                                                                                                         ACCEPTED
                                                                                                    05-14-01175-CR
                                                                                          FIFTH COURT OF APPEALS
                                                                                                    DALLAS, TEXAS
                                                                                              3/18/2015 10:57:08 AM
                                                                                                         LISA MATZ
                                                                                                             CLERK


                                 No. 05-14-01175-CR
                                                                               RECEIVED IN
                                                                         5th COURT OF APPEALS
                            IN THE COURT OF APPEALS                           DALLAS, TEXAS
                         FOR THE FIFTH DISTRICT OF TEXAS                 3/18/2015 10:57:08 AM
                                    AT DALLAS                                   LISA MATZ
                                                                                  Clerk




                        CHRISTOPHER GERALD PRICE,
                                                   Appellant

                                              v.

                            THE STATE OF TEXAS,
                                                   Appellee


                          On appeal from Criminal District Court No. 3
                                    of Dallas County, Texas
                                  In Cause No. F13-58588-J



                           BRIEF FOR APPELLANT

                                      Counsel of Record

Lynn Richardson                                                    Katherine A. Drew
Chief Public Defender                                              Assistant Public Defender
Dallas County, Texas                                               State Bar No. 06117800


                               Frank Crowley Courts Building
                              133 N. Riverfront Boulevard, LB-2
                                  Dallas, Texas 75207-4399
                                   (214) 875-2360 (phone)
                                     (214) 875-2363 (fax)
                                Kathi.Drew@dallascounty.org


                                 Attorneys for Appellant
                              LIST OF PARTIES

APPELLANT
Christopher Gerald Price

APPELLEE
The State of Texas

DEFENSE COUNSEL AT TRIAL
Edwin V. King
400 S. Zang Blvd, Suite 105, LB 43
Dallas, TX 75208

STATE’S ATTORNEY AT TRIAL
Kendall Costello and Cresta Garland
Dallas County District Attorney‟s Office
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399

APPELLANT’S ATTORNEY ON APPEAL
Katherine A. Drew
Dallas County Public Defender‟s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399

STATE’S ATTORNEY ON APPEAL
Susan Hawk (or her designated representative)
Dallas County District Attorney‟s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399




                                           ii
                                         TABLE OF CONTENTS


LIST OF PARTIES ................................................................................................... ii
INDEX OF AUTHORITIES......................................................................................v
STATEMENT OF THE CASE ..................................................................................1
ISSUES PRESENTED...............................................................................................1
STATEMENT OF FACTS ........................................................................................2
SUMMARY OF ARGUMENT ...............................................................................16
ARGUMENT ...........................................................................................................17
Point of Error 1, Restated.........................................................................................17
         The trial court abused its discretion by limiting defense counsel’s
         cross-examination of the complainant. (RR4: 103-105; RR5: 109)..............17
Point of Error 2, Restated.........................................................................................17
         The trial court abused its discretion by denying defense counsel’s
         request to re-open for the purpose of additional cross-examination of
         the complainant. (RR6: 6). ............................................................................17
Point of Error 3, Restated.........................................................................................17
         The trial court abused its discretion by sustaining the State’s
         objection to defense counsel’s jury argument regarding the
         complainant’s lack of honesty to law enforcement and instructing the
         jury to disregard that argument. (RR6: 42-53). ............................................17
Point of Error 4, Restated.........................................................................................36
         The trial court erroneously included the full definition of intent in the
         jury charge. (CR1: 92)...................................................................................36
Point of Error 5, Restated.........................................................................................36
         The trial court erroneously included the full definition of knowledge in
         the jury charge. (CR1: 92). ............................................................................36
Point of Error 6, Restated.........................................................................................42
         The trial court erroneously included the full definition of reckless in
         the jury charge. (CR1: 92). ............................................................................42
PRAYER ..................................................................................................................44

                                                            iii
CERTIFICATE OF SERVICE ................................................................................44
CERTIFICATE OF COMPLIANCE .......................................................................45




                                                   iv
                                    INDEX OF AUTHORITIES


Cases
Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1985) ................................................ 39, 40, 42
Billodeau v. State,
  277 S.W.3d 34 (Tex. Crim. App. 2009) ........................................................ 18, 19
Brooks v. State,
  967 S.W.2d 946 (Tex. App. – Austin 1998, no pet.) ...........................................38
Carroll v. State,
 916 S.W.2d 494 (Tex. Crim. App. 1996) .............................................................32
Chaney v. State,
 314 S.W. 3d 561 (Tex. App. – Amarillo 2010, pet. ref‟d) ............................ 39, 43
Clark v. State,
  365 S.W.3d 333 (Tex. Crim. App. 2012) .............................................................37
Cook v. State,
 884 S.W.2d 485 (Tex. Crim. App. 1994) .............................................................38
Davis v. Alaska,
 415 U.S. 308 (1974) .............................................................................................32
Davis v. State,
 329 S.W.3d 798 (Tex. Crim. App. 2010) .............................................................19
Delaware v. Van Arsdall,
 475 U.S. 673 (1986) .............................................................................................32
Hammer v. State,
 296 S.W.3d 555 (Tex. Crim. App. 2009) ................................................ 32, 33, 34
Landrian v. State,
  268 S.W.3d 532 (Tex. Crim. App. 2008) .............................................................38
Martinez v. State,
 327 S.W.3d 727 (Tex. Crim. App. 2010) .............................................................18
Mendenhall v. State,
 15 S.W.3d 560 (Tex. App. – Waco 2000), aff’d on other grounds, 77 S.W.3d 815
 (Tex. Crim. App. 2002) ........................................................................................38



                                                         v
Peek v. State,
  106 S.W.3d 72 (Tex. Crim. App. 2003) ...............................................................18
Vallair v. State,
  No. 09-11-00038-CR, 2011 Tex. App. LEXIS 7055 at * 8 (Tex. App. –
  Beaumont August 31, 2011 pet. ref‟d) (not designated for publication) .............43
Statutes
TEX. CODE CRIM. PROC. art. 36.02 ...........................................................................18
TEX. CODE CRIM. PROC. art. 36.19 ...........................................................................40
TEX. FAM. CODE § 261.201 ......................................................................................19
TEX. PENAL CODE § 22.02 ..........................................................................................1
TEX. PENAL CODE § 22.02(a)(1) ..............................................................................38
TEX. PENAL CODE § 6.03(a) .....................................................................................38
TEX. PENAL CODE § 6.03(b) .....................................................................................38
TEX. PENAL CODE § 6.03(c) .....................................................................................43
Rules
TEX. R. EVID. 404(a)(3)............................................................................................32
TEX. R. EVID. 404(b) ................................................................................................33
TEX. R. EVID. 608(b) ......................................................................................... 29, 33
TEX. R. EVID. 613(b) ......................................................................................... 33, 36
Constitutional Provisions
TEX. CONST. Art. I § 10............................................................................................32
U.S. CONST. amend. VI ............................................................................................32
U.S. CONST. amend. XIV .........................................................................................32




                                                          vi
TO THE HONORABLE COURT OF APPEALS:

      COMES NOW Appellant, Christopher Gerald Price, and submits this brief

on appeal from a conviction for aggravated assault in Criminal District Court No. 3

of Dallas County, Texas, the Honorable Gracie Lewis, judge presiding.

                         STATEMENT OF THE CASE

      Appellant was charged by indictment with aggravated assault in violation of

TEX. PENAL CODE § 22.02. (CR1: 15). Appellant entered a plea of not guilty to this

indictment and was afforded a trial before a jury. (RR4: 16). At the conclusion of

the evidence, the jury found Appellant guilty and subsequently sentenced him to

seventy-five years‟ imprisonment. (CR1: 119; RR6: 56; RR7: 41). Based on the

jury‟s verdict, the trial court also made a family violence finding and a deadly

weapon finding in the judgment. (CR1: 100, 120; RR6: 56).

      Judgment was entered on September 8, 2014. (CR1: 119). Appellant gave

timely notice of appeal. (CR1: 119).

                             ISSUES PRESENTED

                                 Point of Error 1

    The trial court abused its discretion by limiting defense counsel’s cross-
         examination of the complainant. (RR4: 103-105; RR5: 109).




                                        1
                                 Point of Error 2

 The trial court abused its discretion by denying defense counsel’s request to re-
   open for the purpose of additional cross-examination of the complainant.
                                      (RR6: 6).

                                 Point of Error 3

The trial court abused its discretion by sustaining the State’s objection to defense
  counsel’s jury argument regarding the complainant’s lack of honesty to law
 enforcement and instructing the jury to disregard that argument. (RR6: 42-53).

