Michael Shane Camacho v. State ( 2015 )

ACCEPTED
05-15-00112-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
6/25/2015 5:28:59 PM
LISA MATZ
CLERK
CASE NO. 05-15-00112-CR
IN TIE COURT OF APPEALS FORTIE FIFTIIJUDICIALDISTRICT
FILED IN OF
5th COURT OF APPEALS
TEXAS, AT DALLAS DALLAS, TEXAS
6/25/2015 5:28:59 PM
NICHAEL SIIAFm CARACHO LISA MATZ
Appellant Clerk
V.
THE STATE OF TEXAS
Appellee
Fromthe County Court at LawNo. 6 ofCollin County, State ofTexas, in Cause
No. 006-80675-2014, the Honorable Judge Jay Bender Presiding
Briefon Appeal
Subnrittedby:
Karen Chesley
Chesley & Perales, PC
1415 Harroun Avenue
McKinney, Texas 75069
Office: 972-292-7130
Fax: 888-400-0214
Emai1: karen@chesleyperaleslaw.com
State Bar ofTexas No. 24036361
Attomey forAppellant, Mchael Camacho
Oral ArgumentNot Requested
DENTITY OF PARTIES AI``D COUNSEL_
Appellant
Michael Shame Camacho
1605 N. College Street
McKirmey, Texas 75069
Trial Counsel Appellate Counsel
Darmy Ray McDaniel Karen Chesley
SBOT: 24065710 SBOT: 24036361
Law Office OfDennyMcDaniel Chesley & Perales, PC
SBOT: 24065710 -SBOT: 24036361
6675 Mediterranean Dr, Suite 405 1415 Harroun Avenue
McKinney, Texas 75070 McKirmey, Texas 75069
Katherine Gore PiperMcCraw
SBOT: 24007640 SBOT: 24045261
Law Offices OfKatherine Gore Piper McCraw, PC
1415 HarrounAvenue 1504 First Avenue
McELey, Texas 75069 McKirmey, Texas 75069
Wesley WilliamDesmond
"SBOT: 24087410
2770 W. Main Street, Suite 216
Frisco, Texas 75033
State ofTexas
Eon. Greg Willis
Criminal District Attomey
Collin County, Texas
2100 Bloomdale Road, Suite 100
McKimey, Texas 75071
Trial Counsel Appellate Counsel
Jackson Da,vidh4chAInn John Rolater
SBOT: 24080023 SBOT: 00791565
ChristianDrake
SBOT: 24071494
Appellant9s Briefon Appeal
Michael Shame Camacho, Appellantv. The State ofTexas, Appellee
Case No. 05-15-00112-CR
TABLE OF CONTENTS
IdentityofPartiesandCounse1...........................i
TableofContents....... ....... ........ .. ........ ..ii
IndexofAuthorities. . .-. . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii
StatementRegardingOralArgument....................... iv
StatementoftheCase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
IssuesPresented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v
StatementoftheFacts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
SummaryoftheArguments...........................-..4
ArgumentsandAuthorities.............................4
PointofErrorNumberOne. . . . . . . . . . , . . . . . . . . . . . . . . 4
PointofErrorNumberTwo. . . . . . . . . . . . . . . . . . . . . . . .10
PrayerforRelief..................................14
CertificateofService.................. .............15
AppellantJs BriefonAppeal
Michael Share Camacho, Appellant v. The State ofTexas, Appellee
case No. 05-15-00112-CR
rmEX OFAUTHORITIES
Cases:
Ccz7¬Zz,v.S£czfe,842S.W,2d667(Tex.Crim.App.1992)..............6
Co#7CV.SfCZ¢e,855S.W.2d140(Tex.Crim.App.1994)............. 5
Coodsv.Sfcz,e,844S.W.2d697(Tex.Grim.App.1992)............13
Dz-xo73 V. Sficzfe, 940 S.W.2d 192 (Tex. App. -SanAntonio,1996) . . . . . . . . 7
frcz7lfZryv. S#czfe, 71 S.W.3d535 (Tex. App.-Amarillo,2002) . . . . . . . . . . 7
Hz,Jrv. S£czfe, 897 S.W.2d 829 (Tex. App.-Dallas,1995) . . . . . . . . . .ll,13
Kz-7¬gV.S¢czfe,953S.W.2d266(Tex.Crim.App.1997).............. 6
A4lc,c}#e72V. S,CZfe, 721 S.W.2d 859 (Tex. Crim. App.1986) . . . . . . . . . . . ll
