                                                                                                  ACCEPTED
                                                                                             01-13-00900-CR
                                                                                   FIRST COURT OF APPEALS
                                                                                           HOUSTON, TEXAS
                                                                                       3/20/2015 12:31:12 PM
                                                                                         CHRISTOPHER PRINE
                                                                                                      CLERK

                           NO. 01-13-00900-CR

                                                                    FILED IN -
                                                           1st COURT OF--APPEALS
                                                                                     - ----
                        IN THE COURT OF APPEALS                HOUSTON,            -
                                                                                --- TEXAS
                                                                        - ----ID K ------
                    FIRST SUPREME JUDICIAL DISTRICT        3/20/2015  -
                                                                   - 12:31:12
                                                                    -                  -- PM
                                                               ---- VO ------
                            HOUSTON, TEXAS                 CHRISTOPHER         --       A. PRINE
                                                                        ----
                                                                  ---- Clerk


                       RAYMOND LEE CAVITT,
                            Appellant                             FILED IN
                                                           1st COURT OF APPEALS
                                                               HOUSTON, TEXAS
                                     V.                    3/20/2015 12:31:12 PM
                                                           CHRISTOPHER A. PRINE
                         THE STATE OF TEXAS,                        Clerk
                               Appellee


       On Appeal from the 174th District Court of Harris County, Texas
                           Cause No. 1342490


                        BRIEF FOR APPELLANT


ORAL ARGUMENT REQUESTED                   NICOLE DEBORDE
                                          TBA No. 00787344
                                          712 Main, Suite 2400
                                          Houston, Texas 77002
                                          Telephone: (713) 228-8500
                                          Facsimile: (713) 228-0034
                                          Email: Nicole@BSDLawFirm.com

                                          COUNSEL FOR APPELLANT




                                      i
                     IDENTITY OF PARTIES AND COUNSEL

APPELLANT:                        Raymond Lee Cavitt, TDCJ 01897462
                                  Michael Unit
                                  2664 FM 2054
                                  Tennessee Colony, Texas 75886

PRESIDING JUDGE AT PRETRIAL AND
VOIR DIRE PROCEEDINGS:            Hon. Leslie Brock Yates
                                  174th District Court
                                  1201 Franklin
                                  Houston, Texas 77002

PRESIDING JUDGE:                  Hon. Ruben Guerrero
                                  174th District Court
                                  1201 Franklin
                                  Houston, Texas 77002

TRIAL PROSECUTORS:                Stephen Driver
                                  Gretchen Flader
                                  Paul Fortenberry
                                  Assistant District Attorneys
                                  1201 Franklin
                                  Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:         William R. Gifford
                                  Attorney at Law
                                  1302 Waugh Drive
                                  Houston, Texas 77019

STATE’S COUNSEL ON APPEAL:        Hon. Devon Anderson
                                  Harris County District Attorney
                                  1201 Franklin
                                  Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL:        Nicole DeBorde
                                  Attorney at Law
                                  712 Main Street, Suite 2400
                                  Houston, Texas 77002
                                    ii
TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Index of Authorities ..................................................................................................iv

Statement of the Case................................................................................................. 1

Issues Presented ......................................................................................................... 2

Statement of Facts ...................................................................................................... 3

Argument.................................................................................................................... 9

Prayer ....................................................................................................................... 39

Certificate of Compliance ........................................................................................ 41

Certificate of Service ............................................................................................... 42




                                                               iii
                                      INDEX OF AUTHORITIES

Cases

Alexander v. State, 740 S.W.2d 749 (Tex. Crim. App. 1987) ................................. 25

Barker v. Wingo, 407 U.S. 515 (1970) .............................................................. 34-35

Delrio v. State, 820 S.W.2d 29 (Tex. App. – Houston [14th Dist.] 1991) ...............15

Eddlemon v. State, 591 S.W.2d 847 (Tex. Crim. App. 1979)(Panel No. 3) ............ 38

Ephram v. State, 471 S.W.2d 798 (Tex. Crim. App. 1971) ..................................... 10

Estelle v. Williams, 425 U.S. 501 (1976) ................................................................. 11

Harris v. State, 827 S.W.2d 949 (Tex. Crim. App. 1992)(en banc) ........................ 35

Jabari v. State, 273 S.W.3d 745 (Tex. App. – Houston [1st Dist. 2008, no pet.)32,33

Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App), cert. denied (1997) ............. 24

Lape v. State, 893 S.W.2d 949 (Tex. App. – Houston [14th Dist.], pet ref’d.) ........ 32

Martin v. State, 265 S.W.3d 435 (Tex. App. – Houston [1st Dist.] 2007, no pet.)24,29

Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993) ........................................ 37

Robinson v. State, 240 S.W.3d 919 (Tex. Crim. App. 2007) ..................................34

Rodriguez v. State, 129 S.W.3d 551 (Tex. App. – Houston [1st Dist.] 2003, pet.

ref’d)………………………………………………………………………………24

Shelton v. State, 841, S.W.2d 526 (Tex. App. – Fort Worth 1992, no pet.) ........... .15

Simpson v. State, 886 S.W.2d 449 (Tex. App. – Houston [1st Dist.] 1994, pet. ref’d)27

Sinegal v. State, 789 S.W.2d 383 (Tex. App. – Houston [1st Dist.] 1990, pet. ref’d)25
                                                     iv
Sorrell v. State, 169 S.W. 299 (Tex. Crim. App. 1914) ..........................................14

Strickland v. Washington, 466 U.S. 668 (1984) .................................................. 9, 13

Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992) ..................................27, 28

Thomas v. State, 312 S.W.3d at 732 (Tex. App. – Houston [1st Dist.] 2009, pet.

ref’d) .........................................................................................................................28

Thompson v. State, 514 S.W.2d 275 (Tex. Crim. App. 1974) .................................38

Zamaro v. State, 84 S.W.3d 643 (Tex. Crim. App. 2002)(en banc) ........................ 35



Constitutions, Statutes and Other Authorities

Tex. Code Crim. Proc. 35.16(9) ............................................................................... 14

Tex. R. App. Proc. 25.2(a) ......................................................................................... 1

Tex. R. App. Proc. 9................................................................................................. 41

Tex. R. Evid. 403 ..................................................................................................... 24

Tex. R. Evid. 609 .........................................................................................25, 27, 28




                                                                v
                                         STATEMENT OF THE CASE

           On June 14, 2012, Appellant was charged by indictment with Sexual Assault

of a Child in Cause No. 1342490. (C.R. at 35.) Appellant was brought to trial on

September 26, 2013. (III R.R. at 1). Appellant entered a plea of not guilty to the

charges. (IV R.R. at 11.) The jury found Appellant guilty on October 3, 2013. (VII

R.R. at 3.) The jury found the allegation in the enhancement paragraph true and

sentenced Appellant to life in the Texas Department of Criminal Justice. (VII R.R.

at 4-5.) Appellant filed a Motion for New Trial and Request for Evidentiary

Hearing on November 4, 2013 (MNT1) The trial court signed an order of

presentment on the motion for new trial on November 8, 2013. The trial court

denied Appellant’s Motion for New Trial and Request for Evidentiary Hearing on

December 16, 2013. (IX R.R. at 24.) Appellant gave timely notice of appeal and

the trial court’s certification of defendant’s right of appeal ensures Appellant has

the legal right to appeal. (C.R. 207, 209.) Tex. R. App. Proc. 25.2(a).