                                 Point of Error 4

   The trial court erroneously included the full definition of intent in the jury
                               charge. (CR1: 92).

                                 Point of Error 5

The trial court erroneously included the full definition of knowledge in the jury
                               charge. (CR1: 92).

                                 Point of Error 6

  The trial court erroneously included the full definition of reckless in the jury
                                charge. (CR1: 92).

                           STATEMENT OF FACTS

                                  Leslie Warren

      Leslie Warren, the complainant, testified that she had known Appellant for

ten years. (RR4: 25). For a six month period of time in 2011-2012, Appellant had

lived with her, her common law husband, Scott Segalla, and their children. (RR4:

27). They began a romantic, dating relationship after Warren broke up with Segalla

                                         2
and Appellant again moved in with Warren in January of 2013.1 (RR4: 27, 28, 87,

88).

       Warren had been a drug user for many years and had a “very significant

drug history.” (RR4: 31, 90). Specifically, she smoked methamphetamine and

marijuana. (RR4: 31). Warren suspected that Appellant was using drugs as he

would not take a drug test. (RR4: 32). After several months, Warren began openly

using drugs again. (RR4: 32, 33, 34). She got her supply of drugs from some of her

customers at Keller‟s Hamburgers, where she worked as a car hop. (RR4: 29, 33).

In the months leading up to the events for which Appellant was on trial, Warren‟s

life consisted of “working at Keller‟s and staying up late at night drinking and

smoking ice, which is methamphetamine,” and marijuana. (RR4: 91). Essentially,

everyone she associated with was using illegal drugs. (RR4: 90).

       On July 29-30, 2013, Veronica Muniz and Candace Smith were at Warren‟s

apartment “hanging out” and smoking methamphetamine.2 (RR4: 36, 37). At one

point, Warren drove Muniz to a motel to meet a friend. (RR4: 37, 38). Appellant

and Smith followed them. (RR4: 38). According to Warren, Appellant was acting

1
 Warren admitted, on cross-examination, that her children didn‟t really live with her but stayed
with other family members. (RR4: 91, 92).
2
  Indeed, Warren admitted that she had been smoking methamphetamine for two-three days
before the events occurred which led to the prosecution. (RR4: 108). She had also been sleepless
for an extended period of time, at least twenty-four hours. (RR4: 109).

                                               3
jealous; he knew Muniz was a lesbian and kept asking if she was Warren‟s

girlfriend. (RR4: 38, 39). They stayed for a while, and then returned to Warren‟s

apartment with Smith, who stopped to get them something to eat. (RR4: 39, 40).

Warren and Appellant argued a bit, but they got over it.3 (RR4: 40).

         An argument between Warren and Appellant started again when Appellant‟s

friend, Chivo, came over to sell them $60 worth of methamphetamine. (RR4: 40,

41, 42, 112). Smith had wanted to buy some drugs from Chivo. (RR4: 112). Chivo

apparently said something to Smith that upset her.4 (RR4: 42, 43, 112). Appellant

initially agreed with Warren, but then called Smith a bitch, which further upset

Warren. (RR4: 43, 44). Both Chivo and Smith left. (RR4: 45, 112, 113). Warren

and Appellant continued to argue, primarily over why he would bring a drug dealer

into their home, but then they had “make-up sex.” (RR4: 45, 46, 113-114).

         After engaging in sex, Warren and Appellant continued to argue, both over

Chivo and Appellant‟s ex-girlfriend. (RR4: 46, 47). Both Warren and Appellant

were paranoid from drug use at this point and the argument was becoming volatile.

(RR4: 47, 48, see also RR4: 108).



3
  Warren stated on cross-examination that she and Appellant had been “arguing for months.”
(RR4: 115). She admitted that they argued more when they were high than when they were
sober. (RR4: 115).
4
    Warren testified that she knew Chivo was trying to have sex with Smith. (RR4: 113).
                                                  4
       Appellant told Warren to go into the bathroom and basically pushed her into

the master bath. (RR4: 49, 118). Warren testified that she was begging Appellant

to talk to her. (RR4: 49, 50). She sat on the floor between the toilet and the tub.

(RR4: 50, 118). Appellant left the bathroom; Warren heard him going through her

purse and drawers in the household furniture. (RR4: 50). Appellant was saying “a

lot of hateful things.” (RR4: 50). Even though the door to the bathroom was not

locked, Warren testified that she was being held in the bathroom against her will.5

(RR4: 51, 53).

       Appellant came back into the bathroom about 20 minutes later. (RR4: 51).

According to Warren, he tried to shove a shirt into her mouth so that she would

shut up and stop calling his name. (RR4: 51). He also brought in a bottle of

rubbing alcohol, which he poured over her head. (RR4: 51, 118, 120). He lit

something with a lighter, which she thought was toilet paper, and threw it on her

head. (RR4: 51, 52). Warren heard a “poof” and put her head under the faucet in

the tub. (RR4: 51, 52, 123, 126). Appellant was yelling “stop putting it out, don‟t

touch it.” (RR4: 52).

       While Warren was washing her hair, globs of it were coming out. (RR4: 52).



5
 Interestingly, Warren also admitted that she did not lock the bathroom door herself to keep
Appellant out of the bathroom, even after he poured alcohol on her head. (RR4: 53, 119, 122).
Evidence was heard that the bathroom door only locked from the inside. (RR4: 119, 122, 124).
                                              5
She was crying and yelling at Appellant. (RR4: 52). Appellant left, but again

returned and tried to gag Warren with a shirt. (RR4: 54). He then got an extension

cord and bound her wrists together and then tied her wrists to her ankles. (RR4: 54,

55). Warren was very scared at this point. (RR4: 55).

          Warren managed to free her hands from the extension cord. (RR4: 56).

Appellant then re-entered the bathroom and poured charcoal lighter fluid6 on her.

(RR4: 56, 125). Warren jumped in the shower and tried to rinse the fluid off. (RR4:

56, 126, 132). She took off her clothes,7 except for her bra and panties, and

wrapped herself in the shower curtain. (RR4: 56, 57, 78, 137). She then took the

shower rod and pushed Appellant out of the bathroom. (RR4: 57, 78, 134).

          Warren ran to the master bedroom for a blanket while Appellant continued

to squirt the charcoal lighter fluid on her as well as around the bedroom. (RR4: 57,

134). Warren was saying a number of things to Appellant, such as she loved him,

she was pregnant,8 and that she could not believe he was doing this to her. (RR4:

57). Appellant got another piece of toilet paper, lit it, threw it on the bed, and the



6
  Warren testified that this charcoal lighter fluid was hers and was usually kept in the kitchen,
though Appellant may have gotten it from the patio. (RR4: 78, 79).
7
    Warren testified that she knew if her clothes caught fire they would stick to her. (RR4: 56, 57).
8
 It later turned out that Warren was, in fact, pregnant with Appellant‟s child, though she actually
did not know it at the time. (RR4: 85, 86, 140-141).

                                                   6
bed went up in flames. (RR4: 57, 87, 134). Appellant did not throw the tissue at

Warren. (RR4: 138). Warren jumped or catapulted over the bed and into

Appellant‟s arms. (RR4: 57, 135, 137). Appellant gave her a bear hug, then hit her

on the back of her head; she felt a big “crack.” (RR4: 57, 58, 60, 72-73, 135, 137).

       Warren lost consciousness and woke up in the hallway of her apartment.

(RR4: 60, 61, 73). She walked outside where she saw a friend, “Rob.”9 (RR4: 60,

137, 139). Rob asked if her kids were in the apartment. (RR4: 62). When told they

were not, Rob called 911. (RR4: 63). He placed Warren in his truck then got other

tenants out of the building. (RR4: 63). When the paramedics arrived, she told them

that her boyfriend did it. (RR4: 65).

       Warren ultimately spent 24 days in the hospital being treated for burns.

(RR4: 67, 86). She was in a lot of pain and was given medication for it. (RR4: 66,

75). The majority of injuries were to her back, though she also had injuries to her

neck, ears, head and hands. (RR4: 68; State‟s Exhibit 2-20). She underwent skin

graft surgery and had multiple follow-up appointments since her release from the

hospital. (RR4: 79, 80, 81). She lost everything in the fire and was essentially

homeless at the time of trial, sporadically staying with various friends and family

members. (RR4: 68, 69, 84).


