Gregory Lopez v. State ( 2015 )

ACCEPTED
03-13-00852-CR
4380685
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/5/2015 10:25:53 AM
JEFFREY D. KYLE
CLERK
Case No. 03-13-00852-CR
_________________________________________ FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
3/5/2015 10:25:53 AM
IN THE THIRD COURT OF APPEALS JEFFREY D. KYLE
Clerk
__________________________________________________
GREGORY LOPEZ, Appellant
vs.
THE STATE OF TEXAS, Appellee
______________________________________________________
Appeal from Cause No. CR2012-396
From the 22nd Judicial District Court
of Comal County, Texas
_________________________________________
APPELLANT’S AMENDED BRIEF
REQUEST FOR ORAL ARGUMENT
David K. Sergi
Texas Bar No. 18036000
DAVID K. SERGI &
ASSOCIATES
329 S Guadalupe
San Marcos, TX 78666
Tel: 512.392.5010
Fax: 512.392.5042
E-Mail: david@sergilaw.com
Attorney for Appellant
1
IDENTITY OF PARTIES AND COUNSEL
APPELLANT
Mr. Gregory Lopez
APPELLEE
The State of Texas
DEFENSE COUNSEL AT TRIAL
David K. Sergi
State Bar No. 18036000
P.O. Box 887, San Marcos, Texas 78666
Tel: (512)-392-5010
Fax: (512) 392-5042
E-Mail: david@sergilaw.com
STATE’S ATTORNEY AT TRIAL
Mr. Sammy McCrary
Comal County District Attorney’s Office
150 North Seguin Avenue, New Braunfels, Texas, 78130
Tel: (830) 221-1300
Fax: (830) 608-2008.
APPELLANT’S ATTORNEY ON APPEAL
David K. Sergi
State Bar No. 18036000
P.O. Box 887, San Marcos, Texas 78666
Tel: (512)-392-5010
Fax: (512) 392-5042
david@sergilaw.com
STATE’S ATTORNEY ON APPEAL
Mr. Sammy McCrary
Comal County District Attorney’s Office
150 North Seguin Avenue, New Braunfels, Texas, 78130
Tel: (830) 221-1300
Fax: (830) 608-2008
2
TABLE OF CONTENTS
Identity of Parties ............................................................................................ 2
Table of Contents ............................................................................................ 3
Index of Authorities ........................................................................................ 4
Statement of the Case ..................................................................................... 5
Statement Regarding Oral Arguments ............................................................ 6
Issues Presented .............................................................................................. 6
Statement of the Facts ..................................................................................... 7
Argument and Authorities .............................................................................. 9
Point of Error Number One
Prosecution made an impermissible comment alluding to the Appellant’s
failure to testify resulting in prosecutorial misconduct…………............ 11
Point of Error Number Two
The trial court erred in denying Defense’s motion for directed verdict
after a properly sustained objection after the prosecution made the
impermissible comment during his final closing argument violating the
Appellant’s state and federal Constitutional right to remain silent. ............ 18
Conclusion .................................................................................................... 22
Prayer ............................................................................................................ 23
Certificate of Service .................................................................................... 24
Certificate of Compliance ............................................................................. 25
3
Index of Authorities
Cases
Archie v. State, 340 S.W.3d 734 (Tex. Crim. App. 2011) ...................... 16, 19
Brown v. Mississippi, 297 U.S. 278, 286 (1936) .......................................... 17
Brown v. State, 814 S.W.2d 477, 479 (Tex. App.-Dallas 1991, pet. ref'd)... 13
Carlock v. State, 8 S.W.3d 717, 724 (Tex. App. - Waco 1999 pet. ref 'd). .. 19
Chavez
v.
Martinez,
538
U.S.
760
(2003)
.......................................................
17,
18
Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) ..................... 13
Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995) ............ 13, 15
Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.—Fort Worth 1997, pet.
ref'd) .............................................................................................................. 15
Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009)......................... 21
Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004)........................... 19
Longoria v. State, 154 S.W.3d 747, 763-64 (Tex. App.—Houston [14th Dist.]
