                                                                                    ACCEPTED
                                                                                    13-14-00517
                                                                THIRTEENTH COURT OF APPEALS
                                                                       CORPUS CHRISTI, TEXAS
                                                                           4/17/2015 9:25:33 PM
                                                                              DORIAN RAMIREZ
                                                                                         CLERK

               CAUSE NO. 13-14-00517-CR

         IN THE COURT OF APPEALS OF        FILED IN
                                   13th COURT OF APPEALS
             THE STATE OF TEXASCORPUS   CHRISTI/EDINBURG, TEXAS
THIRTEENTH JUDICIAL DISTRICT AT CORPUS    CHRISTI
                                    4/17/2015 9:25:33 PM
                                                 DORIAN E. RAMIREZ
                                                      Clerk
             FREDERICK O'NEAL SCOTT,
                            Appellant,

                              v.


                 THE STATE OF TEXAS,
                                Appellee.


        On Appeal from Cause Number 14-05-12, 033;
  In the 24th Judicial District Court of DeWitt County, Texas
         The Hon. Stephen Williams, Judge Presiding


       APPELLANT'S FffiST AMENDED BRIEF



                               LUIS A. MARTINEZ
                               P.O. Box410
                               Victoria, Texas 77902-0410
                               (361) 676-2750 (Cell Telephone)
                               (361) 575-6764 (Office Telephone)
                               (361) 575-8454 (Facsimile)
                               lamvictoriacounty@gmail.com

                               ATTORNEY FOR APPELLANT,
                               FREDERICK O'NEAL SCOTT

                               ORAL ARGUMENT REQUESTED
               IDENTITY OF PARTIES AND COUNSEL

      Pursuant to TEX. R. APP. P. 38.l(a), the parties to the suit are as

follow:

APPELLANT                               FREDERICK O'NEAL SCOTT

APPELLEE                                THE STATE OF TEXAS

TRIAL JUDGE                             HON. STEPHEN WILLIAMS


STATE'SATTY AT TRIAL:                   HON. MICHAEL SHEPPARD
                                        24th Judicial District Attorney
                                        DeWitt County Courthouse
                                        307 N. Gonzalez
                                        Cuero, Texas 77954

DEFENSE ATTY AT TRIAL:                  HON. KEITH WEISER
                                       P.O. Box 1093
                                       Victoria, Texas 77902-1093


APPELLATE STATE'S ATTY:                 HON. ROBERT LASSMAN
                                       24th Judicial District Attorney
                                       DeWitt County Courthouse
                                       307 N. Gonzalez
                                       Cuero, Texas 77954

APPELLATE DEFENSE ATTY:                HON. LUIS A. MARTINEZ
                                       P.O. Box 410
                                       Victoria, Texas 77902




                                       1
                                TABLE OF CONTENTS

                                                                                          Page(s)

IDENTITY OF THE PARTIES .................................................................. i.

TABLE OF CONTENTS ........................................................................... ii.

INDEX OF AUTHORITIES ................................................................... .iii.

I.      RECORD BEFORE THE COURT .................................................. 2

II.     STATEMENT OF THE CASE ........................................................ 3

III.    ISSUE PRESENTED ....................................................................... 4

              ISSUE NUMBER ONE:

              THE TRIAL COURT ERRED IN EXCLUDING APPELLANT'S
              EVIDENCE OF THE ALLEGED VICTIM'S SCHOOL BEHAVIOR AND
              SUCH EVIDENCE WAS CRITICAL TO THE HEART OF APPELLANT'S
              TRIAL DEFENSE DENYING HIM DUE PROCESS ......................... .4



IV.     STATEMENT OF THE FACTS ..................................................... .4

V.      SUMMARYOFTHEARGUMENT .................................... 8

VI.     ARGUMENT ON THE MERITS .................................................... 9

VII.    CONCLUSION AND PRAYER .................................................... 19

VIII. CERTIFICATE OF COMPLIANCE ............................................. 20

IX.     CERTIFICATE OF SERVICE ....................................................... 21




                                                 11
                         INDEX OF AUTHORITIES


Texas Cases:

Bennett v. State, 726 S.W.2d 32 (Tex. Crim. App. 1986) ........................ 11