9
  Warren testified that she had talked to Rob on the telephone just after she and Appellant had
sex; Rob wanted to switch cars with her, to which she had agreed. (RR4: 62, 117).
                                                7
      Warren admitted that the sequence of events she recounted to the police was

different from that of her trial testimony. (RR4: 120, 121, 125, 127-128, 129;

Defense Exhibit1). She also stated that there were inaccuracies in her description

of events in her medical records. (RR4: 135-136, 138). Indeed, Warren‟s statement

to the police was as follows:

      I, Leslie Warren, 1-8-84, gave Captain Lawrence Pitman consent to
      sign -- to write my statement. I live at 10950 Walnut Hill Lane,
      Number 104W. I‟ve been dating Christopher Price, (12-3-84), since
      January 12, 2013. The last couple of days, we have been arguing.

      On this morning, 7/30/13, we had been arguing since about 4:00 a.m.
      He flipped on me, tied me up with an extension cord, comma, poured
      alcohol me – on me, and locked me in the bathroom for a while.

      He threw a tissue on me that was on fire. I put the fire out using the
      shower. I was tied at the ankles and the wrists. I was able to untie
      myself. He was threatening to kill me the entire time, saying you‟re
      dumb, man, you‟re fixin‟ to be dead.

      You‟re a dumb ass, and you‟re fixing to be dead. He said you‟re
      fixing to burn up. I had to get loose. I grabbed the curtain rod to hit
      him, but I was afraid. I got out of the bathroom. He had lighter fluid.
      He had hit me in the head with his fist several times.

      I was able to get out of the bathroom. I was in the bedroom. He had
      poured lighter fluid on me. It was all over the bed, too. He poured it
      on me. I jumped on the bed to try to get away. He started throwing
      tissues lit on fire onto the bed. I had taken off my clothes, grabbed a
      blanket to protect me.

      I do not remember anything after that. He used a lighter to set the
      tissues on fire.


                                        8
(Defense Exhibit 1;10 see also RR4: 127-128). Yet another statement differs even

more:

          My boyfriend, Christopher Price, and I got into an argument. He
          became upset and enraged, began punching me in the face and body.
          He threw me down into the bathroom and tied my wrists and ankles
          with an extension cord.

          He poured rubbing alcohol on me and then lit tissue on fire and threw
          it on me, lighting me on fire. He went into bedroom and got lighter
          fluid while I tried to put the fires out and turn on water to put myself
          out.

          I tried to run out and escape, but he was blocking my path. He
          squirted lighter fluid on me as I tried to get around him on the bed and
          lit me on fire again. I ran back into the bedroom again and hid for a
          bit.

          Then there was a lot of smoke, so I got scared and tried to run out
          again. I ran past a lot of fire and flames as the bed and apartment were
          on fire. I guess he had already left me there because he was not
          around anymore. A few minutes later the fire department found me
          and took care of me.

(Defense Exhibit 4;11 see also RR5: 127-128).

                                          Candeace Smith

          Candeace Smith had known Leslie Warren for about a year; the two met at




10
     Detective Pitman, who apparently took this statement, did not testify at trial.
11
   Dallas Police Officer Tom Clayton testified that he was dispatched to Parkland Hospital on
July 30, 2013 to take a statement from Leslie Warren. (RR5: 122, 123). He wrote the statement
out for her, which she signed. (RR5: 123, 124). The statement was admitted as Defense Exhibits
4 and 5. (RR5: 124, 127-129).
                                               9
Keller‟s Hamburgers, where they had both worked. (RR4: 143). Smith knew

Appellant as “Sour.” (RR4: 144).

      On July 29, Smith went to the apartment Warren and Appellant shared.

(RR4: 144, 145). She had brought Warren some things from Ross, a store where

she had been shopping. (RR4: 144). At one point they were joined by Veronica

Muniz, a/k/a Ronnie. (RR4: 145). They all smoked methamphetamine. (RR4: 146).

      At one point the four left to go see friends at a motel. (RR4: 145). Smith and

Muniz both rode together in Smith‟s car when Warren and Appellant drove in their

truck. (RR4: 146, 164-65). At the motel, everyone used methamphetamine and

some people were drinking, though Smith claimed she was not one of them. (RR4:

166). Appellant became upset by Warren‟s attention to Muniz. (RR4: 147, 148).

He was jealous of their relationship, which he thought might be sexual in nature.

(RR4: 147, 167). Smith testified that the tension between the two was such that one

“could cut it with a knife.” (RR4: 148). Appellant was “very rude” and “territorial”

of Warren. (RR4: 167).

      The three left about 2:00 a.m., returning to Warren‟s apartment. (RR4: 148,

149). Once again Warren and Appellant rode together while Smith drove herself,

stopping to get some food from Jack-in-the- Box. (RR4: 149).

      Once back at the apartment, a man known as “Chivo” showed up. (RR4:

150). He brought methamphetamine, which they all smoked. (RR4: 151). Chivo
                                        10
said some things to Smith which intimidated her. (RR4: 152). Appellant and

Chivo‟s behavior towards Smith made her feel unsafe and uncomfortable. (RR4:

153, 169). This caused Warren to become mad at Appellant, which only increased

Appellant‟s anger to Warren. (RR4: 153).

       Smith left the apartment and went outside to her car, though she did not

leave immediately. (RR4: 154, 179). Chivo, Appellant and Warren all came out to

talk to her. (RR4: 154). Appellant yelled at Warren, though Warren did not seem

worried. (RR4: 154, 155). Both Chivo and Appellant were trying to get her to

come back into the apartment, which she refused to do. (RR4: 155, 174).

       Smith drove off about 7:30 a.m.12 (RR4: 156). Forty-five minutes to an hour

later she got a text from Warren asking if she was OK. (RR4: 156). Smith did not

respond to that text. (RR4: 156). About 2:00 p.m., Smith learned from Muniz that

Warren had been hospitalized. (RR4: 157).

       Smith was interviewed by the fire department, even though she was not a

witness to the fire being started. (RR4: 157-158, 161). She did not tell them about

her drug use that night.13 (RR4: 157-158).



12
  Smith told Detective Stephenson that she went to an Albertson‟s where she fell asleep in the
parking lot with her car running for several hours. (RR5: 76).
13
   Indeed, at the time of trial Smith was still using drugs and had used drugs the night before her
testimony. (RR4: 159).
                                                  11
                               Robert Holzheuser

      Robert Holzheuser, a/k/a “Rob,” met Leslie Warren at Keller‟s Hamburgers,

where he was a regular customer. (RR4: 181). Holzheuser drove a Yukon and

Warren drove a pickup; they occasionally switched vehicles if he needed a pick-up

in his construction business. (RR4: 182). On the morning of July 30, between 9:00

and 10:00 a.m., Holzheuser spoke to Warren and they agreed to switch vehicles

later that day. (RR4: 182, 194). During the conversation, Holzheuser could hear

Appellant in the background, though he could not make out what was being said.

(RR4: 183). Holzheuser asked if Warren was okay; she said yes. (RR4: 183).

      Holzheuser got to Warren‟s apartment between noon and 1:00 p.m. (RR4:

184). He parked in front of the apartment. (RR4: 184). When Holzheuser walked

toward the door, Warren opened it in her bra and panties. (RR4: 185). She did not

speak, but walked past Holzheuser. (RR4: 185). Holzheuser could see blood on the

side of her face and noticed that Warren was blistered and her hair was smoking,

though she herself was not on fire. (RR4: 185, 193). Warren was disoriented and

could not tell Holzheuser if her children were in the apartment or what had

happened. (RR4: 185, 186, 190).

      Holzheuser checked the apartment, which was smoky. (RR4: 186). He

noticed that the bed was on fire. (RR4: 186). Holzheuser left the apartment, called

911, and then warned other tenants to get out of the building. (RR4: 186). He
                                        12
waited with Warren, whom he had put in his truck, until the paramedics arrived

and took her to Parkland Hospital. (RR4: 185, 187, 196).

                                 Shane Cooper

      Dallas firefighter and paramedic Shane Cooper was dispatched to the scene

of a fire at 12:56 p.m. on July 30, 2013; the address was 10950 Walnut Hill Lane

and the report stated that a mattress was on fire and a female was badly burned.

