                                                                                     ACCEPTED
                                                                                 01-17-00732-CR
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                              3/20/2018 10:09 AM
                                                                            CHRISTOPHER PRINE
                                                                                          CLERK

                       NO. 01-17-00732-CR

                  IN THE COURT OF APPEALS                     FILED IN
               FOR THE FIRST DISTRICT OF TEXAS         1st COURT OF APPEALS
                                                           HOUSTON, TEXAS
                                                       3/20/2018 10:09:07 AM
                                                       CHRISTOPHER A. PRINE
                        DONALD FOSTER                           Clerk


                             Appellant

                                v.

                      THE STATE OF TEXAS
                             Appellee


             On Appeal from Cause Number 1470046
       From the 178th District Court of Harris County, Texas



                     BRIEF FOR APPELLANT



ORAL ARGUMENT REQUESTED                    ALEXANDER BUNIN
                                           Chief Public Defender
                                           Harris County, Texas

                                           MELISSA MARTIN
                                           Assistant Public Defender
                                           Harris County, Texas
                                           TBN. 24002532
                                           1201 Franklin, 13th floor
                                           Houston, Texas 77002
                                           Phone: (713) 368-0016
                                           Fax: (713) 437-4319

                                           Counsel for Appellant


                                 i
               IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                            Donald Foster
                                      TDCJ# 02155379
                                      Clements Unit, TDCJ
                                      9601 Spur 591
                                      Amarillo, TX 79107

TRIAL PROSECUTORS:                    Amanda Benavides
                                      Assistant District Attorney
                                      Harris County, Texas
                                      1201 Franklin Avenue, 6th Fl
                                      Houston, TX 77002

DEFENSE COUNSEL AT TRIAL:             Mario Madrid
                                      Attorney at Law
                                      440 Louisiana Ste 1225
                                      Houston, TX 77002

PRESIDING JUDGE:                      Hon. Leslie Yates
                                      176th District Court
                                      Harris County, Texas
                                      1201 Franklin St
                                      Houston, TX 77002

APPELLATE COUNSEL:                    Melissa Martin
                                      Assistant Public Defender
                                      Harris County, Texas
                                      1201 Franklin Avenue, 13th Fl
                                      Houston, TX 77002




                              ii
                                                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii

TABLE OF CONTENTS .............................................................................................................iii

INDEX OF AUTHORITIES ....................................................................................................... vi

STATEMENT OF THE CASE...................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................ 1

       A. BACKGROUND ........................................................................................................... 1

       B. HEARING ON MOTION FOR NEW TRIAL ................................................................ 5

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

          ONE: THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURORS SUA
          SPONTE THAT LORIE ANN’S HEARSAY TESTIMONY OF THE ALLEGED
          THREAT--WHICH WENT DIRECTLY TO THE SPECIAL ISSUE ON SUDDEN
          PASSION--COULD ONLY BE CONSIDERED AS EVIDENCE IF THEY FOUND
          BEYOND A REASONABLE DOUBT THAT APPELLANT ACTUALLY MADE IT.
          THE OMISSION OF THE INSTRUCTION CAUSED APPELLANT EGREGIOUS
          HARM. SEE ART. 37.07 (A)(1) & ALMANZA V. STATE, 686 S.W.2D 157
          (TEX. CRIM. APP. 1984).

          TWO: THE   TRIAL COURT’S DENIAL OF APPELLANT’S MOTION FOR NEW
          TRIAL WAS ARBITRARY AND UNREASONABLE. NO REASONABLE REVIEW OF
          THE RECORD COULD RESULT IN A FINDING THAT TRIAL COUNSEL
          ADEQUATELY INVESTIGATED OR PRESENTED MITIGATION EVIDENCE.
          THE FAILURE OF TRIAL COUNSEL TO DO SO PREJUDICED APPELLANT TO
          THE EXTENT THAT THERE CAN BE NO CONFIDENCE IN THE OUTCOME OF
          THE TRIAL. SEE STRICKLAND V. WASHINGTON, 466 U.S. 668, 687-84, 694
          (1984); WIGGINS V. SMITH, 539 U.S. 510, 527 (2003); AND ANDREWS V.
          STATE, 159 S.W.3D 98, 101-02 (TEX. CRIM. APP. 2005).

          THREE: THE  TRIAL COURT ERRED AT TRIAL IN ADMITTING HEARSAY
          EVIDENCE FROM LORIE ANN FOSTER THAT HER MOTHER HAD TOLD HER
          APPELLANT HAD THREATENED TO KILL HER IF SHE LEFT HIM WHEN THE


                                                                iii
          STATE PROVIDED NO NOTICE OF ITS INTENT TO INTRODUCE IT AND
          APPELLANT HAD NOT “OPENED THE DOOR” TO THE EVIDENCE.

SUMMARY OF ARGUMENTS..................................................................................................... 6

ARGUMENT ONE .................................................................................................................... 8

     A. STANDARD OF REVIEW AND APPLICABLE LAW ....................................................... 9

     B. APPELLANT WAS ENTITLED TO A SUA SPONTE REASONABLE DOUBT
        INSTRUCTION ............................................................................................................... 9
     C. THE OMISSION OF THE REASONABLE DOUBT INSTRUCTION WAS EGREGIOUS
        ERROR ......................................................................................................................... 10

          1.   THE ENTIRE CHARGE .......................................................................................... 10
          2.   THE STATE OF THE EVIDENCE ........................................................................... 11
          3.   ARGUMENT OF COUNSEL .................................................................................... 11
          4.   OTHER RELEVANT INFORMATION FROM THE RECORDS................................... 12

         D. CONCLUSION ......................................................................................................... 12

ARGUMENT TWO................................................................................................................... 13

     A. STANDARD OF REVIEW AND APPLICABLE LAW ..................................................... 13

     B. APPOINTED DEFENSE COUNSEL AT PUNISHMENT RENDERED DEFICIENT
        REPRESENTATION THAT PREJUDICED APPELLANT............................................... 16

          1. FAILURE IN DUTY TO MAKE INDEPENDENT INVESTIGATION INTO MITIGATION
          EVIDENCE................................................................................................................... 16
          2. IRRATIONAL “STRATEGY” RELYING ON CROSS-EXAMINATION OF STATE’S
          WITNESSES TO MITIGATE APPELLANT’S ACTIONS RATHER THAN ACTIVELY
          SEEKING OUT AND PRESENTING PUNISHMENT WITNESSES AND OTHER
          MITIGATING EVIDENCE ............................................................................................ 19
          3. FAILURE TO OBJECT ON CONFRONTATION GROUNDS TO THE THREAT LORIE
          ANN STATED HER MOTHER ALLEGEDLY TOLD HER ABOUT A WEEK BEFORE HE
          KILLED HER ................................................................................................................ 23
          4. TOTALITY OF REPRESENTATION .......................................................................... 25

     C. TRIAL COUNSEL’S DEFICIENT PERFORMANCE PREJUDICED APPELLANT ......... 26

                                                                   iv
          1. DEFICIENT PERFORMANCE AFFECTED “SUDDEN PASSION” FINDING........... 26
          2. DEFICIENT PERFORMANCE NEGATIVELY AFFECTED JURORS’ IMPRESSION OF
          APPELLANT’S CHARACTER IN GENERAL .................................................................. 30

     D. THE TRIAL COURT’S DENIAL OF THE MOTION FOR NEW TRIAL WAS ARBITRARY
        AND UNREASONABLE ............................................................................................... 31

ARGUMENT THREE ............................................................................................................... 34

     A. STANDARD OF REVIEW AND APPLICABLE LAW ..................................................... 34

     B. TRIAL COURT ERRED IN FINDING DEFENSE COUNSEL “OPENED THE
        DOOR” ........................................................................................................................ 35

     C. BECAUSE THE DOOR WAS NOT OPENED, NOTICE REQUIREMENTS APPLIED ... 38

PRAYER .................................................................................................................................. 42

CERTIFICATE OF SERVICE .................................................................................................... 42

CERTIFICATE OF COMPLIANCE............................................................................................ 43




                                                                     v
                                                   INDEX OF AUTHORITIES

Cases

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) ..................................6, 8, 9, 10

Andrews v. State, 159 S.W. 3d 98, 101 (citations omitted) ..........................................passim

Charles v. State, 146 S.W.3d 204, 208(Tex. Crim. App. 2004) .......................................... 15

Compton v. State, 202 S.W. 3d 416, 422 (Tex. App.—Tyler 2006, no pet.) ............... 20, 31

Crawford v. Washington, 541 U.S. 36, 59; 124 S.Ct. 1354 (2004)........................................ 24

Davis v. State, 315 S.W. 3d 908, 913 (Tex. App.—Houston [14th Dist.] 2010 ............... 34

De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) ................................... 24

Ex parte Duffy, 607 S.W.2d 507, 526 (Tex.Crim.App.1980) ............................................. 19

Ex Parte Felton, 815 S.W.2d 733, 735 (Tex.Crim.App.1991 ............................................. 15

Ex parte Wellborn, 785 S.W.2d 393 (Tex. Crim. App 1990) ............................................. 19