Davis v. State,
104 S.W.2d 177 (Tex.App.-Waco, 2003, no pet.) ............... 11, 12, 16, 19

Ex parte: Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991).................. 11

Echavarria v. State,
362 S.W.3d 148 (Tex. App.-San Antonio, 2011)............................. 11, 12

Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004) ......................... 14

Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009)..................... 12

Lopezv. State, 86 S.W.3d228 (Tex. Crim. App. 2002) ............................. 9

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) .......... 9, 13

Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999) .................. 13, 16

Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002)..................... 17, 18

Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002) .......................... 16

Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007)...................... 17

Wiley v. State, 74 S.W.3d 399 (Tex. Crim. App. 2002)............................ 17




                                         111
Texas Statutes:

Tex. Pen. Code §9.31 ................................................................................ 11

Tex. Pen. Code §9.61. ....................................................... 5, 8, 9, 10, 11, 12

Tex. Pen. Code §12.42 ................................................................................ 3

Tex. Pen. Code §22.04 ................................................................................ 3

Texas Rules:

Tex. R. ofEvid. 403 .............................................................. 8, 9, 12, 13, 19

Tex. R. ofEvid. 404, 404(b)............................................................... 15, 16
                      CAUSE NO. 13-14-00517-CR

               IN THE COURT OF APPEALS OF
                   THE STATE OF TEXAS
      THIRTEENTH ruDICIAL DISTRICT AT CORPUS CHRISTI


                    FREDERICK O'NEAL SCOTT,

                                              Appellant,

                                     v.


                        THE STATE OF TEXAS,

                                               Appellee.


               On Appeal from Cause Number 14-05-12, 033;
         In the 24th Judicial District Court ofDeWitt County, Texas
                The Hon. Stephen Williams, Judge Presiding


              APPELLANT'S FIRST AMENDED BRIEF



TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, Appellant, FREDERICK O'NEAL SCOTT, by and

through his attorney of record, and would respectfully present to this Court

his brief on the merits in the above-referenced and entitled cause of action.

Appellant would respectfully show unto the Court of Appeals as follows:
      This action arises from the proceedings held in DeWitt County, Texas,

in Trial Court Cause No. 14-05-12, 033-CR; State of Texas v. Frederick

O'Neal Scott; In the 24th Judicial District Court of DeWitt County, Texas,

the Honorable Stephen Williams, Judge Presiding.

      In this matter, the Plaintiff was the "STATE OF TEXAS" and

FREDERICK O'NEAL SCOTT was the Defendant. In this brief Appellant,

FREDERICK O'NEAL SCOTT, will be referred to as "APPELLANT" and

the Appellee, the State of Texas, as the "STATE."

                                     I.
                    RECORD BEFORE THE COURT

      The Clerk's Record consists of one (1) volume that will be referenced

by citation using the abbreviations "CR" referring to the Clerk's Record

followed by the appropriate page number. For example, page three of the

Clerk's Record will be cited as [CR-3].

      The Reporter's Record furnished to Appellant consists of five (5)

volumes, including exhibits. The Reporter's Record will be cited using the

abbreviation "RR," followed by a numeral to indicate the appropriate page

number(s). For example, page four of volume five of the Reporter's Record

will be cited as [RR-V-4].




                                     2
                                    II.

                     STATEMENT OF THE CASE

      Appellant appeals the judgment and sentence imposed following his

jury trial for "INJURY TO A CHILD & REPEAT OFFENDER," a Second

Degree Felony, pursuant to Tex. Pen. Code §22.04 (offense) and §12.42

(enhancement).

      Appellant was formally charged with "INJURY TO A CHILD" in a

one-count indictment with one enhancement paragraph filed with the DeWitt

County District Clerk on May 29, 2014. [CR-7].

      Vair dire began in this case on, or about, Monday, August 18, 2014.

[RR-II-11]. Ajury was chosen and sworn that day. [RR-II-162-166].

      On, or about, Tuesday, August 19, 2014, Appellant's trial began.

[RR-III-7]. The De Witt County District Attorney read the indictment aloud

to the jury to which Appellant entered a plea of"Not Guilty." [RR-III-7-8].

      Appellant's trial continued from that day until Wednesday, August 20,

2014, when the jury delivered a verdict of "Guilty." [RR-IV-83]. The case

was reset for a punishment hearing before the bench on, or about,

Wednesday, August 27, 2014. [RR-IV-86].

