a jury venire was summoned and sworn, and a petit

jury was selected by the parties, and was seated and sworn and instructed by the

trial court without objection (RRv3p193, RRv3p194-198). Evidence commenced

on August 11, 2014 (RRv3p3), and concluded on August 13, 2014 (RRv5p217).

On August 13, 2014, the jury returned a verdict of Guilty of Aggravated Assault

and Assault Strangulation Enhanced (RRv5p220, CRv1p118-119).

       On August 14, 2014, the court held a punishment trial (RRv6p6), which

concluded on that same date. The jury returned punishment verdicts of sixteen

years confinement for Aggravated Assault and twenty years confinement for the

offense of Assault Strangulation Enhanced.

       A deadly weapon finding was imposed, even though it was not put to the

       1
        The Clerk’s Records contains three volumes: an original volume which will be cited as
volume 1, and first supplemental volume which will be cited as volume 2, and a second
supplement volume which will be cited as volume 3. Citations to the Clerk’s Records will be as
follows: (CRv1p1) indicating the volume and page numbers thereby. Citations to the eight
volume Reporter’s Records will be as follows: (RRv1p1) indicating the volume and page
numbers thereby.

                                                                                             9
jury (RRv6p220-221, CRv1p146).

      On September 12, 2014, Appellant’s counsel filed his First Amended

Motion for New Trial and Request for Evidentiary Hearing (CRv1p164). On

September 25, 2014, the trial court rejected the request for a hearing on the motion

for new trial, and denied the motion for new trial by written order (CRv1p185).

B.    Factual Summary

      On October 29, 2012, witness Shauna Fitzsimmons was sleeping in her

apartment in west central Austin when she was awakened by screams in the

parking lot outside her window (RRv3p208). Ms. Fitzsimmons could not tell if it

was the woman or a man that was screaming (RRv3p210, RRv3p213). She

immediately looked out her window, she saw a woman lying limp on the ground

with her pants pulled down around her thighs (RRv3p209). The woman eventually

stood up, pulled up her pants, and limped away (RRv3p209). Ms. Fitzsimmons

immediately called 911 (RRv3p209). The recording of the 911 call did not record

the screaming which Ms. Fitzsimmons reported having heard, even though the

woman she saw was only a few feet away from her when Fitszimmons was making

the call to 911 (RRv3p213).

      Nicholas Phelps, another resident at the apartment complex, was also

awakened by screams in the vicinity of his third story residence (RRv3p219,


                                                                                  10
RRv3p225). Mr. Phelps looked outside his window but he did not see anything

that went along with the screams he had heard (RRv3p220). As with Ms.

Fitzsimmons, Mr. Phelps only heard one person screaming (RRv3p223). Mr.

Phelps also called 911 and, as with Ms. Fitzsimmons, the recording of Mr. Phelps’

911 call did not record any of any screams (RRv3p224).

       Complaining Witness Alexis Manley described the events of October 29,

2012. She testified that Appellant arrived at her apartment in the middle of the

night and began banging on her apartment door (RRv4p9). Ms. Manley opened the

door and, reluctantly, let Appellant enter (RRv4p10). Ms. Manley believed that

Appellant had been drinking, and described his behavior as erratic (RRv4p9-10).

Ms. Manley admitted that she had been drinking that night, too, even though she

had told police and EMS personnel that she had not been drinking (RRv4p10).

Ms. Manley explained that her memories of the evening were not clear, but

claimed it was because she had been knocked unconscious2 by Appellant several

times during their encounter, instead of her own intoxication (RRv4p10-11,

RRv4p66-67, State’s Exhibit 81, RRv4p169)3. Ms. Manley described her fleeting


       2
        Ms. Manley denied being knocked unconscious when asked by medical personnel
(denies LOC), both the paramedics on the scene (RRv8p358), and hospital personnel
(RRv8p399)
       3
        EMS records reflect that, even though Ms. Manley denied consuming alcohol, she
smelled of alcohol when she was being treated by medical personnel (page 13 of State’s Exhibit

                                                                                            11
memories of being screamed at by Appellant, being struck by Appellant, having

her hair pulled, and being strangled by Appellant using his hands and feet

(RRv4p10-15). Ms. Manley described being in a state of semi-consciousness when

Appellant walked away from her to another room, giving her a chance to get out of

the apartment and run away (RRv4p18). Initially, Ms. Manley declined the

assistance of paramedics, but shortly thereafter she vomited and began to feel the

pains and injuries, and she was eventually taken to hospital (RRv4p21-22,

RRv4p163, RRv4p177).