Frangias v. State, 450 S.W.3d 125, 127 (Tex. Crim. App. 2013 ......................................... 19

Graves v. State, 176 S.W. 3d 422, 435 (Tex. App.—Houston [1st Dist.] 2004, pet. struck)
  ........................................................................................................................................... 7, 9

Haley v. State, 173 S.W.3d 510, 513 (Tex. Crim. App. 2003)............................................ 34

Hayden v. State, 66 S.W. 3d 269, 272 (Tex. Crim. App. 2001) .................................... 38, 39

Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005) ................. 13, 25, 38, 39

Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App.2000); ......................................... 7, 9

Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) ........................................... 12

Jaubert v. State, 74 S.W.3 1 (Tex. Crim. App. 2000) .............................. 8, 12, 25, 39, 40, 41

                                                                       vi
Lair v. State, 265 S.W.3d 580, 595 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) .. 17

Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) ....................................... 9

Milburn v. State, 15 S.W.3d 267 (Tex. App.—Houston [14th Dist.] 2000, no pet.) .. 17, 31

Ngo v. State, 715 S.W.3d 738, 750, n. 48 (Tex. Crim. App. 2005). .................................. 10

Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065 (1965).................................................. 24

Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012) ....................................... 15, 32

Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.--Houston [1st Dist.] 2005................ 35

Starz v. State, 309 S.W.3d 110, 113 (Tex. App.—Houston [1st. Dist.] 2009, pet. ref’d)15

Strickland v. Washington, 466 U.S. (1984) .....................................................................passim

Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007) .......................................... 12

Vela v. Estelle, 708 F.2d 954, 964 (5th Cir. 1983)................................................................ 16

Wall v. State, 184 S.W.3d 730, 734-35 (Tex. Crim. App. 2006) ....................................... 24

Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007) ............................................ 16

Weisinger v. State, 775 S.W.2d 424, 427 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d.)
 ............................................................................................................................................. 17

Wiggins v. Smith. 539 U.S. 510, 527 (2003)...................................................................passim

Statutes

Tex. Code Crim. Proc. Art. 37.07 ....................................................................................... 21

Tex. Code Crim. Proc. Art. 37.07(a)(1)........................................................................ 6, 8, 9

Tex. Code Crim. Proc. Art. 37.07 §3(g) .................................................................12, 34, 38

Tex. Code Crim. Proc. Art. 37.07, §3 (a)(1) ........................................................................ 9

                                                                      vii
Tex. Code Crim. Proc. Art. 38.37 ......................................................................................... 1

Tex. Penal Code §19.2 (c) .................................................................................................... 16

Tex. Penal Code §19.2 (d) ................................................................................................... 16

Other Authorities

ABA Standards for Criminal Justice 4-4.1, commentary pp. 4-5 ................................... 14

Rules

Tex. R. Evid. 404(b) ......................................................................................................passim

Tex. R. Evid. 404(b)(2) ........................................................................................................ 38

Constitutional Provisions

Tex. Const. Art. 1 §10 .......................................................................................................... 33

U.S. Const. Amend. V.......................................................................................................... 33

U.S. Const. Amend. VI .................................................................................................. 24, 33

U.S. Const. Amend. XIV ..................................................................................................... 33




                                                                viii
                                Statement of the Case

      On August 17, 2015 appellant was indicted on an allegation of murder that took

place on May 29, 2015 (C.R. at 17). Appellant entered a plea of guilty to a jury on August

22, 2017 and proceeded to a punishment hearing before the jury (C.R. at 73). The jury

found appellant guilty of murder and found he did not act under the influence of sudden

passion (C.R. at 80-7). He was sentenced to life in prison (C.R. at 88).

      Appellant’s trial attorney filed a notice of appeal and withdrew from the case on

August 24, 2017 (C.R. at 95). The trial court certified appellant’s right to appeal the

same day (C.R. at 94).

      On September 25, 2017 appellant filed a motion for new trial and a hearing was

held on November 6, 2017 (C.R. at 100-06 & 2 R.R. 1-36). The trial court denied the

motion on the following day (3 R.R. at 7).

                                  Statement of Facts

      It is undisputed that appellant killed the complainant—his wife (2 R.R. at 16). It

is also undisputed that after he had done so he threw himself in front of an 18-wheeler

truck on the feeder to I-45 North in an attempt at suicide (3 R.R. at 80-1).

A.    Background

      Donald Foster and his wife met in 1984; they married and raised their two

children in Jamaica (3 R.R. at 19). Both parents were college graduates and both worked

(3 R.R. at 19). Appellant worked in the sugar industry for 25 years and was slated to

assume his supervisor’s job on that person’s retirement (4 Supp. R.R. at Def. Ex. 6, *1).
                                             1
       When their children approached college age, the Fosters decided to move to the

United States to assure them a better future than they could have in Jamaica (3 R.R. at

19). Both young people earned degrees in this country (3 R.R. at 19). In order that one

parent would be sure of employment during the transition, appellant remained in

Jamaica at his job for about two years, sending money and visiting every few months (4

R.R. at 139). He relocated to the United States about a year before the incident took

place where he lived again with his wife while the children attended college (3 R.R. at

20). Appellant had no history of violence or any criminal history prior to the incident

leading to this case (3 R.R. at 20).

       The Fosters’ daughter Lorie Ann moved to Houston after graduating from the

University of North Texas to begin a job less than a week before her mother was killed

and was staying with her older brother (4 R.R. at 186). She testified she was speaking to

her mother on the morning she was to begin her new position and the call was

dropped—she made several attempts to call back and eventually her father answered

and told her mother was fine (4 R.R. at 36-7). She said she heard nothing besides some

rustling just before the call cut off (4 R.R. at 36). Lorie Ann said she was concerned

because it was not like her mother not to answer her phone and her father sounded

“Jittery,” so she called 911 asking for a welfare check (4 R.R. at 37).

       The complainant’s body was found by the EMT making the welfare check (3

R.R. at 26). She had multiple stab wounds and a skull fracture (4 R.R. at 124).



                                            2
Anthony Thomas was the lead homicide detective on the case for the Harris County

Sheriff’s Office (4 R.R. at 78). On direct, Thomas testified when he interviewed

appellant at the hospital where he was taken after being hit by the 18-wheeler appellant

told him his wife had called him “the trash man” and that she had been having an affair

with a Dr. Harris (4 R.R. at 92-5). Appellant told him she pushed him away when he

tried to show her affection and that he could not live without her (4 R.R. at 96-8).

      Appellant testified that after the call between Lorie Ann and his wife ended he

pressed his wife for an answer to whether she was having an affair with Harris.

Appellant said she replied: “She said, Yes, I’m having an affair with him in his pants

and we are, the F-word,, and she went on to say that the reason she had fibroids was

because I was not sexing her properly” (4 R.R. at 146). After some more questions

about what she said, defense counsel asked appellant what went through his mind and

he answered, “At that point in time I just lost everything. Everything” (4 R.R. at 147).

      During cross-examination, Thomas said he spoke with Dr. Harris and that he

confirmed he and complainant were having an affair (4 R.R. at 104). Thomas said the

family referred to Harris as a “witch doctor” or “spirit doctor” (4 R.R. at 104). The

detective said the killing must have happened very fast—between the end of the call

between complainant and Lorie Ann and when appellant answered Lorie Ann’s call--

and the stab wounds indicated it was “personal” and the product of a lot of rage (4 R.R.

at 106-7). During Lorie Ann’s testimony on redirect the state asked her if anything had

happened prior to the incident “that would give you cause to think it was planned?”
                                           3
and she responded: “Yes. There were two – two separate events. One was –“ (4 R.R. at

53). Trial counsel then objected and the lawyers approached the bench, at which time

trial counsel objected to any extraneous act that the state did not give notice of. The

state said complainant told Lorie Ann a week prior to the incident that “defendant

threatened to kill her if she ever decided to leave” (4 R.R. at 53). Trial counsel objected

to the admission of this testimony by Lorie Ann because he received no notice and the

prosecutor said she had only found out about it the morning before (4 R.R. at 55).

       The trial court and the state expressed their opinion trial counsel had opened the

door to this late-breaking evidence because they both claimed he asked Lorie Ann “why

she thought [the murder] was planned” (4 R.R. at 54-5). Then the following exchange

took place outside the presence of the jury:

             The Court: So your specific objection is that this is an extraneous
       offense that you weren’t noticed on?

                Mr. Madrid: Yes.

                The Court: The prosecutor’s response is that she just found out last
       night.

               Ms. Benavides: Or this morning actually when we met, she flew in
       last night.

              The Court: But regardless, I don’t think – some things they
       obviously can’t anticipate, and so if you – my feeling about it is your
       question opened the door to it and notice requirements don’t apply. So I
       guess the question is whether or not you opened the door. And the truth
       of the matter is, whether it’s coming in now or later, I think it’s coming
       in.

(4 R.R. at 55-6).
                                              4
       Lorie Ann testified to the alleged threat during rebuttal with no further objection

by trial counsel (4 R.R. at 185). On cross-examination, defense counsel elicited

testimony from her that she had failed to tell anyone from law enforcement or the state

about this conversation with her mother (4 R.R. at 191-96).