      On, or about, Wednesday, August 27, 2014, the Trial Court conducted

a punishment hearing. After considering the arguments of counsel and the



                                     3
evidence presented by both parties during the punishment hearing, the Trial

Court assessed Appellant's punishment as imprisonment in the Institutional

Division of the Texas Department of Criminal Justice for twelve (12) years

and costs of court. [RR-V-64; CR-99-10 I].

      The Trial Court indicated in its "Trial Court's Certification of

Defendant's Right of Appeal" that this matter was not a plea bargain case,

and that Appellant has the right to appeal. [CR-73].

      Appellant's Notice of Appeal was timely filed. [CR-76].

                                    III.

                           ISSUE PRESENTED

ISSUE NUMBER ONE:

      THE TRIAL COURT ERRED IN EXCLUDING APPELLANT'S EVIDENCE
      OF THE ALLEGED VICTIM'S SCHOOL BEHAVIOR AND SUCH EVIDENCE
      WAS CRITICAL TO THE HEART OF APPELLANT'S TRIAL DEFENSE
      DENYING HIM DUE PROCESS.

                                    IV.
                     STATEMENT OF THE FACTS

      Prior to the trial of this case, Appellant's trial counsel filed his

"Memorandum of Law: Use of The Complaining Witness' School

Disciplinary History." [CR-27]. By and through his trial counsel, Appellant

clearly, unequivocally and in writing, asserted a justification defense




                                      4
afforded him under §9.61 of the Texas Penal Code. Id. In the same motion,

Appellant contended that:

                    Scott intends to introduce evidence that he
             reasonably believed his actions were necessary to
             discipline the child as he did. To support this
             reasonable belief, Scott intends to introduce the
             child's numerous behavior problems observed by
             teachers at school, including stabbing a classmate
             with a pencil. Scott intends to offer business
             records of the child's bad behavior as well as
             testimony from the child's teachers.

[CR-27].

      During his testimony before the Jury, Appellant was asked the

following by his trial counsel:

      Q:     Mr. Scott, on or about August the 20th 2013 do you
             believe that any discipline that you gave A.R. that
             you were justified?

      A:     Very justified.

      Q:     And that's based on the information we went over
             the other day, that chart?

      A:     Yes, it is.

      Q:     You feel like you were justified under the statute,
             under the Penal Code?

      A:     Yes. She was given a spanking because she
             injured her little sister to where she actually drew
             blood. Yes, it was justified.

      [RR-IV-12].



                                      5
      Following Appellant's testimony, the jury was excused. [RR-IV-13].

Outside the presence of the jury, Appellant's counsel questioned Appellant

about Defendant's Exhibit 8, copies of the business record affidavit and

records that had been filed July 8, 2014. [RR-IV-13]. Appellant testified

that he was familiar with the records.     Appellant's counsel inquired of

Appellant whether he knew about the incidents reported amongst the

records. Id.   Appellant testified he was aware of an incident that occurred

on September 17, 2012 where the alleged victim was disrespectful, would

not stay in her seat and was throwing, kicking, and shoving her chair and

desk. [RR-IV-15]. Appellant also agreed that he was aware of an incident

on November 8, 2012, where the alleged victim had been moaning and

making noises while the teacher was talking and giving directions, and that

the alleged victim got out of her seat and stabbed another student with a

recently sharpened pencil. [RR-IV-15]. Appellant also said he was aware of

an incident on November 13, when the alleged victim was alleged to have

pinched another student hard enough to break the skin.         [RR-IV-16].

Appellant was also aware that on November 16, 2012, A.R. was suspended

from school for behavior. [RR-IV-17]. Appellant testified he was aware of

a November 27, 2012, incident as well. On that date, the alleged victim

would not do what the teacher had asked and repeated for 15 minutes that



                                     6
her stomach hurt.    After being taken to the nurse's office where it was

discovered there was nothing wrong with the alleged victim's stomach, she

was taken to the office. At the office the alleged victim, the alleged victim

would not stop crying and screaming for about 45 minutes. She was crying

because she did not like people telling her what to do. Her mother arrived

and took her home for the day. [RR-IV-17]. Appellant was also aware that

on November 30, the alleged victim was disruptive in class, including

throwing erasers and kicking a trash can. [RR-IV-18]. Appellant recalled

that the alleged victim had been suspended twice when asked about a

February 21, 2013, incident for physical aggression that lead to the alleged

victim being sent home and ordered to serve an in-school suspension the

next day. [RR-IV-19].

