Larry Donnell Boswell, Jr. v. State ( 2015 )

ACCEPTED
03-15-00540-CR
8225614
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/14/2015 2:45:26 PM
JEFFREY D. KYLE
CLERK
THE THIRD
IN THE
IN COURT OF
THIRD COURT OF APPEALS
APPEALS
AT AUSTIN,
AT TEXAS
AUSTIN, TEXAS
FILED IN
LARRY DONNELL
LARRY DONNELL BOSWELL,
BOSWELL, JR.§ 3rd COURT OF APPEALS
AUSTIN, TEXAS
Appellant §§ 12/14/2015 2:45:26 PM
§§ CAUSE NO. 03-15-00540-CR
CAUSE NO. 03—15—00540-CR
JEFFREY D. KYLE
V. §§ TRIAL COURT NUMBER
TRIAL COURT NUMBER Clerk
72,904
§§
THE STATE
THE OF TEXAS
STATE OF TEXAS §§
Appellee §§
OF APPELLANT
BRIEF OF
BRIEF APPELLANT
Appealed from the 27
Appealed from 27"‘
th
Texas
Judicial District Court, Bell County, Texas
John Gauntt, presiding
Hon. John
Hon.
COPELAND LAW
COPELAND LAW FIRM
FIRM
Box 399
P.O. Box
Cedar Park, Texas
Cedar Texas 78613
78613
512-215-8114
Tel/Fax 512-215-8114
Copeland
Erika Copeland
Erika
Bar No. 16075250
State Bar 16075250
Attorney for Appellant
HEREBY REQUESTS
APPELLANT HEREBY
APPELLANT REQUESTS ORAL ARGUMENT
ORAL ARGUMENT
TABLE OF
TABLE CONTENTS
OF CONTENTS
Page
Page
Table of Contents
Table i-vii
Index of Authorities
Index viii-xii
I-1
. and Counsel
1. Identity of Parties and Counsel 1
2. Statement Case
Statement of the Case 3
Background
3. Background 3
Regarding Oral
Statement Regarding
4. Statement Argument
Oral Argument 8
5. Issues Presented 9
A. One
Issue One
The trial court erred in admitting evidence
The
of prior bad acts acts over defense counsel‘s
counsel’s
Texas Rules of Evidence
objections under Texas Evidence 401,
402, 403 andand 404(b). Specifically, counsel
404(b). Specifically,
was affiliated
objected to testimony that Boswell was
with any criminal street gang.
B. Two
Issue Two
The trial court abused its discretion by
The by
denying Boswell‘s
Boswell’s motion for new trial
trial based on
a Brady when the prosecution failed to
Brady violation when
disclose a witness‘ history of
witness’ of reprimands while
serving as a police officer.
C. Three
Issue Three
The trial court abused its discretion by
The by
denying Boswell‘s
Boswell’s motion for new trial
trial based on
a Brady when the prosecution failed to
Brady violation when
impeachment and bias evidence
disclose impeachment
concerning a State‘s
State’s witness that
that included
evidence of a history of of reprimands while the
witness served as a police officer.
officer.
B. Summary of the Arguments
Summary Arguments 11
i
TABLE OF
TABLE OF CONTENTS,
CONTENTS, continued
Page
Page
One-Restated
7. Issue One-Restated 11
The trial court erred in admitting evidence
The
of
of prior bad acts
acts over defense counsel‘s
counsel’s objections
Texas Rules of Evidence
under Texas Evidence 401, 402, 403 and
403 and
404(b). Specifically, counsel objected
404(b). Specifically, to
testimony that Boswell was was affiliated with any
criminal street gang.
(A)
(A) Statement of Pertinent Evidence 11
(B) Law
(B) Applicable Law 13
(1) AtAt trial, all relevant evidence is
admissible unless excepted by by the
Constitution, statute or other rules.
(2) Evidence of other crimes wrongs, or
acts is not admissible to prove the character
of a person in order to show
of show conformity
with the character.
may be excluded if
(3) Relevant evidence may
its probative value is substantially
outweighed byby a danger of unfair
prejudice.
(C) Review
(C) Standard of Review 15
(1) AA trial
trial court‘s
court’s ruling is
is reviewed for
discretion.
an abuse of discretion.
(2) AA trial
trial court‘s
court’s ruling will be upheld if
if
within the zone of reasonable
disagreement.
disagreement.
2
TABLE OF CONTENTS,
TABLE OF CONTENTS, continued
Page
Page
(D) Argument
(D) Argument 15
(1) Evidence of Boswell‘s
Boswell’s gang
was not relevant.
membership was
membership
Gang affiliation
(a) Gang affiliation evidence had
no tendency to makemake probable the
consequence.
existence of any fact of consequence.
Gang
(b) Gang affiliation
affiliation evidence
where there is no other
relevant only where
reason for the defendant to have acted
commit the crime.
as he did to commit
Even if
(2) Even Rule 403 the
if relevant, under Rule
was so prejudicial as to outweigh
evidence was
any probative value of the evidence.
affiliation
(a) Evidence of gang affiliation
was a ―distraction‖ to
“distraction” to the jury.
jury.
(b) The wasnot
The jury was not equipped to
of the
evaluate the probative force of
testimony.
(E)
(E) Harm
Harm 18
Where error occurs in admitting
(1) Where
evidence of gang affiliation,
affiliation, reversal is
required unless it
it is determined that the
error did not affect Boswell‘s
Boswell’s substantial
rights.
rights.
(a) Substantial rights are not
affected if,
if, after examination of the
record as a whole, a reviewing court
has a fair assurance that the error did
influence the jury,
not influence had but a
jury, or had
slight effect.
iii
TABLE OF CONTENTS,
TABLE OF CONTENTS, continued
Page
Page
(b) A A review here indicates the
evidence contributed to
to Boswell‘s
Boswell’s
guilty verdict.
(1) TheThe State was
was the source
when itit introduced
of the error when
of
irrelevant evidence of character
conformity.
The State emphasized
(2) The
Boswell‘s
Boswell’s gang affiliation
affiliation in
closing arguments.
(3) Every witness for the
State spoke to or about
Boswell‘s
Boswell’s gang affiliation.
(4) The State‘s
State’s “gang
―gang
expert‖
expert” spent a great deal of
time on Boswell‘s
Boswell’s role with a
criminal street gang.
(5) In dramatic fashion
was
before the jury, Boswell was
ordered to partially disrobe to
show what
show what were described as
when the same
gang tattoos when same
was available in
evidence was
photographs.
photographs.
(2) Presentation of the offending
was calculated to prejudice the
evidence was
jury, and as a result, the evidence likely
jury,
affected Boswell‘s
Boswell’s substantial rights.
4
TABLE OF
TABLE OF CONTENTS,
CONTENTS, continued
Page
Page
Two-Restated
7. Issue Two-Restated 20
The trial court abused its discretion by
The by
denying Boswell‘s motion for new trial
Boswell’s trial based on
a Brady Violation when
Brady violation when the prosecution failed to
disclose a witness‘
witness’ history of reprimands while
serving as a police officer.
8. Issue Three-Restated 21
The trial court abused its discretion by
The by
denying Boswell‘s motion for new trial
Boswell’s trial based on
a Brady when the prosecution failed to
Brady violation when
impeachment and bias evidence
disclose impeachment
concerning a State‘s
State’s witness that
that included
evidence of a history of reprimands while the
witness served as a police officer.
officer.
(A)
(A) Statement of Pertinent Evidence
(B) Review —
of Review
(B) Standard of New Trial
– New
(1) AA reviewing court reviews a trial
court‘s
court’s ruling on a motion for new trial for
discretion.
an abuse of discretion.
(2) Trial Court would would not abuse its
discretion in granting new new trial if the
defendant articulated a valid claim,
produced evidence supporting the claim,
showed prejudice to his substantial
and showed
rights.
(C) Law —– Brady
(C) Applicable Law Brady Violation
Due process requires prosecutorial
(1) Due
of information material to guilt
disclosure of
or innocence that is favorable to the
defendant.
5
TABLE OF CONTENTS,
TABLE OF CONTENTS, continued
Page
Page
(2) AA Brady when the
Brady violation occurs when
State suppresses, even inadvertently,
evidence favorable to the defendant.
The State has a duty to reveal Brady
(3) The Brady
material to the defense whether or not the
information.
defense requested the information.
(D) Argument
(D) Argument
(1) In Boswell‘s
Boswell’s post-conviction hearing,
the authenticity of the records containing
impeachment/bias evidence was
was
acknowledged and the records were not
furnished to the defense.
The documents indicated a
(a) The
basis for bias on the witness‘ part
witness’ part
when
because his testimony at trial, when
would
added to his curriculum vitae, would
promote his efforts to land a job with
enforcement.
law enforcement.
The failure to disclose the records was
(2) The was
―material‖ (i.e.,
“material” (i.e., prejudicial to Boswell)
when
when viewed in light of other evidence
presented at trial.
(a) The only evidence of of Boswell‘s
Boswell’s
involvement in the robbery presented
came from
at trial came from accomplices whowho
had a motive to testify favorable
each had
for the State.
The undisclosed records would
(b) The would
have undermined the testimony of the
one witness who who bolstered the
testimony of that of of the various
Various
witnesses.
accomplice witnesses.