       B.     Hearing on Motion for New Trial

       The hearing comprised argument of counsel, excerpts from the record, affidavits,

and appellant’s medical and other documents from his time at Harris County Jail (4

Supp. R.R.). Appellant argued his counsel at trial failed to render effective assistance by

failing to seek out or present any mitigation evidence (2 Supp. R.R. at 6).

       Trial counsel submitted an affidavit and addressed the mitigation issue as follows:

       In preparation to present mitigation evidence, I inquired of Mr. Foster,
       whether he could provide me with any friends or relatives that could
       testify on his behalf. Mr. Foster did not provide any names or information
       or possible witnesses. Mr. Foster is from Jamaica and he informed me that
       he did not have anyone that could come or anyone in Texas that he knew
       could testify on his behalf. I spoke with his brother, Delroy Foster on
       many occasions as well as his niece Chantal (sic) Foster. I asked both if
       they could or anyone else could testify for Mr. Foster. They were not able
       to testify or provide names.

       I spoke with Mr. Foster’s son Antonio Foster and attempted to contact
       his daughter, Carrie (sic) Ann Foster. Antonio came to my office and I
       spoke with him on a number of occasions on the phone. From these
       conversations and conversations with Mr. Foster, I formulated the
       strategy to present evidence of mitigation through Antonio and Carrie
       (sic) Ann. The trial transcript will show that through my questioning,
       evidence was presented to the jury, that Mr. Foster was an integral part of
       his family’s life, that he graduated from college, that he met his wife in
       college, that he attended his children’s extracurricular activities, that he
       tutored in (sic) children, that he was a hard and reliable worker, that he

                                            5
      provided for his family and that he was a part of his children’s life until he
      was incarcerated.

(4 Supp. R.R. at Def. Ex. 2 at 40).

      The trial court denied the motion after hearing both appellant’s and the state’s

arguments and reviewing their respective exhibits. The substance of pertinent exhibits

will be set out in argument.

                                      Issues Presented

      One: The trial court erred in failing to instruct the jurors sua sponte that
      Lorie Ann’s hearsay testimony of the alleged threat--which went directly
      to the special issue on sudden passion--could only be considered as
      evidence if they found beyond a reasonable doubt that appellant actually
      made it. The omission of the instruction caused appellant egregious harm.
      See Art. 37.07 (a)(1) & Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.
      1984).

      Two: The trial court’s denial of appellant’s motion for new trial was
      arbitrary and unreasonable. No reasonable review of the record could
      result in a finding that trial counsel adequately investigated or presented
      mitigation evidence. The failure of trial counsel to do so prejudiced
      appellant to the extent that there can be no confidence in the outcome of
      the trial. See Strickland v. Washington, 466 U.S. 668, 687-84, 694 (1984);
      Wiggins v. Smith, 539 U.S. 510, 527 (2003); and Andrews v. State, 159 S.W.3d
      98, 101-02 (Tex. Crim. App. 2005).

      Three: The trial court erred at trial in admitting hearsay evidence from
      Lorie Ann Foster that her mother had told her appellant had threatened
      to kill her if she left him when the state provided no notice of its intent to
      introduce it and appellant had not “opened the door” to the evidence.

                           Summary of Arguments

      The trial court erred in omitting a reasonable doubt instruction regarding the

alleged threat appellant supposedly made to complainant, who subsequently allegedly

                                             6
revealed it to her daughter. Tex. Code Crim. Proc. Art. 37.07, §3(a)(1); Huizar v. State,

12 S.W.3d 479, 484 (Tex. Crim. App.2000); & Graves v. State, 176 S.W. 3d 422, 435 (Tex.

App.—Houston [1st Dist.] 2004, pet. struck).

       Appellant was able to present to the trial court for the hearing on the motion for

new trial several affidavits from relatives and a former supervisor testifying to his many

positive attributes, including his even, easy-going temperament and love of his family.

These affidavits came from people in Jamaica and the United States whom this office

had no difficulty finding within the limited time the defense is given to prepare for and

present a motion for new trial.

       Further, the only mitigation strategy trial counsel claimed to have chosen for a

trial consisting only of a punishment phase was irrational, given that the two witnesses

he relied on testified against their father for the state and exhibited great hostility toward

their father, which, as trial counsel himself pointed out was predictable and

understandable. Trial counsel stated in his affidavit he never had spoken to the daughter

prior to trial--her testimony was particularly damning to her father’s only punishment

theory—that he acted under the influence of sudden passion.

       The effect of trial counsel’s failure to adequately seek out and present mitigation

evidence gave the jury nothing against which to balance the actions for which he took

responsibility and demonstrate the aspects of his humanity and temperament that

militated for a finding of sudden passion. The trial court’s finding that trial counsel was

constitutionally effective arbitrary and unreasonable.
                                              7
The trial court’s ruling on admissibility of Lorie Ann’s last-minute memory that her

mother had told her appellant threatened her life if she ever left him that appellant’s

counsel had opened the door to the evidence coming in during the state’s redirect exam

despite the state’s failure to comply with notice requirements was error. Counsel did

not open the door and the state mischaracterized his question to Lorie Ann about

appellant having planned the murder both before the jury and to the judge at the bench.

      The trial court opined counsel had opened the door, that the state could not be

expected to anticipate everything, and that she thought the evidence was coming in

“whether now or later.” The state chose to wait until its rebuttal case, taking advantage

of a questionable holding by the Court of Criminal Appeals that interprets Art. 37.07,

§3 (g) to mean notice requirements only apply to the state’s case in chief—language

stemming from Rule 404(b). Jaubert v. State, 74 S.W.3 1 (Tex. Crim. App. 2000). In her

concurrence, Justice Cochran warned that interpretation of the statute potentially could

allow the state to simply defer extraneous acts until their rebuttal to circumvent notice

requirements, which exist to prevent ambush with surprise evidence. The evidence

should not have come in during the redirect or rebuttal.

                                      Argument

      One: The trial court erred in failing to instruct the jurors sua sponte that
      Lorie Ann’s hearsay testimony of the alleged threat--which went directly
      to the special issue on sudden passion--could only be considered as
      evidence if they found beyond a reasonable doubt that appellant actually
      made it. The omission of the instruction caused appellant egregious harm.
      See Art. 37.07 (a)(1) & Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.
      1984).
                                            8
A.     Standard of Review and Applicable Law

       To determine whether there is reversible error, appellate courts first decide

whether error exists and, if so, whether the error harmed appellant. Middleton v. State,

125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If trial counsel failed to object to the

erroneous charge, the appellate court applies the egregious harm standard set out in

Almanza, and appellant will only obtain a reversal if the error was so egregiously harmful

that he has not had a fair and impartial trial. Id at 171.

B.     Appellant was entitled to a Sua Sponte Reasonable Doubt Instruction

       Defense counsel at trial failed to request the trial court include an instruction that

the jurors must find beyond a reasonable doubt appellant made the threat to kill his

wife prior to considering it in coming to a verdict on punishment.

       Art. 37.07 (a)(1) requires the state to prove beyond a reasonable doubt that

appellant committed a prior extraneous crime or bad act before evidence of the act is

admissible. Tex. Code Crim. Proc. Art. 37.07, §3 (a)(1).

       When defense counsel fails to object to the trial court’s omission of the

reasonable doubt instruction on extraneous evidence admitted during punishment, the

error is not waived; the trial court must include the instruction sua sponte as to the law

of the case. Huizar v. State, 12, S.W.3d 479, 484 (Tex. Crim. App. 2000); Graves v. State,

176 S.W.3d 422, 435 (Tex. App.—Houston [1st Dist.] 2004, pet. struck). This Court,

therefore, must conduct an egregious harm analysis.

                                              9
C.     The Omission of the Reasonable Doubt Instruction was Egregious Error

       The harm inflicted by the erroneous omission of the reasonable doubt

instruction must be “assayed in light of (1) the entire jury charge, (2) the state of the

evidence, (3) the argument of counsel and (4) any other relevant information revealed

by the record of the trial as a whole.” Almanza, 686 S.W.2d at 71; Ngo v. State, 715

S.W.3d 738, 750, n. 48 (Tex. Crim. App. 2005).

       1.     The Entire Charge

       The application paragraph in the murder charge instructed the jury to find the

defendant guilty of “murder as charged in the indictment, and assess the punishment in

this cause”. (C.R. at 81). The instruction was based on appellant’s plea of guilt and the

court’s assessment of his mental competence and the voluntariness of his plea (C.R. at

81).

       The murder charge was followed by the charge on the “Special Issue” of sudden

passion. The abstract correctly states the burden was on appellant to show by a

preponderance of the evidence he was under the influence of sudden passion (C.R. at

86). Neither the abstract nor the application paragraph mentioned the extraneous act

or the burden on the state to prove beyond a reasonable doubt that the appellant

committed it. Since the evidence was offered to show there was reason to show

appellant acted in a calculated manner, the reasonable doubt was a critical issue for the

jury’s deliberation.



                                           10
      Because the entire jury charge in this case neglected to mention the extraneous

evidence of appellant’s alleged prior to threat to his wife and the requirement that the

jurors could only consider that evidence if it found the state proved it beyond a

reasonable doubt, the charge does nothing to mitigate the omission.

