Temmie Cooley v. State ( 2018 )

ACCEPTED
05-17-00506-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
6/1/2018 12:22 PM
LISA MATZ
CLERK
NO. 05-17-00506-CR
FILED IN
5th COURT OF APPEALS
IN THE COURT OF APPEALS DALLAS, TEXAS
6/1/2018 12:22:17 PM
FOR THE LISA MATZ
Clerk
FIFTH JUDICIAL DISTRICT OF TEXAS
DALLAS, TEXAS
TEMMIE COOLEY,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE.
On appeal from the 416th Judicial District Court,
Collin County, Texas
The Honorable Andrea Thompson presiding.
Trial Cause No. 416-82809-2014
APPELLANT’S BRIEF
Stephanie Hudson
STEPHANIE DUECKER HUDSON, PLLC
1333 W. McDermott Dr., Suite 150
Allen, TX 75013
469.519.7815
972.530.6218 Fax
stephaniehudsonlaw@gmail.com
State Bar No. 24007130
Attorney for Appellant
TABLE OF CONTENTS
TABLE OF CONTENTS........................................................................................ ii
INDEX OF AUTHORITIES................................................................................ iii
STATEMENT OF THE CASE ...............................................................................7
ISSUES PRESENTED ........................................................................................... 9
STATEMENT OF FACTS ................................................................................... 10
SUMMARY OF ARGUMENT ............................................................................ 17
APPELLANT’S POINT OF ERROR NUMBER ONE .....................................18
T HE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING EVIDENCE
OF AN EXTRANEOUS OFFENSE DURING THE GUILT / INNOCENCE PHASE
SINCE SUCH EVIDENCE WAS NOT ADMISSIBLE TO SHOW IDENTITY, AND
THE PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHED BY UNFAIR
PREJUDICE, CONFUSION OF THE ISSUES, AND CLEARLY MISLED THE
JURY. ..............................................................................................................18
ARGUMENT AND AUTHORITIES .................................................................18
PRAYER .................................................................................................................41
CERTIFICATE OF COMPLIANCE .................................................................. 42
Appellant Brief (Cooley, Temmie) Page ii
05-17-00506-CR
INDEX OF AUTHORITIES
Cases
Albrecht vs. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972) ......................19
Almanza v. State, 686 S.W.2d 157, 157 (Tex. Crim. App. 1984) ..................... 27
Bachhofer v. State, 633 S.W.2d 869, 872 (Tex. Crim. App. 1982) ...........27, 30
Blackmon v. State, 644 S.W.2d 12, 14 (Tex. App. Dallas, 1982) .................... 23
Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim. App. 1987) .................... 21, 28
Castillo v. State, 739 S.W.2d 280, 290 (Tex. Crim. App. 1987) ...................... 29
Clark v. State, 693 S.W.2d 35, 36- 37 (Tex. App. Houston [1st Dist.] 1985,
pet. ref.) ............................................................................................................... 27
Clark v. State, 726 S.W.2d 120, 122-123 (Tex. Crim. App. 1986) ................... 20
Cobb v. State, 503 S.W.2d 249, 251 (Tex. Crim. App. 1973)........................... 23
Collazo v. State, 623 S.W.2d 647, 649 (Tex. Crim. App. 1981) ................24, 28
Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim. App. 1981)....................... 28
Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001) ........................ 35
Connor v. State, 773 S.W.2d 13, 15 (Tex. Crim. App. 1989) ............................ 38
Corley v. State, 987 S.W.2d 615, 619 (Tex. App. Austin 1999) ....................... 29
Dubose v. State, 915 S.W.2d 493, 497-498 (Tex. Crim. App. 1996) ...............18
Ferrell v. State, 429 S.W.2d 901, 903 (Tex. Crim. App. 1968) .................23, 26
Ford v. State, 484 S.W.2d 727, 729-730 (Tex. Crim. App. 1972) .............23, 28
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) ..... 35,
36, 37, 38
