                                                                                         ACCEPTED
                                                                                    13-14-00309-CR
                                                                      THIRTEENTH COURT OF APPEALS
                                                                            CORPUS CHRISTI, TEXAS
                                                                               4/2/2015 11:26:57 AM
                                                                                   DORIAN RAMIREZ
                                                                                             CLERK

                           No. 13-14-00309-CR

                                 IN THE                    FILED IN
                                                   13th COURT OF APPEALS
                                                CORPUS CHRISTI/EDINBURG, TEXAS
                    THIRTEENTH COURT OF       APPEALS
                                                    4/2/2015 11:26:57 AM
                                                     DORIAN E. RAMIREZ
                             at Corpus Christi              Clerk
                            _______________

                       WILLAIM DAVID PARSONS

                               Appellant,

                                    v.

                         THE STATE OF TEXAS,

                                Appellee.
                            _______________

                 Appealed from Cause Number S-12-3254CR
                      In the 36th Judicial District Court of
                           San Patricio County, Texas
________________________________________________________________________
                              APPELLEE’S BRIEF
________________________________________________________________________

                                         Michael E. Welborn
                                         District Attorney

                                         Samuel B. Smith, Jr.
                                         Assistant District Attorney
                                         Texas Bar No. 18682570
                                         P.O. Box 1393
                                         Sinton, Texas 78387
                                         Tel. (361) 364-9390
                                         Fax (361) 364-9490
                                         samuel.smith@co.san-patricio.tx.us
                                         ATTORNEY FOR APPELLEE,
                                         THE STATE OF TEXAS
                         No. 13-14-00309-CR


                              IN THE

                 THIRTEENTH COURT OF APPEALS

                          at Corpus Christi
                         _______________

                     WILLAIM DAVID PARSONS

                             Appellant,

                                 v.

                      THE STATE OF TEXAS,

                             Appellee.
                         _______________

               Appealed from Cause Number S-12-3254CR
                  In the 36th Judicial District Court of
                       San Patricio County, Texas
__________________________________________________________________
                                 ______
                         TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL              iii

INDEX OF AUTHORITIES                         iv

STATEMENT OF THE CASE                        5

STATE’S REPLY TO APPELLANTS ISSUES           5

STATEMENT OF FACTS                           5,6,7,8

SUMMARY OF THE ARGUMENT AND                  8
REPLY TO APPELLANT’S FIRST ISSUE

ARGUMENT AND AUTHORITIES ISSUE NUMBER ONE    8,9,10

SUMMARY OF THE ARGUMENT AND                  10
REPLY TO APPELLANT’S SECOND ISSUE


ARGUMENT AND AUTHORITIES ISSUE NUMBER TWO    10, 11


CONCLUSION/PRAYER                            12

CERTIFICATE OF SERVICE                       12

CERTIFICATE OF COMPLIANCE                    13




                                     ii
                        IDENTITY OF PARTIES

APPELLANT:                                    William David Parsons

TRIAL JUDGE                                   Hon. Joel Johnson
                                              Judge Presiding
                                              36th Judicial District
                                              400 W. Sinton Street
                                              Sinton, Texas 78387

ATTORNEYS

TRIAL ATTORNEY FOR STATE                      Samuel Boyd Smith, Jr.
AND APPEAL                                    Assistant District Attorney
                                              SBOT 18682570
                                              P.O. Box 1393
                                              Sinton, Texas 78387
                                              361-364-9390
                                              samuel.smith@co.san-
                                              patricio.tx.us

FOR THE APPELLANT AT TRIAL                    John S. Gilmore, Jr.
                                              SBOT 07958500
                                              622 S. Tancahua
                                              Corpus Christi, Texas 78401
                                              361-882-4378

                                              Christopher Dorsey
                                              SBOT 24036493
                                              606 N. Carancahua
                                              Corpus Christi, Texas 78401
                                              361-882-9991

FOR THE APPELLANT ON APPEAL                   Richard W. Rodgers
                                              SBOT 17191200
                                              710 Buffalo Street Suite 202
                                              Corpus Christi, Texas 78401
                                              351-888-7620




                                iii
                                   INDEX OF AUTHORITIES

Cases                                                                        Page

Manns v State, 122 S.W. 3d 171(Tex. Crim. App, 2003)                         9

Manns v State, 122 S.W. 3d 171(Tex. Crim. App, 2003)                         10

Dossett v. State, 216 S.W. 3d, 7(Tex. App – San Antonio 2006, ( pet ref’d)   11

Powell v State, 63 S.W. 3d, 435 (Tex. Crim. App, 2001                        11

Tienda v State, 358 S.W. 3d, 633 (Tex. Crim. App, 2012)                      11



Rules and Statutes

Tex. Crim. Evid. 901(a)                                                      10




                                                  iv
                                    STATEMENT OF CASE

       William David Parsons (hereafter “Appellant”) was indicted for the offense of capital

murder on September 4, 2012. The offense occurred October 19, 2011. Clerk’s record (hereafter