      2.     The State of the Evidence

      Appellant plead guilty to the murder—the burden was entirely on appellant to

demonstrate mitigation, including but not limited to sudden passion. The defense

“mitigation” case consisted solely of appellant’s testimony—the jury heard nothing

about appellant’s character and background from anyone other than Lorie Ann and

Antonio Foster—the state’s witnesses. Defense counsel’s cross-examination of them

elicited far more damning than mitigating evidence.

      The morning-of-trial revelation Lorie Ann announced to the state certainly

leaves a great deal of room for reasonable doubt, given she told Thomas the day of the

murder she had no idea who killed her mother.

      3.     Argument of Counsel

      Defense counsel’s argument addressed the credibility of Lorie Ann’s testimony

that her mother had told her appellant had threatened her life if she left him (5 R.R. at

13-14). He explained to the jury why the burden on appellant to prove sudden passion

was lower than the state’s burden to prove murder—precluded in this case by his plea

of guilty (5 R.R. at 11-13). Never, however, did he mention it was the state’s burden to



                                           11
prove beyond a reasonable doubt that the complainant told Lorie Ann of the alleged

threat.

          4.     Other relevant information from the record

          The state initially attempted to bring in Lorie Ann’s surprise testimony during its

redirect examination but was interrupted by defense counsel’s objection regarding lack

of notice. The state mischaracterized a question asked by defense counsel during cross-

examination of Lorie Ann with the aim of showing he “opened the door” to the

evidence. The trial court was supportive of this theory—this episode will be more

thoroughly discussed in Issue Three, infra, but it is relevant for the purpose of this

argument to show the state attempted to bypass the need for the notice provision of

Art. 37.07, § g (3). Ultimately, the state chose to defer presenting the evidence for its

rebuttal of the defense case, during which there is case law supporting the proposition

that notice is not required. See Jaubert v. State, 74 S.W. 3d 1. This choice circumvented

the purpose of notice provisions under both Art. 37.07 and Rule 404(b), namely to

avoid “spring[ing] evidentiary surprises.” Id at 5; Tex. Code Crim. Proc. Art. 37.07,

§3(g); and Tex. R. Evid. 404(b).

D.        Conclusion

          Jury charge error is egregiously harmful if “it affects the very basis of the
          case, deprives defendant of a valuable right, or vitally affects a defensive
          theory.”

Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007) (citing Hutch v. State, 922

S.W.2d 166, 171 (Tex. Crim. App. 1996)).
                                               12
      The evidence apparently remembered the evening before trial by Lorie Ann to

support her theory that her mother’s murder was the result of a calculating man taking

his revenge on his unfaithful wife had everything to do with whether he committed the

offense--for which he took responsibility--under the influence of sudden passion. The

jurors hearing it without a caution from the trial court regarding the reasonable doubt

requirement affected the very basis of the case and most certainly affected the only real

defensive theory appellant had. Appellant was egregiously harmed and the trial court

committed reversible error.

      Two: The trial court’s denial of appellant’s motion for new trial was
      arbitrary and unreasonable. No reasonable review of the record could
      result in a finding that trial counsel adequately investigated or presented
      mitigation evidence. The failure of trial counsel to do so prejudiced
      appellant to the extent that there can be no confidence in the outcome of
      the trial. See Strickland v. Washington, 466 U.S. 668, 687-84, 694 (1984);
      Wiggins v. Smith, 539 U.S. 510, 527 (2003); and Andrews v. State, 159 S.W.3d
      98, 101-02 (Tex. Crim. App. 2005).

A.    Standard of Review and Applicable Law

      The Court of Criminal Appeals in Hernandez v. State, 726 S.W. 2d 53 (Tex. App.

1986), adopted the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668,

694 (1984) to determine whether counsel has been constitutionally ineffective. To have

a conviction reversed on the grounds of ineffective assistance of counsel an appellant

must show that (1) counsel’s representation fell below an objective standard of

reasonableness and (2) a reasonable probability exists that, but for counsel’s

unprofessional errors, the result of the proceedings would have been different.

                                           13
Strickland, 466 U.S. 668, 687 (1984); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim.

App. 2005). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; Andrews, 159 S.W.3d at 102).

       The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.

       Appellate courts’ review of counsel’s performance must be highly deferential. Id.

“There is a strong presumption that counsel’s conduct falls within a wide range of

reasonable professional assistance, and the defendant must overcome the presumption.

We determine the reasonableness of counsel’s challenged conduct in context, and view

it as of the time of counsel’s conduct.” Andrews v. State, 159 S.W. 3d 98, 101 (Tex. Crim.

App. 2005)(citations omitted).

       “Prevailing norms of practice as reflected in the American Bar Association

standards and the like ... are guides to what is reasonable.” Wiggins, 539 U.S. at 527

(2003) “It is the duty of the lawyer to conduct a prompt investigation of the

circumstances of the case and to explore all avenues leading to facts relevant to the

merits of the case...” 1 ABA Standards for Criminal Justice 4-4.1, commentary pp. 4-5

Appellant must then prove that counsel's deficient conduct was prejudicial, in that, but

for counsel's errors, there is a reasonable probability that the outcome of the trial would

have been different. Strickland. 466 U.S. at 692.



                                            14
       Whether the challenged conduct of counsel was strategic is a question of fact;

whether counsel’s conduct was objectively reasonable however is not. Strickland, 466

U.S. at 698. Both the performance and prejudice parts of an ineffectiveness inquiry are

mixed questions of law and fact. Even a single error on counsel’s part may be sufficient

to warrant a finding of ineffective assistance. Andrews v. State, 159 S.W.3d 98, 103 (Tex.

Crim. App.--2005). Appellate courts look to the totality of the representation and the

particular circumstances of each case in evaluating the effectiveness of counsel. Ex Parte

Felton, 815 S.W.2d 733, 735 (Tex.Crim.App.1991).

       [S]trategic choices made after thorough investigation of law and facts
       relevant to plausible options are virtually unchallengeable; and strategic
       choices made after less than complete investigation are reasonable
       precisely to the extent that reasonable professional judgments support the
       limitations on investigation. In other words, counsel has a duty to make
       reasonable investigations or to make a reasonable decision that makes
       particular investigations unnecessary. In any ineffectiveness case, a
       particular decision not to investigate must be directly assessed for
       reasonableness in all the circumstances, applying a heavy measure of
       deference to counsel's judgments.

Strickland, 466 U.S. at 690-91.

       When ineffective assistance of counsel is raised in a motion for new trial, courts

of appeal review denial under an abuse-of-discretion-standard. Charles v. State, 146

S.W.3d 204, 208(Tex. Crim. App. 2004); Starz v. State, 309 S.W.3d 110, 113 (Tex. App.—

Houston [1st. Dist.] 2009, pet. ref’d). Reversal is required only if the trial court’s decision

to deny the motion for new trial was arbitrary or unreasonable, viewing the evidence in

the light most favorable to the trial court’s ruling. Riley v. State, 378 S.W.3d 453, 457

                                              15
(Tex. Crim. App. 2012 . A decision is arbitrary or unreasonable if no reasonable view

of the record could support the trial court’s ruling. Webb v. State, 232 S.W.3d 109, 112

(Tex. Crim. App. 2007 .

B.     Appointed Defense Counsel at Punishment Rendered Deficient
       Representation that Prejudiced Appellant

       The sentencing phase of any case, regardless of the potential punishment,
       is the time at which for many defendants the most important services of
       the entire proceeding can be performed ….

Vela v. Estelle, 708 F.2d 954, 964 (5th Cir. 1983).

       In this case, other than appellant’s plea of guilty to the jury at the beginning of

the trial, sentencing was the only phase of the trial. The consequences of less than

zealous preparation for that phase could not be starker considering the potentially vast

difference in punishment range a finding of sudden passion would have brought

about—two to 20 years versus five to 99 or life in prison. Tex. Penal Code §19.2 (c) &

(d).

       1.     Failure in duty to make independent investigation into mitigation
              evidence

       The trial court, in denying appellant’s motion for new trial stated:

       [T]he Court having carefully considered the arguments of counsel all the
       affidavits, I have to say you guys have done an excellent job. However, I
       was there and present during the trial. I thought [trial counsel] did an
       excellent job and seemed very well-prepared (sic). I have given his affidavit
       high credibility in regards to the witnesses, that (sic) he was not given the
       names of witnesses, and the ones that he did speak with were not able to
       testify.

(3 Supp. R.R. at 7-8).
                                             16
       That trial counsel was “not given the names of witnesses” is not the standard by

which to test the adequacy of a mitigation investigation. Mitigation investigation is not

the client’s responsibility.

       [A] failure to uncover and present mitigating evidence cannot be justified
       as a tactical decision when defense counsel has not conducted a thorough
       investigation of the defendant’s background. Counsel is ineffective when
       he fails to investigate and interview potential punishment witnesses,
       despite their availability and willingness to testify on appellant’s behalf and
       counsel can only make a reasonable decision to forgo presentation of
       mitigating evidence after evaluating available testimony and determining
       it would not be helpful.