1
    Appellant’s Motion for New Trial and Request of Evidentiary Hearing will hereinafter be cited as “MNT.”
                                                          1
                         ISSUES PRESENTED

Issue One: Appellant received ineffective assistance of counsel.

Issue Two: The trial court erred in denying Appellant’s motion for a
speedy trial.

Issue Three: The trial court erred by failing to grant an evidentiary
hearing on the Motion for New Trial.

Issue Four: The trial court erred by bringing a material defense
witness, D.R. into the courtroom, handcuffed, and in a jail uniform.

Issue Five: A new trial should have been granted based on newly
discovered evidence.




                                  2
                                STATEMENT OF FACTS

      R.R. was fifteen years old at the time of the trial. (IV R.R. at 41.) Prior to the

date of the alleged incident, R.R. had not been home for two weeks. (IV R.R. at

32.) Instead of going home, R.R. would go to Appellant’s house with her best

friend, D.R., who had a room at Appellant’s house. (IV R.R. at 33, 47.) R.R. went

to Appellant’s house almost every day after school and stayed the night there once

in a while. (IV R.R. at 49.)

      On January 2, 2012, R.R. claims that she was over at Raymond’s house with

D.R. in Appellant’s room smoking. (IV R.R. at 52, 53.) Appellant left for a few

hours and returned while R.R. was asleep according to R.R. (Id.) R.R. had also

taken “handlebars”, a type of drug, that day. (Id.) She claims that Appellant gave

her and D.R. one of the handlebars each in their hand and placed some in a drink

that they consumed. (IV R.R. at 53-54.) R.R. claims that while they were

consuming these drinks, Appellant left, and R.R. stayed in Appellant’s room. (IV

R.R. at 55-56.) R.R. claims that Appellant would give marijuana and handlebars to

D.R. (IV R.R. at 50.) Appellant denies giving them any bars or marijuana. (Id.)

Gabriale Cavitt testified that she never saw Cavitt use any drugs other than taking

his medicine. (V R.R. at 77.)

      As R.R. was sitting in Appellant’s bed talking to D.R., D.R. fell asleep. (IV

R.R. at 57.) R.R. stated that she stayed awake for a while and then went to sleep
                                           3
next to D.R. (Id.) According to R.R., Appellant was not there when R.R. went to

sleep, but when she woke up, she was laying on her stomach, and Appellant was

on top of her. (IV R.R. at 58.) R.R., who weighs about 200 pounds (IV R.R. at

106), never felt anyone pulling her pants down, but she felt pain in her vagina.

R.R. claims Appellant was trying to force his penis into her vagina, but that it did

not penetrate her vagina even though it seemed like Appellant was trying to

penetrate her with his penis and his arms were “all over her body”. (IV R.R. at 58-

60, 85.) She testified that when she awoke, she was wearing a pajama jacket and

her long pajama pants, which were down by her ankles, and he was not wearing

any pants, but she did not see his penis. (IV R.R. at 58-59.) The lights were out in

the ceiling of the bedroom and/or the hall, so the only light in the room would have

been from the television or computer. (IV R.R. at 84.) R.R. testified that she knew

it was Appellant because of his voice and she recognized his figure. (IV R.R. at

105.) According to R.R., when she woke up she said, “What are you doing? He

said: I’m just playing with you.” (IV R.R. at 59.) She claims Appellant then

jumped up over the front of the bed. (IV R.R. at 108.) She tried to wake up D.R.,

but she would not wake up. (IV R.R. at 59.)

           Raven then went up to Appellant’s granddaughter and niece’s apartment. (IV

R.R. at 59.) Appellant’s niece is Deanna2 Hoedzoade, and his granddaughter is

2
    Deanna is referred to as “Dee” during most of the trial testimony.
                                                            4
named Gabriale. (IV R.R. at 63-64; V R.R. at 61.) They went down and carried

D.R. upstairs. (IV R.R. at 64.)D.R. did not wake up until the next morning. (Id.)

R.R. left and went to Juanita Robicheaux’s house and told a story of what she

claimed occurred. Juanita Robicheaux is Appellant’s hospice provider, and

Appellant would go to her house every day. (V R.R. at 59, 123.) They did not

believe R.R.. (IV R.R. at 90.) While R.R. does not remember talking to Shayshay

Miller at Juanita Robicheaux’s house and telling her that she was not sure what

happened, R.R. does remember speaking to Makayla Wilborn at Juanita

Robicheaux’s house. (IV R.R. at 115, 116.) She denies telling Makayla Wilborn

that she was not sure or nothing happened. (Id.) R.R. claims that Wilborn asked

her what happened and she did not tell her anything. (Id.) They did not call the

police. (IV R.R. at 90.) She did not tell her mother the story until she eventually

went home two days after the alleged incident, and still no one called the police.

(IV R.R. at 66, 67.) R.R. claims she did not originally tell her mother because she

did not want her mother to know she was doing drugs. (IV R.R. at 67.) R.R.’s

mother told the school principal and they called the police. (Id.) R.R. was not

medically examined until 22 days after the alleged incident. (IV R.R. at 145.) The

exam showed no abnormalities. (IV R.R. at 20.)

      Gabriale Cavitt testified that she and Dee Hoedzoade went to Appellant’s

apartment on the day this incident is alleged to have occurred. (V R.R. at 66.)
                                        5
When they arrived, Appellant was fully dressed and washing dishes. (V R.R. at 66-

67.) They talked to Appellant for five or ten minutes and then went back upstairs to

their apartment. (V R.R. at 67.) Gabriale testified that it only takes four to five

seconds to walk to her apartment. (Id.) Not even five minutes later, R.R. came to

her apartment banging on the door and alleged that Appellant tried to rape her. (V

R.R. at 69.) R.R. did not want to call the police. (V R.R. at 72.) Gabriale stated that

she went back down to Appellant’s apartment and called D.R. five times telling her

to get up but did not want to get up. (V R.R. at 73.) Gabriale testified that she

picked D.R. up and carried her back up to their apartment and called Juanita

Robicheaux. (Id.) The next morning, while it was still dark outside, Juanita

Robicheaux’s boyfriend, Tremane, picked up R.R. and D.R.. (Id.)

      After Dee told Appellant that a girl was claiming somebody touched her, he

picked up the phone and called 911. (V R.R. at 143.) The police would not file a

complaint because Appellant did not know what girl said someone touched her;

therefore, they lacked a complaining witness. (V R.R. at 145.)

      Appellant testified that the day after this alleged incident, R.R. and D.R.

were at his house when he arrived home after leaving Juanita Robicheaux’s house.

(V R.R. at 136.) They stayed at his house all night. (V R.R. at 136-37; VI R.R. at

21.) The next day R.R. wore Appellant’s clothes. (V R.R. at 142; VI R.R. at 24.)

Gabriale saw R.R. with D.R. at Appellant’s house after school let out and R.R. was
                                          6
wearing the clothes Appellant gave her. (V R.R. at 80-81.) R.R. denies going back

to Appellant’s house the next day after she got out of school, and denied going to

Appellant’s house and wearing his clothes to school the next day. (IV R.R. at 76 -

77.) R.R. was reluctant to talk to the police and was uncooperative. (IV R.R. at 26-

31.)