(RR4: 201, 202, 204). Smoke was visible as he and his partner, Lorenzo Herrera,

approached the complex. (RR4: 204). Cooper found the female, Warren, on the

passenger side of a “citizen‟s Tahoe.” (RR4: 204). She was wearing only her bra

and her panties and had quite a bit of burning, mostly to her top shoulder area

though there were other visible injuries. (RR4: 205, 206, 210). Her airway was

clear and she was responsive and coherent. (RR4: 207). According to Cooper, she

told him that she had been tied up by her boyfriend and left in a bathroom

overnight; he then poured lighter fluid on her and set her on fire. (RR4: 210).

Cooper detected the odor of some chemical, but not specifically lighter fluid.

(RR4: 215, 216).

      Cooper and his partner began treatment on her and transported her as

quickly as they could to Parkland Hospital. (RR4: 206, 211).




                                        13
                                   Brett Arnoldo

       Dr. Brett Arnoldo, a burn surgeon at Parkland Hospital, was responsible for

some of the care Warren received. (RR5: 8-9). Arnoldo testified that Warren had

burns over 15% of her body; some of these were third degree burns. (RR5: 10, 11).

Her medical records reflect that she stated that her boyfriend assaulted her, poured

alcohol and lighter fluids on her face and set her on fire. (RR5: 14, 15). Her

injuries were consistent with being set on fire. (RR5: 19). Arnoldo operated once

on Warren (RR5: 12, 13, 17-18).

       Arnoldo described the treatment burn patients receive and testified that it can

be very painful. (RR5: 17-23). In his opinion, Warren‟s injuries were not

significantly life threatening for a person her age. (RR5: 24). She did, however,

suffer permanent disfigurement and the possibility for life-long effects. (RR5: 24-

26).

                                Marcus Stephenson

       Arson Investigator Marcus Stephenson was the lead investigator of the fire

in the apartment complex. (RR5: 32, 33). Stephenson testified that his investigation

revealed that the fire started in the master bedroom on the bed. (RR5: 34, 56, 78).

There was no evidence that the fire was started in the bathroom, or, in fact,

anywhere other than the master bedroom. (RR5: 60, 61). In Stephenson‟s opinion,

the damage to the apartment was caused by arson. (RR5: 53, 65).
                                          14
       A canine used in his investigation, who was trained to alert on 14 different

accelerants,14 alerted on two places in the apartment: the master bedroom and the

hallway bathroom. (RR5: 50, 51, 50). Stephenson could not say what substance the

dog had alerted on, but took samples from both rooms. (RR5: 51, 59; State‟s

Exhibits 66, 67). He also collected a red lighter; the lighter was melted a bit and no

fingerprints were obtained from it. (RR5: 53).

       Stephenson admitted that there was no indication of a “trailer” or “fire trail”

from one location to another, i.e., a line of accelerant between the hallway

bathroom and the master bedroom. (RR5: 71, 84, 85, 86).

       In Stephenson‟s opinion, lighter fluid was an ignitable fluid and a lighter

was an ignitable source. (RR5: 57). Both were deadly weapons. (RR5: 57).

       As part of his investigation, Stephenson spoke to Candeace Smith. (RR5: 67,

75). Smith told him that Appellant and Warren had been up for a couple of days.

(RR5: 75). He knew they had been “partying,” but did not know that they had been

smoking methamphetamine. (RR5: 76). He did not ask Smith if she had been doing

drugs. (RR5: 76).




14
   The dog was trained to alert on “[g]asoline, kerosene, diesel fuel, automatic transmission fluid,
charcoal lighter fluid, turpentine, acetone, kerosene, paint thinner, lacquer thinner, lacquer
thinner, (sic) (and) paint remover.” (RR5: 59). The dog was not trained to alert on rubbing
alcohol. (RR5: 56, 79).
                                                 15
                                     Emerald Nazareno

       Emerald Nazareno, a forensic scientist with the State Marshal‟s arson

laboratory, testified that he received and tested two gallons of fire debris.15 (RR5:

87-90). In the first gallon which contained samples of the left bedroom carpet, he

found no traces of accelerant. (RR5: 90, 93). In the second, which contained debris

from a hallway bathroom rug, he found MPD, medium petroleum distillate. (RR5:

90, 93). Since there were an infinite number of substances that would qualify, he

was unable to say with certainty exactly what the MPD was. (RR5: 93, 96, 97). He

did testify, however, that charcoal lighter fluid would qualify while alcohol and

rubbing alcohol would not. (RR5: 93, 99-100).

                              SUMMARY OF ARGUMENT

       Issues 1, 2 & 3: The trial court prevented Appellant from cross-examining

the complainant from data contained in records kept by Child Protective Services

about false and/or mis-leading statements she made regarding her drug use to law

enforcement. This line of questioning was germane to establishing that the

complainant had a motive to lie about Appellant‟s involvement, if any, in her



15
   At one point during jury deliberations, the jury asked for this evidence. (RR6: 51). Because the
cans had not been opened, they were opened in the courtroom prior to being delivered to the
jury. (RR6: 51, 51). Once opened, the contents of the cans emitted a strong “overwhelming”
odor. (RR6: 52, 53, 55). The trial court judge brought the jury into the courtroom (“since we‟ve
already stunk up the courtroom”) to view the evidence. (RR6: 53, 54, 55).
                                                 16
injuries. The trial court compounded that error by refusing to permit defense

counsel to re-open for additional cross-examination and by sustaining the State‟s

objection to jury argument concerning the complainant‟s history of deception to

law enforcement. These errors constitute an abuse of discretion which entitles

Appellant to a reversal and to a new trial.

      Issues 4, 5 & 6: The jury charge erroneously contained full definitions for

the culpable mental states of intentional, knowing and reckless, despite the fact that

aggravated assault is a result-oriented crime. These definitions were not limited in

the application paragraphs. The lack of proper definitions and guidance to the jury

resulted in some harm to Appellant requiring a reversal.

                                   ARGUMENT

                             Point of Error 1, Restated

     The trial court abused its discretion by limiting defense counsel’s cross-
          examination of the complainant. (RR4: 103-105; RR5: 109).

                             Point of Error 2, Restated

 The trial court abused its discretion by denying defense counsel’s request to re-
   open for the purpose of additional cross-examination of the complainant.
                                      (RR6: 6).

                             Point of Error 3, Restated

The trial court abused its discretion by sustaining the State’s objection to defense
  counsel’s jury argument regarding the complainant’s lack of honesty to law
 enforcement and instructing the jury to disregard that argument. (RR6: 42-53).

                                          17
                                   (Jointly Argued)

      The trial court abused its discretion by preventing the defense from cross-

examining Warren from records kept by Child Protective Services (hereinafter

CPS) about false and/or mis-leading statements she made regarding her drug use.

This line of questioning was germane to establishing that Warren had a motive to

lie about Appellant‟s involvement in her injuries. The trial court compounded that

error by refusing to permit defense counsel to re-open for additional cross-

examination and by sustaining the State‟s objection to jury argument concerning

Warren‟s history of deception to law enforcement. Consequently, Appellant is

entitled to a reversal and to a new trial.

Standard of Review

      A trial court‟s decision to exclude evidence or limit cross-examination is

reviewed under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727,

736 (Tex. Crim. App. 2010); Billodeau v. State, 277 S.W.3d 34, 43 (Tex. Crim.

App. 2009). The trial court abuses its discretion when its determination lies outside

the zone of reasonable disagreement. Martinez, 327 S.W.3d at 736; Billodeau, 277

S.W.3d at 43.

      The same standard is utilized when a trial court refuses a request to re-open

the testimony. Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003); see also

TEX. CODE CRIM. PROC. art. 36.02 (providing that a court “shall allow testimony to
                                             18
be introduced at any time before the argument of a cause is concluded, if it appears

that it is necessary to a due administration of justice”).

        Similarly, a trial court‟s ruling on an objection to jury argument is reviewed

on appeal for an abuse of discretion. Davis v. State, 329 S.W.3d 798, 825 (Tex.

Crim. App. 2010).

Facts

        The record reflects multiple efforts by defense counsel to cross-examine

Warren about the contents of CPS records in order to discern a potential motive for

her to lie in this case. These efforts were thwarted by the trial court‟s erroneous

rulings.

                                Initial Cross-Examination

        On cross-examination, defense counsel sought to question Warren about

prior statements she made and interactions she had with CPS16 over the State‟s

objections:

        Q. (BY MR. KING) And when you were asked by the State who all
        lived at the apartment, you mentioned yourself, you mentioned Chris,
        you mentioned your stepbrother, but you didn‟t mention your kids,
        because your kids really don‟t live with you.