       Upon cross examination, Ms. Manley admitted that she had struck

Appellant, and bit Appellant’s ear which required stitches, and bit Appellant’s face

(RRv4p73-74).

       Austin Police Officers were dispatched to the scene of Ms. Manley’s

apartment complex at approximately 4:37 a.m. (RRv4p119). Ms. Manley was

found outside, in the parking lot, and was obviously injured (RRv4p143,

RRv4p161-162). Ms. Manley told the officers that her alleged attacker was still in

her apartment and that there were guns in the apartment (RRv4p120). When they




81, RRv8p368) - (“pt denied etoh [ethyl alcohol] however had smell of etoh [ethyl alcohol]
about her”).

                                                                                             12
knocked on the door, Appellant answered (RRv4p149). He was naked4 and

bleeding (RRv4p122, RRv4p155). When they searched the apartment for safety,

they found the bathroom door to be locked from the inside, and since no one would

answer from inside they kicked it open (RRv4p153, State’s Exhibit 15,

RRv8p232).

       Both parties were taken to the hospital. Ms. Manley was treated and

released. Appellant was treated and then taken to jail.




       4
         Ms. Manley testified that when Appellant would stay over at her apartment, he would
sleep in the nude (RRv4p75). Indeed, officers helped him put on his pants after placing him in
handcuffs (RRv4p139, RRv4p155).

                                                                                                 13
                       STATEMENT OF JURISDICTION

      This Court of Appeals has jurisdiction over the parties and the subject matter

of this appeal from a felony conviction in the 427th District Court, sitting in

Austin, Travis County, Texas. A timely notice of appeal was properly filed with

the clerk of the trial court. After reasonable extensions of time, the clerk’s records

and the reporter’s records have been timely filed. After reasonable extensions of

time, the Appellant’s Brief has been timely filed.




                                                                                    14
                      SUMMARY OF THE ARGUMENTS

1.    Appellant’s trial counsel objected to the duplicity of the convictions in count

one and count two, asserting that double jeopardy principals only permitted one

conviction on these facts. The trial court overruled this objection. The two counts

differed in substantial respects: count one included allegations of a deadly weapon

and count two did not; count two involved allegations of strangulation and count

one did not. On these facts, the trial court was permitted to enter two convictions.

2.    Appellant’s trial counsel objected to the admission of a prior judgment

demonstrating that Appellant had been previously convicted of assault with

family/dating violence, on the grounds that the fingerprint on the judgment was not

suitable for comparison. The trial court overruled the objection and admitted the

prior judgment. The trial court’s decision was not an abuse of discretion, and the

complaints about the fingerprint were properly presented for the jury’s

consideration.

3.    Appellant’s trial counsel objected to testimony from the State’s expert

witness regarding the psychology of victims of domestic violence, and the so-

called power and control wheel. The trial court sustained the objection, in part;

and overruled the objection, in part. The trial court convened a gate keeper hearing

outside of the jury’s hearing, and restricted the testimony to those elements which


                                                                                     15
had direct relevance to the evidence in the case at bar. The evidence admitted over

objection was proper.

4.    Appellant’s trial counsel requested a mistrial because the prosecution

presented the defense with exculpatory evidence on the last day of trial, after both

parties had rested and closed. The trial court offered the defense a recess to

consider its options, but Appellant’s trial counsel declined. Appellant’s trial

counsel had been apprised of the basis of the exculpatory evidence in question five

months before the trial and could have independently investigated the exculpatory

evidence. Whether trial counsel was ineffective for failing to investigate the

exculpatory evidence is not developed in this record.

5.    The trial court erred in refusing to convene a hearing on Appellant’s First

Amended Motion for New Trial. However, the trial court was legally justified in

refusing to hold a hearing because the First Amended Motion for New Trial was

not supported by affidavit. Appellant may still pursue the complaints in the First

Amended Motion for New Trial through post-conviction proceedings.