Statutes and Rules:
TEx.CoDECRIM.PROC.ART.42.12,SEC.4.......................12
TEX.CoDECRIM.PROC.ART.62.102...........................12
TEX.PENALCoDESEC.15.031...............................12
TEX.PENALCoDESEC.22.021...............................12
TEX.PENALCoDESEC.31.03................................9
TEx.R.EvID.R.802................................. ....5
TEX.R.EvID.R.803(6)................................5,7,8,9
TEX.R.App.PROC.44.2(b).....................,...... 6
Appe11ant9s Briefon Appeal HEIEl
rmchael Share Camacho, Appellantv. The State ofTexas, Appellee
Case No. 05-15-00112-CR
STATERENT REGARDING ORAL ARGUMENT
Oral argument is not requested. The dispositive issues have been
/
authoritatively decided, and the facts and legal arguments are adequately presented
in the brief and record. As such, oral argument would not aid this Court's
decisional process.
STATEMEr``IT OF THE CASE
Mcinael Camacho (hereinafter referred to as ccCamacho") was charged by
Information on January 24, 2014 for the offense ofTheft ofProperty over $501ess
than $500. (CR Vo1. 1: P. 8). Camacho pleaded not guilty, and a jury trial was
held January 5, 2015, before Judge Jay Bender. (RR Vo1. 2: P. 99). The jury
found Appellant guilty on January 5, 2015 and the jury sentenced him to 180 days
injail and a $2000 fine. (RRVo1. 2: P.196); (RRVo1. 3: P.12); (CR Voll: P. 47).
Camacho timely filednotice ofappeal on January 27, 2015, and a motion for
a new trial on January 27, 2015. (CR Vo1.1: Pgs. 58, 60-61). The court neither
granted nor denied the motion, instead allowing it to be overruled by operation of
law after 75 days.
Appellant9s BriefonAppeal 1V
Michael Share Camacho, Appellantv. The State ofTexas, Appellee
Case No. 05-15-00112-CR
ISSUES PRESENTED
1. The trial court erred in admitting an ffincident Reporting" report, marked as
StateJs Exhibit No. 1 as a business records exception to hearsay under Rule
803(6) ofthe Texas Rules ofEvidence.
2. The prosecutor for the State made an improper argument to the jury during
closing arguments of the punishment phase at trial. The prosecutor remarked
that Appellant was probation eligible and failed to submit an application for
probation in order to avoid supervision while on probation. However,
Appellant was legally ineligible to receive probation from the jury because of
one or more prior felony conviction.
Appellant9s BriefonAppeal V
Michael Share Camacho, Appellantv. The State ofTexas, Appellee
Case No. 05-15-00112-CR
CASE NO. 05-15-00112-CR
IN TIRE COURT OF APPEALS FORTIE FIFTII JUDICIAL DISTRICT OF
TEXAS, ATI)AILAS
Michael Shame Camacho
Appellant
V.
The State ofTexas
Appellee
APPELLANT9S BRIEF ON APPEAL
STATERENT OF FACTS
Charles Addison Robertson works as an Asset Protection employee for
Sam's clubs and Walmat Stores. QR Vo1. 2: P.107-108). The job consists of
walking the store floors and investigating suspicious behavior, particularly theft
incidents. QR Vo1. 2: Pgs. 108-109). On November 12, 2013, Robertson
observed a subject approach the special edition blu-ray DVD movies featured on
an end-cap by the registers. (RR Vo1. 2: P. 109). Robertson observed the subject
take two ofthe same titled DVDs (Man of Steel) and place them into a skopping
basket. QR Vo1. 2: Pgs.109,111). This appeared suspicious to Robertson. (RR
Vo1. 2: P. 109). Thereafter, Robertson continued surveillance ofthe subject. QR
Vo1. 2: P.110).