Green v. State, 934 S.W.2d 92, 101-102 (Tex. Crim. App. 1996) ....... 18, 31, 32
Hammer v. State, 296 S.W.3d 555, 568–69 (Tex. Crim. App. 2009) ............ 35
Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001) .................. 34
Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1990) ........................ 39
Appellant Brief (Cooley, Temmie) Page iii
05-17-00506-CR
Howland v. State, 966 S.W.2d 98, 103 (Tex. App. Houston [1st Dist.] 1998),
affirmed, 990 S.W.2d 274 (Tex. Crim. App. 1999) ........................................31
Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998) .........................18
Huddleston v. United States, 485 U.S. 681, 686 (1988) .................................. 30
James v. State, 554 S.W.2d 680, 683 (Tex. Crim. App. 1977) ........................ 28
Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004) ....................21
Lang v. State, 698 S.W.2d 735 (Tex. App. El Paso 1985, no pet.) .................. 30
Lazcano v. State, 836 S.W.2d 654, 659
(Tex. App. - El Paso 1992, pet. ref’d)............................................................... 25
Malone v. State, 849 S.W.2d 414 (Tex. App. Beaumont 1993, no pet.) ........ 34
Mart. v. State, 722 S.W.2d 172, 174 (Tex. App. Beaumont 1986, pet. ref.)..21
McDonald v. State, 513 S.W.2d 44, 50-52 (Tex. Crim. App. 1974)................ 30
Messenger v. State, 638 S.W.2d 883, 886 (Tex. Crim. App. 1982) .......... 23, 27
Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1991) (opinion on rehearing) .............. 18, 19, 23, 32, 34, 35
Old Chief v. United States, 519 U.S. 172, 184 (1997) ....................................... 32
Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006) .......................... 23
Parmer v. State, 38 S.W.3d 661, 670 (Tex. App. Austin 2000, pet. ref.) 31, 32
Plante v. State, 692 S.W.2d 487, 491 (Tex. Crim. App. 1985) ........................ 27
Rangel v. State, 250 S.W.3d 96, 97-98 (Tex. Crim. App. 2008) .....................18
Rankin v. State, 974 S.W.2d 707, 719
(Tex. Crim. App. 1998) (opinion on rehearing)............................................. 22
Redd v. State, 522 S.W.2d 890, 894 (Tex. Crim. App. 1975) .......................... 24
Reyes v. State, 69 S.W.3d 725, 740 (Tex. App. Corpus Christi 2002) ........... 27
Robbins v. State, 88 S.W.3d 256, 261 (Tex. Crim. App. 2002) ................ 19, 20
Robinson v. State, 701 S.W.2d 895, 898 (Tex. Crim. App. 1985) ................... 29
Robledo v. State, 480 S.W.2d 401, 402 (Tex. Crim. App. 1972) .................... 28
Appellant Brief (Cooley, Temmie) Page iv
05-17-00506-CR
Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999) ....................... 33
Simmons v. State, 457 S.W.2d 570, 571 (Tex. Crim. App. 1970) ..............23, 26
Siqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App. 1985) ..................23, 26
Soffar v. State, 742 S.W.2d 371, 377 (Tex. Crim. App. 1987) ...........................19
State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005) ............. 33, 34
Stringer v. State, 845 S.W.2d 400, 402
(Tex. App. Houston [1st Dist.] 1992, pet. ref.) .............................................. 29
Templin v. State, 711 S.W.2d 30, 32-33 (Tex. Crim. App. 1986)........ 19, 27, 36
Turner v. State, 754 S.W.2d 668, 672 (Tex. Crim. App. 1988) ........................31
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) .........................21
Vernon v. State, 841 S.W.2d 407, 411 (Tex. Crim. App. 1992) ....................... 20
Voelkel v. State, 501 S.W.2d 313, 315 (Tex. Crim. App. 1973) ........................ 29
Walker v. State, 588 S.W.2d 920, 922 (Tex. Crim. App. 1979) ...................... 24
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) ........... 17, 21
Yates Sel. Cas. v. State, 941 S.W.2d 357, 367 (Tex. App. Waco 1997, pet. ref.) ............31
Ybarra v. State, 401 S.W.2d 608, 609 (Tex. Crim. App. 1966) ....................... 28
Yohey v. State, 801 S.W.2d 232 (Tex. App. San Antonio 1990, pet. ref.) ...... 34
