Javier Noel Campos v. State ( 2015 )

ACCEPTED
01-13-00416-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/21/2015 9:12:55 AM
CHRISTOPHER PRINE
CLERK
No: 01-13-00415-CR
No: 01-13-00416-CR
No: 01-13-00417-CR FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
12/21/2015 9:12:55 AM
IN THE TEXAS COURT OF APPEALS CHRISTOPHER A. PRINE
Clerk
FIRST JUDICIAL DISTRICT
HOUSTON, TEXAS
JAVIER NOEL CAMPOS
Defendant - Appellant
vs.
THE STATE OF TEXAS
Plaintiff - Appellee
APPELLANT'S BRIEFS ON REMAND FROM
THE TEXAS COURT OF CRIMINAL APPEALS
Appealed from the 184TH District Court
Harris County, Texas
Trial Court Cause Numbers:
1308988
1328806
1328807
WAYNE T. HILL
Texas Bar No: 09656300
4615 Southwest Freeway, Suite 600
Houston, Texas 77027
Tel: (713) 623-8312 Fax: (713) 626-0182
wthlaw@aol.com
Oral argument is not requested
IDENTITY OF PARTIES AND COUNSEL
Presiding Judge at Trial
Honorable Jan Kroeker
184th Judicial District Court
1201 Franklin
Houston, Texas 77002
Attorneys for State
At trial:
Gregg Houlton
Tiffany Johnson
Assistant District Attorneys
1201 Fannin
Houston, Texas 77002
On Appeal:
Eric Kugler
Clinton A. Morgan
Assistant District Attorneys
1201 Franklin
Houston, Texas 77002
Attorney for Appellant
At trial:
Diana Olvera
Danilo Lacayo
Public Defender's Office
1201 Franklin, 13 1h Floor
Houston, Texas 77002
On appeal:
Wayne T. Hill
4615 Southwest Freeway, Suite 600
Houston, Texas 77027
The Appellant
Javier Noel Campos
11
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 11
TABLE OF CONTENTS 111
INDEX OF AUTHORITIES lV
ISSUE BEFORE THE COURT ON REMAND v
SUMMARYOFARGUMENT v
STATEMENT OF THE CASES 1
PROCEDURAL HISTORY OF THE CASES 1
STATEMENT REGARDING ORAL ARGUMENT 2
STATEMENT OF FACTS RELATING TO REMAND 2
ARGUMENT AND AUTHORITIES 3
PRAYER FOR RELIEF 10
CERTIFICATE OF WORD COUNT COMPLIANCE 11
CERTIFICATE OF SERVICE 11
111
INDEX OF AUTHORITIES
STATUTES
Texas Rules of Evidence - 404(b) 10
Texas Rules of Evidence - 609(b) 3,4,5,7,8,10
Texas Rules of Appellate Procedure - 44.2(a) 8,10
Texas Rules of Appellate Procedure - 44.2(b) 8,10
Texas Rules of Appellate Procedure - 81 (b) 9
Federal Rules of Evidence - 609(b) 8,9
CASE LAW
Battles v. State 6
Brown v. State 9,10
Butler v. State 4,6,8,9
Hankins v. State 4
Hernandez v. State 4,9
Jones-Jackson v. State 5
Kotteakos v. U.S. 9
Leyba v. State 4
Meadows v. State 1,4,5,7
Miller v. State 7
Mireles v. State 6
Theus v. State 2,4,5,6,7
U.S. v. Bensimon 7
U.S. v. Brown 8
U.S. v. Cathery 8
IV
ISSUE BEFORE THE COURT ON REMAND
POINT OF ERROR #9 (on original submission)
THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO CROSS
EXAMINE APPELLANT CONCERNING A CONVICTION WHICH WAS MORE
THAN TEN YEARS OLD [Appendix# 1] (R-VI-68-73)
The Texas Court of Criminal Appeals has instructed this Court to consider the
admissibility of the challenged remote conviction in Appellant's case in light of the
opinion issued by the Court of Criminal Appeals in Meadows v. State, 455 S.W.3d 166
(Tex. Crim. App. 2015)
SUMMARY OF THE ARGUMENT
Because there has been no showing of compliance with Rule 609(b) TRE which
prohibits the admission of a prior conviction to impeach a witness if more than ten ( 10) years
has elapsed since the date of conviction or release of the witness from confinement imposed
for that conviction unless the court determines, in the interest of justice, that the probative
value ofthe conviction supported by specific facts and circumstances substantially outweighs
its prejudicial effect, Appellant is entitled to a new trial.