2004, pet. ref'd). ............................................................................................ 20
Ludwig v. State, 428 S.W.3d 344, 351 (Tex. App.—Amarillo 2014)19, 20, 21
Madden v. State, 799 S.W.2d 683, 699 (Tex. Crim. App. 1990) ................. 14
Montoya v. State, 744 S.W.2d 15, 37 (Tex.Crim. App.1987) ...................... 13
Mosley v. State, 983 S.W.2d. 249 (Tex. C. App. 1998).......................... 19, 21
Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011). .............. 12
Sauceda
v.
State,
859
S.W.2d
469,
474
(Tex.
App.—Dallas
1993)
............
15
Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004) ............... 12, 13
Statutes
U.S. Const. amend. V. ...................................................................... 12, 13, 17
Tex. Const. Art. 1, § 10 ................................................................................ 13
TX R APP Rule 44.2(a) ................................................................................ 22
Tex. Pen. Code Ann. § 22.021 ........................................................................ 7
Tex. Crim. Proc. Code Ann. art. 38.07(a)..................................................... 21
Tex. Crim. Proc. Code Ann. art. 38.08 ......................................................... 12
4
Statement of the Case
This is a direct appeal from criminal cause number CR2011-599 in the 207th
Judicial District of Comal County. The Appellant, Gregory Lopez, was convicted
of Continuous Sexual Abuse of a Child. He was sentenced to fifty years in the
Texas Department of Criminal Justice.
5
Statement Regarding Oral Argument
Appellant requests oral argument in this case because he believes it will aid
the Court in making its determination as to the issues presented herein.
Issues Presented
Point of Error Number One
Prosecution made an impermissible comment alluding to the Appellant’s
failure to testify resulting in prosecutorial misconduct.
Point of Error Number Two
The trial court erred in denying Defense’s motion for directed verdict after
a properly sustained objection after the prosecution made the
impermissible comment during his final closing argument violating
the Appellant’s state and federal Constitutional right to remain silent.
6
Statement of Facts
The Appellant was convicted of continuous sexual assault of a child, A.M.,
and was sentenced to 50 years. See Tex. Pen. Code Ann. § 22.021. The claimant
testified the Appellant touched her two times, one time on the buttocks while living
at a residence on Dollar Drive and the other while living at a residence on Solms.
Both residences are located in Comal County, Texas1.
Mario Moreno, complainants grandfather, testified the Complainant has a
reputation for not always being truthful.2 The Complainant cried out by a text
message after she and her mother had been in an escalated verbal argument.3
Following the text message, the Complainant threatened her mother demanding her
mother choose either her or the Appellant.4
Complainant’s aunt, Alicia Trejo, testified she had found the text message
on her brothers phone,5 and claimed the complainant cried out to her at that time
after she confronted the victim about the text message.6 Then Trejo testified she
had told the victim “if she did not like the situation she was in, all she would have
to do is cry out,” in addition to that, she admitted “over the past 5 to 6 years you
1
R.R. Vol. IV, 114:6-116:5, Oct. 16, 2013
2
R.R. Vol. IV at 176:5-9
3
R.R. Vol. IV at 209:9-25
4
R.R. Vol. IV at 208:22-25
5
R.R. Vol. V at 82:4-83:3
6
R.R. Vol. V at 86:18-19
7
have told [the complainant] that if she needs help, she can outcry and then things
will change”.7
The Complainant admitted she was aware of the way CPS works and that
during previous opportunities to outcry she had not stated anything to CPS or
anyone else until the escalated fight with her mother occurred.8 In addition, on
several accounts the complainant testified about her dislike towards the Defendant
and how mad it made her.9
In closing argument, the prosecutor, in his final closing argument
commented “And that brings you down to the case. I told you in the beginning
there’s usually two people present when this occurs that can testify about it. . . .
But you get to hear both sides.” 10 The Defense had objected to the prosecutions
comment, while the prosecution protested, “I can talk about anything that’s in the
charge,” the trial court sustained the objection.11 A motion for mistrial was
requested by the defense after the sustained objection, the motion for mistrial was
denied.12 Following the denied motion for mistrial, the trial court provided
curative instructions.13 The prosecution immediately followed the trial courts
7
R.R. Vol. V 5:19-21.)