Statutes
TEX. R. EVID. 401 and 402....................................................................................19
TEX. R. EVID. 403............................................................................................ 31, 38
TEX. R. EVID. 404(b) ............................................................................... 20, 21, 36
TEX. RULE APP. PROC. 44.2(a) ............................................................................. 38
Treatises
J. McLaughlin, Weinstein’s Federal Evidence §403.02[1][a]
at 403-406 (2006 rev.) ..................................................................................... 32
S. Goode, et al., Texas Practice: Guide to the Texas Rules of Evidence,
§ 403.2 at 165 (3rd ed. 2002) .......................................................................... 34
Appellant Brief (Cooley, Temmie) Page v
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IDENTITIES OF ALL PARTIES
Appellant
TEMMIE COOLEY
Attorneys for Appellant at Trial
Robbie McClung Richard K. Franklin
MCCLUNG & FRANKLIN MCCLUNG & FRANKLIN
2150 South Central Expressway 2150 South Central Expressway
Suite 200 Suite 200
McKinney, TX 75070 McKinney, TX 75070
214. 695.3507 214. 695.3507
rsmcclung@yahoo.com State Bar No. 17801540
State Bar No. 00789772
Attorney for Appellant on Appeal
Stephanie Hudson
STEPHANIE DUECKER HUDSON, PLLC
1333 W. McDermott Dr., Suite 200
Allen, TX 75013
469.519.7815
972.530.6218 Fax
State Bar No. 24007130
smdhudson@gmail.com
Presenting Authority at Trial and on Appeal for State / Appellee
THE STATE OF TEXAS
Greg Willis Assistant District Attorneys
Criminal District Attorney Michael Wesley Wynne
2100 Bloomdale Rd., Suite 20004 State Bar No. 24054218
McKinney, TX 75071
972.548.4323 Calli Bailey
State Bar No. 21653500 State Bar No. 24075638
NO. 05-17-00506-CR
Appellant Brief (Cooley, Temmie) Page vi
05-17-00506-CR
IN THE COURT OF APPEALS
FOR THE
FIFTH JUDICIAL DISTRICT OF TEXAS
DALLAS, TEXAS
TEMMIE COOLEY,
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE.
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
This brief is respectfully submitted on behalf of the Appellant,
TEMMIE COOLEY. The parties will be identified as Appellant and State
(Appellee). The Reporter’s Record will be identified as (RR) and the Clerk’s
Record will be identified as (CR).
STATEMENT OF THE CASE
Appellant was charged by indictment for murder. (CR p.20). A pre-
trial hearing was held on November 15, 2016 before Judge Chris Oldner to
Appellant Brief (Cooley, Temmie) Page 7
05-17-00506-CR
determine the admissibility of a 2001 murder conviction. (RR Supp v.2 p.16)
No ruling on this hearing is contained in the court’s record. A jury trial
commenced and, presumably, ended in a hung jury on December 2, 2016.
(CR p.115) On January 1, 2017 Judge Andrea Thompson was sworn in as
presiding judge of the 416th Judicial District Court. (RR Supp. v.3 p.4) The
pre-trial matter of the admissibility of the 2001 murder conviction was re-
submitted to Judge Thompson who reviewed the transcript of the November
15, 2016 hearing to make her decision. (CR p.128) Judge Thompson held
that the 2001 murder conviction was admissible during the guilt / innocence
phase of Appellant’s trial for a 1989 murder. (CR p.128) Appellant
requested, and was granted, a running objection throughout the trial to
evidence of the 2001 conviction. (RR v.2 p.9)
Appellant entered a plea of not guilty and a jury trial commenced. (RR
v2 p.11) The jury found Appellant guilty, and he was sentenced by the court
to eighty years confinement in the Texas Department of Criminal Justice,
Institutional Division. (RR v6 p.158, v7 p.11) Appellant then filed notice of
appeal. (CR p.145)
Appellant Brief (Cooley, Temmie) Page 8
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ISSUES PRESENTED
1. THE TRIAL COURT ABUSED ITS DISCRETION BY
ALLOWING EVIDENCE OF AN EXTRANEOUS OFFENSE
DURING THE GUILT / INNOCENCE PHASE OF THE TRIAL.