Lair v. State, 265 S.W.3d 580, 595 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)(citing

Weisinger v. State, 775 S.W.2d 424, 427 (Tex. App.—Houston [14th Dist.] 1989, pet.

ref’d.)(citing Wiggins, 539 U.S. at 521); Milburn v. State, 15 S.W. 3d267, 270 (Tex. App.—

Houston [14th Dist.] 2000, pet. ref’d). Trial counsel stated in his affidavit he spoke

“on many occasions” with appellant’s brother and with his niece Chantal (sic) Foster;

but he neither said what he asked nor why “they were not able to testify or provide

names”--in fact, he did not claim either actually said they were unable to do so (4 Supp.

R.R. Def. Ex. 2). The niece, as well as all the other affiants, contradicted trial counsel’s

assertion they were “unable” to provide testimony or contact information.

       The niece, Roxanne Shantal Foster, provided an affidavit to appellant’s attorneys

for the motion for new trial in which she stated she had researched the internet to find

defense counsel for her uncle and provided trial counsel’s information to appellant’s

brother Delroy Foster, who retained him (4 Supp. R.R. at Def Ex. 7).

                                             17
      Roxane Shantal Foster stated at the end of her affidavit:

      I think [we] spoke on the phone twice. [Trial counsel] never asked me any
      questions about Donald or his background or said anything about
      testifying or coming to trial. I would have traveled to Houston to testify.
      If I had known that I could have provided a deposition or been
      reimbursed for travel, I also would have gladly done so.
Id.

      Roxane Shantal Foster was living in Ohio at the time she provided the affidavit

to counsel for the motion for new trial, and she indicates in the affidavit she was living

in the United States at the time of the incident. Trial counsel presented no evidence that

he made any attempt to obtain depositions or affidavits from her or that he indicated

funds might be obtained for her to travel to Houston to testify.

      Elaine Foster, appellant’s older sister, averred defense counsel also failed to

contact her—“I would have been more than willing to provide testimony by a

deposition and I would have made every effort to come to the United States for the

trial. Our brother Delroy and I came to America to see Donald and attend his wife’s

funeral; we waited for hours in the jail before being turned away” (4 R.R. at Def. Ex.

5). Trial counsel said he spoke several times with Delroy Foster—the fact that Delroy

traveled with his sister to the United States demonstrates Delroy knew her contact

information and could have provided it had he been asked.

      Appellant’s counsel for the motion for new trial also presented the affidavit of

his former supervisor from Jamaica, Ludlow Brown, who also said he never heard from

appellant’s lawyer—

                                           18
          When I heard what happened, I was compelled to write a character
          reference letter on Donald’s behalf. The letter is on the letterhead for the
          Sugar Industry Authority and is dated June 11, 2015. Donald’s brother
          Delroy Foster provided it to Donald’s lawyer. I never heard from the
          lawyer even though it had all of my contact information. If I had been
          asked to come testify or to provide a deposition, I would have been more
          than willing.

(4 R.R. at Def. Ex. 6).

          Neither did appellant’s aunt, Beverly Brown, hear from trial counsel—Ms.

Brown’s affidavit stated she too would have been glad to provide a deposition or to

travel to testify had she been asked and told her travel could be reimbursed (4 R.R. Def.

Ex. 2).

          As pointed out by appellate counsel at the motion for new trial hearing, the Court

of Criminal Appeals has held that an attorney’s failure to pursue deposition testimony

of a potential defense witness was deficient performance. Frangias v. State, 450 S.W.3d

125, 127 (Tex. Crim. App. 2013). The trial court failed to address this issue in her

conclusions of law delivered after having heard arguments at the hearing on the motion

for new trial (4 R.R. at 7-8).

          2.    Irrational “Strategy” relying on cross-examination of state’s
                witnesses to mitigate appellant’s actions rather than actively
                seeking out and presenting punishment witnesses and other
                mitigating evidence.

          “It may not be argued that a given course of conduct was within the realm
          of trial strategy unless and until the trial attorney has conducted the
          necessary legal and factual investigation which would enable him to make
          an informed rational decision.” Wellborn, 785 S.W.2d at 393 (citing Ex parte
          Duffy, 607 S.W.2d 507, 526 (Tex.Crim.App.1980)).

                                              19
Compton v. State, 202 S.W.3d 416, 420 (Tex. App.—Tyler 2006, no pet.); See Strickland,

466 U.S. at 690-92 & Wiggins, 539 U.S. at 521.

       Trial counsel states in his affidavit that he met with and spoke to Antonio Foster

prior to trial and “attempted” to speak with Lorie Ann by telephone twice—apparently

she chose not to speak with him.

       During his cross-examination of appellant’s daughter, trial counsel and Lorie

Ann had the following exchange:

       Q.     [Y]ou had great love for your mother and obviously you have a
       great anger for your father for taking her from you, correct?

       A.     That’s logical.

       Q.     And that’s very, very understandable….

(4 R.R. at 47).

       Counsel’s question came after about six pages of questioning, in which the

daughter’s hostility toward her father was intense (4 R.R. at 41-47). The hostility of both

Lorie Ann and her brother Antonio was indeed “very, very understandable” and

predictable, therefore the strategy to present their testimony as the attempt to show

“mitigation” evidence via cross-examining them was irrational in the extreme.

       The picture of appellant painted by his daughter Lorie Ann at trial was of a

distant father who offered no emotional support to his wife and family, offered little

financial support, left most family things, such as moving, to his wife, and was merely

an intellectual “resource” (3 R.R. at 26-30, 48-49, & passim). On direct, the prosecutor

                                            20
asked her to describe “the dynamic that you saw between your parents even growing

up?” and she responded:

       The dynamic was one, on the outside it seemed like it was a happy family,
       but on the inside there was more to it than you could see from the outside.
       My father was not helpful emotionally or, you know, financially”

(4 R.R. at 28).

       Later during direct, Lorie Ann testified her father had not worked once he made

the move to the United States and that her mother was primarily responsible for the

rent on the Houston apartment (4 R.R. at 34). Her older brother, Antonio, testified on

cross-examination that his father could have lived off the pension from the job he had

in Jamaica when he came to the United States but that his father found work when he

arrived in Houston and was laid off (4 R.R. at 73-74). Appellant testified the layoff

occurred in February 2015, about three months prior to the incident (4 R.R. at 142).

       On cross-examination, defense counsel managed to draw from Lori Ann the

following grudging admissions of appellant’s participation in the family’s life:

               Q.     You talked about your dad helping you with a math problem.
       Isn’t it true helped you with your homework when you were a child?

       A.     Yes.

       Q.     So he was there helping you with your homework and doing things
       that fathers do, but I guess what you’re saying is, you didn’t feel the kind
       of love that your mother had for you. Would that be fair to say?

       A.    There’s a difference between being a parent, a father, and being a
       resource. I could have had a tutor in his place.



                                           21
       Q.     But to be fair, he helped, as you say, at least as a tutor throughout
       your life doing your homework?

       A.     Correct.

       Q.     And when you went to track and field, I think you competed in the
       100 and 300 in primary school and later in 400 in long jump. He went to
       your track meets didn’t he?

       A.     He was there, correct.

       Q.    He was there with his camcorder and videotaping the way a father
       would do?

       A.     Not that I can recall all that, I’m sorry.

(4 R.R. at 47-48).

       Lorie Ann agreed with defense counsel her father had worked at the Sugar

Industry Authority in Jamaica for 25 years—this was not brought out during the state’s

questioning, which focused on the complainant’s having always worked (4 R.R. at 49).

       The affidavit from appellant’s niece Roxane Foster submitted for the motion for

new trial describes appellant very differently: a warm and loving man to whom family

was very important—“[He] was always there for us. When I moved to the United States,

he was my main support system. He was the person I would call for help with any family

or financial issue and [he] never failed to make sure I got whatever assistance I needed.

I knew I could count on him” (4 Supp. R.R. at Def. Ex. 7 & 7A).

       Much was made during the state’s direct examination of appellant’s children that

appellant was unenthusiastic about moving from their first home in Jamaica to another

location closer to the children’s school and that he was unhelpful with the logistics of
                                            22
the move and financing the new house purchase of the new house (4 R.R. at 27-8 &

62-6). Antonio testified his father “didn’t put any financials up to it and my mom had

to beg him and he didn’t put any sort of financial support towards the move. He didn’t

help pay for the house at all (4 R.R. at 63). However, he then said that when his mother

expressed her disappointment to appellant that he didn’t want to pay for a new house,

he agreed to sell the other house to help finance the move (4 R.R. at 63).

       The affidavit from appellant’s older sister Elaine Foster stated:

       Donald is a very generous man. When he sold a house, a large portion of
       the proceeds were given to another member of the family who needed
       funds to open a restaurant. He always provided financially for his family
       and shared in the work for the household. For example, I know that he
       was in charge of going to the supermarket and working with the kids on
       their schoolwork.

(4 R.R. at Def. Ex. 5).

       Trial counsel’s affidavit does not claim he made any independent effort to find

these people other than to ask a man that was in custody for contact information—

contact information is generally kept in our cell phones now, to which appellant had no

access in jail. Even if he kept the information written in an address book or on a

computer; given the attitudes of his children, they certainly would not have been willing

to find it for him.