v
STATEMENT OF THE CASES
Appellant was tried on three separate indictments. Each indictment alleged the offense
of aggravated sexual assault of a child. The same person was named as the complainant in
each indictment. Cause No: 1308988 - (CR-I-26). Cause No: 1328806 - (CR-I-10) and
Cause No: 1328807 - (CR-I-10) A jury found Appellant guilty in each case and set his
punishment at sixty-eight (68) years in the Texas Department of Criminal Justice -
Institutional Division. Upon motion of the State, the trial court cumulated Appellant's
sentences as follows: The sentence in Cause No: 1308988 to be served first, and that the
sentence in Cause No: 1328806 run concurrent with the sentence in Cause No: 1308988, and
the sentence in cause No: 1328807 be cumulated; that is, stacked upon the other two
sentences, to be served when those two (1308988 & 1328806) are concluded. (R-XI-10)
PROCEDURAL HISTORY OF THE CASES
Each of the cases noted above were appealed. On January 13, 2015, this Court
affirmed Appellant's three convictions. Appellant filed Petitions for Discretionary Review
in the Court of Criminal Appeals seeking to have this Court's holding set aside. On July 29,
2015, the Court of Criminal Appeals vacated this Court's judgment and remanded the cases
to this Court for reconsideration of Appellant's Point of Error Number 9 (only) in light of
Meadows v. State, 455 S.W.3d 166 (Tex. Crim. App. 2015). This Court was instructed to
consider the admissibility of the challenged remote conviction in Appellant's case in light
of the opinion issued by the Court of Criminal Appeals in Meadows.
I
STATEMENT REGARDING ORAL ARGUMENT
Appellant is not requesting oral argument in these cases.
STATEMENT OF FACTS RELATING TO REMAND
The Statement of Facts recited herein will focus only on the issue remanded to this
Court by the Court of Criminal Appeals [Point of Error 9 on original submission] regarding
the admissibility of the challenged remote conviction during Appellant's appearance as a
witness during trial.
Prior to trial, Appellant filed a Motion to Testify Free of Impeachment by Prior
Convictions [Appendix 1] - citing: Theus v. State, 845 S.W.2d 874 (Tex. Crim. App.1992)
as authority for that proposition. The motion was filed in response to the State's notice to
Appellant that it intended to offer evidence against Appellant concerning several prior
convictions (CR-I-112-115), including:
1. June 11, 1992 conviction for felony aggravated assault (2 counts).
2. May 20, 2004 conviction for misdemeanor harboring a runaway child.
3. February 10, 2006 conviction for misdemeanor assault family member.
During the hearing on admissibility of prior convictions, the trial court recited her
application of the "tagging" rule in articulating her reasoning for permitting the State to
introduce a remote conviction from 1992 which was clearly more than ten ( 10) years old. (R-
VI-71) The trial court's reliance on the "tagging" [actually the"tacking"] rule revealed how
the court thought the other challenged misdemeanor convictions made the 1992 felony
conviction for two (2) counts of aggravated assault admissible, despite the express
2
prohibition of this type ofimpeachment under Rule 609(b). The trial court alluded to having
performed a balancing test without providing any insight into how the admission of a remote
conviction was "in the interests of justice" or providing any specific facts and
circumstances establishing that the "probative value" of the remote conviction
substantially outweighed its prejudicial effect. (Emphasis supplied)
The trial court overruled Appellant's motion and authorized the State to cross examine
Appellant (if he testified) about the above-cited prior convictions, including the remote ones
from 1992 - involving two (2) counts of aggravated assault.