Appellant Brief (Cooley, Temmie) Page 9
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STATEMENT OF FACTS
On the evening of Friday, November 24, 1989, Dan “Wayne” Trimble
was at home working on a friend’s mother’s car in his garage when his wife,
Sharon Trimble, came home from work, changed clothes, and told Wayne
she was going out. (RR v.4 pp.187-191) A friend of Sharon’s, Rita, stayed at
the house with the couple’s three children that evening. (RR v.4 p.192)
Wayne continued to work on the car with the friend, Reggie, and then left at
some point to return the car to Reggie’s mother. (RR v.4 pp.192-193) When
Wayne returned home later that evening, Rita was there watching tv, and
the children were asleep. (RR v.4 p.193) Wayne, Rita and Reggie sat up
talking for short time, then Wayne went to bed around 1:00 – 2:00am. (RR
v.4 p.194) When Wayne went to bed, Sharon was still not home. (RR v.4
p.195) While this was concerning to him, he was not concerned to the degree
that he felt compelled to contact police, friends or family. (RR v.4 p.195)
When she still was not home when he awoke the next morning, around 4:00
or 5:00am, Wayne started calling people. (RR v.4 p.195) After determining
that three different friends and family members had not heard from her,
Wayne called the police and filed a missing person’s report. (RR v.4 p.196)
Appellant Brief (Cooley, Temmie) Page 10
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A missing person’s report was filed with Alicia Norman with the Glenn
Heights Police Department on the morning of November 25, 1989. (RR v.4
p.177) Norman went to home of Sharon and Wayne Trimble between 11-
11:30am that morning. (RR v.4 p.178) Wayne reported last seeing Sharon
about 10:30pm the night before. (RR v.4 p.179) A teletype was sent out
making information available to other police agencies about the missing
person. (RR v.4 p.180)
That same morning Timothy Michel, along with his mother and
brother, were driving from their home in Allen, Texas to a nearby mall. (RR
v.4 pp.27-28, 31) The road on which they were driving was a dirt road, and
somewhat undeveloped. (RR v.4 p.29) As they approached the mall, Michel
saw what he believed to be a body in the ditch along the right-hand side of
the road. (RR v.4 p.30) As they car got a little closer, Michel could see that
the body was a woman wearing a red coat, and nothing from the waist down.
(RR v.4 p.29) Michel and his family proceeded to the mall where they
reported what they had seen to Plano Police officer Robert Powell, who was
working an off-duty job at the mall that day. (RR v.4 pp.31, 35)
Powell had Michel show him where the body was located. (RR v.4
pp.31, 36) Powell then contacted a police dispatcher to send on-duty units to
Appellant Brief (Cooley, Temmie) Page 11
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further investigate. (RR v.4 p.37) Officer John Naylor was one of the
investigating officers who responded. (RR v.4 p.45-46) Based on his
observations, Naylor believed the victim had died somewhere else, and the
body had been dumped out of a car onto the side of the road. (RR v.4 p.48)
Detective Thomas Gramm also responded to the crime scene and took
photographs. (RR v.4 pp.72, 78) Gramm observed the victim to be nude
from the waist down, her bra pushed up, and wearing a red sweater. (RR v.4
p.80) A pair of red boots were found near the victim. (RR v.4 p.80) No purse
was located at the scene. (RR v.4 p.81)
After receiving information via teletype about the missing person’s
report from Glenn Heights, Plano PD called indicating they had a person
who matched description of the missing person. (RR v.4 p.180) Norman
then returned to the Trimble home to report that Sharon had been found,
deceased, in Plano. (RR v.4 p.180)
Detective Thomas Gramm was assigned to investigate the case on
November 25. (RR v.4 p.75) Through his investigation Gramm was able to
determine that an ATM transaction on Trimble’s account had occurred at
10:18pm the night before her body was found from First City Bank in
Lancaster. (RR v.4 p.91-92) She then called the babysitter to check in at
Appellant Brief (Cooley, Temmie) Page 12
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11:000pm (RR v.4 p.93) Trimble had told her husband that she was going to
visit Charlotte Smith, but Charlotte never saw her that evening. (Charlotte
did say that she left her home for a while, and that it is possible Trimble