Appe11ant9s Briefon Appeal pg.1
Michael Shame Camacho, Appellantv. The State ofTexas, Appellee
Case No. 05-15-00354-CR
Robertson observed the subject wak across the center sectiontoward the dry
grocery section where the subject took the DVDs and placed them inside the
subjectJsjacket. QR Vo1. 2: P.117-118). The subject left the cart on the aisle and
walked toward the front ofthe store to the exit doors. QR Vo1. 2: P.118). The
subject exiled the store when Robertson, along with a trainee, approached the
subject and asked the subject to come back inside the store. (RR Vo1. 2: P. 119).
Robertson had a bit ofa physical altercation with the subject and discontinued the
surveillance because ofsafety reasons. QRVo1. 2: P.119). Robertson obtained
the license plate number ofthe subject's vehicle. (RRVo1. 2: P. 120).
After discontinuing the surveillance, Robertson contacted the McKinney
Police. (RR Vo1. 2: P. 120). Robertson made contact with Officer Jenkins and
reported the theft incident. (RR Vo1. 2: P. 120).
At trial, the State offered into evidence, StateJs Exhibit No. 1, which was
titled fThcident Reporting" report. aiR Vo1. 2: P.113); QR Vo1. 4: StateJs
Exhibit 1). Robertson prepared the report after the police responded to the
incident. (RR Vo1. 2: Pgs.112,115). The "Incident Reporting" report was a 4-
page report that contained factual details ofthe alleged theft offense committed by
Appellant on November 12, 2013. (RR Vo1. 4: StateJs Exhibit 1). The report was
Appellant9s Briefon Appeal pg. 2
Michael Shame Camacho, Appellantv. The State ofTexas, Appellee
Case No. 05-15-00354-CR
made for the theft incident and given to Officer Jenkins. (RR Vo1. 4: StateJs
Exhibit 1 ®g. 4 of4)).
Robertson did not have personal knowledge ofthe value ofthe stolen DVDs
from the theft incident. (RRVo1. 2: P.115). During trial, Robertsontestifiedthat
the total value ofthe stolen DVDs was $59.56 only after reviewing StateJs Exhibit
No.1. (RRVo1. 2: P.116).
After the close of evidence and jury deliberations, the jury found Appellant
guilty.ofthe theft offense as charged. QR Vo1. 2: P.196). in the StateJs case-in-
chiefofthe punishment phase, the State offered into evidence StateJs exhibits Nos.
3 and 4. State's exhibit No. 3 was ajudgment ofconviction against the Appellant
for the offenses of Aggravated Sexual Assault of a Child and Solicitation of a
Minor. (RR Vo1. 2: P. 201); (RR Vo1. 4: StateJs exhibit No. 3). StateJs Exhibit
No. 4 was a judgment of conviction against Appellant for the offense ofDuty to
Register as a Sex Offender. (RR Vo1. 2: P. 201); aiR Vo1. 4: StateJs Exhibit No.
4). During closing arguments to thejury, the prosecutor for the State stated,
''This man is a criminal. ThatJs what he does. He deserves the maximum
amount offme. Believe it or not, this is a probation-eligible case. Ifhe had
submitted the proper documentation to the Judge, youJd be considering
probation. But he didnJt submit that because he doesnJt want to be on
probation. Because he doesnJt want to have someone looking over his
shoulder. Hejust wants punishment." (RR Vo1. 3: P.10):
Appe11ant9s BriefonAppeal pg. 3
Michael Shame Camacho, Appellantv. The State ofTexas, Appellee
Case No. 05-15-00354-CR
At the conclusion ofthe punishment phase andjury deliberations, thejury assessed
punishment at 180 days confinement in the county jail and. a fine of $2,000.00.
quVo1. 3: P.12).
SImmflARY OF THE ARGUMENTS
Point ofError Number One:
The trial court erred in admitting an coincident Reporting99 report (marked as
State9s Exhibit 1) as a business records exception to hearsay under Rule 803 (6) of
the Texas Rules of Evidence. Said cclncident Reporting" report was prepared in
anticipation oflitigation, and it was not kept in the ordinary course ofbusiness.