                                                                                     16
              STATEMENT REGARDING ORAL ARGUMENT

      Because there are no meritorious, non-frivolous grounds upon which the

Court of Appeals could reverse this conviction, there is no need for oral argument.




                                                                                  17
                ARGUABLE POINT OF ERROR NUMBER ONE

      The trial court arguably erred by submitting two counts to the jury when the

evidence established, arguably, only one offense.

         FACTS AND ARGUMENTS RELEVANT TO ARGUABLE
                 POINT OF ERROR NUMBER ONE

      The operative indictment was filed on May 27, 2014 (CRv1p6). It alleged

two offenses, in two counts, with multiple manners/means of commission of the

two offenses.

      In Count One, the following was alleged, in relevant part (CRv1p8):

        [T]that GRAHAM SONNENBERG, on or about the 29th day of
      October, 2012, . . . did then and there intentionally, knowingly or
      recklessly cause bodily injury to Alexis Manley, a member of
      GRAHAM SONNENBERG's family and household and with whom
      he has had a dating relationship, by seizing Alexis Manley on and
      about the neck with his hand, and by applying pressure to the neck of
      Alexis Manley with his hand, and GRAHAM SONNENBE RG did
      then and there use or exhibit a deadly weapon, to-wit, his hand, which
      in the manner of its use or intended use was capable of causing death
      or serious bodily injury, during the commission of said offense,

        [T]hat GRAHAM SONNENBERG, on or about the 29th day of
      October, 2012, . . . did then and there intentionally, knowingly or
      recklessly cause bodily injury to Alexis Manley, a member of
      GRAHAM SONNENBERG's family and household and with whom
      he has had a dating relationship, by applying pressure to the neck of
      Alexis Manley with his foot, and GRAHAM SONNENBERG did
      then and there use or exhibit a deadly weapon, to-wit, his foot, which
      in the manner of its use or intended use was capable of causing death
      or serious bodily injury, during the commission of said offense, [and]


                                                                                18
  [T]hat GRAHAM SONNENBERG, on or about the 29th day of
October, 2012, . . did then and there intentionally, knowingly or
recklessly cause bodily injury to Alexis Manley, a member of
GRAHAM SONNENBERG's family and household and with whom
he has had a dating relationship, by striking Alexis Manley with his
foot, and GRAHAM SONNENBERG did then and there use or
exhibit a deadly weapon, to-wit, his foot, which in the manner of its
use or intended use was capable of causing death or serious bodily
injury, during the commission of said offense, . . . .

In Count Two, the following was alleged, in relevant part:

  [T]hat GRAHAM SONNENBERG, on or about the 29th day of
October, 2012, . . . did then and there intentionally, knowingly or
recklessly cause bodily injury to Alexis Manley, a member of
GRAHAM SONNENBERG's family and household and with whom
GRAHAM SONNENBERG has had a dating relationship, by seizing
Alexis Manley on and about the neck with his hand, and by applying
pressure to the neck of Alexis Manley with his hand, and by applying
pressure to the neck of Alexis Manley with his foot, and by striking
Alexis Manley with his hand, and by seizing the hair of Alexis
Manley with his hand, and by throwing Alexis Manley with his hand,
and by grabbing Alexis Manley with his hand, and by biting Alexis
Manley with his mouth, and by pulling Alexis Manley with his hand,
and by striking Alexis Manley with his foot,

  [T]hat GRAHAM SONNENBERG did intentionally, knowingly, or
recklessly impede the normal breathing and circulation of the blood
of Alexis Manley, by seizing Alexis Manley on and about the neck
with his hand, and by applying pressure to the neck of Alexis Manley
with his hand, and by applying pressure to the neck of Alexis Manley
with his foot, [and]

  [T]hat previously GRAHAM SONNENBERG had been convicted
of an offense against a member of GRAHAM SONNENBERG's
family and household and with whom GRAHAM SONNENBERG
had a dating relationship, to wit: Assault Family Violence on the 15th
day of September, 2011, in cause number C1-CR-11-211848 in

                                                                         19
      County Court at Law #4 of Travis County, Texas,

      In the case at bar, there was one incident on trial. Officers responded to the

apartment of the complaining witness on October 29, 2012, and found

Complaining Witness Alexis Manley, who told them that she had been assaulted

by her boyfriend, Appellant Graham Sonnenberg, whom she had been dating for

several months and had been living with, as well (RRv4p4-79). Manley described

how she had been punched, kicked, and strangled by Appellant, using his hands

and feet.