       A letter was written in R.R.’s handwriting apologizing for making up this

allegation and stating that she was intoxicated and on drugs when she did. (Def.’s

Ex. 1) According to Gabriale Cavitt, the letter was prepared at her house and dated

January 28, 2013. (V R.R. at 84.) Gabriale denies helping R.R. write the letter and

testified that she only proofread it. (V R.R. at 85.) R.R. claims that D.R. wrote a

statement and then asked her to copy it in her own handwriting and sign it, and that

she was pressured to write it. (IV R.R. at 70, 76.) D.R. was also present at Gabriale

Cavitt’s when R.R. wrote the letter. (VI R.R. at 25.) D.R. denies writing the letter

or telling her what to put in the letter, and she testified that R.R. gave her the letter.

(VI R.R. at 25-26.)

       Appellant acquired statements from Makayla and Shayshay Miller and he

brought those statements when he talked to Sergeant Colburn. (V R.R. at 152.)

Furthermore, Appellant testified that he could not become erect as a result of his

medications. (V R.R. at 154.) Appellant denies trying to molest R.R. (V R.R. at

155.) Appellant did not know if R.R. was in his apartment the day of the incident
                                            7
because he did not see her there. (V R.R. at 165.) Appellant did not remember

Gabriale picking up D.R. and carrying her from his apartment or trying to wake her

up. (V R.R. at 167.) Appellant was sleeping at the time this would have occurred,

and Dee was the one that woke him up. (V R.R. at 167, 195.)

      D.R. was brought into the courtroom in front of the jury in handcuffs and a

brown inmate jumpsuit. (VI R.R. at 3, 11-12.) Defense counsel requested that the

handcuffs be removed. (VI R.R. at 3.) According to D.R., her mother, Juanita

Robicheaux was out of town at the time of the trial. (VI R.R. at 6.) She testified

that on the day of the incident, she and R.R. smoked marijuana when Appellant

was not there. (VI R.R. at 8-9.) D.R. was the one that got the handlebars off of the

headboard of Appellant’s bed, R.R. asked her for the handlebars, and D.R. gave

her one. (VI R.R. at 10, 56.) According to D.R., Appellant did not have anything to

do with them smoking or doing handlebars. (VI R.R. at 11.) D.R. testified that she

put handlebars inside of a drink and put it in the freezer and gave herself one and

half and she gave R.R. one and half handlebars. (VI R.R. at 56.) She also testified

that she was just asleep not passed out when she was carried. (VI R.R. at 61.)




                                         8
                                         ARGUMENT

       Issue One: Appellant received ineffective assistance of counsel.

       Appellant hereby incorporates by reference the Statement of Facts portion of

this brief as set forth at 3-8, supra.

       A. Standard of Review

       There are two components to a claim of ineffective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 687 (1984). The appellant must establish

that his trial counsel performed deficiently and that the deficiency operated to

prejudice him. Id. To show prejudice, “[t]he defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694. In evaluating the

first component, reviewing courts must not second-guess legitimate strategic or

tactical decisions made by trial counsel in the midst of trial, but instead “must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689.




                                            9
      B. Trial Counsel improperly informed the jury that Appellant had
         already been incarcerated based on this case for the past 542 Days.

      During voir dire, defense counsel informed the jury that Appellant had been

in jail on this case for five hundred and forty two days, infringing on his

fundamental right to the presumption of innocence. In Ephram v. State, the Texas

Court of Criminal Appeals held that “trying a defendant in prison clothing

infringed upon his right to presumption of innocence and required reversal.” 471

S.W.2d 798 (Tex. Crim. App. 1971).

      Defense counsel started voir dire but stating “It’s my high honor and

privilege to represent Mr. Cavitt. I’ve known him for 542 days now.” (III RR. At

121.) Defense was asking the venirepanel whether the fact that he has been

indicted makes him guilty, and a venireperson responded:

      [Venireperson]:          How many days did you say he’s been locked up?

      [Defense counsel]:       Five-forty-two

      [Venireperson]:          I don’t know.

      [Defense counsel]:       That has nothing to do with it. We’re getting to
                               trial. I’m asking about this paper.

      [Venireperson]:          He’s been in there that long?

      [Defense counsel]:       Right.

      [Venireperson]:          So, something must be wrong.

      [Defense counsel]:       Right. What must be wrong?
                                        10
      [Venireperson]:          He’s guilty.

      [Defense counsel]:       Because he’s been here 542 days he must be
                               guilty?

      [Venireperson]:          Yeah. Why is taking him so long to get the
                               evidence or whatever and get it lined out and get
                               him out of here?

      [Defense Counsel]:       I’ve been ready for trial after 90 days. (III RR. At
                               128-29.)

      Defense counsel also elicited testimony from Appellant that he had a lengthy

pretrial incarceration.

      [Defense Counsel]:       And you’ve been in jail now how long?

      [Appellant]:             Almost two years.

      [Defense Counsel]:       550 days, 48 days, something like that?

      [Appellant]:             Yes, sir. (V R.R. at 113.)

      Defense counsel’s comments regarding Appellant’s lengthy pretrial

incarceration violated his constitutional protections and the requisite presumption

of innocence. His comments violated Appellant’s presumption of innocence under

the Fourteenth Amendment to the United States Constitution. These comments are

analogous to cases in which an accused is brought in front of the jury in prison

clothes, and infringe on Appellants right to be presumed innocent until proven

guilty. To implement the presumption the presumption [of innocence], courts must


                                        11
be alert to factors that may undermine the fairness of the fact-finding process. In

the administration of criminal justice, courts must carefully guard against dilution

of the principle that guilt is to be established by probative evidence and beyond a

reasonable doubt. Estelle v. Williams, 425 U.S. 501 (1976). Similar to wearing

prison garb, pretrial incarceration “operates usually against only those who cannot

post bail prior to trial. Persons who can secure release are not subjected to this

condition.” Id. at 505. There can be no valid strategically reason to comment on

Appellant’s lengthy pretrial incarceration.

      C. Failing to adequately inform Appellant about advantages and
         disadvantages of testifying.

      During voir dire, defense counsel informed the jury that he decides whether

or not Mr. Cavitt will testify. (III RR. At 129.) He later reiterated this again to the

jury by stating, “Now, if Mr. Cavitt doesn’t testify – and again, it would be up to

me – would you hold that against him on the first row?” (III R.R. at 129.) “I’m

having my client testify and my client has a checkered [past], he’s been to prison

before, can you set all that aside, can you set all that aside and not think about that

at all, and just on the facts of this case and the testimony you hear [and] render a

verdict.” (III R.R. at 139.) Before Appellant testified, defense counsel went on the

record and made Appellant confirm that he understands that he has the right to




                                          12
testify or not and that if he testifies he would be subject to rigorous cross-

examination. (V R.R. At 111.)

      Nevertheless, trial counsel failed to adequately discuss with Appellant

whether or not he should testify during the guilt-innocence phase of the trial.