As set forth in Appellant's Brief on original submission [also see: Appendix# 2],
Appellant testified that he did not sexually assault the complainant. (R-VI-96) Additional
witnesses testified during the defense presentation.
Appellant was then cross examined by the State regarding his 1992 conviction for two
(2) counts of felony aggravated assault. (R-VI-98) The jury found Appellant guilty on all
three charges and assessed his punishment at sixty-eight (68) years in prison. (R-XI-10)
ARGUMENT AND AUTHORITIES
Rule 609 (b) of the Texas Rules of Evidence provides that evidence of a conviction
under this rule is not admissible if a period of more than ten years has elapsed since the
date of the conviction or of the release of the witness from the confinement imposed for that
conviction, which ever is the later date, unless the court determines, in the interest of
justice, that the probative value of the conviction supported by specific facts and
circumstances substantially outweigh its prejudicial effect. (emphasis supplied)
3
There is no dispute that Appellant's 1992 conviction for two (2) counts of aggravated
assault constitutes a remote conviction under Rule 609(b) of the Texas Rules of Evidence.
On remand, this Court must look exclusively to the strictures of Rule 609(b ), not the
multiple factors set out in Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992). The
Theus case, which did not involve a remote conviction, interprets Rule 609( a), not Rule
609(b). Hernandez v. State, 976 S.W.2d 753 (Tex. App. [Houston, rt] 1998, pet. ref'd)
Interestingly, in a case where the defense attempted to impeach a prosecution witness with
remote convictions claiming they were admissible under the "tacking" doctrine, the State
argued in response that the tacking doctrine no longer exists under the holding in Hankins
v. State, 180 S.W.3d 177 (Tex. App. - Austin 2005, pet. ref'd). In Leyba v. State, 416
S.W.3d 563 (Tex. App. - Houston [14th Dist.] 2013, pet. ref'd) the court, in reliance upon
Hankins, held that the more rigorous "substantially outweighs" standard set out in Rule
609(b) applies exclusively in determining admissibility of convictions that are more than ten
(10) years old. This is precisely the Court of Criminal Appeals holding in Meadows, which
governs the disposition of this Point of Error on remand.
As the proponent of evidence of a remote conviction, the State of Texas had the
burden to establish (and the trial court had the responsibility to find) that the admission of
the remote conviction (which was 21 years old in the instant case) was (1) in the "interests
of justice", (2) had "probative value", (3) and that the "probative value" was supported by
specific facts and circumstances, (4) showing that the "probative value" substantially
outweighed its prejudicial effect, before that evidence should have been admitted. Butler v.
State, 890 S.W.2d 951 (Tex. App. - Waco 1995, pet. ref'd)
4
In pressing for its use during cross examination of the Appellant, the prosecutor failed
to establish how the admission of a twenty-one (21) year old conviction for two (2) counts
of aggravated assault was in the "interests ofjustice". Likewise, the trial court did not explain
how that evidence was admissible under Rule 609(b), instead focusing on the use of the
tacking rule to make the 1992 conviction admissible. This analysis is clearly erroneous in
light of the holding in Meadows. As this Court reviews this issue on remand, Appellant
submits that the first two requirements of Rule 609(b) ["in the interests of justice" and
"probative value"] have not been met. Additionally, the record is devoid of any evidence
that the purported "probative value" relied upon by the State [and the court in admitting it]
was supported by specific facts and circumstances showing that the purported "probative
value" substantially outweighed its prejudicial effect. This result is contrary to the holding
in Meadows and requires that Appellant be afforded a new trial. There is no valid argument
that the admission of the 1992 twenty-one (21) year old conviction for two (2) counts of
aggravated assault did not constitute error under Rule 609(b).