came by during this time.) (RR v.4 pp.96-97) Charlotte indicated that she
had talked to Trimble at 8:30-9:00pm that evening. (RR v.4 p.125)
Gramm interviewed co-workers of Trimble’s at Children’s Hospital,
including: Elena Harris, Joyce Stevens, Donna Landry, Temmie Cooley,
Greg Richardson, and Bobby Owens on November 27, 1989. (RR v.4 pp.98,
127) Through these interviews Gramm was informed that Trimble hung out
primarily with Appellant. (RR v.4 p.98) He also learned that co-workers
often went clubbing together, and it was not uncommon for Trimble to get
telephone numbers from multiple men at these clubs. (RR v.4 p.99)
While interviewing Appellant, Appellant denied having a sexual
relationship with Trimble, and stated that Trimble had called him on the
night of November 24 asking him to go out with a group from work, but he
had declined. (RR v.4 pp.100, 102) During 2d interview with Charlotte
Smith, Gramm learned that Trimble and Appellant had been seen “loving on
each other” (RR v.4 p.110) Gramm then interviewed Appellant a second time
on December 11. (RR v.4 p.116) During this interview, Appellant said he had
Appellant Brief (Cooley, Temmie) Page 13
05-17-00506-CR
tried to start a sexual relationship with Trimble, but never had one. (RR v.4
p.116)
One of Trimble’s friends reported seeing her car being driven by two
black men on November 26 (neither was Appellant). (RR v.4 pp. 133-134)
The vehicle was eventually found at apartment complex on December 14
(RR v.4 pp.107-108) Apartment manager had seen two black males get in
car and drive away, then bring car back. The car then sat in the complex
parking lot for two weeks before the manager reported it to police. (RR v.4
p.109) The car was checked for fingerprints, but none were found. (RR v.4
p.108)
A rape kit was done on Trimble and the presence of sperm was
detected. (RR v.4 p.117, 262) According to the medical examiner who
conducted the autopsy, the cause of death was ligature strangulation (RR v.5
p.31) At the conclusion of his investigation, Gramm was unable to make an
arrest. (RR v.4 p.119)
Billy Meeks was assigned to investigate the case on September 12,
2002. (RR v.5 p.83) Meeks began by reviewing the previous case file, then
re-interviewed several witnesses. (RR v.5 p.85) He also obtained some of
biological materials collected in 1989 and sent them to a DNA lab. (RR v.5
Appellant Brief (Cooley, Temmie) Page 14
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pp.85-86) Meeks then obtained a DNA sample from Wayne Trimble and
was able to exclude him as a suspect. (RR v.5 p.89) During his investigation
Meeks received a letter from the Institute of Forensic Sciences stating that
the DNA sample matched Appellant. (RR v.5 p.111)
After receiving this information Meeks re-interviewed Appellant at the
Kaufman County jail on February 26, 2004. (RR v.5 p.118) Appellant was in
jail charged with a 2001 murder. (RR v.5 p.119) During this interview,
Appellant again denies ever having sex with Trimble, but says they had
kissed. (RR v.5 p.126) Appellant then says that Trimble had performed oral
sex on him. (RR v.5 p.127)
Meeks interviews Appellant again June 2, 2004, at which time Meeks
informs Appellant of the DNA results. (RR v.5 p.132) Appellant then admits
to having an ongoing sexual relationship with Trimble, including on the day
she was murdered. (RR v.5 pp.136-137, 140-141)
Elizabeth Spillman took over the investigation of the case early in 2014
(RR v.5 p.153) Spillman spoke to five or six witnesses, reviewed the existing
case file and recorded interviews. (RR v.5 p.153) Spillman interviewed
Appellant on April 16, 2014 and again on May 21, 2014 and obtained a DNA
sample from him, in order to confirm the previous DNA match. (RR v.5
Appellant Brief (Cooley, Temmie) Page 15
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pp.155, 157) During these interviews, Appellant denies having sex with
Trimble on the day of the murder. (RR v.5 p.166)
Appellant Brief (Cooley, Temmie) Page 16
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SUMMARY OF ARGUMENT
1. Appellant contends the trial court abused its discretion by allowing
evidence of Appellant’s prior murder conviction to be heard by the jury
during the guilt / innocence phase of the trial since evidence of the
conviction was not admissible for the purpose of proving identity, and
the probative value of the evidence was outweighed by its unfairly
prejudicial effect.