       3.     Failure to object on Confrontation grounds to the threat Lorie Ann
              stated her mother allegedly told her about a week before he killed
              her.




                                           23
       The Confrontation Clause of the Sixth Amendment grants the accused in a

criminal prosecution “the right … to be confronted with the witnesses against him.”

U.S. Const., Am. VI. “This bedrock procedural guarantee applies to both federal and

state prosecutions. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008),

citing Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065 (1965).

       A testimonial hearsay statement is admissible against a defendant only if the

declarant is unavailable and the defendant has had an opportunity to cross-examine him

or her. Crawford v. Washington, 541 U.S. 36, 59; 124 S.Ct. 1354 (2004). A testimonial

statement is inadmissible “absent a showing that the declarant is presently unavailable

and the defendant had a prior opportunity for cross-examination, even if the statement

falls under a firmly rooted hearsay exception or bears particularized guarantees of

trustworthiness.” Wall v. State, 184 S.W.3d 730, 734-35 (Tex. Crim. App. 2006).

       Lorie Ann’s testimony about the alleged threat was hearsay, the declarant was

unavailable—she was dead--there was no prior opportunity to cross-examine the

declarant.

       Defense counsel waived error by failing to object on this constitutional ground.

Instead, counsel objected to the state’s failure to notify the defense of its intention to

introduce the evidence. The trial court’s assertion that defense had “opened the door”

to the evidence was highly questionable and neither Rule 404(b) nor Art. 37.07, §3 (g)

excuse the state from the notice requirements just because it only found out about it

the morning Lorie Ann testified. Tex. R. Evid. 404(b); Tex. Code Crim. Proc. Art. 37.07
                                            24
§3 (g); & Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005). The state,

however, managed to moot the notice issue by choosing, despite the trial court’s

apparent ruling admitting the evidence in its case-in-chief, by waiting until its rebuttal

of the defense case. See Jaubert v. State, 74 S.W.3d 1, 3-4 (Tex. Crim. App. 2002)(state’s

presentation of extraneous evidence on rebuttal required no notice).

      4.     Totality of representation

      A review of the totality of representation demonstrated appellant received

deficient representation in that he:

      ▪      failed to inform the two relatives with whom he was in contact that they
             could provide deposition testimony for appellant’s trial and/or testify at
             his trial. Further, he failed to undertake reasonable steps to find people to
             speak for appellant punishment to show both his humanity and that his
             temperament was such that he only could have killed his wife while
             overcome by sudden passion, when such people were willing and readily
             available;

      ▪      had an irrational “strategy” in choosing not to confine his mitigation
             investigation to asking defendant for contact information and to instead
             rely on his cross-examination of defendant’s hostile children, who testified
             for the state, rather than seeking out others who knew him well;

      ▪      failed to examine records from the jail showing appellant’s clean
             disciplinary history and his mental and physical health problems, which
             demonstrate his characteristic evenness of temper and his human
             suffering after having killed his wife;

      ▪      failed to present evidence supporting defendant’s testimony that after he
             was laid off from his medical coding job he took continuing education
             classes to maintain and improve his coding credential while looking for a
             new job. This evidence contradicts appellant’s children’s testimony that
             appellant spent the time he was unemployed lying around and playing
             games on his phone.

                                           25
C.    Trial Counsel’s Deficient Performance Prejudiced Appellant

      This Court has held that “When counsel presents ‘no evidence of mitigating

factors … to balance against the aggravating factors presented by the state’ and fails to

do so because he did not investigate mitigating factors or contact potential mitigation

witnesses, there is prejudice.” Lopez, 462 S.W 3d at 189, citing Shanklin v. State, 190

S.W.3d 154, 165 (Tex. App.--Houston [1st Dist.] 2005, pet. granted and withdrawn as

improvidently granted).

      1.     Deficient performance affected “Sudden Passion” finding

      The jurors heard evidence from Jesus Ortiz, the crime scene unit deputy from

Harris County Sheriff’s Office, the number and nature of stab wound he saw on the

complainant indicated, in his experience, occurs in “a form of domestic violence. When

we have violence, we’ll have multiple gunshot wounds or suffers a fatal wounds or

multiple stab wounds even though one suffers a fatal wound, and that’s just sheer anger,

or you know, shooting to – to – to get rid of the anger” (3 R.R. at 76). They heard from

Detective Thompson what complainant said to appellant about her affair with Harris

(4 R.R. at 92-6). And Thompson, too, said the wounds suggested that what happened

was “fast and happened with a lot of rage” (4 R.R. at 107). They heard appellant went

straight from the home after the killing and threw himself in front of an 18-wheeler.

      The jurors heard all that yet decided this was not a case of a killing under the

influence of sudden passion—that there was less than a 51% likelihood appellant’s mind

had been rendered incapable of cool reflection in the very short time period it took him
                                           26
to kill his wife and decide to commit suicide. They heard the testimony of appellant’s

two children whose mother he took from them. But apart from the testimony of

appellant himself, which they could have dismissed as self-serving, they heard from no

one with anything good to say about him.

      The jurors heard Lorie Ann testify on cross-examination she thought her father

had planned to kill his wife some time prior to when he actually killed her.

      Q.     [Y]ou had said something, that this was a thoughtless act, correct?

      A.     Yes.

      Q.     I mean, what your father did was without thought?

      A.     Not like that. It was senseless, meaning that it did not have to occur.

      Q.     What was senseless?

      A.    On his part, he’s a methodical thinker and I think that he planned
      what he was going to do, and it shows in his actions by trying to attempt
      to commit suicide post that.

      Q.     Do you think he thought that through when he jumped out into
      the road?

      A.     I have no idea what was going on in his head when he jumped out
      into the road.

      Q.     Well, you would agree with me that if he was really thinking about
      this, he could have thought of a better method to kill himself, would you
      agree with that, to complete the act?

      A.     It’s not my job to think about how a killer thinks, so I don’t know.

      Q.   And, so the truth is, you can’t say or tell this jury that this is
      something that what planned out or something that was spur of the
      moment?
                                           27
       A.    It was more planned out in his head, because the fact there was no
       argument, it was not sporadic, it was not emotional-fact or based. It was
       something that he sat down and thought about. There was no argument.
       There was no argument. There was no argument and then there was
       (snapping fingers) a commotion. There was – I had no idea.

(4 R.R. at 50-51).

       There is nothing mitigating about that testimony, which the trial lawyer elicited

during cross-examination in an attempt to use Lorie Ann’s statement that appellant’s

actions were thoughtless—that he had not thought about the effect killing their mother

would have on his children (4 R.R. at 39-40). Lorie Ann’s rebuttal testimony that

complainant told her appellant threated to kill her if she left him—even through

remembered three years after the fact—further created for the jurors a picture of a

resentful man capable of premeditating the killing of his wife. The absence of testimony

from people other than his devastated and angry children—people who knew the whole

man and were capable of looking beyond the immediate loss of a beloved parent--could

only have reinforced the ad hoc characterizations of appellant by Lorie Ann and her

brother.

       Here are excerpts from the affidavits of appellant’s family members and his

friend and former employer about appellant—the jurors heard nothing from them:

       ▪      From appellant’s aunt Beverly Brown:

              When I heard what happened to his wife, I found it unbelievable
              because Donald is always such a nice and calm person. He never
              loses his temper and will not even shout or raise his voice.

                                           28
    Donald loves his wife and his children very much. He worked hard
    his whole life to provide for them. I know he made countless
    sacrifices including leaving behind his country of Jamaica and
    everything he knows to move to the United States. Moving to
    America was extremely difficult for Donald but he did it for his
    wife and children.

    It is completely understandable that his children are angry with him.
    But it does not change the fact that he was always a loving dad and
    a good provider…. This could not have been planned because he
    devoted his whole life to building his family.

▪   From his older sister Elaine Foster, who helped raise him:

    I have followed Donald’s life closely and he has always been calm
    and stable…. [He had] a successful, permanent career with
    Jamaica’s Sugar Industry Authority and he bought his family a
    home in a gated community. Donald sent his children to good
    private schools…. When our mother was sick and Donald came to
    be with her, I noticed that he still would spend a lot of time on the
    phone with his family. He was always very good at math and science
    and I saw him sit and help his daughter with her homework over
    the phone. I always admired that…. He was always trying to bond
    and he was very gentle and polite; never have I heard him raise his
    voice to his family.

▪   From his former employer and “friend for over twenty-seven
    years”:

    As the Development and Training Office of the Sugar Industry
    Authority of Jamaica, I supervised Donald and had chosen him
    from among many candidate to be promoted to my position when
    I retired. In addition to his knowledge and expertise, one of the
    main reasons I believed Donald was perfect to take over for me
    was because he always kept his cool and had a warm and friendly
    nature.

    AS part of the job, we had critique sessions with management
    where people had to criticize each other, sometimes harshly.
    Donald stood out because he never lost his cool. I would even try
    to test him by playing the devil’s advocate, but he always remained
                                 29
             clam. I knew he was right for the job because it requires exactly that
             personality.

             It was totally shocking to learn what happened to his wife because
             it was so out of character of Donald. In twenty seven years of
             knowing and working closely with him, I have never seen Donald
             lose his temper or act aggressively.