Even if this Court views (as instructive) the nonexclusive list of factors courts use
when applying Rule 609(a) to weigh the probative value of a conviction against its
prejudicial effect as set forth in Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992)
including: (1) impeachment value of the prior crime, (2) the temporal proximity of the past
crime relative to the charged offense and the witness's subsequent criminal history, (3) the
similarity between the past crime and the offense being prosecuted, (4) the importance of the
witness's testimony, and (5) the importance of the witness's credibility, error is still shown
requiring reversal and a new trial. State v. Jones-Jackson, 443 S.W.3d 400 (Tex. App. -
5
Eastland 2014) The impeachment value of this crime (aggravated assault - two (2) counts)
was low given that it did not involve deception. Mireles v. State, 413 S.W.3d 98 (Tex. App. -
San Antonio 2014, pet. ref' d) The temporal proximity of the prior conviction [21 years old]
provided no probative value for impeachment. Butler v. State, 890 S.W.2d 951 (Tex. App. -
Waco 1995, pet. ref'd). The similarity of the past crime (a multi-count aggravated assault)
and the offense being prosecuted (also a multi-count aggravated assault offense, albeit an
aggravated sexual assault of a child) created a danger that the jury convicted Appellant based
on a perception of past conduct rather than based on the facts of the charged offense.
Mireles v. State, 413 S.W.3d 98 (Tex. App. - San Antonio 2013, pet. ref'd); also see:
Battles v. State, 2006 WL 1029072, (Tex. App. - Eastland 2006, not designated for
publication) This factor also weighs against admission of the remote conviction. Appellant
presented other witnesses, along with his own testimony, in defense of the allegations lodged
against him. This made Appellant's role as a witness and his credibility less critical. Battles.
Although the trial court noted for the record that a balancing test had been performed
regarding "all of these", the record is essentially silent as to her reasoning for admitting the
convictions against Appellant. As the court stated in Theus: While we refuse to require trial
courts to make such findings and conclusions, we feel that engaging in such exercise
constitutes the better practice. Therefore, we urge trial courts to enunciate on the record not
only whether the probative value of a conviction outweighs its prejudicial effect, but also
the rationale behind such a determination. This analysis was not done in the instant case, and
Appellant urges this reviewing Court to find that there was no basis for the admission of a
twenty-one (21) year old conviction. Probative value is determined by how likely the
6
evidence is to prove some fact, not how important proof of that fact is to the proponent's
case. Accordingly, the probative value of the witness's conviction is measured by how well
it demonstrates his lack of trustworthiness, not how badly the opposing party wants to
impeach him. U.S. v. Bensimon, 172 F3d 1121 (9th Cir. 1999)
Whether to admit remote convictions lies within the trial court's discretion. Theus
v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992) If the trial court's decision falls outside
the "zone of reasonable disagreement" it has abused its discretion. Theus and Miller v.
State, 196 S.W.3d 256 (Tex. App. - Fort Worth 2006, pet. rerd.)
The comments below (made by the trial court when ruling on the admissibility of the
remote 1992 felony conviction) further reflect that there is no basis, in light of the holding
in Meadows, upon which this reviewing Court can affirm Appellant's convictions.
When discussing the admissibility of a misdemeanor assault conviction, the trial
court commented: " Well, obviously I think a child would involve moral turpitude. And I
think ifone kind ofvictim makes it moral turpitude, another kind ofvictim does. I don 't think
that under the law that you can say the victim is willingly involved in moral turpitude. And
if it's a man or child it doesn't. I know I've read some ofthose cases before and !just think
that has to be common sense in the law if assaulting a woman is a moral turpitude, you
would think that assaulting a minor child is moral turpitude. So your objection is overruled
on that one." (R-VI-70)
When discussing the admissibility of a conviction for harboring a runaway, the trial
court, while reflecting on the application of Rule 609, made the following acknowledgment
7
on the record: "I don't see anything here that specifically mentions harboring a run away.