(MNT, Def.’s Ex. 4.) Appellant has a criminal history including a previous sexual

assault conviction among other serious convictions. Counsel failed to discuss with

Appellant that his prior criminal history could be revealed to the jury if he decided

to testify. (MNT, Def.’s Ex. 4.) If he had been informed of this information,

Appellant would have chosen not to testify at the guilt-innocence phase of the trial.

(MNT, Def.’s Ex. 4.) Appellant even filed a letter with the trial court asking that he

order the district attorney not to bring up any other case that is not involved with

his current charge. (MNT, Def.’s Ex. 12.)(C.R. at 123-27.) The Defendant’s

criminal history came out during the guilt-innocence phase of the trial after the

Defendant testified.

      Counsel’s failure to advise Appellant of the disadvantages of testifying,

including the admissibility of his prior sexual assault conviction, was outside the

wide range of professionally competent advice and did not constitute the exercise

of reasonable professional judgment. Strickland v. Washington, 466 U.S. 668

(1984). The prejudicial effect of the admission of a prior sexual assault conviction



                                         13
during a sexual assault of a child trial is apparent, and Appellant was denied a fair

trial by counsel’s failure to inform him of the effect of his decision to testify.

      D. Failing to challenge or strike venireperson.

      In response to questioning regarding Appellant’s criminal history and being

able to render a fair verdict, venireperson number 39 stated,

      [Venireperson]:             Like the previous two are saying, if the person has
                                  a history of the similar crime and their testimony is
                                  not credible in my eyes.

      [Defense counsel]:          And you couldn’t render a fair and impartial
                                  verdict. Is that right?

      [Venireperson]:             That’s hard to say that. (III R.R. at 145.)

      Defense failed to challenge venireperson 39 for cause, or move to strike him.

(III R.R. at 149-59) (C.R. at 169.) Venireperson 39 was placed on the jury

presiding over the trial. (III R.R. at 160.)

      In this case Appellant’s prior conviction for sexual assault was revealed

during the guilt-innocence state of the trial. Appellant was entitled to a fair and

impartial jury under the Sixth Amendment to the United States Constitution and

Art. 1 § 10 of the Texas Constitution. Under the Texas Code of Criminal

Procedure, Article 35.16(9), venireperson 39 was challengeable for cause because

he had a bias against the defendant. “One improper juror destroys the integrity of

the verdict.” Sorrell v. State, 169 S.W. 299, 303 (Tex. Crim. App. 1914). There


                                           14
can be “no reasonable defense strategy that would justify allowing such an

individual to sit on a jury to determine the legal fate of one’s client in a criminal

trial. Permitting such an occurrence undermines in advance the perceived essence

of a jury’s purpose to render a fair and impartial verdict. Delrio v. State, 820

S.W.2d 29, 32 (Tex. App. – Houston [14th Dist.] 1991).

      E. Failing to secure the presence of material witnesses to testify at the
         trial.

      Counsel was ineffective for failing to subpoena material witnesses in support

of the Appellant’s assertion that the complainant’s allegation was fabricated. See

Shelton v. State, 841, S.W.2d 526 (Tex. App. – Fort Worth 1992, no pet.)

Appellant had informed his attorney that he was set up because he had people

removed from his apartment. (MNT, Def.’s Ex. 4.) He also sent a letter to the court

informing the court of this information. (MNT, Def.’s Ex. 5.) Appellant had

informed his attorney that Gabriale Cavitt, R.R., and Deanna Hoedzoade made up

this allegation after the Defendant had the Houston Police Department come and

remove Gabriale Cavitt and Deanna Hoedzoade from his residence and he had

asked R.R. to go home. (MNT, Def.’s Ex. 4.) Appellant’s theory of motive

regarding the complainant’s story was also reflected in his statement provided to

the police and noted in the offense report. (MNT at 3.)




                                         15
      Dorothy Cavitt Lewis had informed Appellant’s attorney, William Gifford,

before the trial that Deanna Hoedzoade had personally told her that they lied to the

police, she was on drugs, and they made all of this up. (MNT, Def.’s Ex. 6.)

Deanna told Dorothy that she wanted to go to the police station to change her

statement, but she was scared of getting in trouble. (MNT, Def.’s Ex. 6.) Dorothy

Cavitt Lewis was never subpoenaed or requested to attend the trial. Dorothy Cavitt

Lewis would have attended the trial if she was subpoenaed or requested to do so.

(MNT, Def.’s Ex. 6.)

      Additionally, Ja’Shone Collins wrote an affidavit for the defense on June 21,

2012. (MNT, Def.’s Ex. 7.) This affidavit was provided to defense counsel and was

also in the State’s file available under the Harris County District Attorney’s open

file policy. (MNT at 4.) In her affidavit she stated that her and some friends were at

the Appellant’s house. Raven was upset because Appellant would not take her

home so she paired up with “Mr. Raymond’s other enemies” and made R.R. say

that when she woke up Appellant was on top of her. Later on in the week, R.R. told

Ms. Collins that they made her say that because they were upset with Appellant.

(MNT, Def.’s Ex. 7.) Counsel failed to subpoena Ja’Shone Collins to testify at the

trial. (MNT at 4.)

      In his affidavit, defense counsel stated that Ja’Shone Collins told his

investigator that she was present and in bed with R.R., D.R., and Appellant. (MNT,
                                         16
State’s Ex. 1.) Since defense counsel believed it to be untruthful, he did not use her

testimony.

      Moreover, Jacquette Miller also wrote a statement for the defense. (MNT,

Def.’s Ex. 8.) In her statement, she stated that when R.R. told her about what

happened, Ms. Miller said she was going to call the police and told R.R. to call her

mother. R.R. begged Ms. Miller not to call the police because R.R. was not really

sure and her mother would not let her come around anymore. Ms. Miller also wrote

that after this happened R.R. went to school the next day and then went back to

Appellant’s apartment and spent the night again. R.R. also kept changing her story

about what happened. She told Ms. Miller she really did not know. This statement

was written on January 13, 2012, and provided to defense counsel. The statement

was also in the State’s file that was available through the District Attorney’s open

file policy. (MNT at 5.) Jacquette Miller also provided a statement to the police. In

her statement, which was also reflected in the offense report available to the

defense under the District Attorney’s open file policy, stated that on the night of

the incident R.R. told her she did not know if Appellant had his clothes on. (Id.)

R.R. told her she did not know who it was that did this to her. (Id.) Ms. Miller told

R.R. she was going to call the police, but R.R. told her not to call the police

because she would get in trouble with her mother. (Id.) R.R. then told her she did

not know what happened. (Id.) She told R.R. to go home after school, but instead
                                         17
R.R. went back to the Defendant’s apartment. (Id.) R.R. spent the night at

Appellant’s and wore Appellant’s clothes to school the next day. (Id.) Counsel

failed to subpoena Jaquette Miller to testify at the trial. (Id.)

      In his affidavit for the motion for new trial, defense counsel stated that

Juanita Robicheaux told him that Jacquette Miller was a heavy drug user and could

generally be found on a particular street corner and that no one had an actual

address at which Jacquette Miller could be located. (MNT, State’s Ex. 1.) He stated

that based on his inability to locate her, and her credibility issues, he decided to

proceed without her. (Id.) Although defense counsel stated that his investigator

went to places that he was informed she could be found, he did not state how many

times he went to these places and what places he went to.