16
   Appellant recognizes that CPS records are generally confidential and privileged from
disclosure. See TEX. FAM. CODE § 261.201. However, constitutional considerations may require
the admission of evidence that rules of procedure or evidence would otherwise bar. Billodeau v.
State, 277 S.W.3d 34, 43 (Tex. Crim. App. 2009).
                                               19
They stay with other family members, your sister or somebody else,
right?

A. Correct.

Q. And in all fairness, that‟s because of the drug use you‟ve been
involved with over the course of your life.

A. Partially, correct.

Q. Well, you‟ve had events where your children had to go live with --

MS. GARLAND: Your Honor, at this time I‟m gonna object to this
line of questioning without a hearing.

THE COURT: I‟ll allow him to finish this question.

Q. (BY MR. KING) You‟ve had – you‟ve had periods where your
children would have to go live with other relatives.

A. Correct.

Q. And you haven‟t always been honest about whether or not you‟ve
used drugs when -- when people have questioned you about whether
you‟ve -- were using drugs; is that fair to say?

A. No. I‟m honest.

Q. Well, when CPS investigated you back in 2008 –

MS. GARLAND: Object to relevance, your Honor.

THE COURT: Objection overruled at this point. Go ahead and ask
your question.

Q. (By Mr. King) -- you were pregnant and you lied about using
drugs.

A. I told the truth.
                                 20
Q. When you were pregnant in 2008 and CPS came and talked to you
and Scott, you lied about whether or not you had been using drugs.

A. And I told them the truth.

Q. You went to take a hair follicle test, and you and Scott, when you
found out you had to take a hair follicle test, you both bolted out of
the place and, ultimately, you did take the test which showed you had
been positive for drugs.

But you initially told CPS that you had lied -- that you had not been
using drugs while you were present -- pregnant, excuse me -- and that
was not true. That was a lie.

You don‟t recall that?

A. I did tell them the truth. I told them that I had been using for the
first five months of my pregnancy; I didn‟t know I was pregnant until
the fifth month; so I told her I would be dirty.

Q. You didn‟t tell them that until after you had tested positive for
drugs.

A. Not correct.

Q. Okay. So if the CPS records reflect that‟s the – that‟s the sequence
of events, they‟re just wrong?

A. Hmmm, it shouldn‟t even be there like that.

Q. Okay.

A. I told them the truth.

Q. Would it help you -- have you ever seen the CPS records?

A. Yes.

                                  21
      Q. All right. Would it help you to review any of that, just to see what -
      - what their interviews reflect?

      A. I mean, no.

      Q. Do you recall in 2008 -- or 2006 --

      MS. GARLAND: Your Honor, may we approach at this time?

      THE COURT: Yes.

(RR4: 91-94).

                Proffer at a Hearing Outside the Presence of the Jury

      Thereafter, a hearing was held outside the presence and hearing of the jury at

which defense counsel sought the trial court‟s permission to cross-examine Warren

about certain contents of the CPS records. (RR4: 94-107).

      At this hearing, Warren admitted that she had been investigated in 2005 by

CPS over the death of her five-month-old son. (RR4: 96, 97). The medical

examiner could not dispositively determine whether that child had died as a result

of a criminal or non-criminal act. (RR4: 96, 97). There was some question over

whether Warren had told CPS and/or the police that she had been using drugs at

the time the child died or was just tired from work. (RR4: 97). She did not recall if

she had ever been asked to take a drug test in 2005 and failed to show for that test.

(RR4: 97, 98).

      Warren further admitted that when CPS initially got involved, she may have

                                         22
“very well” denied that she was a drug user. (RR4: 95). She recalled calling her

caseworker on August 27, 2008, because she was upset that she “would be taking a

hair follicle test at Forward Edge” and worried because she had used cocaine

before she knew she was pregnant. (RR4: 95-96). She was aware that on

September 8, CPS had received results from Forward Edge that she had tested

positive for cocaine as well as “other metabolites of controlled substance.” (RR4:

96).

       Defense counsel also asked if Warren recalled an event sometime around

December 2007-January 2008 when she and Segalla were “drunk and high” and he

“dropped the baby, the baby landed on its head and neck, but y‟all did not take the

child to a hospital for examination due to your fear of being caught high and

drunk.” (RR4: 102) Warren responded that she recalled Segalla “dropping my

oldest” but said the rest of counsel‟s question was inaccurate. (RR4: 102). She

admitted, however, that she was using drugs during this time. (RR4: 102).

       Counsel summed up his intended cross-examination as follows:

       Q. All right. Well, this was the same time that you were pregnant.
       This was the same time that you came in and you gave a hair follicle
       test at Forward Edge and you tested positive for amphetamine,
       marijuana, cocaine. So you were using drugs at that point in time?

       A. Right.

       Q. That‟s the same…time frame, except it‟s eight months earlier when
       this baby gets dropped. So you‟ve got a circumstance where sometime
                                        23
       in…early January of 2008, y‟all were high and drunk, the baby gets
       dropped, but the baby‟s not taken to the hospital to see if…he‟s got
       any injuries because y‟all are afraid that you‟re gonna be exposed
       because you‟re high and drunk.

       And then eight months later, somebody‟s calling in and reporting you
       to CPS for using drugs, you deny using drugs, you test positive for
       drugs, you finally admit that you‟re using drugs while you were
       pregnant.

       And then prior to that, in 2005, you‟re high on drugs and your son
       dies while he‟s in y‟all‟s care through neglect because y‟all are too
       high to take care of the child and you initially misrepresent what
       happened there to law enforcement.

       And that‟s the sequence of events; isn‟t that correct?

       A. Correct.

(RR4: 102-103).

       In urging admissibility, defense counsel made the following arguments to

the trial court:

       MR. KING: Your Honor…the State has painted a picture in the
       presence of the jury that she‟s been honest about her drug use, which
       is not the truth. There‟s this allegation…that somehow she‟s been
       forthright, and she hasn‟t always been forthright with law enforcement
       in making a statement about the event that‟s taking place.

       I believe that the evidence is gonna show that…her not telling the
       truth on occasions…is…impeachable to show credibility in front of
       the jury.

       I think it‟s germane, and I think that the issue is gonna be that because
       of the inconsistencies…(and)…multiple statements that she gives to
       law enforcement in this particular event that brings us to this Court,
       that those conflicts are going to raise an issue as to credibility as well.
                                           24
                                          **

       The State has presented to the jury…that she‟s…honest…

       And once they paint that like that, then they‟ve opened the door, and I
       think we‟re entitled to go into it.

(RR4: 98-99). The State indicated that it had a motion in limine17 in place

regarding the CPS records because the State did not believe those records to be

relevant and did not want Warren‟s cross-examination to become “character

assassination.”18 (RR4: 100, 101).

       The trial court ruled as follows:

       The Court, after having listened to arguments of both counsel and,
       also, having heard the proposed questions that Mr. King would like
       to…ask the witness, the Court is…ordering that the defense attorney
       is not to go into any CPS involvement.

       These cases are too remote. We‟re talking about November 2005,
       we‟re talking about August 2008. They are not relevant to the case
       presently before the defendant [sic]. The issue before the defendant
       [sic] is whether she was using drugs or high or intoxicated on the
       night of…July the 29th and 30th of 2013, which clearly is five years
       or if not more time past the time that the CPS involvement
       has…happened.

       She‟s already admitted she was using drugs that night. Her CPS


17
   The record does not reflect a formal, written motion in limine. However, the trial court did
grant an oral motion in limine to the State as to any “bad acts” of the State‟s witnesses. (RR3:
208-209).
18
  Defense counsel also wanted to cross-examine Warren on a recent theft conviction; the State
had no objection to that testimony. (RR4: 98-100).
                                               25
       involvement has no relevance whatsoever in regards to whether or not
       she was a victim of an aggravated assault. For that reason, the Court is
       not going to allow you to go into any testimony regarding that.

       It… is not even relevant for the purpose of impeachment at this point.
       So my ruling is very clear. You are not to go into anything having to
       do with any CPS involvement. You are not to go into anything having
       to do with her making misrepresentations to CPS at any point
       regarding her drug usage unless it‟s near the time of 2013.

(RR4: 103-105).

       Defense counsel acknowledged the trial court‟s ruling. (RR4: 105). Defense

counsel proffered the CPS records as Defense Exhibit A. (RR4: 105; see also RR5:

109-110).

       Defense counsel and the trial court continued to discuss the issue. Defense

counsel stated that the inconsistencies in Warren‟s testimony and the CPS records

were admissible for impeachment as she had not been truthful. (RR4: 105-106).