6
TABLE OF CONTENTS,
TABLE OF CONTENTS, continued
Page
Page
(c) TheThe undisclosed records would
would
undermined the testimony of a
have undermined
who gave information to the
witness who
from the other
jury different in kind from
State‘s
State’s witnesses.
Witnesses.
(1) Here, the witness‘
witness’
credibility could not be
attacked except through the
offending evidence.
The witness was
(2) The was the sole
much of the evidence
of much
source of
about Boswell‘s
Boswell’s gang activity.
activity.
9. Prayer 33
10. Certificate of With Rule 9
of Service and of Compliance With 34
7
INDEX OF AUTHORITIES
INDEX OF AUTHORITIES
Authorities Page
Page
Supreme Court
United States Supreme Court cases
Brady v. Maryland
Brady Maryland 9,20
373 U.S. 83, 83 S. Ct. at 1194,
373 ED. 2d
10 L. ED.
1194, 10 2d 215 (1963)
Davis v. Alaska
Davis v. Alaska 27
1105, 39 L. Ed. 2d 347 (1974)
415 U.S. 308, 94 S. Ct. 1105,
US.
Giglio v. U.S. 23,27
150,92
405 U.S. 150, 104 (1972)
31 L. Ed. 2d 104
92 S. Ct. 763, 31
Kyles v. Whitley
v. Whitley 22,29
U.S.419,115
514 U.S. 1555, 131
419, 115 S. Ct. 1555, 490(1995)
131 L. Ed. 2d 490 (1995)
Napue
Napue v. Illinois 28
US. 264, 79 S. Ct. 1173,
360 U.S. 1217 (1959)
1173, 3 L. Ed. 2d 1217
United States v.
United v. Bagley 28,29
481 (1985)
105 S. Ct. 3375, 87 L. Ed. 2d 481
473 U.S. 667, 105
Court of Appeals
United States Court Appeals cases
Johnson v. Mills
Johnson v. 30
592 F.3d 730 (2010)
Texas Court of Criminal
Texas Court Appeals cases
Criminal Appeals
Authorities
Gigliobianco v. State 14,17,
S.W.3d 637 (Tex. Crim. App. 2006)
210 S.W.3d
Hammer v. State
Hammer v. 14
S.W.3d 555 (Tex. Crim. App. 2009)
296 S.W.3d
8
 INDEX OF AUTHORITIES,
INDEX OF AUTHORITIES, continued
Texas Court of Criminal
Texas Court Appeals cases, continued
Criminal Appeals
Authorities Page
Page
Harm
Harm v. State 24
S.W.3d 403 (Tex. Crim. App.
183 S.W.3d
183 App. 2006)
Herndon
Herndon v. State 23,26,
S.W.3d 901
215 S.W.3d App. 2007)
901 (Tex. Crim. App.
Johnson v. State
Johnson v. 18
967 S.W.2d 410 (Tex. Crim. App.
S.W.2d 410 Ohio App. 1998)
1998)
King
King v. State 17
953 S.W.2d 266 (Tex. Crim. App. 1997)
953 1997)
Little v. State
v. 25
25
991 S.W.2d 864 (Tex. Crim. App. 1999)
991 S.W.2d 1999)
Martin
Martin v. State 13,14
Crim. App. 2005)
173 S.W.3d 463 (Tex. Crim.
173
Motilla v.
v. State 18
S.W.3d 352 (Tex. Crim.
78 S.W.3d Crim. App. 2002)
Macias v. State
Macias v. 16
959 S.W.2d App. —
S.W.2d 332 (Tex. App. Houston [14
– Houston th
[14”‘ 1997)
Dist.] 1997)
Pena
Pena v. State 24
S.W.3d 797 (Tex. Crim. App.
353 S.W.3d
353 App. 2011)
Solomon
Solomon v. State 18
Ohio App. 2001)
Crim. App.
49 S.W.3d 356 (Tex. Crim.
Fury
State v. Fury 25
S.W.3d 67 (Tex. App. —
86 S.W.3d Houston [1
– Houston st
[1S‘Dist.]
Dist.] 2005,
pet. ref’d)
per.
ix
vm-no
viii
INDEX OF AUTHORITIES,
INDEX OF AUTHORITIES, continued
Texas Court of Criminal
Texas Court Appeals cases, continued
Criminal Appeals
Authorities Page
Page
Thomas
State v. Thomas 25
S.W.3d 99 (Tex. Crim.
428 S.W.3d App. 2014)
Crim. App.
Vasquez v. State
Vasquez 16
S.W.3d 229
67 S.W.3d 229 (Tex. Crim.
Crim. App. 2002)
Westbrook v. State
Westbrook 32
S.W.3d 103
29 S.W.3d App. 2000)
103 (Tex. Crim. App.
Texas Court of Appeals
Texas Court Appeals cases
Brumfield
Brumfield v. State 15
18 S.W.3d
18 921 (Tex. App. —
S.W.3d 921 Beaumont 2000,
– Beaumont pet. ref’d)
2000,pet.
In
In the Matter ofC.F.C.
Matter of C.F.C. 31
1999 WL675440 (Tex. App. —
1999 WL675440 – San Antonio, August
August 31,
1999 (not designated
1999 designatedforpublication»
for publication))
Grant v. State 13
WL 50254777, at *5
2015 WL
2015 *5
App. —– Houston
(Tex. App. Houston [14 th
[14‘h pet. ref’d)
Dist.] Aug. 25, 2015, pet. ref’d)
Montgomery v. State
Montgomery v.
821 S.W.3d
821 14 (Tex. App. —Dallas
S.W.3d 14 – Dallas 1991)
1991) 14
Newton v. State
Newton v. 14
S.W.3d 315 (Tex. App. —
301 S.W.3d
301 Waco 2009,
– Waco pet. ref’d)
2009,pet.
v. State
Ojeda v. 16
2004 WL2137653
2004 App.—E1 Paso, September 24, 2004,
WL2137653 (Tex. App.—El
(not designated for publication, pet. ref’d
publication, pet. ref’d 2005)
INDEX OF AUTHORITIES,
INDEX OF AUTHORITIES, continued
Texas Court of Appeals
Texas Court Appeals cases, continued
Authorities Page
Page
Tibbs v. State
Tibbs 15
125 S.W.3d
125 App. —
S.W.3d 84 (Tex. App. – Houston
Houston [14 th
[14”‘ Dist.] 2003,
pet. ref’d)
pet. ref ’d)
Statutes
TEX. R. APP.
TEX. PROC. 44(2)(b)
APP. PROC. 17
TEX. R. APP.
TEX. APP. P. 21.3, (h) 22,23
TEX. PENAL
TEX. CODE §19.03(a)(2), (b)(1)(West 2014)
PENAL CODE 3,31,32
CODE CRIM.
TEX. CODE
TEX. PROC. art. 37.071(1)(West 2014)
CRIM. PROC. 3, 9
TEX. R. EVID.
TEX. EVID. 401,402,403,404(b) 9,1,13
Periodicals/Legal Journals
Stephen S. Troft 29
29
Words of
Words Warningfor
of Warning Using
for Prosecutors Using
Witnesses, 47 Hastings, I.J.
Criminals as Witnesses, 1.]. 1391, 1395 (1966)
1391, 1395
xi
xxi
THE THIRD
IN THE
IN COURT OF
THIRD COURT OF APPEALS
APPEALS
AT AUSTIN,
AT TEXAS
AUSTIN, TEXAS
LARRY DONNELL
LARRY DONNELL BOSWELL,
BOSWELL, JR.§
Appellant §§
§§ CAUSE NO.
CAUSE NO. 03-15-00540-CR
03-15-00540-CR
V. §§ TRIAL NUMBER 72,904
COURT NUMBER
TRIAL COURT
§§
THE STATE
THE OF TEXAS
STATE OF TEXAS §§
Appellee §§
OF APPELLANT
BRIEF OF
BRIEF APPELLANT
TO THE
TO HONORABLE COURT
THE HONORABLE COURT OF
OF APPEALS:
APPEALS:
OF PARTIES
IDENTITY OF
1. IDENTITY AND COUNSEL
PARTIES AND COUNSEL
COMES NOW,
COMES NOW, Larry Donnell Boswell, Jr., appellant, who
who would show the
would show
follows:
Court that interested parties herein are as follows:
LARRY DONNELL
LARRY DONNELL BOSWELL,
BOSWELL, JR., appellant, TDCJ
TDCJ No. 02011634,
FM 2054, Tennessee Colony, Texas 75886.
2664 FM
Michael Unit, 2664
ROBERT D. HARRIS,
ROBERT ZACHARY BOYD,
HARRIS, III and ZACHARY BOYD, trial attorneys for
404 N. Main
appellant, 404 Box 870, Copperas Cove,
Main St., Belton, Texas, 76513, and P.O. Box
Texas, 76522, respectively..
respectively..
ERIKA
ERIKA COPELAND,
COPELAND, appellate attorney for appellant, PO.
P.O.
Box 399, Cedar Park, Texas 78613.