8
R.R. Vol. IV at 127:2-129:2; 155:7-156:3
9
R.R. Vol. IV at 140:9-13 See also R.R. Vol. IV at 143:7-13; R.R. Vol. IV at 149:7-19.; R.R.
Vol. IV at 157:10-12
10
R.R. Vol. VI at 45:16-20
11
R.R. Vol. VI at 45:21-46:21
12
R.R. Vol. VI at 46:23-47:1
13
R.R. Vol. VI at 47:7-18
8
instructions with the comment “You still get to hear from the Defendant because
he talked to the police.14 In addition, the prosecution directly commented “he’s
admitted to this crime. He talks about touching this little girl,” and at the same time
he directly points out an exact time on the interrogation video admitted as exhibit
one.15 In the final four paragraphs, the prosecutor reminds the jury and emphasizes
that the Complainant “’sat here and she testified and told y’all what happened,’ . . .
and that she ‘sat right here and [] told you what this man did to her.’”16 After the
jury had found the Appellant guilty of continuous sexual assault, the Defense
renewed its motion for mistrial and the trial court denied its motion once again.17
Summary of the Argument
This case must be reversed and rendered because of the prosecutors’ flagrant
violation of the Appellant’s right to silence. Remanded because under the Fifth and
Fourteenth Amendment of the United States and Texas Statutory law a Appellant
being accused with a criminal charge has the right not to self incriminate. In the
present case the prosecution had manifestly intended through an impermissible
comment, in his final closing argument, referring to pre-arrest and pre-Miranda
interrogation video alluding to the fact the Appellant failed to testify therefore
making an impermissible comment that is so prejudicial it is unable to cure the
14
R.R. Vol. VI at 47:22-23
15
R.R. Vol. VI at 50:10-18
16
R.R. Vol. VI at 51:5-13
17
R.R. Vol. VII at 7:8-10:11
9
jury’s prejudicial effect. Second, the trial court abused its discretion when it denied
the defense’s proper objection to the prosecutorial misconduct after the prosecution
violated the Appellant’s Fifth Amendment right to remain silent. As a result, the
jury rendered a verdict contrary to the law.
Standard of Review
As to the first point of error, review by the appellate courts on an adverse
ruling on a de novo basis.
On appeal, the appellate courts do not engage in their own factual review,
but rather decide whether the trial court’s conclusions were supported by the
record. If the trial court’s findings are supported by the record, appellate courts are
not at liberty to disturb them, and on review, address only the question of whether
the trial court improperly applied the law to the facts.
When the posture of a case does not present issues of pure fact, or of mixed
questions of law and fact that turn on credibility or demeanor, and presents only
questions of the validity of the trial court’s legal rulings (as in the instant case), an
appellate court’s review is de novo.
Regarding the second point of error is also reviewed on a de novo basis.
10
ARGUMENT AND AUTHORITIES
Point of Error Number One
Prosecution made an impermissible comment alluding to the Appellant’s
failure to testify resulting in prosecutorial misconduct.
I. The Prosecutor made commentary alluding to the fact that Lopez failed to
testify therefore he had made an improper comment that is reversible error.
In the prosecutor’s final closing argument he clearly made an impermissible
comment during his final closing argument when he claimed, “I told you in the
beginning there's usually two people present when this occurs that can testify about
it. One of them has a right not to. . . . But you get to hear both sides”.18 In the
bench conference, it is clear by the record the prosecutor believed that it is
appropriate and proper to comment on the Appellants right to remain silent and
indicated he intentionally made the comment by his statement “I can talk about
anything that is in the charge.”19
Upon hearing the prosecutors comment the defense appropriately objected to
the impermissible comment and requested to approach the bench.20 Following the
bench discussion the trial court sustained the objection and the defense
immediately requested for proper jury instructions to disregard the last comment
followed by a request for mistrial.21 While the court had given curative
18
R.R. Vol. VI at 45
19
R.R. Vol. VI at 46
20
R.R. Vol. VI, at 45
21
R.R. Vol. VI at 46
11
instructions to disregard the last comment, it denied the request for mistrial.22
The Texas Code of Criminal Procedures. Art. 38.08, states “any Appellant in
a criminal action shall be permitted to testify in his own behalf therein, but the
failure of any Appellant to . . . testify shall not be taken as a circumstance against
him, nor shall the same be alluded to or commented on by counsel in the cause.”