      Appellant's counsel specifically asked Appellant:

            Q:      Mr. Scott, did you use the belt or had you
                    reached the point where you used the belt to
                    discipline A.R. because her past experience,
                    her past poor behavior at school and at
                    home, and you had used all available
                    methods up to then?

            A:      Yeah, because this, like I said, is the last day
                    or right at the time when they took her, so,
                    yeah, because, like I said, if a child is
                    rebellious like that and a child just
                    constantly won't do what you say, so, yeah,
                    it's applicable here. Like I said, I had
                    already tried things like time out and

                                        7
                       grounding and a lot of things like that that
                       did not work with A.R.. In fact, she laughed
                       at things like that.

[RR-IV-25].

       After Appellant testified outside the presence of the jury, Appellant's

Counsel argued to the Trial Court:

                       I believe we have shown justification. I
                       believe there's sufficient evidence for a
                       charge on justification. As such, I believe
                       the case that I filed the memo on give me
                       authority to bring in these limited five or six
                       incidents at school that he said he's familiar
                       with, present them to the jury.
[RR-IV-25-26].

       The Court sustained the State's objection to Defendant's Exhibit 8,

excluding the proffered evidence under a 403 analysis, and admitted the

exhibit for appellate purposes as a Court's Exhibit. [RR-IV-29].

       The Charge of the Court given to the jury in this matter included

instructions and definitions regarding Texas Penal Code §9.61. [CR-65-66].

                                             v.
                       SUMMARY OF THE ARGUMENT

       Appellant was accused of spanking the alleged victim 1 with a belt

after she pinched her sister hard enough to draw blood. Prior to trial and at


1
 For purposes of this brief, the child involved will be referred to as "alleged victim" or
"A.R."


                                              8
trial, Appellant asserted a justification defense found in Texas Penal Code

§9.61. Appellant attempted to show evidence to the jury that the alleged

victim had previously used a pencil to stab another student, pinched another

student at school and had also been placed in in-school-suspension for being

physically aggressive, all of which Appellant was aware. The Trial Court

erroneously excluded the testimony and evidence under Rule 403 denying

Appellant Due Process as provided by the United States Constitution.

                                    VI.

                    ARGUMENT ON THE MERITS

ISSUE NUMBER ONE:

THE TRIAL COURT ERRED IN EXCLUDING APPELLANT'S EVIDENCE OF THE
ALLEGED VICTIM'S SCHOOL BEHAVIOR AND SUCH EVIDENCE WAS CRITICAL
TO THE HEART OF APPELLANT'S TRIAL DEFENSE DENYING HIM DUE
PROCESS.

A.     The applicable standard of review is abuse of discretion.

       Generally, a trial court's evidentiary rulings are reviewed under an

abuse of discretion standard.      Lopez v. State, 86 S.W.3d 228, 230

(Tex.Crim.App. 2002). A trial court's ruling should not be disturbed unless

it lays outside the "the zone of reasonable disagreement.         Id. (citing

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991).




                                     9
B.      Texas Penal §9.61 allows the defense of justification and
        prescribes its elements.

        Texas Penal Code §9.61 1s applicable to the evaluation of

Appellant's point of appeal. This section of the Texas Penal Code allows:

            The use of force, but not deadly force, against a
            child younger than 18 years:

     (1)     if the actor is the child's parent or stepparent or is
             acting in loco parentis to the child; and

     (2)     when and to the degree the actor reasonably
             believes the force is necessary to discipline the
             child or to safeguard or promote his welfare.

Tex. Pen. Code §9.61.

C.      Appellant clearly asserted the justification defense found in
        Texas Penal Code §9.61 throughout his trial.

        In this case, Appellant clearly asserted the defense of justification

pursuant to Texas Penal Code §9.61. His pre-trial filings clearly asserted the

defense. See [CR-27; 30-33]. Appellant's trial counsel also argued and

pursued the defense of justification during his trial and Appellant testified

about same. e.g. see [RR-IV-12-25]. Tellingly, the Trial Court's charge to

the jury included instructions and definitions regarding the justification

defense and in loco parentis. [CR-65-66].