And I understand that's pretty prejudicial, but I think that's very important as to moral -
- so I'm going to allow it." (R-VI-71)
Rule 609(b) required the trial court to conduct a different, and more stringent,
analysis than the court did when ruling on the admissibility of Appellant's remote (21 year
old) conviction. Appellant submits that this reviewing court cannot reasonably conclude that
the trial court acted within the "zone of reasonable disagreement". Under the circumstances,
the trial court abused its discretion when it admitted the prior remote convictions for the
purpose ofimpeachingAppellant's credibility. Butlerv. State, 890 S.W.2d 951 (Tex. App. -
Waco 1995, pet. ref'd)
The Fifth Circuit, in construing Federal Rule 609(b), has stated "the legislative
history makes clear that convictions over ten years old will be admitted very rarely and only
in exceptional circumstances" U.S. v. Cathey, 591 F2d 268 (5th Cir. 1979) The mere fact
that the defendant's credibility is in issue - a circumstance that occurs whenever the
defendant takes the stand - cannot, by itself, justify admission of evidence of convictions
over ten years old. Such a rule would make the ten year limit in Rule 609(b) meaningless.
U.S. v. Brown, 603 Fd2 1022 (1st Cir. 1979)
Rule 44.2(a) of the Texas Rules of Appellate Procedure mandates that an appellate
court reverse a judgment under review unless the court determines beyond a reasonable
doubt that the error made no contribution to the conviction. Rule 44.2(b) of the Texas
Rules of Appellate Procedure requires reversal only upon a showing that the appellant's
8
substantial rights were affected by the trial court error.
In cases interpreting former Rule 8l(b) of the Texas Rules of Appellate Procedure,
the Courts held that reversal was required unless the court could determine beyond a
reasonable doubt that the erroneous admission of the prior conviction did not contribute to
the appellant's conviction. Butler v. State, 890 S.W.2d 951 (Tex. App. - Waco 1995, pet.
ref'd); Brown v. State, 1994 WL 325322 (Tex. App. - El Paso 1994)
Cases interpreting current Rule 44.2(b) review the record to determine whether the
error affected one of the appellant's substantial rights. A substantial right is affected when
the error had a substantial and injurious affect or influence in determining the jury's verdict.
Hernandez v. State, 976 S.W.2d 753 (Tex. App. - Houston [Pt Dist.] 1998, pet. ref'd) If
one cannot say, with fair assurance, after pondering all that has happened without stripping
the erroneous action from the whole, that the judgment was not substantially swayed by the
error, it is impossible to conclude that substantial rights were not affected. Hernandez,
citing to: Kotteakos v. U.S. 328 U.S. 750 (1946) In determining whether the error was
harmless, the test is not whether a conviction could have been had without the improperly
admitted evidence but, rather, whether there is a reasonable possibility that the evidence
might have contributed to the conviction. Thus, if there is a reasonable possibility that
inadmissible evidence might have contributed to the conviction, then the error in admission
is not harmless error. In applying the test, the main consideration is the probable impact of
the evidence on the minds of the average jury. Battles.
Appellant submits that the trial court abused its discretion when it allowed the State
9
to cross examine Appellant concerning the remote 1992 felony aggravated assault case,
especially since the determination of admission of that crime was interrelated with the trial
court's focus on other misdemeanor convictions which the State may not have proven to
involve moral turpitude. [assault family member - not a female case, as well as the harboring
a runaway case]. The admission of the twenty-one (21) year old conviction for two (2)
counts of aggravated assault was used as pure propensity evidence of the kind eschewed in
Rule 404(b) of the Texas Rules of Evidence; Brown v. State, 1994 WL 325322 (Tex.
App. - El Paso 1994) The admission of this evidence allowed the State to produce
conformity evidence which did not constitute otherwise probative evidence at the guilt stage
of the trial. Appellant submits that whether the court applies Rule 44.2(a) or 44.2(b) of the
Texas Rules of Appellate Procedure, the result is the same - Appellant should be granted
new trials in these matters.
WHEREFORE, PREMISES CONSIDERED, Appellant prays the Court review and
reconsider this Point of Error on remand and find that it was error to admit the remote
conviction pursuant to Rule 609(b) of the Rules of Evidence and further hold that the error
was harmful to Appellant. Appellant prays for new trials in each of the cases.