The trial court said that “the jury should not have evidence that leads them to

believe that she is not credible as a victim of an offense

based upon the fact that she may or may not have been a good mother.” 19 (RR4:

106). Defense counsel further argued:

       MR. KING: The…point being that…when she‟s under the
       influence…of drugs…she is not credibly honest to law enforcement.
       And that‟s what I‟m trying to present to the jury, since the accusation


19
  The jury had already heard evidence from which is could concluded that Warren was not a
good mother, i.e., her extensive drug usage and the fact that her children did not live with her.
                                               26
        is that she says that Christopher Price set her on fire. And that‟s the
        issue that I‟m offering it on as to whether or not that is a credible
        statement by her to law enforcement…since she‟s high.

(RR4: 106). The trial court judge stated that she had made her ruling. (RR4: 106).

Defense counsel responded that he was simply trying to make a clear record. (RR4:

107).

                            Proffer at the Close of Evidence

        Towards the close of the evidence, defense counsel again made a proffer of

proof to the trial court:

        MR. KING: Your Honor, I would like to be able to ask Leslie Warren
        questions in regards to the CPS investigation back in 2005, and here‟s
        the basis of it.

        Back in 2005, the allegations were that she had been involved with
        excessive methamphetamine use and had literally passed out. That
        was what had taken place.

        And during the course of her being passed out, her child had passed
        away somehow; manner and means unknown to the medical
        examiner, SIDS, whatever, her fault, nobody‟s fault, I‟m not sure. But
        the point is she used methamphetamines to such an excessive point
        that she passed out.

        Now…once again in 2008, there‟s some indication of
        methamphetamine use, of significant methamphetamine use where
        CPS is called back in, where a child is injured and the child is not
        taken to the medical facility because of the methamphetamine use or
        the fear…that telling somebody they were high might cause them
        some type of problems or whatever. So there‟s this avoided situation.

        I will note that in 2005, she denied initially having been on
        methamphetamine and had just been tired, supposedly. And her story
                                          27
to CPS didn‟t match up with what the other people said about who
found the baby dead and all this other.

So she has this history of drug use coupled with not telling the
complete truth about what the circumstances are at that point in time
dealing with significantly important personal issues; death of a child,
injury to another child.

Then we have some period of time where she says she‟s sober, okay?
But we know she‟s back on methamphetamine and it‟s clear from the
evidence she‟s got an extensive history of…using drugs for either a
couple of weeks or a couple of months; but for the last couple of days,
she‟s been up smoking meth and that‟s obvious to the fire
investigators, the medical personnel, everybody.

The point of this is that there is a lapse of about four hours where
there‟s no testimony as to what was actually going on or what was
taking place. She describes the event of getting a phone call at about
7:00 or 8:00 in the morning from Rob, and he‟s gonna come over and
pick up the truck.

Rob says when he called, he was there in an hour or an hour and a
half; that‟s kinda sketchy. But then…it‟s clear that this fire doesn‟t
start until about 12:30 to 1:00 o‟clock. That‟s when this fire starts.
The police get notified at 12:55; they come rolling in.

So between 8:00 and 12:00, there‟s a 4-hour gap where it‟s not clear
who‟s where, what‟s going on and what‟s taking place. Now, because
there‟s that gap in time, it‟s the contention of the Defense that she
very well may have been passed out before anything -- you know,
may have been passed out, may have been smoking in bed, may have
set this fire up.

The testimony is she could have received these injuries that she got
not being set on fire at all but just being in close proximity to the heat,
because the heat that can blister walls without even flames getting
close, certainly it‟s gonna blister skin and singe hair.


                                    28
      Her story is inconsistent between what she initially tells law
      enforcement about being tied up and bound in the bathroom, and it is
      inconsistent with her testimony on the witness stand. Her…statements
      initially to the investigators is that she runs out of the burning
      bedroom allegedly into a bathroom, hides for a while until smoke
      starts coming in the door and then leaves and leaves out of the
      apartment.

      What she testified on the stand is that she jumped over the burning
      bed soaked in charcoal lighter fluid, somehow didn‟t burst into
      flames, jumped into the arms of Christopher Price, who caught her in
      a bear hug and somehow hit her in the back of head in the course of
      that bear hug, striking her in the head…creating these substantial
      lacerations, at which point she passes out, wakes up outside of the
      bedroom and doesn‟t have any recollection…after that point.

      I think it‟s germane to show that her significant drug use has been
      historically, in the past, a factor where she doesn‟t tell the truth about
      events that are surrounding the immediate use and…any other unusual
      events that occur while she's high as a kite.

      We have the death of a baby in 2005, we have an injury to a child in
      2008, and then we have a fire in 2013. I believe there is a pattern of
      behavior and untruth on her part, lack of veracity, in explaining facts
      and circumstances surrounding events where she's been up for a
      couple of days smoking methamphetamine.

      Because of that causal effect, we feel we‟re entitled to go into what
      happened in 2005 and 2008 in a more particular manner.

(RR5: 102-105). The State again responded that defense counsel was attempting to

“assassinate her character.” (RR5: 106, 108). The State further argued that the type

of cross-examination in which defense counsel wished to engage was barred by

Rule 608 (b) of the Rules of Evidence. (RR5: 107); see also TEX. R. EVID. 608(b).


                                         29
       Defense counsel emphasized that the State had “opened the door” during

opening statement by claiming that Warren was an honest person. (RR5: 108).

Indeed, during its opening statement, the prosecutor said “Leslie Warren is…a very

honest person.” (RR4: 16). Warren had also insisted in cross-examination that she

was an honest person. (RR4: 92). Defense counsel also stated as follows:

       The point we‟re trying to get across to the jury is not that she‟s a bad
       mother; it‟s that bad things happen when she‟s blown away,
       intoxicated on methamphetamines. Bad things happen to people that
       she cares about or people that she‟s around or whatever. That‟s the
       point.

       The point is when she‟s high, trauma follows her of some kind. And
       our position is that the defendant never set her on fire. However this
       fire got started could be as a result of all kinds of things and her
       spinning of this tale very well may be that she’s trying to avoid, you
       know, another CPS investigation, she’s trying to avoid responsibility
       for setting the apartment on fire by smoking in bed. She‟s trying to
       avoid all kinds of things.

(RR5: 108-109) (emphasis added). The trial court stated that it was sticking to its

original ruling. (RR5: 109).

                                Request to Re-Open

       At the conclusion of the evidence and just prior to jury argument, defense

counsel asked to re-open for the purpose of cross-examining Warren regarding the

CPS record as they were “germane to her motive to testify falsely to law

enforcement as a result of the events that transpired.” (RR6: 5). As counsel argued

to the trial court:
                                         30
      (BY MR. KING) We think it becomes germane with regards to that.
      We believe that the inconsistent statements given by Ms. Warren to
      law enforcement as to the circumstances that took place reflect a
      disjointed and untruthful scenario.

      We further believe that the CPS records are germane because they
      reflect circumstances in which Miss Warren was under the influence
      of methamphetamine and her resultant behavior. We believe that‟s
      consistent with the events that we have in this matter. So it‟s a two-
      fold circumstance.

      I just want to make sure that‟s clear in the record, but we would ask to
      reopen, recall Miss Warren, and be allowed to cross-examine on those
      particular issues.

(RR6: 5-6). The trial court denied defense counsel‟s motion to re-open, stating that

it had ruled several times on the CPS record and that those records were not

relevant to the trial. (RR6: 6).

                                   Jury Argument

      During final jury argument, defense counsel sought to argue as follows:

“She‟s got a history of not being honest with law enforcement when it comes to

important matters in her life and responsibilities, and she didn‟t want CPS crawling

back over her.” (RR6: 42). The trial court, however, sustained the State‟s objection

to this argument and instructed the jury to disregard it. (RR6: 42, 43).

Relevant Law

      The Sixth Amendment‟s right to confront witnesses includes the right to

cross-examine witnesses to attack their general credibility or to show their possible

                                          31
bias, self-interest, or motives in testifying. U.S. CONST. amends. VI, XIV; TEX.

CONST. Art. I § 10; Davis v. Alaska, 415 U.S. 308, 316 (1974); Hammer v. State,

296 S.W.3d 555, 561 (Tex. Crim. App. 2009). Appellant recognizes that this right

is not unqualified and that a trial judge has discretion to limit the scope and extent

of cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986);

Hammer, 296 S.W.3d at 561. A trial court, however, violates a defendant‟s right of

confrontation if it improperly limits appropriate cross-examination. Carroll v.