                                       10
D.     Texas Penal Code §9.61 has been analyzed for application using
       settled self-defense precedent.

       In Davis v. State, the Waco Court of Appeals, citing the "dearth" of

authority on the proper application of Texas Penal Code §9.61, looked to

settled case law on self-defense to assist in determining whether the trial

court abused its discretion by excluding proffered evidence that was

virtually identical to the proffered evidence in Appellant's case. See Davis

v. State, 104 S.W.3d 177 (Tex.App.-Waco, 2003, no pet.). The Davis

court found that because Texas Penal Code §9.61 focused on what "the actor

reasonably believes," it is virtually identical to the self-defense statute.

Davis v. State, 104 S.W.3d 177, 180-181 (Tex.App.-Waco, 2003, no pet.);

see also Tex. Pen. Code §9.61, Tex. Pen. Code §9.31.

       When a jury considers whether a defendant acted in self-defense, it

must "view the reasonableness of the defendant's actions solely from the

defendant's standpoint." Davis v. State, 104 S.W.3d at 180 (citing Ex parte

Drinker!, 821 S.W.2d 953, 955 (Tex.Crim.App. 1991); see also Bennett v.

State, 726 S.W.2d 32, 37-38 (Tex.Crim.App. 1986). The reasonableness of

the belief is measured by the objective standard of an "ordinary and prudent

man." Echavarria v. State, 362 S.W.3d 148, 154 (Tex.App.-San Antonio,

2011 ). Although a jury employs an objective standard to determine the

reasonableness of the defendant's belief, it must view the facts from the

                                     11
defendant's perspective. Echavarria v. State, 362 at 154 (citing Davis v.

State, 104 S.W.3d 177, 181(Tex.App.- Waco2003, no pet.)

       The Davis court found that the above referenced principles

necessarily apply when a jury determines whether a defendant reasonably

believes that the force he used was "necessary to discipline the child or to

safeguard or promote his welfare." Davis v. State , 104 S.W.3d 177, 181

(Tex.App.-Waco, 2003, no pet.) see also Tex. Pen. Code §9.61(a)(2).

E.     The Trial Court's ruling on the State's 403 objection was
       erroneous.

       It is important to note that the Trial Court excluded Appellant's

proffered evidence under Rule 403.        The Trial Court's exclusion of

Appellant's evidence on this ground is indicative that the Trial Court found

that the evidence was probative. Relevant evidence may be excluded under

Rule 403 only if its probative value is substantially outweighed by the

danger of unfair prejudice. Hammer v. State, 296 S.W.3d 555, 568 (Tex.

Crim. App. 2009); see Tex. Rule ofEvid. 403 .

       Under Rule 403, it is presumed that the probative value of relevant

evidence exceeds any danger of unfair prejudice.        The rule envisions

exclusion of evidence only when there is clear disparity between the degree

of prejudice of the offered evidence and its probative value. Hammer v.

State, 296 S.W.3d at 568.

                                     12
        Although evidence may be probative, Rule 403 requires a balancing

of the evidence between its probative value and the prejudicial value. A

reviewing court cannot simply conclude, "the trial judge did in fact conduct

the required balancing and did not rule arbitrarily or capriciously." Mozon v.

State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)(citing Montgomery v.

State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991). A trial court's ruling

must be measured against the relevant criteria by which a Rule 403 decision

is made.     Id.   In other words, the reviewing court must look at the

proponent's need for the evidence in addition to determining the relevance

of the evidence. Id.

        While this brief addresses the necessity of showing A.R. 's past

aggressive and assaultive behavior in order to understand the indicted

measures undertaken by Appellant infra., it is important to note that the

record does not support a finding of prejudice to the State that would have

resulted. The Trial Court did not address how any "unfair prejudice" caused

Appellant's proffered evidence's probative value to be substantially

outweighed by unfair prejudice. Put simply, the Trial Court's ruling had no

factual basis to support it.

        A proper rule 403 analysis includes the following factors: 1) the

probative value of the evidence; (2) the potential to impress the jury in some



                                      13
irrational, yet indelible way; (3) the time needed to develop the evidence;

and (4) the proponent's need for the evidence. Erazo v. State, 144 S.W.3d

487, 489 (Tex. Crim. App. 2004).