Tex. Crim. Proc. Code Ann. art. 38.08. Under the Fifth Amendment “No person . .
. shall be compelled in any criminal case to be a witness against himself, U.S.
Const. amend. V-Self Incrimination. The Texas Court of Appeals holds “a
comment on a Appellant's failure to testify violates both the state and federal
constitutions as well as Texas statutory law.” Randolph v. State, 353 S.W.3d 887,
891 (Tex. Crim. App. 2011).
In order for a comment to be impermissible, “the implication that the State
referred to the Appellant's failure to testify must be a clear and necessary one.” Id.
When assessing whether the Appellant's Fifth Amendment right has been violated,
the courts have held “it must view the State's argument from the jury's standpoint
and resolve any ambiguities in the language in favor of it being a permissible
argument. Id.
The Fifth Amendment generally prohibits a prosecutor from making adverse
comment about a Appellant’s decision not to testify at trial. Wead v. State, 129
22
R.R. Vol. VI at 46
12
S.W.3d 126, 130 (Tex. Crim. App. 2004). An argument, combined with physical
actions, can be of such a character that the jury would naturally and necessarily
take it to be a comment on the Appellant's failure to testify. U.S. Const. amend. V;
Tex. Const. art. 1, § 10. The Texas Court of Criminal Appeals went on to hold
“Our law is clear that commenting upon the Appellant's non-testimonial courtroom
behavior to establish guilt is improper argument. Wead at 128. Generally a
“Permissible jury argument is limited to four areas: 1) summation of the evidence;
2) reasonable deductions from the evidence; 3) responses to opposing counsel's
argument; and, 4) pleas for law enforcement.” Dinkins v. State, 894 S.W.2d 330,
357 (Tex. Crim. App. 1995).
The Court holds it “must reverse a conviction if a prosecutor makes an
impermissible comment on an accused's failure to testify and directs the jury's
attention to the absence of evidence that only the Appellant can supply. Brown v.
State, 814 S.W.2d 477, 479 (Tex. App.-Dallas 1991, pet. ref'd). Even more so, the
prohibition against commenting on a Appellant's silence at trial is rarely cured
through an instruction. Montoya v. State, 744 S.W.2d 15, 37 (Tex.Crim.
App.1987), overruled on other grounds by Cockrell v. State, 933 S.W.2d 73, 89
(Tex. Crim. App. 1996). In order to determine whether the comment was
permissible or impermissible, the court must determine whether the statements in
question were manifestly intended as, or from their character the jury would
13
naturally and necessarily take the statements as a comment on the Appellant's
failure to testify. Madden v. State, 799 S.W.2d 683, 699 (Tex. Crim. App. 1990),
cert. denied, 111 S. Ct. 2912 (1991).
In the present case there is no question that the prosecutor’s comments were
an impermissible comment alluding to the fact that Lopez failed to testify when the
prosecutor stated, “that brings us down to the case. I told you . . . there’s usually
two people present when this occurs that can testify about it. One of them has the
right not to. . . . But you get to hear both sides.”23 This is supported by the fact the
trial court sustained the objection indicating that it agreed it was an improper
comment and followed the sustained objection by not just simple instructions to
disregard the last comment, but a more thorough jury instruction to disregard the
prosecutions last comment. Furthermore, the trial court also indicated “the accused
has the right to remain silent for any purpose.”24 All the more, by the trial court
giving a detailed jury instruction, it implicitly acknowledged the prosecution had
made a comment in which constituted an improper comment violating the
Appellant’s Fifth amendment. In fact the record is quite clear by the prosecutor’s
statement “I can talk about anything that is in the charge.”25, that he intended to
make the comment, which demonstrates his manifest intent. By the improper
23
R.R. Vol. VI at 45
24
R.R. Vol. VI at 45-47
25
R.R. Vol. VI at 46
14
comment from the prosecutor combined with his physical action of looking and
pointing to the defense table, it would be very unlikely from the standpoint of the
jury that it would not naturally and necessarily be taken to be a comment on the
Appellant's failure to testify and should be considered an improper argument.