“CR”) Volume (hereafter “V”) 1, pp. 6-7. The State did not seek the death penalty, CR, V 1, pp

105 – 110. A jury was selected May 27, 2014 and the case was tried on Appellant’s pleas of not

guilty. CR, V 1, pp 66, 67. Appellant testified in support of his plea of not guilty, Reporter’s

Record (hereafter “RR”), V. 10, pp 155-181. The jury found Appellant guilty of capital murder

on May 30, 2014. CR, V. 1, pp. 85-88. The court then assessed the mandatory life without

parole sentence. RR, V. 11, pp. 48, 49. Appellant gave timely notice of appeal. CR, V. 1, pp. 89,

90.

                        STATE’S REPLY TO APPELLANTS ISSUES

                                     ISSUE NUMBER ONE

       The trial court did not commit reversible error in admitting the letter and notes of the

Appellant’s. There is no evidence that the State and co-defendant Fuentes had entered into an

agency agreement.

                                     ISSUE NUMBER TWO

       State’s Exhibit 12 was properly admitted over Appellant’s objection. The trial court after

hearing the evidence establishing the chain of custody of the exhibit, from the seizure of the

exhibit from the Appellant to the delivery to the lab for testing, properly admitted Exhibit 12.



                                   STATEMENT OF FACTS

       The evidence at trial concerned the killing and robbery of George Cardenas, hereafter

“Cardenas.” The lifeless body of Cardenas was discovered October 20, 2011 in his home in San



                                                 5
Patricio County, Texas. RR, V. 9, p. 15. The house had been forcibly entered. RR, V. 9, p. 16.

There was evidence that Cardenas had been bludgeoned to death. RR, V. 9, pp. 17, 104.

Cardenas’ house had been ransacked and property taken. RR, V. 9, pp. 22, 91, 123. An

informant’s tip caused the investigation into the crime to focus on Appellant and Alvino Fuentes,

Jr. (hereafter “Fuentes”). RR, V. 9, p. 25. Fuentes 3 eventually told the investigators that he was

involved in Cardenas’ death, along with Appellant. RR, V. 9, p. 28. Appellant and Fuentes were

subsequently arrested. RR, V. 9, p.111. Appellant denied involvement in Cardenas’ death and

robbery, both during the investigation, RR, V. 9, p. 131, and at trial, RR, V. 10, pp. 148 – 152.

Accomplice witness Fuentes gave crucial testimony against Appellant at trial. He testified that he

and Appellant had been friends since high school. RR, V. 9, p. 189. He said that Appellant

formulated a plan to rob a drug dealer in October of 2012 in San Patricio County, Texas. RR, V.

9, pp. 193, 194. They walked to the man’s home. Appellant turned off the lights in the home by

the outside breaker box. Fuentes lay back while Appellant approached the front door and hit the

occupant with a roofing hammer and entered the home. RR, V. 9, pp. 193 - 195. Fuentes said he

helped Appellant by turning the lights back on at Appellant’s later command. RR, V. 9, p. 196.

Fuentes said he waited outside the home until he went in to tell Appellant it was time for the two

to escape. RR, V. 9, p. 198. The two then walked to a nearby bridge and split the money and

drugs Appellant had gotten while in the home. RR, V. 9, p. 198. The State corroborated Fuente’s

story about Appellant killing and robbing Cardenas by offering a number of written

communications from Appellant to Fuentes. These communications began after Fuentes had

confessed to law enforcement by telling them that he and Appellant had killed and robbed

Cardenas. RR, V. 9, p. 210. The communications were written while both men were in custody

after indictment and awaiting Appellant’s trial. RR, V. 9, 210. The inception of the writings



                                                 6
began when Fuentes and Appellant were placed in the same cell when they were first charged

with murder. They discussed the case and agreed that if they were separated, they would

communicate by coded correspondence. RR, V. 9, p. 206. Both Appellant and Fuentes were

represented by counsel at the time. RR, V. 9, p. 210. Fuentes testified at trial that he received a

number of notes and letters from Appellant after he and Appellant were separated. Fuentes’

practice was to turn the communications over to his attorney. The attorney would then give them

to the prosecutor’s office. RR, V. 9, p. 211. Fuentes admitted he had initiated the written

communications by writing Appellant the first letter. RR, V. 9, p. 216. Fuentes said the essence

of the communications was an attempt to induce him to take the blame or blame another for the

crime so Appellant could go free. RR, V. 9, p. 215. Appellant objected to each item of

correspondence based on a violation of his Sixth Amendment right to counsel. RR, V. 10, p. 12.