        As for the first factor, the evidence was probative in that it sought to

show that A.R. had in the recent past, stabbed a classmate with a pencil,

pinched another student and had displayed aggressive behavior, all of which

Appellant knew when she pinched her sister. In other words, A.R. had

continued to be aggressive and hurt other children despite intervention at

school and at home with other methods of discipline. Whether wrong or

right, these things were known to Appellant when he chose to spank A.R.

Factor one weighs in favor of inclusion of Appellant' s proffered evidence.

        As for factor two, there is nothing irrational or indelible to be taken

by the evidence. If the evidence suggested to the jury that the child required

some discipline, it would not keep them from deciding the reasonableness of

Appellant's choice to spank A.R. Factor two weighs in favor or inclusion of

Appellant's proffered evidence.

        Appellant's counsel was able to go through the reports in short order

outside the presence of the jury, and there is nothing to suggest that allowing

the presentation of the proffered evidence would have caused any undue




                                      14
delay. Factor three weighs in favor of inclusion of Appellant's proffered

evidence.

        As for factor four, Appellant could not show to the jury that A.R.

had a pattern of aggressive behavior to justify his chosen discipline without

being able to establish a pattern.

        It does appear from the State's argument to the Trial Court, that they

were concerned with timeliness of the behavior and the fact that A.R. 's

misbehavior, assaultive behavior and disrespectful actions occurred at

school, rather than at home.

        To be clear, the incidents that Appellant recalled and was aware of

occurred less than one year from the offense charged. The State's arguments

address the weight to be given the evidence, rather than to its admissibility.

To be sure, the State could have argued these points to the jury had they

been allowed to hear of A.R.'s school behavior evidence.

        In short, the record does not support that the Trial Court engaged in

the required balancing. Further, the record does not support exclusion of

Appellant's evidence, but rather, inclusion.

F.      Evidence of A.R.'s school behavior records is admissible under
        404(b) or 404 generally.

        Again, review of cases regarding self-defense is instructive in

this case. Evidence of a murder victim's prior acts of violence may be

                                      15
admissible under Rule 404(b) to show the state of mind of a defendant who

claims he acted in self defense. Torres v. State, 71 S.W.3d 758, 760 n.4

(Tex.Crim.App.     2002);    Mozon    v.   State,   991   S.W.2d    841,   846

(Tex.Crim.App. 1999); see also Tex. R. of Evid. 404(b).             Further, a

defendant must be able to show that he was aware of the prior acts. Torres,

71 S.W.3d 758 at 760 n.4; Mozon, 991 S.W.2d at 845.

         In this connection, the Davis court found that evidence of a child's

prior acts of misbehavior, of which the defendant was aware, is admissible

under Rule 404(b) to show the state of mind of a defendant who claims that

he reasonably believed it was necessary to use the amount of force he did to

discipline a child. Davis v. State, 104 S.W.3d 177, 181 (Tex.App.-Waco,

2003).

         In this case, Appellant proffered to the Trial Court that he was aware

of several incidents where A.R. had stabbed and pinched fellow classmates

and had been disruptive enough to be sent home or serve in-school

suspension.    Appellant further proffered to the Trial Court that he had

employed other means of discipline that A.R. had "laughed at."

         Regardless of how the jury might have considered these in deciding

the charge against Appellant, Appellant was deprived of the right to have




                                      16
them consider it all. Moreover, it was proper for Appellant to present them

in his defense.

G.    The excluded evidence was critical to the heart of Appellant's trial
      defense and denied Appellant Due Process.

      Generally, the erroneous exclusion of a defendant's evidence

generally constitutes non-constitutional error. Walters v. State, 247 S.W.3d

204, 221 (Tex. Crim. App. 2007). However, if the evidence forms such a

vital portion of the case that exclusion effectively precludes the defendant

from presenting a defense, the ruling violates the defendant's constitutional

right to due process and to present a meaningful defense. See Potier v.

State, 68 S.W.3d 657, 665 (Tex.Crim.app. 2002).