Point ofError Number Two:
During closing argument during the punishment phase of trial, the
prosecutor stated that the Appellant was probation eligible and failed to submit an
application for probation. However, Appellant was legally ineligible to receive
probation from a jury because of one or more prior felony convictions. The
prosecutor's argument was manifestly improper. The argument also injected new
and harmful facts into evidence, which amounts to reversible error.
ARGUMENTS Anun AUTHORITHS
I. Point ofError Number One aiestated):
Appellant9s BriefonAppeal pg. 4
Michael Shame Camacho, Appellantv. The State ofTckas, Appellee
case No. 05-15-6o354-CR
The trial court erred in admitting an cclncident Reporting" report (marked as
State's ExhibitNo. 1) as a business record exception to hearsay under Rule 803 (6)
ofthe Texas Rules ofEvidence.
A. Standard ofReviewi and Applicable Law:
Under Rule 802 ofthe Texas Rules ofEvidence, ccHearsay is not admissible
except as provided by statute or these rules prescribed pursuant to statutory
authority." TEX. R. EvID., Rule 802. Rule 803 (6) ofthe Texas Rules ofEvidence
states:
ccthe following are not excluded from the hearsay rule . . . Records of
Regularly Conducted Activity. A memorandum, report, or data
compilation, in any form, ofacts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information transmitted by, a person
with knowledge, if kept in the course of regularly conducted business
activity, and if it was the regular practice of that business activity to make
the memorandum, report, record, or data compilation, all as shown by the
testimony of the custodian or other qualified witness, or by affidavit that
complies with Rule 902(10), unless the source of the information or the
method of circumstances of preparation indicate a lack of trustworthiness.
ccBusiness" as used in this paragraph includes any and every kind ofregular
organized activity whether conducted forprofit OfnOt." TEX. R. EvID. , Rule
803(6).
The trial court is the arbiter on whether hearsay is admissible as an exception
to the rules on hearsay. Co/f7e 1,. S#czfe, 855 S.W.2d 140, 149 (Tex. Crim. App.
1994). As such, a trial court9s error in admitting evidence under a hearsay
exception rule is reviewable only by an appellate court under an abuse ofdiscretion
Appellant3s Briefon Appeal pg. 5
Michael Shame Camacho, Appellantv. The State ofTexas, Appellee
Case No. 05-15-00354-CR
standard. I:d. An abuse ofdiscretion occurs when the trial court9s ¢¢decision was so
cleady wrong as to lie outside that zone within which reasonable persons might
disagree." Ccz7¬Zz,1,. Sftzfe, 842 S.W.2d 667, 682 (Tex. Grim. App. 1992).
Under Rule 44.2(b), Texas Rules of Appellate Procedure, any non-
Constitutional error that does not affect substantial ristts ofthe appellant is to be
disregarded. See TEX. R. App. PROC. Rule 44.2(b). A ccsubstantial right is affected
when the errorhad a substantial and injurious effect or influence in determining the
jury's verdict.39 Kz-jog 1,. ££tZfe, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
B. Analysis:
in the instant case, State9s Exhibit 1 was admitted into evidence as a
business record exception to the hearsay rule over objections by Appe11ant's trial
counsel. (RR Vo1. 2: Pgs.115-116). State's Exhibit 1 is labeled as coincident
Reporting" report, and consists ofa 4-page report prepared by Charles Robertson,
an asset proteofion employee for Sam9s Club, regarding the theft incident against
Appellant on November 12, 2013. (RR Vo1. 4: State9s Exhibit 1). The c¬Incident
Reporting" report contained a narrative of the facts ofthe incident and details of
the stolen merchandise, including the value. I:d. The cclncident Reporting" report
was provided to Officer Jenkins ofthe McKinneyPolice Department. JJ.
Appellant9s Briefon Appeal pg. 6
Michael Shame Camacho, Appellantv. The State ofTexas, Appellee
Case No. 05-15-00354-CR
Rule 803(6), Texas Rules of Evidence, indicates that the business records
rule exception to hearsay applies to reports that are cckept in the course of a
regulady conducted business activity, and if it was the regular practice of that
business activity to make the . . . report . . ." See TEX. R. EvID. Rule 803(6). As
such, a business record or report falls outside the scope ofRule 803(6) when it is
not kept in the course ofa regularly conducted business activity, and it was not the
regular practice ofthatbusiness to make such report.