Box
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 11
WILLIAM NELSON
WILLIAM NELSON BARNES BOB ODOM,
BARNES and BOB ODOM, Bell County Assistant
District Attorneys, trial and appellate attorneys, respectively, for appellee, the State
Box 540, Belton, Texas 76513.
of Texas, P.O. Box
of
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 2
THE THIRD
IN THE
IN COURT OF
THIRD COURT OF APPEALS
APPEALS
AT AUSTIN,
AT TEXAS
AUSTIN, TEXAS
LARRY DONNELL
LARRY DONNELL BOSWELL,
BOSWELL, JR.§
Appellant §§
§§ CAUSE NO.
CAUSE NO. 03-15-00540-CR
03-15-00540-CR
V. §§ TRIAL NUMBER 72,904
COURT NUMBER
TRIAL COURT
§§
THE STATE
THE OF TEXAS
STATE OF TEXAS §§
Appellee §§
STATEMENT OF
2. STATEMENT THE CASE
OF THE CASE
On June 11,
On 11, 2015, a jury convicted Larry Donnell Boswell, Jr. of the capital
TEX. PENAL
offense of murder. (R.R. 7, p. 74) and, see TEX. CODE §19.03(a) (2)
PENAL CODE
(West 2014) (C.R. 1, As the State had
l, p. 77). As had not sought the death penalty, the trial
court sentenced Mr. Boswell to
to life
life in
in the Texas Department of Criminal Justice‘s
Justice’s
TEX.
Institutional Division without the possibility of parole. (R.R. 7, p. 75), and see TEX.
CODE CRIM.
CODE PROC. art. 37.071(1) (West 2014). Boswell gave timely notice of
CRIM. PROC.
appeal, and the trial court certified (CR. 1,
certified his right to do so. (C.R. 1, pp. 81, 130).
130).
BACKGROUND
3. BACKGROUND
Paul Sterling testified that he was Waco for a meeting
from Waco
was called to Killeen from
with other members of
of the Gangster Disciples (hereafter ―G.D.‘s).
“G.D.’s). Once there,
there, he
met home used by
met in a home by the gang as a clubhouse, and there, he testified, was asked
testified, he was
to
to go ―hit
“hit a lick‖
lick” by
by the G.D.‘s “Governor”, Larry Boswell, Jr.
G.D.’s ―Governor‖, “Word.” (R.R.
Jr. aka ―Word.‖
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 3
5, p. 68). Sterling said that he understood ―hit
“hit a lick‖ mean rob someone. Sterling
lick” to mean
“Slim”
“Red”, ―Slim‖
testified that he refused to undertake the task, but Ricky Brandon, aka ―Red‖,
“DC.” (Danny
“Horsehead” (Kevin Lee Stafford) and ―D.C.‖
(Stephen Mitchell Lewis), ―Horsehead‖
home armed
Carruth) agreed to the task and left the home armed with a pistol and a rifle Red’s
rifle in Red‘s
(RR. 5, pp. 69-70). Sterling said that the four were
white Suburban. (R.R. were gone thirty to
Red had been shot during the robbery.
forty minutes and returned to announce that Red
when Red
According to the returning robbers, when Red had emerged
emerged unexpectedly from a
back bedroom of the house being robbed, Slim had
back bedroom had panicked and accidentally shot
Red at the scene. By
announced that they had left Red
Red. (R.R. 5, p. 73). Slim announced By the
member of the gang
time Boswell and another member gang returned to retrieve Red, Sterling said,
the police had Red’s body. (R.R. 5,
had already arrived so they returned home without Red‘s 5,
pp.
pp. 74-75).
was targeted by
Jamie Arrington was by the would-be robbers}1 Arrington testified
would-be robbers.
was kicked in, and he, his girlfriend and
that sometime after midnight his front door was
gun point by
two daughters were accosted at gun
two by four armed He testified that they
armed men. He
bound him and his family with duct tape and eventually put them
bound him them in a bathtub while
was searched for cash. (R.R. 5, pp. 27-29).
the house was The robbers threatened
The
1
‘
The prosecution suggested in argument that Arrington was
The was targeted because he was known to
was known
home ill-gotten gain that he earned through illegal enterprise. (R.R. 7, p. 70).
keep in his home
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 4
them to disclose where
fiancee to induce them
Arrington and his fiancee where Arrington had hidden his
testified that he heard a gunshot as he and
money. (R.R. 5, pp. 32-33). Arrington testified
were leaving, they warned
his family lay in the bathtub, and that as the robbers were him
warned him
managed to get loose from
not to follow. Arrington managed from his bindings, and he ran outside
find that three of the robbers had fled;
to find home
had drug the fourth outside his home
fled; they had
from an apparent gunshot wound.
where he lay dead near his porch from
where (RR. 5, pp. 34-
wound. (R.R.
37).
Terry Kaiser, a homicide detective with the Killeen Police Department,
man dead from a single
testified that on his arrival at the crime scene he found a man
wound to the chest. (R.R. 5, pp. 102-106).
gunshot wound 102-106)?2 Kaiser opined that the physical
evidence indicated to him man had
him that the man had actually been
been shot in the house and his
body dragged to its last position near Arrington‘s
body Arrington’s front porch. (R.R. 5, 130). No
p. 130).
5, p.
by the robbers were ever recovered.
guns used by
Daniel Carruth, “D.C.”, testified
Canuth, aka ―D.C.‖, testified that
that Boswell (or “Word”) had become
(or ―Word‖)
the G.D.‘s “Governor” or leader when Boswell took over that
G.D.’s ―Governor‖ that role after
after the G.D.‘s
G.D.’s
was removed. (R.R. 5, p. 140).
former leader was On the night of
140). On of the 16 th
16”‘, , Carruth
him and three other gang
testified, Boswell instructed him members to go
gang members He
go hit a lick. He
2Ricky
2
Ricky Brandon man through fingerprint
was later identified as the dead man
Brandon was fingerprint comparisons against a
known criminals.
fingerprint data base of known
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 5
was ordered by
said that he was members
gang members
by Boswell to act as look-out for the other gang
when
when they stormed into Arrington‘s He said that after they entered the house,
Arrington’s house. He
home’s occupants were accosted, tied with duct tape and put in the bath tub as
the home‘s
the house was searched for Arrington‘s
Arrington’s cash. (R.R. 5, p. 146).
5, p. 146). Carruth said that
that
When he went
during the robbery he heard a gunshot from the back bedroom. When went to
saw that Slim had
investigate, he saw had accidentally shot Red when the latter came
Red when came
unexpectedly from a back bedroom. (R.R. 5, p. 147). testified that he tried
147). Carruth testified
to
to help Slim carry Red from the home back to
to Red‘s SUV, but eventually they left
Red’s SUV, left
when Red
his body near the front porch when Red proved too heavy for the two men to carry
two men
Word
148-149). After disclosure of the shooting to Word
to the get-away car. (R.R. 5, pp. 148-149).
on their
their return to gang’s clubhouse, Carruth said that
to the gang‘s that Boswell and another gang
member, Beau, returned to
to the shooting to Red’s body, but by
to retrieve Red‘s was
by then, it was
The police were already on the scene. (R.R. 5, pp. 150-151).
too late. The 150-151).
Bowman, a former police officer and expert on
John Bowman, on gangs in general and
andthe
the
when Brandon
testified that when
Gangster Disciples in particular, testified was identified
Brandon was identified his
who was
girlfriend eventually led police to Paul Sterling who was brought in for questioning.
questioning.
Bowman said that he questioned Sterling who, after initially denying any knowledge
Bowman knowledge
knew about the night Red
of the crime, eventually told the police all he knew
of Red was
was shot,
who was
including who was involved in the planning and execution of the botched robbery.
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 6
Bowman also gave detailed testimony about the
Over objection, Bowman
(R.R. 6, p. 48). Over
G.D.‘s,
G.D.’s, their
their origin,
origin, evolution and history
history as a violent street
street gang, their
their corporate
influence in the state. (R.R. 6, pp. 35, et.
structure and the nature and extent of their influence et.
seq.).
seq.). Bowman identified
Bowman identified Boswell as
as the gang‘s “Governor” since the
gang’s leader or ―Governor‖
spring of 2012, and he described Boswell‘s
Boswell’s ascent to his leadership role in the gang.
The trial court had
58)}3 The
(R.R. 6, pp. 58). remove his shirt for the jury,
had Boswell remove jury, and
Bowman presented a detailed explanation for the various tattoos covering Boswell‘s
Bowman Boswell’s
body and arms which
upper body Bowman said had detailed meanings to other gang
which Bowman
pp.54-57 and see State‘s
members. (R.R. 6, pp.54-57
members. He concluded his
State’s Exhibits 41-45). He
testimony by
by discussing the level of cooperation he had received in his investigation
from members of
from other members of the G. D.‘s.
D.’s.
3 Bowman’s testimony was admitted over objection, and itit became one of
Bowman‘s of the subjects of
of
Boswell‘s motion for new trial
B0swell’s trial as well as the subject of
of issues to
to follow in
in this
this brief.
brief. Evidence
more detail below.
pertinent to those issues will be discussed in more
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 7
STATEMENT REGARDING
4. STATEMENT REGARDING ORAL ARGUMENT
ORAL ARGUMENT
would aid the Court in reaching
Appellant Counsel believes that oral argument would
its decision and, therefore Counsel requests such argument.