State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996).

      The law recognizes a distinction between an attack on the general credibility

of a witness and a more particular attack on credibility that reveals possible

“biases, prejudices, or ulterior motives of the witness as they may relate directly to

issues or personalities in the case at hand.” Davis, 415 U.S. at 316; Hammer, 296

S.W.3d at 562. The exposure of a witness‟ motivation in testifying is a proper and

important function of the constitutionally protected right of cross-examination.

Davis, 415 U.S. at 316; Hammer, 296 S.W.3d at 562.

      The Texas Rules of Evidence contain a certain tension as to exactly when

and how a witness‟s credibility may be attacked. Under Rule 404(a)(3), a

defendant may always offer evidence of a pertinent character trait, such as

truthfulness, of any witness. TEX. R. EVID. 404(a)(3). But, under Rule 608, a

witness‟s general character for truthfulness may be shown only through reputation
                                         32
or opinion testimony and may not be attacked by cross-examining him, or offering

extrinsic evidence, concerning specific prior instances of untruthfulness. TEX. R.

EVID. 608(b). An exception exists, however, if a witness may be cross-examined

on specific instances of conduct when those instances are used to establish his

specific bias, self-interest, or motive for testifying. Hammer, 296 S.W.3d at 563.

Counsel must first cross-examine the witness with the circumstances surrounding

the bias, interest, or motive, and, if the witness denies the circumstances or the

motive, the opponent may introduce extrinsic evidence to prove the motive or bias.

TEX. R. EVID. 613(b). The Rules of Evidence also permit the defense, as well as the

prosecution, to offer evidence of other acts of misconduct to establish a person‟s

motive for making a false allegation against the defendant. TEX. R. EVID. 404(b).

      For example, in Hammer, the defendant presented evidence that the

complainant fabricated the sexual molestation accusation so that she did not have

to live with her father. 296 S.W.3d at 566. Evidence was also heard that the

complainant was generally angry with her father because he would not let her do

whatever she wanted; the defendant was allowed to cross-examine her generally

about her motive to falsely accuse her father. Id. at 566-67. The trial court,

however, excluded evidence that the complainant was particularly angry with her

father because he took her to the hospital for a sexual assault examination after she

had stayed out overnight. Id. at 567. The trial court excluded evidence that the
                                         33
complainant told different stories about who she had sex with that night and that

the complainant became so upset with her father that she threatened to commit

suicide and was admitted to the state hospital. Id. The alleged offenses occurred

approximately a month after she was released from the state hospital. Id. The

Court of Criminal Appeals concluded that the excluded evidence strongly

supported the defensive theory that the complainant had a motive to falsely accuse

the defendant of sexual molestation. Id. Consequently, the Court found that the

evidence was admissible to prove the complainant‟s bias against the defendant and

to show her purported motive in falsely accusing him. Id.

Application of the Law to the Facts

       Here, Warren‟s credibility was the entire case the State had against

Appellant. She was the only witness who testified that Appellant doused her with

an ignitable liquid and set that liquid on fire. (RR4: 49-60). While there was

testimony that her injuries were consistent with being set on fire, there was also

testimony that burns such as hers could come from being in proximity to a hot

burning fire.20 (RR5: 19, 61, 62).

       Appellant‟s defense at trial was that the fire could have been set accidentally

and that the State could not prove that Appellant actually set Warren on fire. (RR5:


20
  The fire investigator testified that he estimated the heat around the bed in the master bedroom
was “probably around the bed 16 to 1800 degrees at one point.” (RR5: 61).
                                                 34
108-109; RR6: 27-43). There was, of course, no dispute that Warren had been

using methamphetamine in the days leading up to the fire and that she had not slept

for a period of time. (RR4: 91; RR5: 75). An open package of cigarettes was

found by the bed and a lighter was found nearby, leading to an argument that

smoking in bed could have caused the fire as opposed to an intentional act on

Appellant‟s part. (RR5: 46, 53, 78). Indeed, Warren was specifically asked by

Holzheuser if she had been smoking a cigarette in bed and “she just wouldn‟t give

me an answer.” (RR4: 190; see also RR5: 58). There was no evidence of a

charcoal lighter fluid bottle or container being recovered at the apartment, though a

lighter was recovered. (RR6: 36).

      Appellant recognizes that Warren admitted using drugs in the days and hours

preceding the fire. However, her actual drug use was not the issue. Rather, the

point defense counsel was seeking to make was that Warren had a motive to lie

and/or to omit telling the truth to law enforcement about that drug use and that she

also made inconsistent statements to law enforcement officers which differed from

her testimony at trial.

      The defense had evidence in the CPS records that Warren had lied on prior

occasions about the extent of her drug usage to avoid negative consequences,

particularly where her children were concerned. Her potential motive to lie was

clear – accuse Appellant of intentionally setting the fire and deflect attention from
                                         35
herself and her behavior. This was a legitimate line of questioning which defense

counsel should have been permitted to explore. Moreover, defense counsel had

questioned Warren on her honesty to CPS investigators and law enforcement and

Warren had insisted that she told the truth, (RR4: 91-94), which qualifies as

admissible impeachment evidence under Rule 613(b). The failure of the trial court

to allow defense counsel to cross-examine Warren on the contents of these records,

coupled with the trial court‟s (1) refusal to permit the defense to re-open for

additional cross-examination and (2) action sustaining the State‟s objection to jury

argument concerning Warren‟s history of deception to law enforcement, amounts

to an abuse of discretion which entitles Appellant to a reversal and to a new trial.

                            Point of Error 4, Restated

   The trial court erroneously included the full definition of intent in the jury
                               charge. (CR1: 92).

                            Point of Error 5, Restated

The trial court erroneously included the full definition of knowledge in the jury
                               charge. (CR1: 92).

      Prior to the charge being read to the jury, the prosecutor, after an off-the-

record discussion, asked for changes to the definitions in the charge of the culpable

mental states, i.e., intentional, knowing and reckless, to include the full statutory

definitions. (RR5: 132, 133). Defense counsel objected to the full definitions,

particularly to intentional and knowing, stating that aggravated assault was a
                                          36
“result-oriented offense.”21 (RR5: 133, 134; see also RR5: 138). The trial court

granted the State‟s request and included the full definition of all culpable mental

states alleged in the indictment in the jury charge. (CR1: 92; RR5: 137).

The Jury Charge

       The trial court instructed the jury as follows:

       A person acts intentionally, or with intent, with respect to the nature
       of his conduct or to a result of his conduct when it is his conscious
       objective or desire to engage in the conduct or cause the result.

       A person acts knowingly, or with knowledge, with respect to the
       nature of his conduct or to circumstances surrounding his conduct
       when he is aware of the nature of his conduct or that the
       circumstances exist. A person acts knowingly, or with knowledge,
       with respect to a result of his conduct when he is aware that his
       conduct is reasonably certain to cause the result.

(CR1: 92). The application paragraphs did not limit the definitions of intent or

knowledge any further. (CR1: 95-96).




21
   Defense counsel stated “I object to his objection.” (RR5: 133). The trial court replied: “You
object to his objection meaning that you want the definitions to remain as they are?” (RR5: 133).
Defense counsel replied “That‟s correct.” (RR5: 134). Interestingly, there is no reference in the
record as to how the definitions read before the State made its request. Nevertheless, the context
of the discussion is sufficient to preserve error as it is clear defense counsel objected to the
giving of the full statutory definitions of intent and knowledge in the jury charge and sought to
limit the definitions to the result of Appellant‟s conduct. See Clark v. State, 365 S.W.3d 333, 339
(Tex. Crim. App. 2012) (noting that an issue may be preserved without having been explicitly
stated if “there have been statements or actions on the record that clearly indicate what the judge
and opposing counsel understood the argument to be”).


                                                37
Aggravated Assault is a Result-Oriented Crime

      A person commits the offense of aggravated assault if he intentionally,

knowingly, or recklessly causes serious bodily injury to another. TEX. PENAL CODE

§ 22.02(a)(1). Aggravated assault, like murder, is a result-oriented offense.

Landrian v. State, 268 S.W.3d 532, 533, 537 (Tex. Crim. App. 2008); see also

Mendenhall v. State, 15 S.W.3d 560, 567 (Tex. App. – Waco 2000), aff’d on other

grounds, 77 S.W.3d 815 (Tex. Crim. App. 2002); Brooks v. State, 967 S.W.2d 946,

950 (Tex. App. – Austin 1998, no pet.).