Appellant Brief (Cooley, Temmie) Page 17
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APPELLANT’S POINT OF ERROR NUMBER ONE
THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING
EVIDENCE OF AN EXTRANEOUS OFFENSE DURING THE GUILT /
INNOCENCE PHASE SINCE SUCH EVIDENCE WAS NOT
ADMISSIBLE TO SHOW IDENTITY, AND THE PROBATIVE VALUE
SUBSTANTIALLY OUTWEIGHED BY UNFAIR PREJUDICE,
CONFUSION OF THE ISSUES, AND CLEARLY MISLED THE JURY.
ARGUMENT AND AUTHORITIES
Appellant alleges that the trial court abused its discretion by allowing
evidence of a separate murder conviction since such evidence was not
admissible to prove identity, and the probative value was substantially
outweighed by unfair prejudice to Appellant.
Standard of Review
A reviewing court should review a trial court’s evidentiary rulings for
an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.
App. 2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1991) (opinion on rehearing). A trial court abuses its discretion when it
makes an evidentiary ruling when the court’s decision “lies outside the zone
Appellant Brief (Cooley, Temmie) Page 18
05-17-00506-CR
of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 101-102 (Tex.
Crim. App. 1996). When determining whether a trial court’s evidentiary
ruling was an abuse of discretion, this Court should review the ruling in light
of the evidence that was before the court at the time of its ruling. Rangel v.
State, 250 S.W.3d 96, 97-98 (Tex. Crim. App. 2008); Hoyos v. State, 982
S.W.2d 419, 422 (Tex. Crim. App. 1998).
A reviewing court may reverse a trial court’s decision for an abuse of
discretion only when it appears that the court applied an erroneous legal
standard, or when no reasonable view of the record could support the trial
court’s conclusion under the correct law and the facts viewed in the light
most favorable to its legal conclusion. See Dubose v. State, 915 S.W.2d 493,
497-498 (Tex. Crim. App. 1996). Even if the reviewing court would have
reached a different result, it should not intercede as long as the trial court’s
ruling was within this “zone of reasonable disagreement.” See Montgomery
v. State, 810 S.W.2d at 380-381.
Admissibility of Extraneous Offenses During Guilt / Innocence
A defendant must be tried on the facts alleged in the indictment and
not for a collateral crime or for being a criminal generally. Templin v. State,
Appellant Brief (Cooley, Temmie) Page 19
05-17-00506-CR
711 S.W.2d 30, 32-33 (Tex. Crim. App. 1986); see Albrecht vs. State, 486
S.W.2d 97, 100 (Tex. Crim. App. 1972) (“An accused is entitled to be tried on
the accusation made in the state’s pleading and that he should not be tried
for some collateral crime or for being a criminal generally); Soffar v. State,
742 S.W.2d 371, 377 (Tex. Crim. App. 1987).
However, evidence of crimes or wrongful acts committed by a
defendant may be admitted during the guilt / innocence portion of the trial
if these collateral crimes are shown to be both material and relevant to a
contested issue in the case. Albrecht vs. State, 486 S.W.2d at 100. Evidence
is relevant and generally admissible if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.” See TEX. RULE EVID. 401 and 402.