When the trial court sustains an objection [for an improper comment] and
instructs the jury to disregard but denies a Appellant's motion for a mistrial, the
issue is whether the trial court erred in denying the mistrial. Faulkner v. State, 940
S.W.2d 308, 312 (Tex. App.—Fort Worth 1997, pet. ref'd).
B. In order to determine if prosecutorial misconduct is reversible error,
the Appellate Court must consider if instructions to disregard impermissible
comment would cure its prejudicial effect.
To determine whether the error by the trial court is reversible, the court of
appeals considers “whether the argument was extreme, manifestly improper,
injects new and harmful facts into the case, or violates a mandatory statutory
provision and is thus so inflammatory that instructions to disregard the argument
cannot cure its prejudicial effect.” Sauceda v. State, 859 S.W.2d 469, 474 (Tex.
App.—Dallas 1993, pet. ref'd). And when an argument falls outside of these areas,
error occurs. Id. Generally the court holds that an instruction to disregard the
argument cures the error, Dinkins at 357 (1995), however, “Mistrial is the
appropriate remedy when . . . curative instructions are not likely to prevent the jury
15
from being unfairly prejudiced against the Appellant.’” Archie v. State, 340
S.W.3d 734, 739 (Tex. Crim. App. 2011)
Here in this case, there are several factors present that the trial court should
use to determine if there is reversible error. Even though the improper comment
made by the prosecutor was not extreme in the sense it was a direct statement
claiming Lopez did not testify as a witness, it was extreme and manifestly
improper by the fact the prosecution looked at the jury for the entire closing
argument except at the point he made the improper comment, when he stated
“there’s usually two people present when this occurs that can testify about it. One
of then has a right not to,”26, while turning and pointing at the defense table.
It may be that the prosecution had a legitimate summation of the evidence
for most of the jury argument, but even after the court instructed “the State not to
refer to the Appellant’s right to remain silent for any purpose,” 27the State blatantly
disregarded the courts instruction and continued its jury argument directly
indicating Lopez confessed to the crime and gave a specific time on the video,
17:13:55, along with a narration of what Lopez said, claiming it was Lopez
confessing. Yet, in fact it was Lopez denying it and claiming he was unaware that
he even touched her vagina and even if he possibly touched her vagina, it would
26
R.R. Vol. VI at 45
27
R.R. Vol. VI at 47
16
have been only accidental and in no way purposeful for any reason as verified by
Detective Schroeder’s testimony.28
As a result, the improper comment combined with this new fact that the
Appellant made a confession would be so inflammatory that any instructions to
disregard would not have cured its prejudicial affect. A confession would
exponentially strengthen the prosecutions case, making the improper comment a
clear and necessary one, especially because there is testimony from the victim’s
grandfather that Complainant is frequently dishonest.
Finally, there was a clear violation of a mandatory statutory provision that a
Appellant has a state and federal constitutional right not to be a witness against
himself. See U.S. CONST. amend. V; TEX. CONST. art. I, § 10. Under Chavez v.
Martinez, 538 U.S. 760 (2003), the Court ruled, “Statements compelled by police
interrogations of course may not be used against a Appellant at trial.” Chavez, at
767 (2003) (quoting Brown v. Mississippi, 297 U.S. 278, 286 (1936)), “but it is not
until their use in a criminal case that a violation of the Self-Incrimination Clause
occurs.” Chavez, at 767. The Court holds “It is well established that the
government may compel witnesses to testify at trial or before a grand jury, on pain
of contempt, so long as the witness is not the target of the criminal case in which
he testifies.” Chavez, at 767-68. The Court has continued to hold “we have long
28
R.R. Vol. IV at 17, 19
17
permitted the compulsion of incriminating testimony so long as those statements . .
. cannot be used against the speaker in any criminal trial. Chavez, at 768.