Texas Courts ofAppeals have held that documents made in anticipation of
litigation do not fall within the category of a business record under Rule 803(6).
See ZZlcz71C7y 1,. Sftzfe, 71 S.W.3d '535, 537 (Tex. App. - Amarillo, 2002) (cz-zz'72g
Dz®#o# i,. S#czfe, 940 S.W.2d 192, 195 (Tex. App. - Sac Antonio, 1996)). hi Hcz7tCrry
v. S,zzfe, 71 S.W.3d 535, the Court of Appeals in Amarillo held that a document
created solely for the purpose ofprosecuting criminal charges against the appellant
was made {cin anticipation of litigation," and hence it does not fall within the
business records exception to hearsay under Rule 803 (6). I:d. czf 537. In Dz'xo7¬ V.
Sfczfe, 940 S.W.2d 192, the Court of Appeals in Sam Antonio found that a
company9s document prepared specifically for an investigation of the company9s
loss, and not made in the course ofbusiness day-to-day activities, does not comply
with Rule 803(6). I:d. czf J95.
Appellant9s BriefonAppeal pg. 7
Michael Shane Camacho, Appellantv. The State ofTexas, Appellee
Case No. 05-15-00354-CR
In applying the Courts of Appeals cases ofHcz71CZry and Dz'xoJe, tO this Case,
Appellate argues that the c¬Incident Reporting" report (State7s Edlibit 1) does not
fall within Rule 803(6). The alleged theft occured at a Sam9s Club store in
McKinney, Texas. SamJs Club -is a retail store which is regularly involved in the
business ofselling goods, including clothing, food, and electronics.
The cclncident Reporting" report was not made or kept in the regular course
of business for Sam9s Club, and it was not the regular practice of Sam9s Club to
make such a report. Further, the cclncident Reporting" report was made solely for
the purpose and anticipation of litigation, specifically for the criminal prosecution
ofAppellant forthe offense ofth'eft.
The 6CIncident Reporting" report is a 4-page repch prepared by the Asset
Protection Employee (herein after referred to as ccAPE99) for Sam's Club. QRVo1.
2: Pgs. 111-112); (RR, Vo1. 4: State9s Exhibit 1). The ctAPE9s" job
responsibilities and duties differ entirely from the vast majority of the other
employees in the store. The ¢cAPE9s" primary responsibility involves monitoring
store activity in an attempt to thwat theft, and this activity by the CCAPE" is not the
business activity that Sam9s Club is regularly involved in which is the sale ofretail
goods.
Appellant9s BriefonAppeal pg. 8
Michael Shame Camacho, Appellantv. The State ofTexas, Appellee
case No. 05-15-00354-CR
More importantly, the cclncident Reporting" report looks like and resembles
-a police report from an arresting police officer. QiR, Vo1. 4: StateJs Exhibit 1). in
the 4-page report, it discusses the narrative offacts like a police report and contains
all the information needed for subsequent prosecution of the theft offense. J]d.
Further, the narrative ofthe report Gage 4 of 4) specifically states.that a ccreport
was made for theft and all information given to Officer Jenkins." JJ. For all
purposes, the "APEJJ prepared the "Incident ReportingJJ report in order to assist the
police and the District AttomeyJs Office in Prosecution OfAppellant. The "APE"
even testified that he Prepared the report after the POlice responded to the incident.
QR Vo1. 2: P. 115). As such, the cclncident Reporting99 report was made in
anticipation oflitigation, e.g., criminal prosecution ofAppellant for theft, and does
not fall within the business records exception to hearsay under Rule 803(6). On
these grounds, this Court should fmd that the trial court erred in admitting the
cclncident Reporting" report marked as State9s Exhibit 1, and that the error was
outside the zone ofreasonable disagreement tantamountto an abuse ofdiscretion.