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 8
PRESENTED
ISSUES PRESENTED
5. ISSUES
ONE
ISSUE ONE
ISSUE
The trial court erred in admitting evidence of prior bad acts over defense
The
counsel‘s Texas Rules of Evidence
counsel’s objections under Texas and 404(b).
Evidence 401, 402, 403 and
was affiliated with any
Specifically, counsel objected to testimony that Boswell was
Specifically,
14-
criminal street gang and to any evidence related to any such gang. (R.R. 5, pp. 14-
15).
15).
TWO
ISSUE TWO
ISSUE
The trial court abused its discretion by
The by denying Boswell‘s new trial
Boswell’s motion for new
on a Brudy4
based on when the prosecution failed to disclose a witness‘
Brady4 violation when witness’ history
of reprimands while serving as a police officer.
of officer.
THREE
ISSUE THREE
ISSUE
The trial court abused its discretion by
The by denying Boswell‘s new trial
Boswell’s motion for new
on a Brady
based on when the prosecution failed to disclose impeachment
Brady violation when impeachment and
bias evidence concerning a State‘s
State’s witness that included evidence of a history of
officer.
reprimands while the witness served as a police officer.
"4
Brady
Brady v. Maryland, 83 S. Ct. 1194,
1194, 10 ―Brady.‖
hereafter“Brady.”
10 L. Ed. 2d 215, 373 U.S. 83 (1963) hereafter
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 9
SUMMARY OF
SUMMARY ARGUMENTS
THE ARGUMENTS
OF THE
The trial court erred in
The in admitting evidence of Boswell‘s
Boswell’s gang affiliation
affiliation as
as
The evidence was
gang related evidence. The
well as other gang was irrelevant and offered only
proof of Boswell‘s
proof of The
Boswell’s character and that he acted in conformity with that character. The
was irrelevant because it
evidence was make probable the existence
it had no tendency to make
of any fact of consequence.
of consequence. There were other reasons beside gang-affiliation for
commit the charged crime. Moreover, even if
Boswell to have acted as he did to commit if
relevant, the probative value of the offending evidence, if was substantially
if any, was
by the danger of unfair prejudice as the jury was
outweighed by shown to have been
was not shown
equipped necessarily to evaluate the probative force of all the gang related
As a result, there was
testimony. As was a clear disparity between its probative value and
the danger of unfair prejudice.
Boswell‘s
Boswell’s motion for new trial
trial was predicated in
in part on Brady
Brady violations.
The State, however
The “gang
however inadvertently, failed to provide disciplinary records of its ―gang
expert‖, officer, who
expert”, a former police officer, who testified extensively about street gangs, their
origins and evolution, and particularly
particularly Boswell‘s
Boswell’s affiliation
affiliation and standing within a
would have provided evidence of the
Those disciplinary records would
specific gang. Those
witness‘
witness’ bias because his record of participation in other trials as an expert on gangs
was reflected
gang related subjects was
and gang which he used to
reflected in his curriculum vitae which
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant l0
10
promote
promote his efforts to secure another job with law enforcement. The records also
enforcement. The
impeachment evidence because they detailed misstatements of
offered impeachment of fact he had
made to his superiors and thus undermined
made The evidence
undermined his veracity as a witness. The
was was different in kind from
was material to Boswell because his testimony was from other
was no
witnesses, there was impeachment evidence, and his testimony
no other source for impeachment
bolstered that
that of
of the State‘s
State’s accomplice witnesses.
ONE RESTATED
ISSUE ONE
7. ISSUE RESTATED
The trial court erred in admitting evidence of prior bad acts over defense
The
counsel‘s Texas Rules of Evidence
counsel’s objections under Texas and 404(b).
Evidence 401, 402, 403 and
was affiliated with any
Specifically, counsel objected to testimony that Boswell was
Specifically,
14-15).
criminal street gang. (R.R. 5, pp. 14-15).
STATEMENT OF
STATEMENT EVIDENCE
PERTINENT EVIDENCE
OF PERTINENT
was affiliated
Defense counsel objected to any evidence that Boswell was affiliated with any
street
street gang, as
as well as to “gang” or ―gang
to the use of such terms as ―gang‖ member” in
“gang member‖
was not relevant and noted
describing him. Counsel complained that such evidence was
that
that Boswell‘s
Boswell’s indictment before the jury
jury did not allege organized criminal activity.
activity.
As a result, any alleged gang appellation, affiliation
As was irrelevant.
affiliation or activity was
would be overwhelmingly
Moreover, counsel argued that any evidence of that nature would
prejudicial to
prejudicial to Boswell‘s
Boswell’s case and would certainly
certainly outweigh any probative value
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 11
l 1
by the offending testimony. (R.R. 5, pp. 14-16).
offered by The State countered that
14-16). The
Boswell‘s was admissible ―to
Boswell’s gang affiliation was show motive, opportunity, intent, plan,
“to show
preparation, knowledge, identity, absence of mistake or accident, or other
enumerated causes.‖
causes.” In fact,
fact, the State urged, Boswell‘s
Boswell’s gang affiliation
affiliation was ―part
“part
of
of what made him a party
party to
to this
this offense…‖,
offense...’, and further,
5
further, that
that Boswell‘s
Boswell’s gang
affiliation
affiliation was how one of the State‘s “knows the defendant so identity
State’s witnesses ―knows identity
comes into play as well.‖
well.” (R.R. 5, p. 16).
5, p. 16).
The trial
trial court denied Boswell‘s
Boswell’s motion to exclude evidence of Boswell‘s
Boswell’s
gang affiliation.
gang 18). As
affiliation. (R.R. 5, p. 18). As a result, the jury heard extensive testimony in
of the trial as detailed above; including testimony as noted
the guilt/innocence phase of
that Boswell was member of
was not only a member of the Gangster Disciples, but that he was, in
fact,
fact, its “Governor” and the one who had ordered the robbery the subject
its leader or ―Governor‖
RR. 5, pp. 63, 68, 79-80;
of this offense. See, e.g., testimony of: Paul Sterling at R.R.
of
RR. 5, pp. 140-144,
Daniel Carruth at R.R. 140-144, 157. The evidence also included, again as
157. The
remove his shirt before the
of an order from the trial court that Boswell remove
the result of
jury, a description
jury, and explanation by
by the State‘s
State’s gang ―expert‖,
“expert”, John Bowman, of
of
Boswell‘s
Boswell’s various tattoos.
tattoos. (R.R. 6, pp. 26 et.
6, pp. specifically, at pp. 41, 54,
et. seq., and, specifically,
and 58,
58, as well as State‘s
State’s Exhibits 41-45 (photos of
of Boswell‘s
Boswell’s tattoos).
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 12
12
LAW
APPLICABLE LAW
APPLICABLE
by the
At trial, all relevant evidence is admissible unless otherwise excepted by
TEX. R. EVID.
Constitution, statute, or other rules. TEX. EVID. 402. ―Relevant
“Relevant evidence‖
evidence” is
is
defined as evidence having ―any
defined “any tendency to
to make the existence of any fact
fact that
that is
of consequence to the determination of
of more probable or less probable
of the action more
than it
it would be without the evidence.‖ TEX. R. EVID.
evidence.” TEX. EVID. 401.
Evidence of other crimes, wrongs, or acts is not admissible to prove the
show action in conformity with the character.
character of a person in order to show TEX.
character. TEX.
EVID. 404(b). However, such evidence may
R. EVID. may be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident. Martin
Martin v. 173 S.W.3d
v. State, 173 466 (Tex.
3d 463, 466
Ohio App. 2005) (citing Rule
Crim. App. may introduce
Rule 404(b)). Accordingly, a party may
extraneous offense evidence if
if (apart from character conformity) it
it logically serves
make more
to make more or less probable an elemental fact, an evidentiary fact that inferentially
leads to an elemental fact, or defensive evidence that undermines an elemental fact.
Id.
Ia’.
may be excluded if
Relevant evidence may if its probative value is substantially
TEX R. EVID.
among other things, unfair prejudice. TEX
by a danger of, among
outweighed by EVID.
Grant v. State, No. 14-13-01077-CR
403; and see, Grant WL 50254777, at *5
14-13-01077-CR WL *5 (Tex. App.
App.
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant l3
13
—– Houston
Houston [14 th
[14"‘ Aug. 25, 2015, no
Dist.] Aug. no pet.
pet. h.). In its seminal decision in
Montgomery identified four non-exclusive
Montgomery v. State, the Court of Criminal Appeals identified
factors to be considered in determining whether evidence should be excluded under
Rule 403. Those factors were:
Rule were: (1) the probative value of the evidence; (2) the
potential to impress the jury in some irrational, yet indelible, way; (3) the time
some
needed to develop the evidence; and, (4) the proponent‘s The
proponent’s need for the evidence. The
Waco reviewed the
Court of Criminal Appeals and the Court of Appeals at Waco
Montgomery
Montgomery decision in Gigliobianco v. 210 S.W.3d
v. State, 210 641-42 (Tex.
S.W.3d 637, 641-42
Crim. App. 2006)(footnotes citations omitted) and Newton S.W.3d 315,
301 S.W.3d
Newton v. State, 301
App. —
322-23 (Tex. App.