Here in this case it is obvious that Lopez is the target of the criminal case
and that he was at trial. The record clearly shows that Detective Schroeder used
known interrogation methods to compel the Appellant into making statements that
would eventually be used against him at trial.29 This is a clear violation of the
Appellants state and federal constitutional right not to testify. Since all the factors
the trial court look at to determine if the prosecutors comment was improper and it
is unlikely that the trial court’s instructions cured the affect of the prosecutor’s
comment, the trial court should have granted a mistrial, therefore the trial court
erred in denying the Appellant’s request for a mistrial.
Point of Error Number Two
The trial court erred in denying Defense’s motion for directed verdict after
a properly sustained objection after the prosecution made the
impermissible comment during his final closing argument violating
the Appellant’s state and federal Constitutional right to remain silent.
II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENYED
THE DEFENSES MOTION FOR DIRECTED VERDICT AFTER THE
PROSECUTION HAD MADE IMPROPER COMMENT RESULTING IN
CONSTITUTIONAL ERROR.
A. To be able to determine if the trial court had abused its discretion the
Appellate Court must do a harm analysis.
A review of the facts of this case Finding that the trial court erred in denying
the Appellant’s motion for a mistrial and dismissal, a harm analysis is required.
29
R.R. Vol. IV at 20-24
18
Carlock v. State, 8 S.W.3d 717, 724 (Tex. App. - Waco 1999 pet. ref 'd). The
appeal court holds to evaluate whether the trial court abused its discretion in
denying a mistrial for improper jury argument it uses a three factor analysis from
Mosley v. State, “(1) the severity of the misconduct (the magnitude of the
prejudicial effect of the prosecutor's remarks), (2) the measures adopted to cure the
misconduct (the efficacy of any cautionary instruction by the judge), and (3) the
certainty of conviction absent the misconduct (the strength of the evidence
supporting the conviction).” Archie, at 259 (Tex. Crim. App. 1998), citing Hawkins
v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004); Mosley v. State, 983 S.W.2d 249
(Tex.Crim.App.1998).
Under the first factor of the Mosley analysis appeal court must look at “the
severity of the misconduct (the magnitude of the prejudicial effect of the
prosecutor's remarks).” Archie, at 259 (Tex. Crim. App. 1998). “In analyzing the
‘severity’ or ‘magnitude’ of the prejudice, [the Court] look[s] at the context of the
statement and whether the statement was ever referred to during the balance of the
trial.” Ludwig v. State, 428 S.W.3d 344, 351 (Tex. App.—Amarillo 2014, no pet.).
In regards to the context of the prosecutor’s comment, taking the entire final
jury argument as a whole, the improper comment was directed at the fact the
Appellant had not testified. It is only after the objection is made and sustained that
the Prosecutor refers to the interrogation of the Appellant. Had the Prosecutors
19
intent been to actually refer to the interrogation as opposed to commenting on the
fact that the Appellant had not testified, then the Prosecutor would have responded
ot the objection by advising the Court that he was in fact referring to the
interrogation., By his silence in the face of the objection he has forfeited any right
to claim that his intent was otherwise. As a result, this factor weighs in favor of
reversal. This is a standard to which Texas Courts have held Defense attorneys for
decades.
The second Mosley factor examines the measures adopted to cure the
misconduct, which has been described as the “efficacy of any cautionary
instruction by the judge.” Ludwig v. State, 428 S.W.3d 344, 351 (Tex. App.—
Amarillo 2014, no pet.). In most circumstances, an instruction to disregard
improper argument is considered a sufficient response by the trial court. Longoria
v. State, 154 S.W.3d 747, 763-64 (Tex. App.—Houston [14th Dist.] 2004, pet.
ref'd). This is true even for comments on the Appellant's failure to testify, except in
the most blatant cases. Longoria v. State, at 764 (2004). Even though the trial court
had given instructions to disregard the prosecutor’s comment,30 there could hardly
be a more “blatant example” of a prosecutor’s comment alluding to an accused’s
failure to testify. The prosecutor had unmistakably and by design waited until his
final jury argument to bring the attention of the jury of the fact the Appellant failed
30
R.R. Vol. VI at 47
20
to testify by stating “there’s usually two people present when this occurs that can
testify about it. . . . But you get to hear both sides,” knowing this would inject
harmful facts into the case. As a result, it is unlikely the trial court’s instruction
cured the impact of the prosecutor’s improper argument and this factor would
weigh in favor of reversal.