IO
APPENDIX# 1
r
lJ ORIGINAL Plf
1~1~ 'l~i,416\fJ~
f
CAUSE NO. 132&806, 1328807, & 1308988 I) /qt?, 1!S>, 11ll'JJ~
THE STATE OF TEXAS § IN THE DISTRICT COURT
§
v. § HARRIS COUN1Y, TEXAS
§
JAVIER NOEL CAMPOS § 184th JUDICIAL DISTRICT
MOTION TO TESTIFY FREE OF IMPEACHMENT BY PRIOR CONVICTIONS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW the Defendant in the above entitled and numbered cause, by and
· through bis attorney of record, DIANA OLVERA, and respectfully moves this Honorable
Court to allow the Defendant to testify free of impeachment by way of prior convictions;
and in support thereof would show the Court as follows:
I.
The three (3) indictments in the instant cases charge the Defendant with th.e
offense of Aggravated Sexual Assa:Ult of a Child, on or about July 15, 2005. l L ..f!,
Ji'c;hrfs b
f)
/J 10".,-,- Dan; .•
• 1ctc1i e1
rr ~Y- ~
lime: 3 2013
The· State of Texas has given notice to the Defendant that it may ~ek iOimgeach
the Defendant with a prior conviction if he Wrtifies in the instant case- Sp``
State has· given notice that the Defendant has been previously convicted of the following
offenses:
o~ January 29, 2009, convicted of felony PCS >4g < 200g. tJ ~ r tJ ~L
/21. ~JJehruary 28, 2006, convicted of misdemeanor (C) Displaying a Fictitious
v~ - Driver's License. fLft) "•
'f) uw.Jbl;}'ebruary 10, 2006, convicted ofmisdomeanor Assault Family Member (c/w 1µ_/
RECORDER'S MEMORANDUM Page l of 4:
Th!a lnstrurnoot Is t>f poor ql.\81\tf
at the t1m11 of Imaging
283
~afernale). .
# {nJJ•Y 20, 2004, convicted ofmisdemeanor Harboring a RUI1l!Way Child, 1~
``Vuune 11, 1992, convicted of felony Aggravated Assault DW. 2 counts. ~
6. November 26, 1990, convicted of misdemeanor Trespass. ;c-0
0 ~ r:u1/MI._
~7) j-(JI l,
1 m. {
The Defendant requests that he be allowed t testify free from impeachment by
prior convictions for the reason that the probative v: lue of admitting evidence of this
prior conviction for the purpose of determining his credibility does not outweigh its
prejudicial effect on the Defendant under TEX.R.EVID. 403 and 609; and Theus v. State,
845 S.W.2d 874 (Tex.Cr.App. 1992).
IV.
The Defendant submits that the failure to allow the Defendant to testify free from
impeachment by his alleged prior convictions denies the Defendant his right to a fair trial,
and due process of law as guaranteed by the Fifth and Fourteenth Amendments to the
United States Constitu.tion, and Art. I, Sec. 19 of the Texas Constitution.
IV.
The Defendant submits that the failure to allow the Defendant to testify free from
impeachment by his alleged prior conviction denies the Defendant his right to a fair trial,
and due process and due course of law as guaranteed by the Fifth and Fourteenth
Amendments to the UNITED STATES CONSTITUTION, and Art. r, Sec. 19 of the Texas
Constitution.
V.
Further, without waiving the foregoing requests, the Defendant submits that
Page 2 of 4
284
should this Honorable Court fail to grant his request to testify free from impeachment by
prior convictions, that a fair means of allowing the State to impeach the Defendant
without unduly prejudicing the Defendant would be to allow the State to refer to the prior
convictions as "prior felony convictions" without specifically citing the offenses for
which the Defendant was allegedly convicted.
WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays-
that this Honorable Court will grant this, the Defendant's Motion to Testify Free of
Impeachment by Prior Convictions in all things; or in the alternative, that this Court
schedule this matter for a hearing prior to trial on the merits and that at such hearing this.
Motion will be in all things granted.