      In Wiley v. State, the Texas Court of Criminal Appeals discussed its

decision in Potier. The Court of Criminal Appeals discussed two ways in

which a ruling excluding evidence might rise to the level of violating the

constitutional right to present a meaningful defense.     Wiley v. State, 74

S.W.3d 399, 405 (Tex.Crim.App. 2002). The first involves an evidentiary

ruling that categorically and arbitrarily prohibits a defendant from offering

relevant evidence that is vital to his defense. Id. The second involves "a

trial court's clearly erroneous ruling excluding otherwise, relevant, reliable

evidence [that] 'forms such a vital portion of the case that exclusion




                                     17
effectively precludes the defendant from presenting a defense." Id. (quoting

Potier, 68 S.W.3d at 665).

     The Trial Court's ruling excluding the school incidents violated

Appellant's constitutional right to due process and to present a meaningful

defense under the applicable standards in Potier. Without the evidence of

A.R.'s past behavior, Appellant was not able to provide a context for the

discipline chosen on, or about, August 19, 2013, and the reasonableness of

the force he deemed necessary to promote the welfare of A.R. The Trial

Court's ruling left the indicted incident in a vacuum without context and the

ability for the jury to consider that context. The jury did not get to hear that

A.R. had numerous incidents where she had injured other students. The

jury did not get to hear that A.R. had been rebellious, disruptive and

physically aggressive at school. These incidents were known to Appellant.

For the jury to be able to accurately judge his chosen means of discipline

and the reasonableness of the discipline imposed on A.R., they needed to

know "the whole story." At the very least, the jury needed be provided

with evidence of that which was known to Appellant.




                                      18
                                      VII.

                       CONCLUSION and PRAYER

      Appellant respectfully requests that this Honorable Court of Appeals

evaluate the issues in this matter as its' sister court did in Davis v. State, 104

S.W.2d 177 (Tex.App-Waco, 2003, no pet.). Further, he asks that this

Court of Appeals find that the exclusion of evidence of A.R. 's past incidents

at school did not allow him to put on the heart of his defense, and denied

him due process guaranteed by the United States Constitution.

      Appellant was entitled to defend himself by showing the jury what

was known to him when he chose to discipline A.R. and the means and

amount of force he chose to provide that discipline.           The Trial Court

acknowledged that Appellant had asserted and provided evidence to merit an

instruction on a justification defense in the jury charge in his case.

However, the Trial Court's Rule 403 ruling kept him from presenting the

heart of his defense, which left the jury without the context necessary to

judge Appellant's actions. The Trial Court's action excluding Appellant's

evidence of prior misbehavior denied Appellant of due process and, as such,

this Honorable Court of Appeals should reverse Appellant's conviction.

      WHEREFORE, PREMISES CONSIDERED, Appellant, FREDERICK

O'NEAL SCOTT, prays that this Honorable Court reverse and render the



                                       19
conviction and sentence, or in the alternative, reverse and remand this case for

a new trial on guilt/innocence and sentencing, and for any further relief that

Appellant is entitled to in law, or, in equity.

                                          Respectfully submitted,

                                          LUIS A. MARTINEZ
                                          P.O. Box410
                                          Victoria, Texas 77902-0410
                                          (361) 676-2750 (Cell Telephone)
                                          (361) 575-6764 (Office Telephone)
                                          (361) 575-8454 (Facsimile)
                                          lamvictoriacou       mail.com

                                          By:
                                                  Luis A. · rtinez
                                                  State Bar No. 24010213

                                   ATTORNEY FOR THE APPELLANT,
                                          FREDERICK O'NEAL Scorr


                                       VIII.

                     CERTIFICATE OF COMPLIANCE

       In accordance with Texas Rule of Appellate Procedure 9.4(i)(3), the

undersigned, Luis A. Martinez, I hereby certify that the number of words in

Appellant's First Amended Brief submitted on April 17, 2015, excluding

those matters listed in Rule 9.4(i)(3), is 3, 453 words.


                                           ~-f{J
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                                     IX.

                      CERTIFICATE OF SERVICE

      I, hereby certify that a true, correct and complete copy of the

foregoing First Amended Appellant's Brief has been served to those named

below in the manner indicated on this the 17th day April, 2015.




Via Email
Mr. Robert Lassman
DeWitt Co. Dist. Atty's Office
De Witt County Courthouse
307 N. Gonzalez
Cuero, Texas 77954




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