      Count One of the indictment alleged family/dating violence assault by

strangulation, by grabbing and seizing complainant’s neck with his hands, and by

using his feet to apply pressure to complainant’s neck, and that Appellant’s hands

and feet were used as a deadly weapon. The allegations that the aggravated assault

was family/dating violence was surplusage. With or without the family/dating

violence allegation, the remaining allegations of assault with a deadly weapon

(hands or feet used to inflict strangulation) would amount to a second degree

felony (aggravated assault) under Texas Penal Code Section 22.02.

      Count Two of the indictment alleged family/dating violence assault by

strangulation, by grabbing and seizing complainant’s neck with his hands, and by

using his feet to apply pressure to complainant’s neck, and that Appellant had


                                                                                   20
previously been convicted of assault with family/dating violence. Count Two did

not contain allegations of using a deadly weapon. Still, the allegation of a

subsequent offense of family/dating violence assault by strangulation would

amount to a second degree felony under Texas Penal Code Section 22.01(b-1).

      Therefore, after applying the analysis set out by Texas Code of Criminal

Procedure Article 37.09, it is clear that Count One and Count Two are distinct

offenses, and that two sentences are permissible.



              ARGUABLE POINT OF ERROR NUMBER TWO

         FACTS AND ARGUMENTS RELEVANT TO ARGUABLE
                 POINT OF ERROR NUMBER TWO

      The trial court arguably erred by admitting a prior judgment demonstrating

that Appellant had been previously convicted of assault with family/dating

violence. The State’s evidence established that the fingerprint on the judgment

was not suitable for comparison. The trial court overruled the defense objection

under Texas Rule of Evidence 403 (the prior judgment was unfairly prejudicial and

the likelihood of unfair prejudice outweighed the probative value of the prior

judgment), and admitted the prior judgment as evidence that Appellant had

previously been convicted of assault involving family/dating violence

(RRv4p86-92, see also State’s Exhibits 78, 79, 80).

                                                                                   21
      Texas Code of Criminal Procedure Article 37.07(3) sets out the procedures

related to admission of prior criminal history at the punishment trial. The Texas

Court of Criminal Appeals has decided this issue in Flowers v. State, 220 S.W.3d

919, 921-922 (Tex. Crim. App. 2007).

        “To establish that a defendant has been convicted of a prior offense,
      the State must prove beyond a reasonable doubt that (1) a prior
      conviction exists, and (2) the defendant is linked to that conviction.
      No specific document or mode of proof is required to prove these two
      elements. There is no "best evidence" rule in Texas that requires that
      the fact of a prior conviction be proven with any document, much less
      any specific document. While evidence of a certified copy of a final
      judgment and sentence may be a preferred and convenient means, the
      State may prove both of these elements in a number of different ways,
      including (1) the defendant's admission or stipulation, (2) testimony
      by a person who was present when the person was convicted of the
      specified crime and can identify the defendant as that person, or (3)
      documentary proof (such as a judgment) that contains sufficient
      information to establish both the existence of a prior conviction and
      the defendant's identity as the person convicted. Just as there is more
      than one way to skin a cat, there is more than one way to prove a prior
      conviction.

        “Texas substantive law does not require that the fact of a prior
      conviction be proven in any specific manner. Article 37.07 of the
      Code of Criminal Procedure permits proof of a defendant's "prior
      criminal record," but it does not require the production of a certified
      judgment to prove that prior criminal record. Any type of evidence,
      documentary or testimonial, might suffice. Similarly, Chapter 12 of
      the Penal Code deals with enhanced penalties for repeat or habitual
      offenders, but it does not require that the fact of a prior conviction be
      established in any particular manner or with any specific document.”