The Appellant’s attorneys’ took Fuentes on voir dire out of the presence of the jury. RR, V. 9, pp

209 - 231. The court after hearing the proffered testimony ruled that the State did not direct the

action of Fuentes and appellant’s objections were overruled. RR, V. 9, pp. 230, 231. The

communications, if taken at face value, strongly pointed to Appellant’s guilt. Exhibit 30 was a

note Appellant surreptitiously passed to Fuentes. RR, V. 10, pp. 13 – 15. In summary, it asked

Fuentes to take responsibility for the crime, along with another person. Appellant said that he

would financially reward Fuentes for this. Exhibit 31 was another secretly passed note. The note

asked Fuentes to say he had placed a blood smear on Appellant’s eyeglasses the day after the

murder. (This was in connection with a DNA analysis finding that Cardenas’ blood was on

eyeglasses worn by Appellant at the time of the murder. RR, V. 10, p. 111.) The State’s Exhibits

33, 33A, 33B, and 33C were letters delivered by U.S. Mail. Appellant again objected on Sixth

Amendment grounds. RR, V. 10, p. 27. The correspondence again alluded to the perjury



                                                  7
concerning the eyeglasses, with Appellant instructing that it was to be used only if “they come

back with stuff on them” i.e. the DNA evidence link. RR, V. 10, p. 29, 30, 36. The final

correspondence was another letter delivered by U.S. Mail. (Exhibits 34A, 34B, 34C.) It focused

on the eyeglasses and Appellant again asked Fuentes to say he placed the blood smear on the

eyeglasses. RR, V. 10, p. 35. It was also admitted over objection. Another key facet of the State’s

case against Appellant was evidence of a DNA analysis that concluded Cardenas’ blood was on

eyeglasses worn by Appellant. DNA expert Morales testified she tested a blood smear from

State’s Exhibit 12, a pair of eyeglasses and the result showed the blood was that of Cardenas.

RR, V. 10, p. 111. DNA expert Morales also testified that the results of the DNA analysis she

performed on the glasses indicated that Appellant and victim Carenas could not be excluded as

contributors. RR, V. 10 p. 115, lines 17 – 24. Appellant objected to the results of the test because

“the State has not proven at this time that these glasses were removed from Mr. Parsons.” RR, V.

10, pp. 112, 10 – 118. This objection was overruled and the eyeglasses and DNA testing results

were admitted in evidence. RR, V. 10, p. 118.

                        STATES REPLY TO APPELLANT’S ISSUES

                                     ISSUE NUMBER ONE

       The trial court did not commit reversible error in admitting the letter and notes of the

Appellant’s. There is no evidence that the State and co-defendant Fuentes had entered into an

agency agreement.

                              ARGUMENT AND AUTHORITIES



“In approaching a Sixth Amendment right-to-counsel question, as with many other constitutional

issues, we employ the now familiar bifurcated standard of review articulated in
v. State.7 An appellate court should afford “almost total deference” to a trial court's

determination of the historical facts and to its determination of mixed questions of law and fact

that turn on an evaluation of credibility and demeanor.8 Mixed questions of law and fact that do

not turn on credibility and demeanor are to be reviewed de novo.”Manns v State, 122 S.W. 3d

171(Tex. Crim. App, 2003) The trial court in this case, on Appellant’s request, conducted a

hearing out of the presence of the jury to determine the admissibility of the notes and letters

written by the Appellant. RR, V. 9, pp. 208 – 231. The trial court determined that an agency

relationship did not exist between the State and co-defendant Fuentes: : “I don't find

that this was an action on State directed action. It seems to be

a defense-cut-throat action. When you swim with sharks,

sometimes you get bitten” RR, V. 9, p. 231, lines 1-3.

       Appellant argues that the State “secretly elicited incriminating statements in the absence

of counsel,” yet offers absolutely no proof to substantiate this claim. In fact the examination

conducted by the trial court of Fuentes and his counsel reveals the opposite. It clearly shows the

State did not enter into an agency relationship with Fuentes and that Fuentes did this on his own

initiative. RR, V. 9, pp. 208 – 231. “Undoubtedly, most inmates who provide information to law

enforcement officials harbor the hope that their service will not go unrewarded. But as the court

cautioned in Lightbourne v. Dugger, “we must not confuse speculation about [an informant's]

motives for assisting the police for evidence that the police promised [the informant]

consideration for his help or, otherwise, bargained for his active assistance.” One might argue

that merely by providing the market for information, the government violates the right to

counsel, but that would be to overstate the government's role in most cases; the instinct for self-

preservation is as sharply honed, if not more so, in prison as it is elsewhere. From the moment



                                                  9
that suspects are arrested, they learn (if it had not already occurred to them) that cooperation with

the authorities may benefit them. That inmates realize there is a market for information about

crime does not make each inmate who enters the market a government agent.70” Manns v State,

122 S.W. 3d 171(Tex. Crim. App, 2003) It should also be noted that the Appellant testified that he

admitted to writing the letters and notes in an attempt to implicate his co-defendant Fuentes. RR,

V. 10, pp. 173-175.

       Under the facts of this case, viewed in the light most favorable to the trial court’s ruling,

Fuentes was not a government agent and State’s Exhibits 30, 31, 33A, 33B, 33C, 34, 34A, 34B,

and 34C were properly admitted.