(4 Supp. R.R. at Def. Exs. 4, 5, & 6).

      The people speaking up for appellant have known him for all or a great part of

his life. Each testified under oath. Each was eloquent in their description of his

personality. Appellant’s aunt and his sister make clear he grew up in an educated family

and that he was a gentle, warm, even-tempered person. His friend and former boss took

pains to illustrate with examples of appellant’s working style and steadily calm and

thoughtful personality. No one ever saw him lose his temper. All were shocked to hear

what he had done because it was so entirely out of character for the man they knew.

      Had the jurors heard from these people in person or on a videotaped deposition,

they likely would have experienced the warmth they tried to express in their affidavits,

there is a reasonable probability that they would have found defendant acted in sudden

passion.

      2.     Deficient performance negatively affected jurors’ impression of
             appellant’s character in general

      As demonstrated in Subsection B, supra, the direct examinations of Lorie Ann

and Antonio Foster were carefully orchestrated not only to defeat the sudden passion

issue but also to make appellant look like a generally uncaring and lazy freeloader—an

                                           30
impression trial counsel’s cross-examination did very little to mitigate. The affidavits

provided for the motion for new trial spoke of a man bearing little resemblance to the

one Lorie Ann and Antonio Foster described three years after the fact.

       To show prejudice, appellant is not required to show that but for counsel’s

deficient conduct in failing to offer any mitigation evidence, his sentence would have

been lighter. The Fourteenth Court of Appeals stated:

       [E]ven though it is sheer speculation that [mitigation evidence] would
       have in fact favorably influenced the [factfinder’s] assessment of
       punishment. Counsel’s lack of effort at the punishment phase of the trial
       deprived appellant of the possibility of bringing out even a single
       mitigating factor. Mitigating evidence clearly would have been admissible.
       The [factfinder] would have considered it and possibly been influenced by
       it.

Milburn v. State, 15 S.W.3d 267 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

       The record on its face demonstrates trial counsel failed in his duty “to conduct a

reasonably substantial and ‘independent examination of the facts, circumstances,

pleadings and laws involved.’” Compton v. State, 202 S.W. 3d 416, 422 (Tex. App.—Tyler

2006, no pet.), citing Strickland, 466 U.S. at 680. As a result, appellant was prejudiced.


D.     The Trial Court’s Denial of the Motion for New Trial was Arbitrary and
       Unreasonable

       The trial court’s finding that appellant’s trial lawyer’s performance was effective

was arbitrary and unreasonable; no reasonable view of the record, even seen in the light

most favorable to the ruling, would support it. The finding explained nothing about

why the court discounted “the witnesses” in the face of the trial counsel’s assertion that
                                            31
the two potential witnesses he spoke to were “unable to testify.” Trial counsel did not

say he actually asked them to, or offered to arrange for deposition testimony if they

could not travel to testify at trial. He did not even say he asked them for contact

information.

       The predictable hostility of appellant’s children testifying against him at trial—

Lorie Ann had never spoken to trial counsel prior to trial—made the “strategy” of

relying on cross-examining them in an attempt to mitigate appellant’s killing of their

mother one no reasonable attorney would follow. This is particularly true given that no

one that knew defendant testified on his behalf.

       In assessing the reasonableness of an attorney's investigation, however, a
       court must consider not only the quantum of evidence already known to
       counsel, but also whether the known evidence would lead a reasonable
       attorney to investigate further. Even assuming [appellant’s attorneys]
       limited the scope of their investigation for strategic
       reasons, Strickland does not establish that a cursory investigation
       automatically justifies a tactical decision with respect to sentencing
       strategy. Rather, a reviewing court must consider the reasonableness of
       the investigation said to support that strategy.

Wiggins, 539 U.S. at 527.

       The state will doubtless argue that because the trial court stated her decision was

based on credibility it be honored. Deference to the trial court, however, is not absolute-

-reversal is required only if the trial court’s decision to deny the motion for new trial

was arbitrary or unreasonable, viewing the evidence in the light most favorable to the

trial court’s ruling. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). That

means reversal is required if the trial court’s decision to deny a motion for new trial was
                                            32
arbitrary or unreasonable—if no reasonable view of the record even in the light most

favorable to the ruling could support the ruling. That is the case here.

       The trial court’s addressed her credibility assessment by saying she gave defense

counsel’s affidavit “high credibility in regards to the witnesses, at he was not given the

names of witnesses, and the ones that he did speak with were not able to testify” (3

Supp. R.R. at 7-8). Only one of the two witnesses to whom counsel spoke directly

contradicted his assertion in his affidavit that she “was not able to testify” by saying he

never asked her to.

       Even giving credibility to counsel’s insinuation that he had asked her and she

said she could not—he did not actually say he had—the trial court had no reason to

summarily dismiss all the other affidavits from people appellant’s motion for new trial

lawyers managed to find in the short time period provided for prosecuting a motion for

new trial. These people all said they would have been willing and able to either provide

deposition testimony or travel to Houston for the trial to testify in support of the man

they knew well. Unlike the defendant’s two children, none of these people had reason

to be vengeful against appellant—the trial court simply chose to assume their affidavits

were untruthful.

       The denial of the motion for new trial, viewed in any light, was arbitrary and

unreasonable and harmed appellant’s substantial rights, including those under United

States Const., Ams. V, VI, and XIV; Tex. Const., Art. 1 §10; Strickland v. Washington,

466 U.S. 668, 687-84, 694 (1984); Wiggins v. Smith, 539 U.S. 510, 527 (2003); and Andrews
                                            33
v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005). This Court should vacate his

sentence and remand to the trial court for a new punishment trial.

       Three: The trial court erred at trial in admitting hearsay evidence from
       Lorie Ann Foster that her mother had told her appellant had threatened
       to kill her if she left him when the state provided no notice of its intent to
       introduce it and appellant had not “opened the door” to the evidence.

A.     Standard of Review and Applicable Law

       Courts of appeal review the admission of evidence of extraneous misconduct or

bad acts under an abuse of discretion standard. Davis v. State, 315 S.W. 3d 908, 913 (Tex.

App.—Houston [14th Dist.] 2010, rev’d on other grounds).

       The admissibility of evidence at punishment is largely guided by article 37.07 of

the Texas Code of Criminal Procedure. Id (citing Haley v. State, 173 S.W.3d 510, 513

(Tex. Crim. App. 2003)). Section 3 of the article provides the state may introduce

evidence of an extraneous act provided that it is proved beyond a reasonable doubt that

defendant committed the act. Tex. Code Crim. Proc. Art. 37.07, §3. Section 3(g) of the

article provides:

       On timely request of the defendant, notice of intent to introduce evidence
       under this article shall be given in the same manner required by Rule
       404(b) of the Texas Rules of Evidence. If the attorney representing the
       state intends to introduce an extraneous crime or bad act that has not
       resulted in a final conviction in a court of record or a probated or
       suspended sentence, notice of that intent is reasonable only if the notice
       includes the date on which and the county in which the alleged crime or
       bad act occurred and the name of the alleged victim of the crime or bad
       act.




                                            34
B.     Trial Court Erred in Finding Defense Counsel “Opened the Door”

       On redirect, the following exchange took place between the state and Lorie Ann:

       Q.     Now, you just stated -- you were asked, you had no reason to think
       that this was planned, right? Defense just asked you that question, right?

       A.      Right.

       Q.    However, was there anything that happened prior to the day that
       would give you cause to think it was planned?

(4 R.R. at 53).

       When defense counsel then interrupted with his objection and asked to approach

he denied he asked “[Y]ou had no reason to think that this was planned, right?.” The

prosecutor responded, “You asked about, I mean anything that day that led you to

believing it was planned”—defense counsel again said he did not ask that question and

the trial court said “I heard what you asked and I believe you opened the door to an

earlier objection” (4 R.R. at 54). Defense counsel reasserted he did not ask Lorie Ann

the question the state claimed he asked and requested a playback but the court declined

the request.

       The trial court’s response to counsel’s objection to admission of Lorie Ann’s

testimony regarding the alleged threat is repeated here from the Statement of Facts for

this Court’s convenience:

       The Court: So your specific objection is that this is an extraneous offense
       that you weren’t noticed on?

               Mr. Madrid: Yes.

                                           35
                The Court: The prosecutor’s response is that she just found out last
       night.

               Ms. Benavides: Or this morning actually when we met, she flew in
       last night.

              The Court: But regardless, I don’t think – some things they
       obviously can’t anticipate, and so if you – my feeling about it is your
       question opened the door to it and notice requirements don’t apply. So I
       guess the question is whether or not you opened the door. And the truth
       of the matter is, whether it’s coming in now or later, I think it’s coming
       in.

(4 R.R. at 55-6).

       Prior to the above response, the trial court stated she “had it written down” that

trial counsel asked Lorie Ann on cross-examination “why she thought it was planned”

(4 R.R. at 54). The prosecutor claimed her notes said “You have no reason to think this

was planned. That was question number one” and the court said, “That’s what I recall”

(4 R.R. at 55).