      Likewise, Clydell Adams would testify that R.R. was high on weed and she

told people around the apartment that it was not the Defendant who did this to her.

He also saw R.R. come back to the Defendant’s apartment after this incident and

stay at his apartment for the next two nights. (MNT, Exhibit 10.) This statement

was provided to defense counsel prior to trial. The statement was also in the State’s

file that was available through the District Attorney’s open file policy. Counsel

failed to subpoena Clydell Adams to testify at the trial. (MNT at 5.)

      Defense counsel stated that the reason he did not subpoena him to testify

was because he was in jail, he had a criminal history, he did not want this imputed
                                            18
on Appellant, and he believed he could elicit the same testimony from Gabriale

Cavitt and D.R.. (MNT, State’s Ex. 1.)

        Makayla Wilburn also wrote a statement that R.R. changed her story. She

also said that R.R. went back to stay at the Defendant’s apartment and asked to

wear his clothes. (MNT, Exhibit 9.) This statement was provided to defense

counsel. The statement was also in the State’s file that was available through the

District Attorney’s open file policy. Counsel failed to subpoena Makayla Wilburn

to testify at the trial.

       Defense counsel stated that he was aware of the statement given by Wilburn

but he believed it was duplicative of other witness testimony and neither himself

nor his investigator was able to locate her. Defense counsel fails to state what

efforts either himself or his investigator took to locate her. Furthermore, testimony

that R.R. would change her story was material to Appellant’s defense.

       Additionally, Juanita Robicheaux was sworn to return and was not present

during the trial. (IV R.R. at 3-4.) At the beginning of the trial, defense counsel

noted on the record that Juanita Robicheaux was a “critical, important witness”

who left town for a month for work. Defense counsel had informed her that she

needed to be present when he spoke to her the Friday before trial; however, she left

town. (IV R.R. at 5.)



                                         19
        Defense counsel moved for a continuance in the interest of justice. (IV R.R.

at 5.) Defense counsel stated that her testimony was “extremely important when it

comes to the testimony of what the child did, what happened at that exact time, and

who was present. And without that testimony, I can’t get anyone else to say: I

brought him to the house, let him off, he goes in the kitchen.” (IV R.R. at 6.) The

court denied Appellant’s motion for continuance. (IV R.R. at 6.) The court later

granted a short continuance during the trial until the following day. (V R.R. at

201.)

        After the defense rested, defense counsel withdrew his motion for a

continuance based on the fact that the witness was not present to testify. (VI R.R.

at 74.) He withdrew his request for a continuance based on his opinion that other

witnesses have covered what he believed Juanita Robicheaux would testify to. (VI

R.R. at 74.) Defense counsel stated that all he believed Juanita Robicheaux would

be able to testify to that was not already introduced at the trial was that “she was

with Raymond all day and she’s his caregiver. That’s about it.” (VI R.R. at 74.)

        According to defense counsel’s affidavit, he considered Juanita Robicheaux

to be an important witness in the case. (MNT, State’s Ex. 1.) He stated that he was

concerned that the jury would blame Appellant if he were to ask for the case to be

further delayed to get her into court and he was unable to give any kind of timeline

as to when she might appear. (MNT, State’s Ex. 1.)
                                         20
      Juanita Robicheaux was the Appellant’s healthcare provider and is the

mother of D.R. (MNT at 6.) Juanita Robicheaux provided a statement to the police

that was also reflected in the offense report available under the District Attorney’s

open file policy. (Id.) According to Juanita Robicheaux’s statement to the police,

D.R. told her mother, Juanita Robicheaux, that R.R. was lying. (Id.) Juanita

Robicheaux told R.R. to call the police the night of the incident and R.R. said she

did not want to the call the police. (Id.) R.R. was mad because D.R. and R.R. got

into an argument and that was when the police became involved. (Id.) According to

the offense report, Juanita Robicheaux also signed a statement saying that R.R.

kept changing her story. (Id.)

      F. Failing to elicit testimony to demonstrate a motive for R.R. to make
         up this allegation.

      Gabriale and Dee Hoedzoade had a fight with Appellant and he made them

move out of the house before this incident. (IV R.R. at 135; V R.R. at 52, 61-62.)

Counsel failed to elicit testimony from Gabriale Cavitt that R.R., the complainant,

told Gabriale Cavitt about three or four weeks after this alleged incident that she

made this up because she was upset. Gabriale Cavitt had informed trial counsel of

this information. Gabriale Cavitt testified during the trial, and would have testified

to this information if the Defendant’s attorney elicited it during her testimony.

(MNT, Def.’s Ex. 6.)


                                         21
      Moreover, D.R. also wrote a statement for the defense. See (MNT, Def.’s

Ex. 14.) In her statement she said R.R. was mad because the Appellant kept telling

her that she needed to call her mother or he will take her home. D.R. also stated in

an affidavit that Gabriale Cavitt and Deanna Jackson (also known as Deanna

Hoedzoade) were mad at Appellant and told R.R. to get Appellant in trouble with

this accusation. R.R. did not report it until she “got into it” with D.R. and that is

when she reported this incident. (MNT, Def.’s Ex. 15.) Both her statement and her

affidavit were provided to defense counsel and were in the State’s file available for

review under the Harris County District Attorney’s open file policy. (MNT at 8.)

D.R. testified at the trial. Counsel failed to elicit this information through her

testimony at trial.

      G. Failing to object to inadmissible expert testimony regarding
         Appellant’s likelihood of reoffending during the guilt-innocence
         stage of the trial.

      Dr. Lawrence Thompson Jr. (“Thompson”) testified for the defense. (IV

R.R. at 173.) Thompson is employed with the Harris County Children’s

Assessment Center as the director of therapy and psychological services. (IV R.R.

at 174.) During redirect examination, the State asked to approach the bench and

informed the court at the bench that he wanted to “ask the witness about patterns of

behavior with regard to people who reoffend in sexual abuse cases,” and asked if

there was any objection to it. (IV R.R. at 201.) Defense counsel’s only concern, as
                                         22
stated at the bench, was that he “couches it abuse as to what, an adult or a child

whatever. Because if we have no report of any prior children, this is a child clinical

psychologist.” (IV R.R. at 201.) The State elicited testimony that some sex

offenders have specific adults or children that they target, and that “hypothetically,

an individual who targeted a 14-year-old and an 18-year-old female, would be

within the type of general category that somebody might select?” (IV R.R. at 202-

03.) To which, Thompson responded that essentially “it’s not just the age that they

may be attracted to, but what they look like.” (IV R.R. at 204.) The prosecutor then

went further and asked, “In your experience dealing with sex offenders or

perpetrators of sexual abuse, is it common or uncommon for them to be a one-shot

deal? Is it just usually one time they commit sexual abuse or is it typically a

behavior issue?” (IV R.R. at 206.) Thompson responded, “I can say as to the extent

that there is an inappropriate sexual attraction to children, that inappropriate sexual

attraction is there and is an issue in an ongoing way. There’s no cure for that

inappropriate sexual attraction.” (IV R.R. at 204.)