                                         ISSUE NUMBER TWO

       State’s Exhibit 12 was properly admitted over Appellant’s objection. The trial court after

hearing the evidence establishing the chain of custody of the exhibit from the seizure of the

exhibit from the Appellant to the delivery to the lab for testing properly admitted Exhibit 12.



                              ARGUMENT AND AUTHORITIES

       Rule 901(a) provides that the authentication or identification of an item for admissibility

purposes is satisfied by evidence that is sufficient to support a finding that the item in question is

what its proponent claims. TEX.R. EVID. 901(a) The State provided testimony from

Investigator Gaitan that the glasses were seized by a search warrant from the Appellant in the

San Patricio County Jail. RR, V. 9, p. 28. Deputy Tucker testified that he picked up State’s

Exhibit 12 at the jail and delivered them to Deputy Rodriguez. RR, V. 9, p. 179. Deputy

Rodriguez testified that he delivered State’s Exhibit 12 to the DPS Crime Lab in Corpus Christi.



                                                  10
RR, V. 9, p. 160. Cynthia Morales, forensic scientist, testified she received State’s Exhibit 12 at

the crime lab in Corpus Christi. RR, V. 10 p. 111. Co-defendant Fuentes identified State’s

Exhibit 12 as the glasses Investigator Gaitan removed from Appellant’s face in the jail and that

they belonged to Appellant. RR, V. 10, pp. 22-23.

        “When the trial court does not make explicit findings of historical fact, we review the

evidence in a light most favorable to the court's ruling and assume the court made implicit fact

findings that are supported by the record.” Dossett v. State, 216 S.W. 3d, 7(Tex. App – San

Antonio 2006, ( pet ref’d) In this case the trial court heard the testimony from the witnesses and

determined that the chain of custody was established and that the glasses (Exhibit 12) were

sufficiently linked to the Appellant and it was admitted .

          “Because trial courts are in the best position to make the call on these substantive

admissibility questions, an appellate court must review a trial court's admissibility decision under

an abuse of discretion standard.” Powell v State, 63 S.W. 3d, 435 (Tex. Crim. App, 2001). The

ultimate question whether an item of evidence is what its proponent claims then becomes a

question for the fact-finder—the jury, in a jury trial. In performing its Rule 104gate-keeping

function, the trial court itself need not be persuaded that the proffered evidence is authentic. The

preliminary question for the trial court to decide is simply whether the proponent of the evidence

has supplied facts that are sufficient to support a reasonable jury determination that the evidence

he has proffered is authentic.” Tienda v State, 358 S.W. 3d, 633 (Tex. Crim. App, 2012) The

evidence concerning the chain of custody and authentication of State’s Exhibit 12 is more than

sufficient for their admissibility.

                                             PRAYER

        The appellant has presented no grounds in his appeal which justify the relief sought.



                                                 11
Accordingly, Appellee respectfully prays that this Honorable court affirm the judgment of the

trial court in all respects.



                                                    Respectfully submitted,

                                                    Michael Welborn
                                                    District Attorney

                                                    /s/ Samuel B. Smith, Jr.


                                                    Samuel B. Smith, Jr.
                                                    Assistant District Attorney
                                                    State Bar No. 18682570
                                                    P.O. Box 1393
                                                    Sinton, Texas 78387
                                                    Tel. (361) 364-9390
                                                    Fax (361) 364-9490
                                                    samuel.smith@co.san-patricio.tx.us


                                  CERTIFICATE OF SERVICE

      I hereby certify that on this 2nd day of April, 2015, a true and correct copy of the
above and foregoing instrument was mailed and faxed to Richard W. Rodgers, Attorney
for Appellant, 710 Buffalo St., Corpus Christi, Texas 78401and 361-888-7619.


                                                    /s/ Samuel B. Smith, Jr.
                                                    Samuel B. Smith, Jr.
                                                    Assistant District Attorney




                                               12
                            CERTIFICATE OF COMPLIANCE

     In compliance with Texas Rules of Appellate Procedure 9.4(i)(3), I certify that the
number of words in this brief, excluding those matters listed in Rule 9.4(i)(1), is 2750.




                                                /s/ Samuel B. Smith, Jr.
                                                Samuel B. Smith, Jr.
                                                Assistant District Attorney




                                           13