      The defense requested, and the trial court provided, an appropriate limiting

                                                                                     22
instruction – that the prior conviction was not proof of guilt for the case on trial

but, instead, was only to be considered to prove whether Appellant had previously

been convicted of assault with family/dating violence, as alleged in the indictment

(RRv4p115).



              ARGUABLE POINT OF ERROR NUMBER THREE

          FACTS AND ARGUMENT RELEVANT TO ARGUABLE
                 POINT OF ERROR NUMBER THREE

      The trial court arguably erred by admitting, over objection, testimony from

the State's expert witness regarding the psychology of victims of domestic

violence. The trial court sustained the objection, in part; and overruled the

objection, in part. The trial court convened a gate keeper hearing outside of the

jury's hearing, and restricted the testimony to those elements which had direct

relevance to the evidence in the case at bar. The evidence admitted over objection

was proper.

      State’s witness Emely LeBlanc, who was employed as the director of

community advocacy at SafePlace, Inc., testified that she had an undergraduate

degree in psychology, a master’s degree in counseling, research experience

regarding the effects of domestic violence on children, ten years experience as a

counselor for teenagers and victims of abuse and violence, and various experiences

                                                                                       23
from training as a counselor for victims (RRv5p146-149). Ms. LeBlanc described

the theories behind the so-called “power and control wheel” (RRv5p149-154,

CRv1p150, State’s Exhibit 85).

       Trial counsel for Appellant objected that the proposed soft science testimony

was not reliable, and that it would not be useful to the jury (RRv5p133-134). The

trial court found (RRv5p157-158) that the proposed soft science testimony was

legitimate and reliable; and that the proposed expert witness was sufficiently

qualified5 to testify regarding specialized knowledge that would assist the jury to

understand the evidence or to determine a fact in issue under Texas Rule of

Evidence 702; and that the proposed testimony should be limited to issues which

were specifically related to the evidence in the case at bar. See Morales v. State,

32 S.W.3d 862, 865 (Tex. Crim. App. 2000), Weatherred v. State, 15 S.W.3d 540,

542 (Tex. Crim. App. 2000).




               ARGUABLE POINT OF ERROR NUMBER FOUR

            FACTS AND ARGUMENT RELEVANT TO ARGUABLE
                   POINT OF ERROR NUMBER FOUR

       5
        The defense did not present any evidence that the State’s expert witness was not
qualified to provide the expert testimony which was provided, nor that the State’s expert’s
analysis was somehow inaccurate.

                                                                                              24
        The trial court arguably erred by rejecting the defense motion for mistrial

based upon prosecutorial misconduct. Appellant’s trial counsel requested a

mistrial because the prosecution presented the defense with exculpatory evidence

on the last day of trial, after both parties had rested and closed (RRv5p161,

RRv5p205, RRv5p209-210). The trial court offered to allow the defense to a recess

to consider its course of action, but Appellant’s trial counsel declined (RRv5p213-

214).

        However, trial counsel had been apprised of the basis of the exculpatory

evidence in questions at least five months before the trial (CRv1p44) and could

have independently investigated the exculpatory evidence. Whether trial counsel

was ineffective for failing to investigate the exculpatory evidence is not developed

in this record.

        Fundamentally, [claims of prosecutorial misconduct are claims of
        violation of] due process. . . . It has long been the law that where a
        defendant's due process rights have been violated to the extent that he
        has been denied a fair trial, the proper remedy is [mistrial, or] reversal
        of [the] conviction and remand of the cause to the trial court for
        further proceedings. Brady v. Maryland, supra; Kyles v. Whitley,
        supra; United States v.Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87
        L.Ed.2d 481 (1985).

Ex parte Davis, 957 S.W.2d 9 (Tex. Crim. App., 1997)




                                                                                      25
                ARGUABLE POINT OF ERROR NUMBER FIVE

           FACTS AND ARGUMENTS RELEVANT TO ARGUABLE
                   POINT OF ERROR NUMBER FIVE

       The trial court arguably erred in refusing to convene a hearing on

Appellant’s First Amended Motion for New Trial. However, the trial court was

legally justified in refusing to hold a hearing because the First Amended Motion

for New Trial was not supported by a factual affidavit. King v. State, 29 S.W.3d

556 (Tex. Crim. App. 2000).6 Appellant may still pursue the complaints in the

First Amended Motion for New Trial through post-conviction proceedings.