An essential element to the offense of theft requires proof of value of the
stoleri property. See Thx. PENAL CoDE, SEC 31.03 (e). In this case, the State was
required to prove that Appellant stole property from SAM9s Club and that the
value ofthe stolen property was $50 or more but less than $500. Jd czf SEC. 31.03
Appellant9s Briefon Appeal pg. 9
Michael Shame Camacho, Appellantv. The State ofTexas, Appellee
Case No. 05-15-00354-CR
(e)(2). During trial, the State relied solely on the cclncident Reporting" report to
prove the value ofthe stolen property as $59.96. (RR Vo1.4: State9s Exhibit 1).
The ''APE" testified that he did not have personal knowledge of the value of the
stolen merchandise. (RR Vo1. 2: P.115). The prosecutor had to fumish StateJs
Exhibit No. 1 to the f'APE" in order for him to testify to the value of the stolen
merchandise. (RR Vo1. 2: P. 116). But for the improper admission of the
cclncident Reporting" report, the State would have been unable to prove the
essential value element of the charged theft offense. In conclusion, Appellant
asserts that the trial court9s error had an injurious effect and influence in thejury9s
verdictthat affectedAppe11ant's substantial rights.
II. Point ofEI-rOr NumbeI-Two alestated)
The prosecutor for the State made an improper jury argument stating that
Appellant failed to ffle an application for probation and is probation eligible, when
in fact, Appellant was legally ineligible to receive probation from the jury. Said
remarks were manifestly improper and injected new harmful facts to Appellant.
A. Standard ofReview and Applicable Law:
A proper jury argument typically falls within one of the following
categories: (1) summary of the evidence, (2) reasonable deduction from the
evidence, (3) response to argument from opposing counsel, or (4) plea for law
AppellantJs BriefonAppeal pg. 10
Michael Shame Camacho, Appellantv. The State ofTexas, Appellee
case No. 05-15-00354-CR
enforcement. See A4czc}de7e V. S'ftzze, 721 S.W.2d 859, 862 (Tex. Crim. App. 1986);
He4J+Tv. Sftzfe, 897 S.W.2d 829, 835-836 (Tex. App. -Dallas, 1995). An argument
outside of these permissible categories does not necessarily give grounds for
reversal. fro,J7j7``v. Sfczfe, 897 S.W.2d at 836. However, error is reversible where,
even with an instruction to disregard, the improper argument tor remarks was
extreme or manifestly improper, violated a mandatory statute, or injected new facts
harmful to the accused. Jd.
B. Analysis:
During the punishment phase of this case, the prosecutor stated in closing
argument:
ccThis man is a criminal. That9s what he does. He deserves the maximum
amount offme. Believe it or not, this is a probation-eligible case. Ifhe had
submitted the Proper documentation to the judge, you9d be considering
probation. But he didn't submit that because he didn9t want to be on
probation. Because he doesn9t want to have someone looking over his
shoulder. -Hejustwants punishment." (RRVo1. 3: P.10)
Prior to the closing argument, the State introduced into evidence State9s
Exhibits No. 3 and No. 4. QR Vo1. 2: P. 200-201). The said exhibits were
admitted into evidence by the trial court. JJ. State9s Exhibit No. 3 included a
Judgment Adjudicating Guilt of the Appellant and conviction for the offenses of
Aggravated Sexual``Assault of a Child under Fourteen Years Old and Solicitation
ofa Mnor. QiRVo1. 4-. State9s Exhfoit 3). State9s ErdibitNo. 4 was a Judgment
Appellant9s BriefonAppeal pg. ll
Michael Shame Camacho, Appellantv. The State ofTexas, Appellee
case No. 05-15-00354-CR
of Conviction by Court for Appellant of the offense of Sex Offenders Duty to
Register 10 years. (RR Vo1. 4: State9s Exhibit 4). According to the Texas Penal
Code, the said convictions are felony criminal convictions. See TEX._PENAL CoDE,
SEC. 22.021 (Aggravated Sexual Assault); TEX. PENAL CoDE, SEC. 15.031
(Criminal Solicitation of a Minor); TEX. CoDE GRIM. PROC., ART. 62.102 (Failure
to complywinRegistration Requirements).