       The reporter’s record belies the trial court’s and the state’s memories of what

defense counsel had actually asked Lorie Ann; again that is repeated here from

subsection C, subparagraph 1, supra:

       Q.       [Y]ou had said something, that this was a thoughtless act, correct?

       A.       Yes.

       Q.       I mean, what your father did was without thought?

       A.       Not like that. It was senseless, meaning that it did not have to occur.

       Q.       What was senseless?

                                              36
      A.    On his part, he’s a methodical thinker and I think that he planned
      what he was going to do, and it shows in his actions by trying to attempt
      to commit suicide post that.

      Q.     Do you think he thought that through when he jumped out into
      the road?

      A.     I have no idea what was going on in his head when he jumped out
      into the road.

      Q.     Well, you would agree with me that if he was really thinking about
      this, he could have thought of a better method to kill himself, would you
      agree with that, to complete the act?


      A.     It’s not my job to think about how a killer thinks, so I don’t know.

      Q.   And, so the truth is, you can’t say or tell this jury that this is
      something that what planned out or something that was spur of the
      moment?

      A.    It was more planned out in his head, because the fact there was no
      argument, it was not sporadic, it was not emotional-fact or based. It was
      something that he sat down and thought about. There was no argument.
      There was no argument. There was no argument and then there was
      (snapping fingers) a commotion. There was – I had no idea.

(4 R.R. at 50-51)(emphasis added).

      The context of the highlighted question was timing between the phone call and

the killing and the fact Lorie Ann previously testified she heard nothing to suggest

anything abnormal was going on while she spoke with her mother (4 R.R. at __).

Counsel did not suggest she had no reason generally to believe appellant planned to kill

his wife—he asked whether she could have known the killing was preceded by an

argument prior to or after the call with her mother was dropped. The prosecutor

                                          37
mischaracterized defense counsel’s question to Lorie Ann when she was setting the

stage to elicit her testimony regarding the alleged threat and again when she read what

she allegedly had written down.

C.    Because the Door was not Opened, Notice Requirements Applied

      Defense counsel at trial filed a timely request for “Notice of State’s Intention to

use Evidence of Extraneous Offenses at Trial on August 17, 2017 (C.R. at 42). The trial

court signed a standard discovery order, including a requirement that the state provide

notice of extraneous offenses “with date, time, and place, which may be admissible

against Defendant” (C.R. at 59); see also Tex. Code Crim. Proc. 37.07 §3(g) & Tex. R.

Evid (404(b)(2).

      Consequently, the state was required to provide reasonable notice of its intent to

offer Lorie Ann’s bombshell testimony. Tex. Code Crim. Proc. Art. 37.07 §3(g); Tex.

R. Evid. 404(b)(2); Hernandez v. State, 176 S.W. 3d 821, 824 (Tex. Crim. App. 2005). In

addition to the date, time, and place requirements for notice to “reasonable,” timing of

the delivery is also a factor. Hayden v. State, 66 S.W. 3d 269, 272 (Tex. Crim. App. 2001).

      The trial court essentially dismissed the timing issue raised by defense counsel

during his objection to the admission of Lorie Ann’s suddenly remembered evidence—

“[S]ome things they obviously can’t anticipate….” The prosecutor’s reason for the mid-

trial attempt to get the evidence admitted—that she had only heard about it that

morning—is not “reasonable notice” that complies with 404(b) or 37.07 §3(g).



                                            38
       The Court of Criminal Appeals stated in Hernandez that the notice requirement

“literally conditions the admissibility of other crimes evidence on the State’s compliance

with the notice provision of Rule 404(b).” Hernandez, 176 S.W. 3d at 824. Whether the

notice is reasonable is in part determined by the length of time between the defense

request for the notice and the state’s compliance. Hayden, 66 S.W. 3d at 272. In

Hernandez, supra, the Court qualified the literal compliance required by Rule 404(b) as

follows: “This is not to say a trial court is without discretion to utilize its powers (such

as granting continuances to reduce surprise) to permit the State to bring itself into

compliance…. But, a trial court must use these powers to ensure compliance and not

to excuse noncompliance.” Id at 824.

       The state in this case very nearly elicited Lorie Ann’s testimony on the extraneous

evidence with absolutely no notice to the defense during redirect (4 R.R. at 53). There

is nothing in the record to suggest the state even told defense counsel of its intention

to bring in the evidence before the start of the day’s proceedings. There was no attempt

whatsoever at compliance with the notice provision.

       Appellant is aware of the holding in Jaubert v. State, wherein the Court of Criminal

Appeals overruled the court of appeals’ reversal of the trial court’s admitting of

unnoticed extraneous offenses during a punishment case. Jaubert v. State, 74 S.W.3d 1

(Tex. Crim. App. 2002). The Jaubert majority held that because the state did not

introduce the extraneous offenses until their rebuttal of the defendant’s mitigation case,

the notice provisions did not apply. Id at 4-5.
                                            39
       The Jaubert opinion was based on the majority’s interpretation of Article 37.07

§3(a)’s incorporation by reference to TRE 404(b): “On timely request of the defendant,

notice of intent to introduce evidence under this article shall be given in the same

manner required by Rule 404(b), Texas Rules of Criminal Evidence.” Id at 2. TRE

404(b) states such evidence is admissible in the state’s case-in-chief provided reasonable

notice is given to the defendant on timely request. See Id at 2-3. The Court reasoned

that because the evidentiary rule limits the notice requirement to the “state’s case-in-

chief” and not to rebuttal of the defense case, that same limitation applies to the

punishment statute.

       In her concurrence, Justice Cochran pointed out that the notice requirement’s

purpose is “to ensure that Texas criminal proceedings are not a contest of clever

gamesmanship or trial by ambush…. This requirement of advance notice, upon timely

request, applies only to the State’s case-in-chief because prosecutors are no more

clairvoyant than the rest of the world. They cannot, and thus should not be required to,

predict precisely what evidence the defense will introduce or what rebuttal evidence

might be relevant as a result of a particular defense.” Id at 5.

       Justice Cochran goes on to warn, however, that the limitation makes it “possible

for prosecutors to manipulate the notice rule’s purpose and applicability simply be

reserving all extraneous offense evidence until the rebuttal case, when notice is not

required. Although this strategy conforms to the letter of the law, it clearly violates the

spirit.” Id at 6. Because the facts in Jaubert made clear there was no such manipulation
                                             40
in that case, the Justice concurred with the majority’s holding, leaving open the

possibility of other cases calling for a different one. Id at 8.1

       Appellant’s case is one of those other cases. First, the state needed no powers of

divination to predict sudden passion would be an issue for the defense at punishment.

This was a domestic murder, following a revelation of infidelity, ending a 30-year

relationship with a barrage of stab wounds that the arresting officer testified suggested

to him a great deal of rage. The testimony of appellant’s children demonstrated they

were prepared by the state to paint a picture of their father that would counter a “sudden

passion” finding—Lorie Ann’s morning-of-trial recovered memory of her mother’s

alleged report of appellant threatening her life.

       Second, once the trial court made its somewhat vague “ruling” on the

admissibility of the evidence—“feeling” the door was opened; “thinking” it was coming

in “whether now or later”—the state took the hint and waited until its rebuttal (4 R.R.

at 55-6). This was exactly the kind of action anticipated in Justice Cochran’s cautious

concurrence, which she narrowed to the facts of Jaubert’s case—the state resorted the

surprise tactics the notice provisions were designed to prevent and the trial court

permitted them to succeed.




1 The dissent goes much further, attacking the majority opinion’s legislative analysis and pointing out
the legislature deliberately omitted the “case-in-chief” language from the punishment statute, which it
did use in the notice provisions for extraneous evidence in Art. 38.37 of the Texas Code of Criminal
Procedure. Justice Meyers also argued that the evidentiary rule and the punishment statute serve greatly
different purposes.
                                                  41
                                          Prayer

       In view of the foregoing, this Court should reverse appellant’s case and remand

to the trial for a new trial on the basis of any or all of the above issues presented.

                                                 Respectfully submitted,
                                                 ALEXANDER BUNIN
                                                 Chief Public Defender
                                                 Harris County Texas

                                                 /s/Melissa Martin
                                                 ______________________________
                                                 Melissa Martin
                                                 Assistant Public Defender
                                                 Harris County Texas
                                                 1201 Franklin 13th Floor
                                                 Houston Texas 77002
                                                 (713) 368-0016
                                                 (713) 437-4319 e-fax
                                                 TBA No. 24002532




                               CERTIFICATE OF SERVICE

       I certify that I provided a copy of the foregoing brief to the Harris County
District Attorney on the day the brief was electronically filed and accepted.

                                                 /s/ Melissa Martin
                                                 ______________________________
                                                 MELISSA MARTIN
                                                 Assistant Public Defender




                                            42
                            CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3), undersigned counsel certifies that this brief complies
with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1.    Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief
contains 11,444 words printed in a proportionally spaced typeface.
2.    This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 12 point font in footnotes produced by Microsoft
Word software.
3.    Upon request, undersigned counsel will provide an electronic version of this brief
and/or a copy of the word printout to the Court.
4.    Undersigned counsel understands that a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.
                                                /s/ Melissa Martin
                                                ______________________________
                                                MELISSA MARTIN




                                           43