      Under Texas Rule of Evidence 702, the trial court must find that the

following three conditions are satisfied before admitting expert testimony: (1) the

witness qualifies as an expert by reason of her knowledge, skill, experience,

training, or education; (2) the subject matter of the testimony is an appropriate one

for expert testimony; and (3) admitting the expert testimony will actually assist the
                                          23
trier of fact in deciding the case. Tex. R. Evid. 702. The trial court’s determination

regarding experts’ qualifications and the admissibility of expert testimony is

subject to an abuse of discretion standard. Lagrone v. State, 942 S.W.2d 602, 616

(Tex. Crim. App), cert. denied (1997).

      Under Texas Rules of Evidence, Rule 403, “Although relevant, evidence

may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice . . . ” Tex. R. Evid. 403. Defense counsel was also ineffective for

failing to object to this line of under Rule 403 since any probative value was

substantially outweighed by the danger of unfair prejudice.

      H. Introducing testimony regarding Appellant’s prior remote
         convictions and failing to obtain a ruling regarding the admissibility
         of Appellant’s prior convictions.

      Eliciting testimony from the defendant as to his own prior convictions can

be a matter of sound trial strategy, if the prior convictions are admissible. Martin v.

State, 265 S.W.3d 435, 443 (Tex. App. – Houston [1st Dist.] 2007, no pet.);

Rodriguez v. State, 129 S.W.3d 551, 558-59 (Tex. App. – Houston [1st Dist.] 2003,

pet. ref’d). However, if prior convictions are inadmissible, there can be no

reasonable trial strategy for introducing them before the jury. Robertson v. State,

187 S.W.3d 475, 485-86 (Tex. Crim. App. 2006). “The fact that a witness,

including the accused, has been charged with an offense, is inadmissible for

impeaching the witness’s credibility unless the charge has resulted in a final
                                          24
conviction for a felony or an offense involving moral turpitude, and even then it

must not be too remote.” Sinegal v. State, 789 S.W.2d 383 (Tex. App. – Houston

[1st Dist.] 1990, pet. ref’d) (citing Alexander v. State, 740 S.W.2d 749, 763 (Tex.

Crim. App. 1987).

      Rule 609 provides that evidence of a witness’s prior convictions is

admissible for purposes of impeachment if the crime was a felony or a crime of

moral turpitude and if the trial court determines its probative value outweighs its

prejudicial effect. Tex. R. Evid. 609(a). However, a prior conviction is

presumptively inadmissible for impeachment purposes if more than ten years have

elapsed since the date of conviction or of the witnesses’ release date from the

confinement imposed for the prior conviction, whichever is later. The date of trial

is the controlling time for computation because the purpose of admitting prior

convictions at the guilt stage of the trial is to allow impeachment. Sinegal, 789

S.W.2d at 387.

      The testimony elicited at trial is that Appellant was convicted of Accessory

to Robbery in the early 1970s, Sexual Assault in 1989, and Forgery in 1986. (CR.

At 35.) (V R.R. at 114.) These convictions were approximately 40, 24, and 27

years old respectively. Additionally, Appellant testified that he served eighteen to

nineteen years on the accessory to robbery charge that he was convicted of in the

early 1970s. (V R.R. at 114.) It is reasonable to assume that Appellant was
                                        25
released before 1986, because that is when he was convicted of Forgery. Therefore,

Appellant was released from confinement on his conviction of accessory to

robbery approximately 27 years ago. Therefore his conviction was presumptively

too remote to be admissible.

      Furthermore, the State failed to list Appellant’s prior conviction for

Accessory to Robbery from the early 1970s in its notice of prior convictions and

extraneous offenses that was filed on January 15, 2013. (C.R. at 67.) Therefore,

counsel elicited harmful testimony that the State never sought to introduce, nor

gave notice that it intended to introduce at trial.

      Appellant testified that he was released after approximately serving six

months on his conviction of Forgery in 1986. (V RR. At 116-17.) Therefore, it has

been approximately 27 years since he was released from confinement on his charge

of Forgery. Therefore his conviction was presumptively too remote to be

admissible.

      Moreover, Appellant testified that he was released after serving 16-and-half

years or 17-and-a-half years on his conviction of sexual assault in 1989. Therefore,

it has been approximately eight years since Appellant was released from

confinement on his charge of sexual assault.

      The Court of Criminal Appeals has set out a nonexclusive list of factors

courts should use to weight the probative value of a conviction against its
                                           26
prejudicial effect. Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992). These

include: (1) the impeachment value of the prior crime; (2) the temporal proximity

of the past crime relative to the charged offense and the witness’s subsequent

history; (3) the similarity between the past crime and charged offense; (4) the

importance of the witness’s testimony; and (5) the importance of the witness’s

credibility. Id. at 880. The proponent seeking to introduce Rule 609 evidence has

the burden of showing that the probative value of a conviction outweighs its

prejudicial effect. Id.

       With respect to the first factor, the Court of Criminal Appeals has stated that

crimes involving deception or moral turpitude have a higher impeachment value

than crimes involving violence. Id. at 811. The impeachment value of his sexual

assault conviction or his accessory to robbery conviction is low because the crimes

do not necessarily involve deception. However, the charge of forgery could be

found to involve deception.

       The second Theus factor favors admission “if the past crime was recently

committed and if the witness has demonstrated a propensity for breaking the law.”

Simpson v. State, 886 S.W.2d 449, 452 (Tex. App. – Houston [1st Dist.] 1994, pet.

ref’d). Appellant was convicted of Accessory to Robbery in the 1970s, Sexual

Assault in 1989, Forgery in 1986. (CR. At 35.) These convictions were



                                          27
approximately 40, 24 and 27 years old respectively. These convictions were too

remote to be admissible.

       Under the third Theus factor, similarity between a prior offense and the

current offense weights against admissibility under Rule 609, whereas dissimilarity

between the prior offense and the current offense favors admissibility. Theus, 845

S.W.2d at 881. “This is so because the admission for impeachment purposes of a

crime similar to that charged presents a situation in which the jury could convict

based on the perception of the past conduct rather than the facts of the present case.

Thomas v. State, 312 S.W.3d at 732, 739-40 (Tex. App. – Houston [1st Dist.] 2009,

pet. ref’d).

       With respect to Appellant’s prior conviction for forgery and accessory to

robbery, the dissimilarity in the two offenses would weigh in favor of

admissibility. However, Appellant’s previous conviction for sexual assault and the

present charge of sexual assault of a child include the same sexual assault elements

and this similarity would weigh in favor of exclusion. Therefore, the third Theus

factor favors admissibility of Appellant’s prior conviction for forgery and

accessory to robbery, but disfavors admissibility of Appellant’s prior conviction

for sexual assault.

       Finally, under the fourth and fifth factors, the court is to consider the

importance of appellant’s testimony and his credibility. Martin v. State, 265
                                         28
S.W.3d 435, 445 (Tex. App. – Houston [1st Dist.] 2007, no pet.). According to

R.R.’s testimony, the only person awake at Appellant’s apartment when this

incident is alleged to have occurred was Appellant when she woke up during the

alleged incident. Therefore, the jury’s verdict on guilt or innocence depended

almost entirely on its assessment of R.R.’s and Appellant’s credibility.

        There could be no reasonable basis for failing to have the court weigh these

factors and make a ruling before admitting evidence of these convictions before the

jury.

        I. Eliciting inadmissible facts regarding Appellant’s prior convictions.

        During the trial, defense counsel elicited potentially inadmissible facts

regarding Appellant’s prior convictions and his status as a registered sex offender.