The third Mosley factor considers the certainty of conviction absent the
misconduct, that is to say, the strength of the evidence supporting the conviction.
Ludwig v. State, 428 S.W.3d 344, 351 (Tex. App.—Amarillo 2014, no pet.) In the
present case it would be very unlikely that any reasonable jury would be able to
convict the Appellant beyond a reasonable doubt without the testimony and a
confession by the Appellant. Although it is well known that a jury can convict
based solely on the testimony of the complainant, Tex. Crim. Proc. Code Ann. art.
38.07(a), However without a confession from the Appellant, it is very unlikely that
the jury would have convicted based off that testimony alone.
Here in this case, the “evidence related to child victim's anger toward
Appellant . . . to show victim's motive to falsely accuse Appellant of sexual
molestation,” Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009), is clearly
present throughout the record. Second, there was testimony by the claimant’s own
family claiming she has previously lied.31 Third, there is testimony from the
31
R.R. Vol. IV at 176:8-10
21
complainant’s aunt, Alicia Trejo, demonstrating she is source that may have
provoked the complainant to fabricate a false allegation.32 Most importantly, there
is testimony by the complainant indicating she is familiar with CPS and the
standard question that are asked each time regarding sexual abuse, giving the
complainant the present knowledge of the consequences when an allegation is
made.33 For all those reasons, it would be difficult to say that the evidence was so
overwhelming that without the improper comment by the prosecution that any
reasonable jury would have maintained a conviction.
As a result, certainty of the conviction beyond a reasonable doubt by a
reasonable jury would be very unlikely considering the evidence in its entirety
absent the prosecutors misconduct. This factor, once again, weighs in favor of
reversal. Having analyzed the Mosley factors, it cannot be said beyond a
reasonable doubt that the trial court’s error was harmless. As a result, a reversal is
required. TX R APP Rule 44.2(a).
CONCLUSION
In light of the aforementioned discussion and analysis, it is clear that
reversible error occurred and that reversal must be granted and the case rendered
due to the severity of the harm, or, the alternative that the case be remanded for a
new trial.
32
R.R. Vol. V at 76-79, 83
33
R.R. Vol. IV at 155:10-156:1
22
PRAYER FOR RELIEF
Appellant request that this Honorable Court grant a reversal and rending of
the verdict in Appellants favor, or in the alternative that the case be remanded
because the prosecutor had made an impermissibly commented on the Appellant’s
failure to testify in the guilt/innocence phase of trial resulting in an incurable
prejudicial effect. And because the trial court abused its discretion by denying a
directed verdict after the prosecutorial misconduct that resulted in a Constitutional
Error.
Appellant further requests any other relief to which he may be legally
entitled.
Respectfully submitted,
Sergi and Associates P.C.
329 South Guadalupe Street
San Marcos, Texas 78666
Tel: 512 392 5010
Fax: 512 392 5042
Email: David@Sergilaw.com
By:/s/ David K. Sergi
David K. Sergi
State Bar No. 18036000
E-Mail: david@sergilaw.com
Attorney for Gregory Lopez
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CERTIFICATE
OF
SERVICE
I
hereby
certify
that
on
the
5th
day
of
March,
2015,
a
true
and
correct
copy
of
the
foregoing
amended
brief
was
served
via
electronic
filing
to
the
District
Attorney's
Office,
Comal
County,
150
North
Seguin
Street,
New
Braunfels,
Texas
78130.
/s/
David
K.
Sergi
David
K.
Sergi
24
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of the Texas
Rules of Appellate Procedure 9.4(i)(2)(A) because:
i. This brief contains 3,964 words, excluding the parts of the
brief exempted by TEX.R.AP.P. 9.4(I)(1)
2. This brief complies with the typeface requirements of
TEX.R.APP.P. 9.4(e) because:
i. This brief has been prepared in a proportionally spaced
typeface using Microsoft Work in 14 pt. Times New Roman.
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