The entry of a plea of “not guilty” is insufficient to make extraneous
offenses relevant - the defendant must raise an issue as to some matter for
which extraneous offense evidence may be admitted, such as the defendant’s
intent. Robbins v. State, 88 S.W.3d 256, 261 (Tex. Crim. App. 2002). This
requires that the defendant raise the issue through the affirmative
presentation of defense evidence, vigorous cross-examination, or other
Appellant Brief (Cooley, Temmie) Page 20
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means. Vernon v. State, 841 S.W.2d 407, 411 (Tex. Crim. App. 1992) (In the
defendant’s prosecution for aggravated sexual assault of his minor
stepdaughter, relationship evidence of prior sexual assaults by defendant
against same victim were not relevant to a noncharacter conformity material
issue under Texas Rule of Evidence 404(b) because the defendant did not
present any witnesses or impeach complainant); Clark v. State, 726 S.W.2d
120, 122-123 (Tex. Crim. App. 1986) (Evidence of an extraneous offense
involving the defendant and a third party erroneously admitted on issue of
defendant’s intent because defendant did not vigorously undermine the
State’s case on intent issue); Robbins v. State, 88 S.W.3d at 261 (The
defense’s cross-examination of State witnesses on the issue of Sudden Infant
Death Syndrome or possibility that infant’s death may have been caused by
incorrectly performed CPR efforts to save the victim’s life opened the door to
extraneous evidence of the child’s injuries while the child was in the
defendant’s care).
Evidence of collateral crimes or wrongful acts is not admissible against
the defendant to prove the defendant’s character in order to show that he or
she acted in conformity with that character. TEX. RULE EVID. 404(b). Such
evidence of crimes or wrongful acts are admissible to show proof of motive,
Appellant Brief (Cooley, Temmie) Page 21
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opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake or accident, or flight. TEX. RULE EVID. 404(b); Johnston v. State,
145 S.W.3d 215, 219 (Tex. Crim. App. 2004); Whittington v. State, 580
S.W.2d 845, 846-847 (Tex. Crim. App. 1979).
For a trial court to properly admit evidence of an extraneous offense
during the guilt/ innocence portion of a case, the offense must be somewhat
similar to the currently-charged offense. Relevance of the extraneous offense
depends primarily on its similarity to the currently charged offense. United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978). Further, the degree of
similarity required for admission depends upon the purpose for which the
extraneous offense is being admitted. Id. at 911. This similarity pertains to
the defendant himself, not to similarities that arise from the type of offense
committed. Martin v. State, 722 S.W.2d 172, 174 (Tex. App. Beaumont 1986,
pet. ref.) (Extraneous evidence admitted where it was alleged that the
defendant grabbed victims from behind and tried to remove their clothing).
Such evidence does not pertain to distinctive similarities as to the currently
charged offense, but similarities as to the victims, locations, and times of
offenses. Id. Further, more similarity is required to prove identity than to
prove intent. Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim. App. 1987).
Appellant Brief (Cooley, Temmie) Page 22
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When viewed objectively, if a reviewing court believes that the
“relevant criteria” leads it to believe that the danger of unfair prejudice
substantially outweighed the probative value of the evidence, evidence of an
extraneous offense must be excluded. Montgomery v. State, 810 S.W.2d at
392-393. Relevant criteria includes: (1) the ultimate issue was not seriously
contested by the defendant; (2) the state had other convincing evidence to
establish the ultimate issue to which the extraneous evidence was relevant;
(3) the probative value of the misconduct evidence was not particularly
compelling; and (4) the misconduct was of such a nature that a jury
instruction to disregard it for any but the proffered purpose would not likely
have been efficacious. Id.
As the proponent of the evidence of the extraneous offenses, the State
has the burden of showing admissibility. See Rankin v. State, 974 S.W.2d
707, 719 (Tex. Crim. App. 1998) (opinion on rehearing). As the following
arguments will show, the State failed to meet its burden.
Evidence of the Extraneous Offense Presented to the Jury During
the Guilt / Innocence Phase Was Not Admissible Based Upon Identity.
Evidence of an extraneous offense is admissible if the identity of the
person who committed the current charged offense on trial is at issue and
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the extraneous offense is so similar that the State can argue that the
extraneous offense and current offense were committed by the defendant.
Messenger v. State, 638 S.W.2d 883, 886 (Tex. Crim. App. 1982); Page v.
State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Cobb v. State, 503
S.W.2d 249, 251 (Tex. Crim. App. 1973); Blackmon v. State, 644 S.W.2d 12,
14 (Tex. App. Dallas, 1982); Ford v. State, 484 S.W.2d 727, 729-730 (Tex.