       6
       Appellant's affidavit was not obtained because Appellant was transferred to the custody
of TDCJ-ID prior to the expiration of thirty days post–sentencing, preventing appellate counsel
from obtaining Appellant's factual affidavit in support of the First Amended Motion for New
Trial.

                                                                                              26
                        NON-MERITORIOUS APPEAL

      The Fourteenth Amendment guarantees criminal appellants the right to

counsel on a first appeal as of right. Douglas v. California, 372 U.S. 353, 355, 83

S.Ct. 814, 815-16, 9 L.Ed.2d 811 (1963). Lawyers, however, are ethically bound

not to bring frivolous appeals. McCoy v. Court of Appeals, 486 U.S. 429, 436,

108 S.Ct. 1895, 1900-01, 100 L.Ed.2d 440 (1988); Tex. Disciplinary R. Prof.

Conduct 3.01 (1989), reprinted in Tex. Gov't Code Ann., tit.2, subtit. G (Vernon

Supp.1997). Recognizing the apparent conflict between these two principles, the

Supreme Court has held that the Fourteenth Amendment does not require

appointed counsel to press wholly frivolous arguments on behalf of indigent

appellants. See Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346, 351-52, 102

L.Ed.2d 300 (1988); Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396,

1400, 18 L.Ed.2d 493 (1967). The Court explained:

      [I]f counsel finds [the] case to be wholly frivolous, after a
      conscientious examination of it, he should so advise the court and
      request permission to withdraw. That request must, however, be
      accompanied by a brief referring to anything in the record that might
      arguably support the appeal. A copy of counsel's brief should be
      furnished the indigent and time allowed him to raise any points that he
      chooses; the court – not counsel – then proceeds, after a full
      examination of all the proceedings, to decide whether the case is
      wholly frivolous. If it so finds it may grant counsel's request to
      withdraw and dismiss the appeal insofar as federal requirements are
      concerned, or proceed to a decision on the merits, if state law so
      requires.

                                                                                   27
      When an appointed attorney determines there are no non-frivolous grounds

for appeal, the attorney has a duty to request permission to withdraw as counsel.

McCoy, 486 U.S. at 436-37, 108 S.Ct. at 1900-01. The motion to withdraw must

be accompanied by a brief, commonly referred to as an "Anders brief," in support

of the motion. Anders, 386 U.S. at 744, 87 S.Ct. at 1400. The brief must

demonstrate that counsel has conscientiously examined the record and determined

that the appeal is so frivolous that the appellant is not entitled to counsel on appeal.

Penson, 488 U.S. at 81-82, 109 S.Ct. at 350-51; McCoy, 486 U.S. at 439 & n. 13,

108 S.Ct. at 1902 & n. 13. A proper Anders brief therefore must contain references

to the record, citations to authority, and legal analysis. High v. State, 573 S.W.2d

807, 812-13 (Tex. Crim. App. [Panel Op.] 1978); Jeffery v. State, 903 S.W.2d 776,

779 (Tex. App. — Dallas 1995, no pet.); Johnson v. State, 885 S.W.2d 641, 645-

646 (Tex. App. — Waco 1994, pet. ref'd) The motion to withdraw must also be

accompanied by an exhibit showing that counsel provided the appellant with a

copy of the Anders brief and informed the appellant that he or she has a right to

review the record and file a pro se brief. Johnson, 885 S.W.2d at 646. The best

way for counsel to ensure the appellant understands his or her rights is to inform

the appellant of the procedure for obtaining the record in the court of conviction.