        [Defense Counsel]:       Now, you went to the database and know that he
                                 was a sex offender?

        [John Colburn]:          Yes, sir. (IV R.R. at 165.)

        and

        [Defense Counsel]:       Did you know Mr. Cavitt was in the penitentiary
                                 for about 34 years?

        [Gabriale Cavitt]:       Yes, sir. (V R.R. at 110.)

        Defense counsel elicited further facts regarding Appellant’s criminal history

and the length of time Appellant spent incarcerated on his prior convictions, which

would be inadmissible at the guilt-innocence stage of the trial.
                                          29
[Defense Counsel]:   The first time you went to prison was when, if you
                     recall?

[Appellant]:         In the early, early ‘70s.

[Defense Counsel]:   What was that for?

[Appellant]:         Accessory to robbery.

[Defense Counsel]:   Accessory to robbery. All right. How long did you
                     stay in prison that time.

[Appellant]:         Twenty—eighteen, nineteen years, something like
                     that. A long time.

[Defense Counsel]:   Okay. Eighteen to nineteen years?

[Appellant]:         Yes, sir. (V R.R. at 114.)

[Defense Counsel]:   Sure. Okay. And then you messed up again and
                     went to prison; is that correct[?]

[Appellant]:         Yes, sir.

[Defense Counsel]:   When was that?

[Appellant]:         I think it was ’86.

[Defense Counsel]:   1986. What was that for?

[Appellant]:         I had got a forgery by passing check case.

[Defense Counsel]:   So, you had a forgery in there. How long were you
                     in prison that time.

[Appellant]:         I was in there – I think like maybe six months or
                     seven months because it got reversed.



                                 30
      [Defense Counsel]:        Okay. So, you don’t have a conviction for that as
                                far as you know?

      [Appellant]:              No, not as far as I know.

      [Defense Counsel]:        Now, did you then go to prison again?

      [Appellant]:              Yes, sir.

      [Defense Counsel]:        When was that?

      [Appellant]:              I don’t remember what year it was.

      [Defense Counsel]:        Okay. And what was that for?

      [Appellant]:              Sexual assault.

      [Defense Counsel]:        Sexual assault?

      [Appellant]:              Right.

      [Defense Counsel]:        How long were in prison that time?

      [Appellant]:              I would say it was 16-and-a-half-years or 17-and-
                                a-half years.

      [Defense Counsel]:        All right. So how many total years have you been
                                in prison.

      [Appellant]:              Thirty-five and one-half years. (V RR. At 116-17.)

      Generally, even though prior conviction may be admissible, details of that

conviction are not. Lape v. State, 893 S.W.2d 949 (Tex. App. – Houston [14th

Dist.], pet ref’d.); Jabari v. State, 273 S.W.3d 745 (Tex. App. – Houston [1st Dist.

2008, no pet.). The information elicited by defense counsel would have been


                                            31
inadmissible, and this information impacted his right to a fair trial and his

presumption of innocence.

      J. Failing to object to the State’s questioning of Appellant regarding
         details of his previous sexual assault conviction.

      Trial counsel failed to object to inadmissible details regarding Appellant’s

prior conviction for sexual assault.

      [Prosecutor]:              The case that you plead guilty to back in 1988
                                 involved a complaining witness who was a female,
                                 right?

      [Appellant]:               1988, yes, sir.

      [Prosecutor]:              The prior sexual assault. She was 18 years old,
                                 right?

      [Appellant]:               Yes, sir.

      [Prosecutor]:              And you said you pled to that and got 18 years and
                                 you finished that up around 2005, 2006?

      [Appellant]:               Yes, sir. (V R.R. at 187.)

      As stated above, supra, Generally, even though prior conviction may be

admissible, details of that conviction are not. Lape v. State, 893 S.W.2d 949 (Tex.

App. – Houston [14th Dist.], pet ref’d.); Jabari v. State, 273 S.W.3d 745 (Tex. App.

– Houston [1st Dist. 2008, no pet.). The harmful effect of this testimony was

exacerbated by Dr. Lawrence Thompson Jr.’s testimony regarding attraction to

children of a certain age. (IV R.R. at 202-03.) There could not be a valid


                                             32
strategically reason for failing to object to the prosecutor’s question eliciting

inadmissible and harmful information.

      K. Harm

      Appellant was harmed based on the attorney’s ineffective assistance since he

was denied the presumption of innocence by trial counsel commenting on his

lengthy pretrial incarceration, his lengthy criminal history and venireperson 39 was

placed on the jury who stated that he would have trouble finding appellant credible

when he has a prior similar crime. Moreover, he was denied a fair trial by

counsel’s failure to secure the presence of material witnesses to testify at trial in

his defense, his counsel’s failure to elicit testimony regarding R.R.’s motive to

make up this allegation from the witnesses who did testify, his counsel’s failure to

object to inadmissible expert testimony regarding appellant’s likelihood of

reoffending during the guilt-innocence stage of trial, his trial counsel’s introduction

of his prior convictions without a ruling as to their admissibility, his trial counsel

eliciting facts regarding Appellant’s prior convictions and failing to object to the

State’s introduction of facts regarding his prior convictions. Additionally,

Appellant was harmed as a result of counsel’s failure to advise him of the

disadvantages of testifying since his prior criminal history was revealed.




                                          33
       Issue Two: The trial court erred in denying Appellant’s motion
       for a speedy trial.

       Appellant hereby incorporates by reference the Statement of Facts portion of

this brief as set forth at 3-8, supra.

       A defendant does not have the right to hybrid representation. Robinson v.

State, 240 S.W.3d 919 (Tex. Crim. App. 2007). A trial court is free to disregard

any pro se motions presented by a defendant who is represented by counsel. Id.

However, once a trial court actually rules on a pro se motion, that ruling is subject

to appellate review. Id. at 922. Additionally, defense counsel adopted all of the

pros se motions filed by Appellant. (V R.R. at 184.)

       The defendant’s assertion of his speedy trial right is entitled to strong

evidentiary weight in determining whether the defendant is being deprived of that

right. Appellant filed a pro se motion for a speedy trial on August 19, 2013. (MNT,

Def.’s Ex. 20.) The Defendant was incarcerated on this charge on April 3, 2012. At

that point the Defendant had already been incarcerated for over one year and four

months. The trial court denied this motion on August 21, 2013. (MNT, Def.’s Ex.

20.)

       The court is to analyze a speedy trial decision by looking at four specific

factors laid out by Barker v. Wingo: (1) whether the delay before trial was

uncommonly long; (2) whether the government or the criminal defendant is more


                                         34
to blame for that delay; (3) whether, in due course, the defendant asserted his right

to a speedy trial; and (4) whether he suffered prejudice as the delay’s result.

Zamaro v. State, 84 S.W.3d 643 (Tex. Crim. App. 2002)(en banc)(citing citing

Barker v. Wingo, 407 U.S. 515 (1970)). The courts “must analyze federal

constitutional claims by first weighing the strength of the above factors and then

balancing their relative weights in light of ‘the conduct of both the prosecution and

the defendant.’” Id. at 648 (Barker v. Wingo, 407 U.S. at 530).