322-23 Waco 2009, pet.
– Waco pet. ref’d)(footnote citations omitted). In
Gigliobianco, the Court restated the pertinent factors as follows:
follows:
[A] when undertaking Rule
[A] trial court, when Rule 403 analysis, must
must balance (1) the
of evidence along with (2) the
inherent probative force of the proffered item of
proponent‘s need for that
proponent’s that evidence against (3)
(3) any tendency of the evidence
to suggest decision on an improper basis, (4) any tendency ofof the evidence to
main issues, (5) any tendency of the
confuse or distract the jury from the main
evidence to be given undue
undue weight byby a jury that has not been equipped to
evaluate the probative force of the evidence, and (6) the likelihood that
consume an inordinate amount
presentation of the evidence will consume amount ofof time or
merely repeat evidence already admitted. Of Of course, these factors may
may well
blend together in practice.
practice.
--Gigliobianco at 641-42.
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 14
14
Rule 403, the Court of Criminal Appeals wrote in Newton,
Rule Newton, ―envisions
“envisions
when there is a ‗clear disparity between
exclusion of evidence only when ‘clear between the degree
”
of
of prejudice of the offered evidence and its
its probative value.‘
value.’ ‖
--Newton at 322-23 (quoting Hummer
--Newton Hammer v.
v.
S.W.3d 555, 568 (Tex. Crim.
State, 296 S.W.3d Crim. App.
2009)).
STANDARD OF
STANDARD REVIEW
OF REVIEW
An appellate court reviews a trial
An trial court‘s
court’s ruling under the Rules of Evidence
for an abuse of discretion. Martin S.W.3d at 467. If
173 S.W.3d
Martin v. State, 173 was
If the ruling was
on any theory of law applicable to the case, in light of what
correct on was before the
what was
trial court at the time the ruling as made, a reviewing court must uphold the
judgment. A trial
judgment. Id. A trial court‘s
court’s ruling on the admissibility of
of evidence will be upheld
was within the zone of reasonable disagreement. Id.
as long as the ruling was
ARGUMENT
ARGUMENT
Evidence of Boswell‘s gang membership
Boswell’s gang was not relevant. Here, the evidence
membership was
of gang affiliation
of make probable the existence of any fact of
affiliation had no tendency to make of
was introduced simply in an attempt to connect
consequence. Rather, that evidence was
show his bad character.
gang to show
Boswell to a gang The State could have presented a clear
character. The
and understandable case explaining that Boswell participated in, or even authored,
the plan to
to rob Arrington of the latter‘s
latter’s ill-gotten
ill-gotten gains without interjecting
unnecessary information about gangs or Boswell‘s
Boswell’s affiliation
affiliation with a gang. Had the
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant l5
15
State presented its case without the evidence of Boswell‘s gang relationship, the jury
Boswell’s gang
of the night
could have undoubtedly followed and understood the sequence of events of
was not same
of the robbery. Moreover, the offending testimony was
of same transaction
Rule 404(b).
contextual evidence, and thus not admissible as an exception under Rule
Indeed, as Houston‘s
Houston’s 14
14”‘
th
District Court of Appeals noted, it
it is only in situations
commit
where there is no other reason for the defendant to have acted as he did to commit
where
come in during the guilt-innocence
a crime that gang-affiliation evidence should come
stage of a trial, and that was Tibbs v. State, 125
was not the case here. See Tibbs S.W.3d 84
125 S.W.3d
App. —
(Tex. App. Houston [14
– Houston th
[l4“‘ pet. ref’d),
Dist.] 2003, pet. by Justice
ref’cl), concurring opinion by
Anderson, citing Brumfield
Anderson, App. —
S.W.3d 921, 925-26 (Tex. App.
18 S.W.3d
Brumfield v. State, 18 Beaumont
– Beaumont
pet. ref’d)
2000, pet. supplied). Boswell‘s
ref ’d) (emphasis supplied). Boswell’s gang affiliation was not part of
affiliation was of the
why the murder
of the explanation for why
reason for the murder, or part of murder occurred as it
it
did.
did. In fact,
fact, Brandon‘s way itit did if
Brandon’s death could have occurred the way if a number of
of
commit a robbery. In that
had simply decided to commit
people randomly gathered together had
scenario, Boswell could still be guilty of the offense as an accomplice, and clearly,
whether he and the men whom he associated for the robbery were members
men with whom members of
of
would play no
gang or not would
a gang See e.g., Macias
no role in the offense. See Macias v. State, 959
S.W.2d App. —– Houston
S.W.2d 332 (Tex. App. Houston [14 th
[l4“‘ 1997) and cf.
Dist.] 1997) cf the unpublished opinion
of Ojeda v.
of v. State, 2004 App.—El Paso, September 24, 2004, pet.
WL2l37653, (Tex. App.—El
2004 WL2137653, pet.
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant l6
16
ref’d, 2005 (not designated for
ref’d, 2005 for publication) was
publication) (gang-membership evidence was
was not used as character conformity evidence)
specifically linked to the case and was
Vasquez v.
and Vasquez S.W.3d 229
v. State, 67 S.W.3d App. 2002).
229 (Tex. Crim. App.
Even if
Even Rule 403 the evidence of
if relevant, under Rule of Boswell‘s
Boswell’s gang affiliation
affiliation
was Value of the evidence. None
was so prejudicial as to outweigh any probative value of the
None of
pertinent factors cited above as dispositive of a Rule 403 analysis justify
Rule justify the
admission of the offending evidence. Rather, the jury’s View during trial
jury‘s view trial of
of a
man disrobed at the order of the trial court to expose his tattoos must have
shirtless man
on the jury.
had a substantial impact on jury. Besides the obvious potential tendency to
reflection on the import of such a display (after all, the
distract the jury from a sober reflection
had photos of the tattoos it
State had shown the jury) the offending evidence
it could have shown
was a
suggested a jury decision could rationally be based on the fact that Boswell was
sufficiency of evidence adduced
gangster as his tattoos indicated rather than on the sufficiency
To bolster that improper basis for the
to prove his association with the robbery. To
jury‘s decision, the State presented to
jury’s to the jury an expert whose testimony about
Boswell‘s
Boswell’s gang involvement in general and in
in Killen in was the
in particular was
centerpiece of the State‘s
State’s case. All of that evidence allowed the jury the opportunity
when the jury
undue weight when
to give the testimony an inordinate, undue was not equipped
jury was
S.W.3d at
210 S.W.3d
to evaluate the probative force of the testimony. See Gigliobianco, 210
Cause No. 03-l5-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant l7
17
641-42. Considering the trial testimony about gangs in general, testimony about
Boswell‘s
Boswell’s relationship to
to gang activity
activity in
in particular,
particular, as
as well as the accomplice
which resulted
testimony that Boswell, as the leader of the gang, planned the robbery which
Brandon’s death, there is
in Brandon‘s is a clear disparity
disparity between the danger of unfair prejudice
As a result, the
from the complained-of testimony and its probative value. As
resulting from
trial
trial court abused its
its discretion by
by overruling Boswell‘s Rule 403 objection to
Boswell’s Rule
testimony concerning Boswell‘s
Boswell’s alleged gang affiliation.
HARM
HARM
Where the trial court erred in admitting evidence of Boswell‘s
Where Boswell’s gang affiliation,
reversal is required, unless after examining the record, it
it is determined that the error
did not affect
affect Boswell‘s
Boswell’s substantial rights. TEX. 4. APP.
rights. TEX. PROC. 44(2) (b); King
APP. PROC. King
v. 2d 266, 271
v. State, 953 S.W. 2d App. 1997).
271 (Tex. Crim. App. 1997). Substantial rights are not
by the erroneous admission of evidence if,
affected by if, after examining the record as a
influence the jury,
whole, a reviewing court has a fair assurance that the error did not influence jury,
had but a slight effect. Solomon
or had Solomon v. S.W.3d 356, 365 (Tex. Crim. App.
v. State, 49 S.W.3d
2001). In assessing the likelihood that the jury’s
jury‘s decision was adversely affected by
by
the error, the appellate court should consider everything in the record, including any
testimony or physical evidence admitted for the jury’s
jury‘s consideration, the nature of
how the
the evidence supporting the verdict, the character of the alleged error, and how
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 18
18
error might be considered in connection with other evidence in the case. See Motilla
S.W.3d 352, 355 (Tex. Crim. App. 2002); Schutz v.
v. State, 78 S.W.3d S.W.3d
v. State, 63 S.W.3d
444-45 (Tex. Crim. App.
442, 444-45 The reviewing court should examine
App. 2001). The examine the entire
much as possible, the probable impact of the error upon
trial record and calculate, as much upon
the rest of the evidence. Coble v. State, 330 S.W.3d 253 (Tex. Crim.
330 S.W.3d App. 2010);
Crim. App.
Johnson 410 (Tex. Crim. App. 1998).
S.W.2d 410
Johnson v. State, 967 S.W.2d 1998).