Respectfully Submitted,
ALEX BUNIN
CHIEF PUBLIC DEFENDER
~
AOL
~'-----l-
VERA
BN: 15278650
Assistant Public Defender
Harris County Public Defender's Office
1201 Franklin) 131h Floor
Houston, TX 77002
Phone: 713-368-0016
Fax: 713-368-9278
Diana. Olvera@pdo.hctx.net
CERTIFICATE OF SERVICE
L Diana Olvera, certify that a true and correct copy of the foregoing Motion has
betp hand delivere the Assistant District Attomezin charge of this case on this
+day of , 2013. ~ t
;!z;AOLVERA
9
Page 3 of 4
285
CAUSE NO. 1328806, 1328807, & 1308988
THE STATE OF TEXAS § IN THE DISTRICT COURT
§
v. § HARRIS COUNTY, TEXAS
~···<
§
·JAVIER NOEL CAMPOS § 184m JUDICIAL DISTRICT
ORDER TO TESTIFY FREE OF IMPEACHMENT BY PRIOR CONVICTIONS
~· ; .
HAY 0 3 2013
Ort this _ _ day of - - - - - - · ' 2013, came to be heard and having
considered the Defendant's Motion to Testify Free of Impeachment, and the evidence in
supj?ort of the motion, and arguments of counsel, the Court hereby rules said Motion is:
_ _GRANTED; And therefore, it is further ORDERED, ADJUDGED AND
DECREED that the State of Texas and its witnesses not mention, refer to, or elicit in any
manner, any evidence that Defendant has been previously convicted. It is further
ORDERED that the attorney for the State instruct Iris witnesses concerning the terms of
this Order.
- -DENIED;... to which Defendant respectfully accepts.
~e_;h ,.re nIDGESIIJlNG /<'_/',,, e-/~
/L
!'--°
g
Page 4 of 4
286
APPENDIX#2
Appellant testified that he was 40 years old, having been born and raised in Pasadena,
Texas. (R-VI-76) After reciting the members of his family, Appellant testified that he went
through the Pasadena School system, but did not graduate from high school. Appellant
obtained his GED in 1991. (R-VI-78) He testified that he was a licensed journeyman
"'"7"' . . ...
electrician. (R-VI-7 8) Appell51-nt testified that he had no children of his own. (R-VI-81) He
I
indicated that he met Complainant while living at the Embers Apartments. (R-VI-81) He
.. -
testifie_d t~at he moved into the apaiiments in 2005 and moved with his friend along with his
wife and three kids. (R-VI-82) After living with "L" and his family, Appellant moved
across the courtyard to "LD" and her kids. (R-VI-82) Appellant stated that he met "LC"
(Complainant's mother) by socializing with everyone at the Embers Apa1iments. (R-VI-84)
He described G's husband ("C") as always being "pilled out." (R-VI-84) Appellant
remembered meeting the Complainant for the first time when several individuals were
playing handball at apaiiment complex. (R-VI-86) He related that he saw the Complainant
trying to help his father up off the ground one time when he was all "pilled out" and that is
how he first tried to help the Complainant and his mother. (R-VI-87) "G" ultimately
allowed her son to go to L's apartn;ient. (R-VI-88) Appellant testified that when the ·
Complainant would come home from school he would go directly to the apartment that he
was living in, along with "L" and her kids. (R-VI-89) He testified about how he would take
the kids on fishing trips and play different games with them at the apaiiment complex. (R-VI-
90) When Complainant moved away from the Embers Apartments, Appellant said that he
missed him because he was like a little son to him, just like "I" & "K". (R-VI-92) When
questioned about any alleged sexual contact with the Complainant, Appellant tearfully denied
all such a~tivity. (R-VI-96)
Wayne T. ·I
SBOT: 09656300
4615 Southwest Freeway, Suite 600
Houston, Texas 77027
Tel: 713-623-8312
Fax: 713-626-0182
E-mail: wthlaw@aol.com
Attorney for Javier Noel Campos
CERTIFICATE OF WORD COUNT
Appellant's brief which contains 2756 words (according to the computer-generated
word count) is in compliance with Rule 9.4(i)(2)(B) T
CERTIFICATE OF SERVICE
A copy of this Brief will be served on:
Harris County District Attorney's Office
Appellate Division
1201 Franklin, 6th Floor
Houston, Texas 77002.
Lisa C. McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711-3046
Signed this 21st day of December, 2015.
11