      The first factor is the length of the delay. Id. “The length of the delay

between an initial charge and trial (or the defendant’s demand for a speedy trial)

acts as a ‘triggering mechanism’” Id. In Harris v. State, the Texas Court of

Criminal Appeals recognized that a delay of eight months or longer is

presumptively unreasonable and triggers speedy trial analysis. 827 S.W.2d 949

(Tex. Crim. App. 1992)(en banc). Therefore, in the instant case, the delay of over

one year and four months before the Defendant filed the motion for speedy trial

triggered a speedy trial analysis and this factor weights against the State.

      The second factor is the reason for the delay. Where the record is silent

regarding the reason for the delay this factor weighs against the State. Zamaro v.

State, 84 S.W.3d at 650.

      The third factor is assertion of the right. The defendant has no duty to bring

himself to trial; that is the State’s duty. Id. at 651. However, “the defendant’s
                                          35
assertion of his speedy trial right is entitled to strong evidentiary weight in

determining whether the defendant is being deprived of the right.” Id. This factor

weights in the defendant’s favor.

      The final factor is prejudice caused by the delay. “’Prejudice of course,

should be assessed in light of the interests of defendants which the speedy trial

right was designed to protect.’ The Supreme Court has identified three such

interests: 1) to prevent oppressive pretrial incarceration; 2) to minimize anxiety and

concern of the accused; and 3) to limit the possibility that he defense will be

impaired. Although the last type of prejudice is the most serious, a defendant’s

claim of a speedy trial violation need not necessarily demonstrate prejudice to his

ability to present defensive matters.” Id. at 652.

      In this case, Appellant informed the court in his motion for speedy trial that

he has lost one or more witnesses because they moved and he no longer has an

address for them. Additionally, Appellant sent numerous letters to the court

informing the court that he was dying from his numerous ailments, which brought

anxiety and concern to Appellant since his access to medical care was limited and

he was spending his limited time remaining awaiting trial. These letters also show

Appellant’s anxiety and concern while incarcerated. Appellant also stated in a

couple of the letters to the trial court that he is not receiving the right treatment and



                                           36
medication in jail. (MNT, Def.’s Ex. 5, 12, 17, 20.) These factors weight in favor

of Appellant.

       Therefore, Appellant’s right to a speedy trial was violated, and the trial court

erred in denying the Appellant’s motion for a speedy trial.

       Issue Three: The trial court erred by failing to grant an
       evidentiary hearing on the Motion for New Trial.

       Appellant hereby incorporates by reference the Statement of Facts portion of

this brief as set forth at 3-8, supra.

       Because Appellant’s motion for new trial was supported by affidavit, raised

matters outside of the record, and was timely filed and presented to this Court,

Appellant was entitled to an evidentiary hearing. See Reyes v. State, 849 S.W.2d

812, 816 (Tex. Crim. App. 1993). Failure to conduct an evidentiary hearing was

an abuse of the trial court’s discretion. Id.

       Appellant’s motion for new trial, supported by his affidavit, was filed in a

timely manner. The motion raised matters not determinable from the record,

namely that counsel was ineffective regarding matters outside of the trial

transcript. Because appellant’s motion for new trial raised matters not determinable

from the record upon which he could be entitled to relief, the trial judge abused his

discretion in failing to hold a hearing. Id. Therefore, if the judgment is not reversed

and remanded for a new trial based on the sworn affidavits and information in the


                                           37
Motion for New Trial, the cause should be remanded to the trial court for a hearing

on appellant’s Motion for New Trial. See id.

       Issue Four: The trial court erred by bringing a material defense
       witness, D.R. into the courtroom, handcuffed, and in a jail
       uniform.

       Appellant hereby incorporates by reference the Statement of Facts portion of

this brief as set forth at 3-8, supra.

       “[P]ossible prejudice to a defendant should be avoided unless there are

sufficient reasons to have his witness appear handcuffed and in jail clothing.”

Thompson v. State, 514 S.W.2d 275 (Tex. Crim. App. 1974). The test on appeal is

whether the trial court abused its discretion in requiring the witness to appear in

jail uniform and handcuffed. Id. at 278. To enable the appellate court to review the

trial court’s action on appeal, “the record should contain the factual matters on

which the trial court’s discretion was based. It must appear in the record that in

exercise of its discretion the trial court had a fair knowledge and understanding of

all such factual matters.” Id. In this case, a material defense witness, D.R., was

brought into the courtroom in a jail uniform with handcuffs on her wrists and

shackles on her ankles. The handcuffs were removed from her wrists prior to her

testimony after the jury had already observed the handcuffs on the witness.

However, Ms. D.R. remained shackled at the ankles even during her testimony on

behalf of the defendant. This undoubtedly prejudiced her credibility with the jury
                                         38
and thereby prejudiced the defendant’s trial. The trial court abused its discretion

and a new trial should be ordered.

       Issue Five: A new trial should be granted based on newly
       discovered evidence.

       Appellant hereby incorporates by reference the Statement of Facts portion of

this brief as set forth at 3-8, supra.

       In order to grant a new trial based on newly discovered evidence the record

must reflect that: (1) the newly discovered evidence was unknown or unavailable

to the movant at the time of his trial; (2) the movant’s failure to discover or obtain

the evidence was not due to a lack of diligence; (3) the new evidence is admissible

and is not merely cumulative, corroborative, collateral or impeaching; and (4) the

new evidence is probably true and will probably bring about a different result on

another trial. Eddlemon v. State, 591 S.W.2d 847, 849 (Tex. Crim. App.

1979)(Panel No. 3).

       In the instant case, Deanna Hoedzoade informed Laverne Cavitt White after

the trial that she wanted to change her statement to the police. She wanted to give a

statement that they did not expect that it would go this far and that the allegation

was not true. (MNT at 14.) This evidence was not available prior to the trial, this

evidence would be admissible to impeach R.R.’s testimony if Deanna Hoedzoade




                                         39
assisted R.R. in fabricating this story, and this evidence would probably bring

about a different result on another trial.

                                        PRAYER

      FOR THESE REASONS, Appellant respectfully prays that this Honorable Court

reverse the trial court’s judgment of conviction and remand the case for a new trial,

or in the alternative, remanded to the trial court for an evidentiary hearing on the

motion for new trial, and for any other appropriate remedy.

                                         Respectfully submitted,


                                         /s/ Nicole DeBorde
                                         NICOLE DEBORDE
                                         TBA No. 00787344
                                         Bires Schaffer & DeBorde
                                         JPMorgan Chase Bank Building
                                         712 Main Street, Suite 2400
                                         Houston, Texas 77002
                                         Telephone: (713) 228-8500
                                         Facsimile: (713) 228-0034

                                         COUNSEL FOR APPELLANT




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                          CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9 of the Texas Rules of Appellant Procedure, the

undersigned counsel of record certifies that Appellant’s brief contains 8,937 words.




                                      /s/ Nicole DeBorde
                                      NICOLE DEBORDE




                                        41
                            CERTIFICATE OF SERVICE

      I certify that a copy of this Brief for Appellant has been served upon the

Harris County District Attorney’s Office – Appellate Section, on this 20th day of

March by leaving a copy with the Clerk of the this Court pursuant to local practice.




                                      /s/ Nicole DeBorde
                                      NICOLE DEBORDE




                                         42