A review of the evidence here indicates the admission of Boswell‘s
A Boswell’s gang
because:
affiliation contributed to his guilty verdict. That follows because:
affiliation
The State was
(1) The when it
was the source of the error when it introduced irrelevant
of character conformity;
evidence of
(2) The State
State emphasized Boswell‘s
Boswe1l’s gang affiliation
affiliation in its closing
arguments at nearly every opportunity. See, e.g.,
e. g., R.R. 7, pp. 33, 35, 36, 41, 44, 47,
48, 50 and 68;
The State elicited evidence from
(3) The from every one of
of its witnesses that
was affiliated
Boswell was was the leader of the Gangster Disciples. See
affiliated with or was
“Background Evidence‖
―Background Evidence” and ―Statement
“Statement of Pertinent Evidence‖
Evidence” above;
(4) The State‘s
State’s gang expert testified
testified at
at length about gangs in general
and the Gangster Disciples specifically;
specifically; how the G.D.‘s
G.D.’s and other gangs operated,
with what how he determined that
what criminal activities gangs were associated, and how
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 19
19
was not only affiliated with but the leader of the G.D‘s.
Boswell was G.D’s. He also not only
described various gang symbols and their meanings to the jury but pointed to tattoos
on Boswell‘s
Boswell’s body that he said substantiated his claims after
after the trial
trial court had
remove his shirt before the jury.
Boswell remove Bowman at R.R.
jury. See, testimony of John Bowman
6,
6, pp. 52 through 60 and State‘s
State’s Exhibits 41
41 through 46.
In sum, a great deal of the State‘s
State’s case against Boswell consisted of evidence
concerning Boswell‘s Brandon’s
gang affiliation and not the robbery that resulted in Brandon‘s
Boswell’s gang
was calculated to prejudice the jury against
death. Presentation of that evidence was
Boswell as a bad gangster, and as a result, that evidence likely affected his
At the very least, in light of the record as a whole,
substantial rights to a fair trial. At
no fair assessment that the error in admission of the offending evidence
there can be no
did not influence on their verdict. Solomon
influence the jury or have but a slight effect on Solomon v.
v.
State, S.W.3d at 365.
49 S.W.3d
TWO RESTATED
ISSUE TWO
8. ISSUE RESTATED
The trial court abused its discretion by
The by denying Boswell‘s new trial
Boswell’s motion for new
on aaBrady5
based on when the prosecution failed to disclose a witness‘
Brady5 violation when witness’ history
of reprimands while serving as a police officer.
of officer.
5
Brady
Brady v. Maryland, 83 S. Ct. 1194, US. 83 (1963 hereafter
10 L. Ed. 2d 215, 373 U.S.
1194, 10 ―Brady).‖
hereafter“Brady).”
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 20
THREE RESTATED
ISSUE THREE
9. ISSUE RESTATED
The trial court abused its discretion by
The by denying Boswell‘s new trial
Boswell’s motion for new
on a Brady
based on when itit was
Brady violation when shown that the prosecution failed to disclose
was shown
the disciplinary history of
of a former police officer who testified
testified as
as the State‘s “gang
State’s ―gang
expert‖
expert” where showed the witness‘s
where the records not only showed witness’s bias but offered substantial
basis for impeachment.
STATEMENT OF
STATEMENT EVIDENCE
PERTINENT EVIDENCE
OF PERTINENT
In post-conviction proceedings, Boswell argued that the State had failed to
disclose impeachment/bias evidence regarding its “gang expert‖
its ―gang expert” witness, John
Bowman. Here, evidence is adduced related to both issues two
Bowman. two and three.
Bowman, as noted above, testified
Bowman, testified extensively about the Gangster Disciples
and his findings
findings with regard to
to Boswell‘s
Boswell’s involvement with and leadership of that
that
Bowman’s testimony was the last,
gang. (See, R.R. 6, pp. 26-79). Bowman‘s last, and arguably
by the State. His testimony focused on the
most damning, testimony presented by
gang’s activities
gang‘s activities in
in Texas and in
in Killeen in particular, as well as
in particular, as Boswell‘s
Boswell’s alleged
influence and power
influence He testified that Boswell was
power within the gang. He was not just
just a
member of
of the gang but,
but, in
in fact, “Govemor” or boss of the Gangster Disciples
fact, the ―Governor‖
in
in Central Texas. (R.R. 6,
6, p.
p. 58). Bowman testified
58). Bowman testified that
that ―these guys” have been
“these guys‖
much criminal activity as any ―organization
involved in as much “organization in the history of Killeen.‖
Killeen.”
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 21
21
(R.R. 6,
6, p.
p. 52).
52). He identified
identified and interpreted Boswell‘s
Boswell’s tattoos after
after the trial
trial court
remove his shirt before the jury during trial —
ordered Boswell to remove – a not innocuous
event when the State had photographs available for the jury’s
jury‘s inspection. (R.R. 6,
p. 54). Lastly, Bowman testified that he actually aided in the murder
Bowman murder investigation
itself, and, as a result, he reported on statements he personally took from one of the
participants in the robbery, Daniel Carruth (―D.C.‖) owner of the house
(“D.C.”) and from the owner
where the planning for the robbery allegedly occurred, Timothy Skobel.
where Skobel. (R.R. 6,
pp.
pp. 65-70).
During the hearing on Boswell‘s
Boswell’s motion for new Bowman acknowledged
new trial, Bowman acknowledged
had been
that he had been disciplined by
by the Killeen Police Department while employed as a
He testified that he had, in fact, accepted a 56-day
sergeant with that department. He
from the Department followed immediately by
unpaid suspension from by his retirement in
May, 2014, after he admitted to the Department that he had committed at least six
May,
Violations of the Department‘s
violations Department’s policies.
policies. (See,
(See, Defendant‘s
Defendant’s Motion Exhibit A, C.R.
1, pp. 87, 96-123). That information had not been provided to
1, to Boswell‘s
Boswell’s counsel.
Bowman mentioned those disciplinary actions during his testimony in
Neither had Bowman
trial. Finally, he acknowledged that the disciplinary actions were
were omitted from his
when the State presented him
curriculum vitae (c.v.) provided to the jury when him as an
“expert” on gangs and gang activity.
―expert‖ activity. (See, R.R. 6,
6, p.
p. 27 (State‘s
(State’s Exhibit 36) and
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell Boswell,
Boswell, Jr.
Jr. v. ofTexas
v. The State of
Brief of Appellant 22
Defendant‘s Motion (Exhibit B)
Defendant’s Motion B) (C.R. 1,
1, p. 125)).
125)). Boswell argued that the omission
of
of that Bowman’s c.v.
that information from Bowman‘s c.V. and the State‘s
State’s failure
failure to
to disclose the
information before trial constituted violations of Brady
Brady and the dictates of its
progeny including Kyles v. Whitley, US. 419
Whitley, 514 U.S. 419 (1995) and Giglio v. U.S., 405
U.S. 150, 31 L. Ed. 2d 104
150, 92 S. Ct. 763, 31 Had the defense had
104 (1972). Had had this
information, Boswell‘s Bowman’s credibility
Boswell’s counsel argued, Bowman‘s credibility could have been
shown to the jury.
impeached and his bias shown jury. (R.R. 9, pp. 44-46). However, after
hearing testimony and argument of counsel, the trial
trial court denied Boswell‘s
Boswell’s motion
new trial. (R.R.
for new (RR. 9, p. 32).
APPLICABLE LAW —– NEW
APPLICABLE LAW TRIAL
NEW TRIAL
The new trial for any of
The trial court must grant the defendant a new of the reasons
TEX. R. APP.
articulated in TEX. “when the verdict
APP. P. 21.3, including ―when Verdict is
is contrary to
to the
law and the evidence.‖
evidence.” TEX. R .APP.
TEX. R “The trial
.APP. P. 21.3(h). ―The trial court retains the
power to grant a new
discretionary power TEX. R.
new trial for any legal reason not listed in TEX.
APP. P. 21.3.‖
APP. Vigil, No.
21.3.” State v. Vigil, 08-13-00273-CR, 2015
No. 08-13-00273-CR, WL 2353507, at *3
2015 WL *3 (Tex.
App. —
App. May 15,
– El Paso May pet.)(not designated for
15, 2015, no pet.)(n0t for publication). While ―[t]he
publication). While “[t]he
defendant need not establish reversible error as a matter of law before the trial court
may exercise its
may its discretion in
in granting a motion for new trial
trial (,)
(,) … trial
trial courts do
new trial unless the defendant demonstrates that
not have the discretion to grant a new
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 23
flawed and that the flaws
was seriously flawed
his first trial was flaws adversely affected his
trial.” Herndon
substantial rights to a fair trial.‖ S.W.3d 901, 909 (Tex. Crim.
Herndon v. State, 215 S.W.3d
App. 2007.
STANDARD OF
STANDARD REVIEW— NEW
OF REVIEW— TRIAL
NEW TRIAL
A reviewing court reviews the trial
A trial court‘s
court’s denial of a new trial
trial for abuse of
v. Herndon,
discretion. State v. S.W.3d at
Herndon, 215 S.W.3d at 906. In reviewing that
that denial,
denial, ―[an
“[an
appellate court] looks to the grounds pleaded by movant in the motion and
by the movant
new trial.‖
determines whether any of those grounds provide a basis for granting the new trial.”