Under Article 42.12, See. 4, Texas Code ofCriminal Procedure, a defendant
is not eligible to receive community supervision from ajury where the defendant is
unable to file a written swom motion prior to the beginning oftrial stating that the
defendant has not previously been convicted of a felony in this state or any other
state. See TEX. CoDE GRIM. PROC. ART. 42.12, SEC 4 (d) and (e). I In this case, the
Appellant had previously been convicted of one or more felony .offenses, and
hence was unable to file a swom written motion per Article 42.12, See. 4(e).
Given that Appellant cculd not file, and did not flle, a swom application for
probation, thejury could not legally recommend community supervision. As such,
the prosecutor9s statement during closing argument:
ccBelieve it or not, this is a probation-eligible case. Ifhe had submitted the
proper documentation to the judge, you9d be considering probation, But he
didn7t submit that because he didn9t want to be on probation. Because he
doesn7t want to have someone looking over his shoulder. He just wants
punishment." aiRVo1. 3: P.10)
I)
Appellant9s BriefonAppeal pg, 12
Michael Shame Camacho, AppellantvI The State ofTexas, Appellee
Case No. 05-15-00354-CR
was a gross misrepresentation ofthe law to thejury.
The aforementioned statement was an improper jury argument outside the
bounds of permissible jury argument because it was not within the range of
punishment allowable by law from the jury. The statement was misleading to the
jury, and left a false impression for Appe11ant9s motives for not filing an
application for probation. Further, the prosecutor9s blatant and gross misstatement
that the Appellant was probation eligible, when in fact Appellant was not legally
eligible for probation from the jury, injected harmful and prejudicial facts into
evidence forthejury to decide during its deliberations.
Appellant acknowledges that trial counsel failed to object to the prosecutor7s
improper argument and that there was no curing instruction to the jury from the
court. However, even if trial counsel had objected and the court gave a curing
instruction to the jury to disregard the improper argument, courts have held that
reversible error ;an still occur despite the curing instruction. See H#JgrV. S1*tzfe, 897
s.w.2d at 836 (citing Coofr$ 1,. Sfczfe, 844 S.W.2d 697, 727 (Tex. Grim. App.
1992)). Courts have held that improper argument is reversible error, even with a
trial court9s instruction to disregard, when, coin light ofthe record as a whole," the
improper argument is extreme or manifestly improper, violates mandatory statute,
or injects new facts harmful to the accused. I;d.
/
Appe11ant9s Briefon Appeal pg. 13
Michael Shame Camacho, Appellantv. The State ofTexas, Appellee
Case No. 05-15-00354-CR
In this case, even had the court instructed the jury to disregard the
prosecutor9s improper argument, the gross misrepresentation of the applicable
punishment range for the jury to consider and the improper comment as to
Appellant9s motive for not filing an application for probation rises to the level of
being extreme and manifestly improper; and it injects harmful and prejudicial facts
to the Appellant into evidence for thejury to consider. As such, this Court should
fmd that the prosecutor's improper argument to the jury constitutes reversible
error.
PRAYERFORRELIEF
. WIEREFORE, PRENISES CONSIDERED, Appellant respectfully prays
for this Court to reverse his conviction and remand this case to the trial court for a
new trial. Altematively, Appellant respectfully prays this Corut remand the case
for a newpunishmenthearing.
Reapectfully submitted,
/s/Karen Cheslev
Karen Chesley, TX BarNo. 24036361
Chesley & Perales, P.C.
1415 HaITOun Avenue
McELey, TX 75069
(972) 292-7130 / Fax (888) 400-0214
karen@chesleyperaleslaw.com
ATTORNEY FORAPPELLANT
Appellant9s BriefonAppeal pg. 14
Michael Shame Camacho, Appellantv. The State ofTexas, Appellee
Case No. 05-15-00354-CR
CERTIFICATE OF SERVICE FORAPPELLANT'S BRIEF ON APPEAL
I, the undersigned counsel, hereby certify that a true and correct copy ofthe
foregoing Appe11ant9s Brief on Appeal was faxed to the Collin County District
Attomey9s Office at (214) 491-4860 on the 25TH day ofJUNE, 2015.
/s/ Karen Cheslev
+inen Chesley
Texas BarNo. 24036361
Appellant3s BriefonAppeal pg. 15
Michael Shame Camacho, Appellantv. The State ofTexas, Appellee
Case No. 05-15-00354-CR