      In a jury charge for a result-oriented offense, the statutory definitions of the

applicable culpable mental states should be limited to the result of the prohibited

conduct. Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). The jury

charge should define the mens rea terms of “intentionally” and “knowingly” in

accordance with the “result-oriented” definitions stated in the Texas Penal Code.

TEX. PENAL CODE § 6.03(a), (b). A charge which contains the full statutory

definitions is erroneous. Cook, 884 S.W.2d at 491.

Application of the Law to the Facts

      In the case at bar, Appellant was indicted for intentionally, knowingly, and

recklessly causing serious bodily injury to Warren by setting her on fire. (CR1:

13). The jury was provided, over defense counsel‟s objections, with the full

definitions of intentionally and knowingly. (CR1: 92; RR5: 133, 134, 137).
                                          38
      Here, the definition portion of the jury charge defined the culpable mental

states with respect to the nature of conduct, the result of conduct, and the

circumstances surrounding of the conduct. The application paragraph in no way

limited these definitions or provided guidance to the jury. Rather, the jury was

permitted to find Appellant guilty if it found that he intentionally or knowingly

caused the prohibited result, i.e., serious bodily injury. The law as recited in the

application paragraphs thus failed to correctly point the jury to the appropriate

mental state as it did not limit the jury‟s consideration of the abstract definitions

given. In short, the charge allowed the jury to do that which the law did not: find

Appellant guilty of aggravated assault based on the nature of his conduct or on the

knowledge of the circumstances surrounding his conduct, rather than on intending

to cause or knowing the prohibited result, i.e., serious bodily injury. Chaney v.

State, 314 S.W. 3d 561, 567,-68 (Tex. App. – Amarillo 2010, pet. ref‟d). Hence,

the trial court clearly erred by giving over-inclusive definitions for “intentionally”

and “knowingly” in the jury charge.

Appellant Suffered “Some Harm” by the Erroneous Instructions

      Where, as here, a defendant properly objects to a jury instruction, the error

requires reversal upon a finding of “some harm” to his rights. Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The harm caused by the error should

be considered (1) in light of the entire jury charge, (2) the state of the evidence,
                                         39
including the contested issues and the weight of probative evidence, (3) the

arguments of counsel and (4) any other relevant information revealed by the record

of the trial as a whole. Id. at 171; see also TEX. CODE CRIM. PROC. art. 36.19.

                              The Entire Jury Charge

      The charge in this case was complicated as it included not only multiple

definitions (CR1: 90-94), but also two lesser included offenses wherein the

differing elements were more subtle than the average lesser instruction. (CR1: 95-

97). In these same instructions, the jury was asked to consider findings of both

family violence and a deadly weapon. (CR1: 95-97). The potential for jury

confusion was quite high and additional guidance was certainly required.

                             The State of the Evidence

      At first blush, the state of the evidence, including the contested issues and

the weight of probative evidence, might be seen to weigh in favor of a finding of

no harm. Clearly, Warren had suffered severe injuries and she testified that

Appellant doused her with lighter fluid and set the fire in which she was burned.

However, the State‟s case rested entirely on her credibility that these acts, if indeed

true, were the cause of her injuries, despite other possibilities contained in the

record. Indeed, the fire investigator tested that it was the bed that was set on fire

and that proximity to the fire could cause severe burns. (RR5: 34, 56, 61-62, 78).

Under the charge given, the jury could have convicted because it found that
                                          40
Appellant intended to engage in the conduct (i.e., setting the fire on the bed), rather

than that he intended to cause the result (i.e., serious bodily injury to Warren), or

that he was aware of the nature of his conduct and the surrounding circumstances

rather than that he was aware that his conduct was reasonably certain to cause the

result.

                               The Arguments of Counsel

          With respect to the arguments of counsel, the State concentrated it

arguments on the severity of the injuries suffered by Warren and Warren‟s

credibility. (RR6: 21-26, 43-50). Neither prosecutor attempted to guide the jury

with respect to the intricacies of the culpable mental state it needed to find before it

could return a conviction.

                                 The Record as a Whole

          The error in this case is further compounded by the State‟s evidence and

arguments that went beyond the allegations in the indictment. Specifically, the jury

heard evidence that Appellant may have hit Warren over the head when she tried to

escape from the burning bedroom. (RR4: 57, 58, 60, 72-73, 135, 137). Both

prosecutors argued that Appellant “burned her…beat her, and…left her to die.”

(RR6: 50; see also RR6: 26, 43, 45). Yet, the sole allegation in the indictment was

that Appellant caused serious bodily injury by “setting fire” to Warren. (CR1: 13).

The State did not allege that Appellant beat Warren or attempted to murder her.
                                            41
Again, the jury lacked guidance as to exactly what needed to be found in order to

return a conviction.

      In this case, the application paragraph authorized conviction if the jury

found that Appellant “intentionally or knowingly” caused serious bodily injury to

Warren. No further definition was provided. Thus, the application paragraph failed

to properly instruct the jury on the correct culpable mental state, and the abstract

definitions of intent and knowledge contained definitions inapplicable to an

aggravated assault prosecution. Under the facts of this case, it cannot be said that

Appellant did not suffer some harm under the Almanza standard. Appellant is

entitled to a reversal and to a new trial.

                              Point of Error 6, Restated

  The trial court erroneously included the full definition of reckless in the jury
                                charge. (CR1: 92).

      Appellant‟s arguments and authorities set forth under Points of Error 4 and

5, supra, are incorporated by reference herein.

      While defense counsel objected to the full definition of reckless in the jury

charge, counsel recognized that the State “might make a case for giving the full

definition of reckless.” (RR5: 133, 134, 137). The State did not, however, attempt

to make a case for giving the full definition of reckless to the trial court. The court

overruled defense counsel‟s objections (RR5: 137) and the charge contained the

                                             42
full definition of reckless:

      A person acts recklessly, or is reckless, with respect to the
      circumstances surrounding his conduct or the result of his conduct
      when he is aware of but consciously disregards a substantial and
      unjustifiable risk that the circumstances exist or the result will occur.
      The risk must be such a nature and degree that its disregard constitutes
      a gross deviation from the standard of care that an ordinary person
      would exercise under all the circumstances, as viewed from the
      actor‟s standpoint.

(CR1: 92); see also TEX. PENAL CODE § 6.03(c).

      As previously noted, aggravated assault is a result-oriented crime. The law

regarding the appropriate definition of reckless in a result-oriented crime is far less

well developed than that regarding intent and/or knowledge. Indeed, to the best of

the undersigned attorney‟s research, the only court which has even partially

addressed the issue on the merits said as follows: “the distinction between „nature

of conduct‟ and „result of conduct‟ becomes blurred with respect to offenses based

upon a reckless” act. Chaney, 314 S.W. 3d at 569; see also Vallair v. State, No. 09-

11-00038-CR, 2011 Tex. App. LEXIS 7055 at * 8 (Tex. App. – Beaumont August

31, 2011 pet. ref‟d) (not designated for publication) (considering and rejecting a

claim of egregious harm from the full definition of reckless based on the specific

language of the application paragraph without providing a specific analysis).

However, it seems clear to Appellant that the same analysis applies to the

definition of reckless as to intent and knowledge since all three definitions

                                          43
permitted a conviction in this case on a finding of acts done with a purpose other

than causing the result, i.e., serious bodily injury. Hence, the same result should

apply. Appellant is entitled to a reversal and to a new trial.

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

will reverse Appellant‟s conviction and remand for a new trial.

                                                      Respectfully submitted,


                                                      /s/ Katherine A. Drew
Lynn Richardson                                       Katherine A. Drew
Chief Public Defender                                 Assistant Public Defender
Dallas County, Texas                                  State Bar No. 06117800
                                                      Frank Crowley Courts Building
                                                      133 N. Riverfront Blvd., LB-2
                                                      Dallas, Texas 75207-4399
                                                      (214) 875-2360 (phone)
                                                      (214) 875-2363 (fax)
                                                      Kathi.Drew@dallascounty.org

                           CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the foregoing brief was served on the
Dallas County Criminal District Attorney‟s Office (Appellate Section), 133 N.
Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by electronic
transmission and by hand delivery on March 18, 2015.

                                                      /s/ Katherine A. Drew
                                                      Katherine A. Drew




                                           44
                     CERTIFICATE OF COMPLIANCE

     I hereby certify that the word count in this document, which is prepared in
Microsoft Word 2010, is 10,843.

                                                 /s/ Katherine A. Drew
                                                 Katherine A. Drew




                                       45