State v.
v. Fury, 186 S.W.3d 67, 73
186 S.W.3d — Houston
73 (Tex. App. – Houston [1 st
[l5‘Dist.] pet. ref’d).
2005,pet.
Dist.] 2005, ref’d).
A trial
A trial judge ―cannot
“cannot grant a new trial
trial on mere sympathy, an inarticulate
inarticulate hunch, or
simply because he personally believes that the defendant is innocent or received a
deal.” Herndon,
raw deal.‖ marks omitted].
S.W.3d at 907 [Internal quotation marks
Herndon, 215 S.W.3d
Instead, even where new trial on interest of justice grounds, ―[a]
where a defendant urges a new “[a]
new trial, whether for guilt or punishment, requires a valid legal claim.‖
motion for a new claim.”
S.W.3d 99, 107
Thomas, 428 S.W.3d
State v. Thomas, “To grant a new
107 (Tex. Crim. App. 2014). ―To new trial
for a non-legal or legally
legally invalid reason is discretion.” Hemdon,
is an abuse of discretion.‖ Herndon, 215
S.W.3d at 907. While
S.W.3d While the Court of Criminal Appeals has declined to set bright-line
rules for the appellate courts to use in assessing whether the trial court abused its
TEX. R. APP.
discretion on a ground not enumerated in TEX. APP. P. 21.3, the Court of
of
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell Boswell,
Boswell, Jr.
Jr. v. ofTexas
v. The State of
Brief of Appellant 24
24
“a trial
Criminal Appeals has suggested ―a trial court would not generally abuse its
its
new trial if
discretion in granting a motion for new if the defendant: (1) articulated a valid
new trial; (2) produced evidence or pointed to evidence
legal claim in his motion for new
showed prejudice to his
in the trial record that substantiated his legal claim; and (3) showed
Rule 44.2 of the Texas Rules of
substantial rights under the standards in Rule of Appellate
Procedure.” Herndan,
Procedure.‖ S.W.3d at 909.
Herndon, 215 S.W.3d
APPLICABLE LAW —– BRADY
APPLICABLE LAW VIOLATIONS
BRADY VIOLATIONS
Due process requires prosecutorial disclosure of information material to guilt
Due
or innocence that is favorable to the defendant. Brady, 373 U.S. at 87-88, 83 S. Ct.
would
1196-97. This rule recognizes the reality that suppression of such evidence would
at 1196-97.
give the State an unfair advantage in ―shap(ing)
“shap(ing) a trial
trial that bears heavily on the
defendant(;)‖
defendant(;)” the affirmative by Brady
affirmative disclosure requirements imposed by Brady help to
avoid ―casting
“casting the prosecutor in the role of an architect of a proceeding that does not
comport with standards of justice.”
justice.‖ Id. at 88, 83 S. Ct. at 1197.
1197.
“A Brady
―A when the state suppresses, willfully or
Brady violation occurs when
defendant.” Harm
inadvertently, evidence favorable to a defendant.‖ Harm v. S.W.3d 403,
183 S.W.3d
v. State, 183
406 A defendant states a proper Brady
406 (Tex. Crim. App. 2006). A Brady claim where: (1)
( 1)
―the
“the State fails
fails to
to disclose evidence, regardless of the prosecution’s
prosecution‘s good faith
faith or
bad faith;‖
faith;” (2)
(2) ―the
“the withheld evidence is
is favorable to
to him;‖
him;” (3)
(3) ―the
“the evidence is
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 25
material, that is,
is, there is a reasonable probability that had the evidence been
trial would have been different[;]‖
disclosed, the outcome of the trial different[;]” and (4)
(4) ―the
“the
evidence central to the Brady
Brady claim [is] court.” Pena
[is] admissible in court.‖ Pena v. State, 353
S.W.3d 797, 809 (Tex. Crim. App. 2011).
S.W.3d
“The state‘s
―The state’s duty to reveal Brady when the
Brady material to the defense attaches when
information comes into
into the state‘s
state’s possession, whether or not the defense requested
information.” Harm,
the information.‖ Harm, 183
183 S.W.3d at “However, the state
at 407. ―However, state is
is not required to
to
appellant’s behalf, or furnish
seek out exculpatory evidence independently on appellant‘s
appellant with exculpatory or mitigating evidence that is fully
fially accessible to appellant
from other sources.‖ Id. ―Favorable
sources.” Id. “Favorable evidence is
is any evidence that,
that, if
if disclosed and
used effectively, may make the difference between
may make between conviction and acquittal. It
and impeachment
includes both exculpatory and evidence.” Id. ―Exculpatory
impeachment evidence.‖ “Exculpatory evidence
which tends to justify, excuse or clear the defendant
is testimony or other evidence which
from alleged fault guilt.” Id
fault or guilt.‖ “Impeachment evidence is
Id at 866-67. ―Impeachment is that which
which is
offered to dispute,
dispute, disparage, deny, or contradict.‖ S.W.2d 864,
991 S.W.2d
contradict.” Little v. State, 991
1999).
867 (Tex. Crim. App. 1999).
ARGUMENT
ARGUMENT
In Boswell‘s Bowman admitted to the authenticity of
Boswell’s post-conviction hearing, Bowman of
the records which formed the basis of the impeachment/bias evidence even as he
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell Boswell,
Boswell, Jr.
Jr. v. ofTexas
v. The State of
Brief of Appellant 26
records. (R.R.
tried to offer mitigation of his actions the subject of those disciplinary records.
was also established in the hearing that the prosecution,
14-15). It was
9, pp. 14-15). however
prosecution, however
(RR.
impeachment/bias materials to the defense. (R.R.
inadvertently, did not provide the impeachment/bias
9, pp. 40-41).
Brady
Brady and its progeny such as Giglio require the state to disclose all material
evidence that could exculpate the defendant, including evidence that could be used
impeach any of the prosecution witnesses or undermine the prosecution‘s
to impeach prosecution’s case.
case.
Those requirements are so well established that it
Those it should have controlled the post-
conviction court‘s
court’s ruling on Boswell‘s
Boswell’s motion. Here, the records attached to
to
Boswell‘s
Boswell’s motion for new trial Bowman’s personnel
trial consisted of documents from Bowman‘s
them prior to trial, he could have used to establish
file which, had Boswell receive them
bias on Bowman’s part
Bowman‘s part in
in testifying
testifying for the State.
State. Boswell showed, for example,
that
that Bowman‘s Bowman
Bowman’s curriculum vitae referenced a number of prior occasions Bowman
Bowman’s trial testimony in this case would
had testified in gang-related cases; that Bowman‘s would
Bowman was
pad that accomplishment, and, most importantly for showing bias, that Bowman was
using that curriculum vitae to promote
promote himself within the law enforcement field in
efforts to land another job in law enforcement.
enforcement. (R.R. 9, pp. With regard to
pp. 26-28). With
bias, a witness‘s
bias, witness’s interest
interest or motive to
to testify
testify is
is a critical
critical area of inquiry on cross-
examination. Davis
examination. Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105,
1105, 39 L. Ed. 2d 347 (1974).
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 27
Bowman’s
The records themselves included materials that undermined Bowman‘s
veracity under oath because the disciplinary actions centered on misstatements of
made to his superiors before his forced resignation. (R.R. 9, pp. 22-
fact that he had made
Supreme Court has noted
impeachment evidence, the United States Supreme
23). Concerning impeachment
that,
that, ―[t]he jury‘s estimate of the truthfulness and reliability
“[t]he jury’s reliability of may
of a given witness may
upon such subtle factors as the
of guilt or innocence, and it is upon
well be determinative of
possible interest
interest of
of the witness in
in testifying
testifying falsely
falsely that
that a defendant‘s
defendant’s life
life or liberty
depend.” Napue
may depend.‖
may Napue v. Illinois,
Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1217
1173, 3 L. Ed. 2d 1217
(1959).
The key issue here is
is whether the evidence the subject of
of Boswell‘s
Boswell’s motion
new trial was
for new was ―material,‖
“material,” (i.e., when viewed in light
(i. e., prejudicial to the defendant) when
of
of the other evidence presented at
at trial.
trial. Evidence is
is deemed material ―only
“only if
if there
is a reasonable probability that, had the evidence been disclosed to the defense, the
A reasonable probability is a
would have been different. A
result of the proceeding would
probability sufficient
sufficient to
to undermine confidence in the outcome.‖
outcome.” United States v.
US The answer
481 (1985). The
105 S. Ct. 3375, 87, 87 L. Ed. 2d 481
Bagley, 473 U.S. 667, 672, 105
would probably have
to the materiality issue though is not whether the defendant would
received a different verdict with the evidence,…―but
evidence,...“but whether in its
its absence he
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell Boswell,
Boswell, Jr.
Jr. v. ofTexas
v. The State of
Brief of Appellant 28
received a fair trial, understood as a trial resulting in a verdict worthy of confidence.‖
confidence.”
Kyles v. Whitley, 115 S. Ct. 1555,
Whitley, 514 U.S. 419, 434, 115 490 (1995).