      When an Appellate Court receives a motion to withdraw accompanied by an


                                                                                      28
Anders brief, the court should "review the brief, and if it determines that the brief

complies with the requirements of Anders, the motion to withdraw will be

granted." Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex. App. — San Antonio

1996, no pet.) After determining that Anders' procedural requirements have been

satisfied, the Court of Appeals must undertake an independent examination of the

record to determine whether the Court agrees with counsel's conclusion that the

appeal is frivolous. Id. The Appellate Court should not rule on the motion to

withdraw until its independent examination of the record is complete. Penson, 488

U.S. at 82-83 & n. 6, 109 S.Ct. at 351 & n. 6; Johnson, 885 S.W.2d at 647. If the

Appellate Court’s examination reveals that the appeal is indeed frivolous, court

appointed appellate counsel's motion to withdraw should be granted, and the Court

of Appeals should issue an opinion disposing of the appeal. Anders, 386 U.S. at

744, 87 S.Ct. at 1400. If the Appellate Court’s examination reveals that non-

frivolous grounds for appeal exist, court appointed appellate counsel’s motion to

withdraw should still be granted, because the Appellate Court should not order

counsel to brief and argue an appeal that counsel considers frivolous. Stafford v.

State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). In that situation, the Court

should abate the appeal and remand the cause to the trial court with instructions to

appoint a new attorney for the appellant. The new attorney will then be required to


                                                                                        29
file a brief raising the non-frivolous grounds the Appellate Court has identified, as

well as any additional grounds that the attorney discovers. Id.

      The attorney whose name is subscribed to this brief has determined, after a

thorough and diligent review of the record and exhibits, that there are no

meritorious points of error on appeal and that, therefore, this appeal is frivolous.

Counsel is simultaneously filing a Motion to Withdraw with the filing of this

Appellant’s Brief. As specified in the motion to withdraw, counsel has sent a copy

of this brief to the Appellant and either provided Appellant a copy of the clerk’s

record and the reporter’s record, or has instructed Appellant in the means of

obtaining a copy of the clerk’s record and reporter’s record so that Appellant may

prepare and file a pro se brief should he/she desire. Counsel requests that this

Honorable Appellate Court grant an extension of 60 days so that Appellant may

submit a pro se brief, should he so desire.




                                                                                       30
                             PRAYER FOR RELIEF

      Counsel requests that this Honorable Court of Appeals conduct an

independent review of the record and, after determining whether there are, or are

not, any non-frivolous grounds for review, grant counsel's motion to withdraw and

grant an extension of 90 days so that Appellant may review the appellate record

and submit a pro se brief, should he so desire.




                                                                                    31
                                       Respectfully Submitted,

                                       LAW OFFICE OF DON MOREHART
                                       Attorney and Counselor at Law
                                       316 West 12th Street, Suite 313
                                       Austin, Texas 78701
                                       Telephone 512.551.0404
                                       Telecopier 512.551.0405
                                       Don@MorehartLaw.com
                                       COUNSEL FOR APPELLANT


                                       /s/ Don Morehart
                                       Don Morehart        SBN 14423700



                           CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of this Appellant’s Brief was
served upon the State’s Attorney in accordance with the Rules of Procedure on
May 11, 2015.

Travis County District Attorney's Office
Attorney for State
509 West 11th Street
Austin, TX 78701
VIA FAX to 512-854-9695


                                       /s/ Don Morehart
                                       Don Morehart




                                                                                    32
               Attorney’s Certificate of Compliance with TRAP 9.4

Texas Rule of Appellate Procedure 9.4(i)(3). “A computer generated document
must include a certificate by counsel or an unrepresented party stating the number
of words in the document. The person certifying may rely on the word count of the
computer program used to prepare the document.”

Texas Rule of Appellate Procedure 9.4(i)(2)(B). “A brief and response in an
appellate court (other than a brief in a death penalty case) and a petition and
response in an original proceeding in the court of appeals: 15.000 words if
computer generated, and 50 pages if not. In a civil case in the court of appeals, the
aggregate of all briefs filed by a party must not exceed 27,000 words if
computer-generated, and 90 pages if not.

Texas Rule of Appellate Procedure 9.4(i)(1). “The Contents Included and
Excluded are as follows: in calculating the length of a document, every word and
every part of the document, including headings, footnotes, and quotations, must be
counted except the following: caption, identity of parties and counsel, statement
regarding oral argument, table of contents, index 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, and appendix.

I hereby certify that the computer generated word count on the relevant portions of
this Appellant’s Brief is 3058 words.


                                       /s/ Don Morehart
                                       Don Morehart




                                                                                    33