131 L. Ed. 2d 490
1555, 131
Evidence of Boswell‘s
Boswell’s actual involvement in the robbery came only from
who each had
accomplices who One witness,
had a motive to testify favorably for the State. One
Paul Sterling, “ordered” the robbery, but Sterling never
Sterling, claimed that Boswell had ―ordered‖
made that assertion in the initial statement he gave to police following his arrest.
made arrest. (R.
had still not been
R. 5, p. 82). Further, at time of trial, Sterling had been charged with any
had refused to participate in the robbery. (R.R.
offense because, according to him, he had
Danny Carruth, a participant in the robbery, also testified
5, pp. 64, 68). Danny testified that Boswell
was the G.D.‘s
G.D.’s leader who told him to
to watch by
by the door as three other robbers
entered Arrington‘s
Arrington’s house to
to rob him. (R.R. 5,
5, pp. 140,
140, 143).
143). Notably, despite his
admitted participation Brandon’s death, Carruth had not
participation in the robbery resulting in Brandon‘s
murder at time of trial, and he admitted that he was
been indicted for capital murder “hoping
was ―hoping
to
to keep it
it that way.” (R.R. 5,
that way.‖ 5, p.
p. 154).
154). The last
last witness for the State,
State, the icing on the
State‘s
State’s cake as
as it
it were, was Bowman, the State‘s
State’s gang expert. It Bowman who
It was Bowman
provided a detailed analysis of the Gangster Disciples through the years, their
gang signs and tattoos
corporate structure, their criminal activities, their extensive gang
damaging evidence as introduced in trial, a description of the G.D.s
and, perhaps as damaging
as the most gang in Killeen‘s
most extensive criminal gang Killeen’s history. (R.R. 6, pp. 35, 58).
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 29
Moreover, it Bowman whose
was Bowman
it was whose testimony bolstered that of members
of the two gang members
who whose interest and bias in favor of
who testified and whose of the State was shown during
was shown
cross-examination. members’ testimony was crucial to proof of
cross-examination. Those gang members‘ of
Boswell‘s
Boswell’s status
status as
as leader of the G.D. gang and of
of his involvement in
in the planning
As a result, any evidence from any source that tended to corroborate
of the robbery. As
of
or to bolster their testimony became crucial to
to the outcome of
of the State‘s
State’s case.
case.
Bowman’s testimony did not merely serve to provide insight into the gang‘s
Finally, Bowman‘s gang’s
it also provided information to the jury different in kind to that of the
activities, it
State‘s
State’s other witnesses because it
it served to members’ allegations
to buttress gang members‘
against Boswell and to
to undermine the latter‘s
latter’s attempts to
to prove that the witnesses‘
witnesses’
him gave self-serving and biased testimony.
against him
Johnson v.
In the case of Johnson v. Mills, 592 F.3d 730 (2010), the court noted that
jurors often have a negative predisposition toward informants.
informants. ―Ordinary
“Ordinary decent
who ‗sell
people are predisposed to dislike, distrust, and frequently despise criminals who ‘sell
out‘
out’ and become prosecution witnesses. Jurors suspect their
their motives from the
moment they hear about them
moment them in a case, and they frequently disregard their testimony
altogether as highly untrustworthy and unreliable....‖
unreliable...” Id.
Id. citing Stephen S. Troft,
Words of
Words Warning for
of Warning Using Criminals as Witnesses,
for Prosecutors Using Witnesses, 47 Hastings, L.J.
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 30
1391, 1395
1391, made
1395 (1966). In light of that, any evidence supporting such testimony is made
more material.
the more material.
In a case involving the exclusion of evidence of an officer‘s
officer’s disciplinary
record, In the Matter of C.F.C., the Court of Appeals held that exclusion of such
Matter of
was not error. 1999
evidence in that case was WL 675440, Tex. App. —– San Antonio,
1999 WL
1999 (not designated for
August 31, 1999 for publication).
publication). There, defense counsel learned
had been reprimanded by
during trial that a police officer had by his department. Counsel
was admissible to impeach
argued that the reprimand was impeach the officer and that the
reprimand demonstrated bias and a motive to
to fabricate portions of the officer‘s
off1cer’s
The appeals court disagreed, but it
testimony. The it did so only after it
it determined that
which might
of the incidents the subject of the reprimand which
the probative value of
establish bias or a motive to fabricate testimony was marginal. It reached that
was marginal.
conclusion because the incidents that led to the reprimands had, in fact, occurred
after the offense the subject of its current trial. Thus, in that case, the court reasoned
was not
that whether the officer had been disciplined for violating police procedures was
relevant to a motive for lying in the case before it. The relevance, the materiality of
it. The of
impeachment/bias evidence was, he court reasoned, at best only theoretical.
the impeachment/bias
WL
675440 at *5.
C.F.C., 1999 WL 675440 *5.
Cause No. 03-l5-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 31
31
980 S.W.2d
In Saldivar v. State, 980 App. —
S.W.2d 475 (Tex. App. – Houston
Houston [14 th
[l4“‘ 1998,
Dist.] 1998,
in a case where
where defendant discovered an undisclosed conviction for a state‘s
state’s witness,
was
of prior convictions was
the court of appeals again found that undisclosed evidence of
The appellate court reached that conclusion,
impeachment purposes. The
immaterial for impeachment
however, only after it was able to accomplish his goal to
it determined that defendant was
impeach the witness‘
impeach witness’ credibility by
by using her prior inconsistent statements in lieu of
of her convictions.
evidence of
The of Appeals, in DeLe0n
The Third Court of WL 3454101
DeLeon v. State, 2015 WL 3454101 (Tex.
App. — May 29, 2015
– Austin, May November 18,
2015 (petition for discretionary review November 2015
18, 2015
(not designated for
for publication)),
publication)), found that the relevance for bias in the case before
it
it was ―not
“not plainly apparent.‖
apparent.” There, the court found that
that the State‘s
State’s motivation for
disclosing a recording to law enforcement did not have an effect
effect on the jury’s
jury‘s
consideration. Apparently, the court reached that conclusion at least in part because,
consideration.
was able to challenge the witness‘
as its opinion noted, appellant was witness’ credibility in other
ways.
Finally, in Milke
Milke v. Ryan, 711 F.3d 998 (2013), the United States Ninth
Ryan, 711
prosecutor‘s failure to disclose a key testifying
Circuit Court of Appeals held that the prosecutor’s
detective‘s “long history of lies
detective’s ―long lies and misconduct‖
misconduct” violated appellant‘s
appellant’s due process
rights and reversed and remanded new trial. In that case, which
remanded for new which noted inadvertent
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 32
enough for a Brady
failure to disclose is enough Violation (citing Kyles as well as Strickler
Brady violation
v. 119 S. Ct. 1936,
v. Green, 527 U.S. 263, 119 1936, 144 287 (1999), the Court
144 L. Ed. 2d 287
find that the jury would
reiterated that it is not necessary to find come out
would have come
differently.
differently. It
It suffices,
suffices, the Court wrote, that
that there is
is a ―reasonable
“reasonable probability of a
different result.‖
result.” Id.
Where the State apparently deemed
Where deemed testimony about the Gangster Disciples
sufficiently worthwhile that it good deal of time in trial developing the
it spent a good
Bowman was
where Bowman
evidence, and where was the sole source of most of that damning
damning evidence,
As a result, the conclusion
more apparent. As
the materiality of his testimony is even more
cannot be reached beyond a reasonable doubt that the erroneous exclusion of the
evidence did not necessarily contribute to
to Boswell‘s
Boswell’s conviction; rather,
rather, the
of the admitted Brady
evidentiary suppression of confidence in
Brady material undermines confidence
the outcome of Boswell‘s
Boswell’s trial.
PRAYER
13. PRAYER
WHEREFORE, Larry Donnell Boswell, Jr. prays that this honorable court
WHEREFORE,
remand this cause for retrial in accordance with its findings
reverse and remand findings herein and
may justly be entitled.
which he may
for such other and further relief to which
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell
Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 33
COPELAND LAW
COPELAND LAW FIRM
FIRM
Box 399
P.O. Box
TX 78613
Cedar Park, TX 78613
Phone: 512.897.8196
Phone:
Fax: 512.215.8114
ecopeland63@yahoo.com
Email: ecopeland63@yahoo.com
Email:
By: /s/ Erika Copeland
By:
Erika Copeland
State Bar No. 16075250
No. 16075250
Attorney for Appellant
CERTIFICATE OF
CERTIFICATE SERVICE AND
OF SERVICE OF
AND OF
COMPLIANCE WITH RULE
COMPLIANCE WITH RULE 9
December 14,
This is to certify that on December copy of the
14, 2015, a true and correct copy
Bob Odom,
was served on Bob
document was
above and foregoing document Odom, Assistant District
Attorney of Bell County, P.O. BoxBox 540, Belton, Texas 76513, in accordance with
the Texas Rules of Appellate Procedure, and that the Brief of Appellant is in
compliance with Rule 9 of the Texas Rules of
of Appellate Procedure and that portion
which
which must be included under Rule 9.4(i)(1) contains 7202 words.
words.
/s/ Erika Copeland
Erika Copeland
Cause No. 03-15-00540-CR
No. 03-15-00540-CR
Larry Donnell Boswell,
Boswell, Jr.
Jr. v. The State of
v. The ofTexas
Brief of Appellant 34