Crim. App. 1972). “Much more is demanded than the mere repeated
commission of crimes of the same class, such as repeated burglaries or
thefts. The device used must be so unusual and distinctive as to be like a
signature.” Messenger v. State, Id. at 886 (internal citations omitted).
If there is no sufficiently distinctive characteristic, then the relevancy
of the evidence cannot outweigh its prejudicial potential. Ford v. State, 484
S.W.2d at 729-730.
The defendant may inadvertently admit the extraneous offense by
thoroughly cross-examining the State’s only identifying identification
witness during cross-examination. Siqueiros v. State, 685 S.W.2d 68, 71
(Tex. Crim. App. 1985); Simmons v. State, 457 S.W.2d 570, 571 (Tex. Crim.
App. 1970); Ferrell v. State, 429 S.W.2d 901, 903 (Tex. Crim. App. 1968).
But if the defense fails to properly impeach the State’s only identification
Appellant Brief (Cooley, Temmie) Page 24
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witness, or only one of several witnesses are impeached, evidence of such an
extraneous offense is not admissible to prove identity. Walker v. State, 588
S.W.2d 920, 922 (Tex. Crim. App. 1979); Redd v. State, 522 S.W.2d 890,
894 (Tex. Crim. App. 1975).
In excluding evidence of an extraneous offense in a sexual assault
case, the Court of Criminal Appeals has held, “That appellant assaulted adult
women as they returned to their cars in public places was not so distinctive
as to mark these assaults as appellant's handiwork. To say that two sexual
assaults are similar because they are both acts of sadistic sexual deviations is
not to point to a device that is so unusual and distinctive as to be like a
signature; it is merely to characterize a feature of that general class of
offenses. Almost any two sexual assaults could be characterized as sadistic
acts, just as almost any two murders could be characterized as violent acts.
This is nothing more than dressing in psychological garb the very thing that
the law on evidence of extraneous offenses forbids: proof of the repeated
commission of a class of offenses to demonstrate that the defendant is a
criminal (or sexual deviate) generally." Collazo v. State, 623 S.W.2d 647,
649 (Tex. Crim. App. 1981).
Appellant Brief (Cooley, Temmie) Page 25
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Similarly, another appellate court has stated, “that appellant choked
and sexually assaulted two young females in the El Paso area within a six-
week time frame after meeting them at a social gathering is insufficiently
similar to justify admission. "[W]e find these general 'similarities' to be
wholly innocuous as such features would tend to be common to many cases.
It is not enough to say the offenses are sufficiently similar. Rather, the
offenses must be distinctively similar. Nothing within the instant 'similar'
facts indicates an unusual and distinctive method or commission of an
offense such that it can be considered an earmark of the perpetrator's
handiwork." Lazcano v. State, 836 S.W.2d 654, 659 (Tex. App. - El Paso
1992, pet. ref’d).
During the guilt / innocence phase of the trial the State offered
evidence of a subsequent murder charge, committed in 2001, for which
Appellant plead guilty under the theory that it was admissible as identity
evidence under Rule 404(b). (RR Supp.v.2 pp.16-17) However, all the State
showed was the “mere repeated commission of a crime of the same class,
such as repeated burglaries…”
The only evidence offered by the State to connect Appellant to the
1989 murder was the presence of his DNA. However, a logical explanation
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exists for the presence of his DNA – that he and the victim were involved in
a consensual sexual relationship. While it is true that both cases involved
victims who were killed by ligature strangulation and then dumped on the
side of a road, there was other evidence that connected Appellant to the
1989 murder. No one saw Appellant and the victim together on the evening
she was murdered. (RR v.5 p.148) But in the 2001 case, the victim told a
friend that she was going to see Appellant on the day she was murdered, her
body was found wrapped in a bed sheet that belonged to one of Appellant’s
children, calls were placed from her cellphone after she was killed by people
associated with Appellant, and Appellant’s fingerprints were found inside
her car when it was recovered a few weeks after she was killed. None of this
is true of the 1989 case. The two offenses were not similar enough to rise to
the level of showing a “signature” as contemplated by the Court of Criminal
Appeals.
And Appellant did not “inadvertently admit the extraneous offense by
thoroughly cross-examining the State’s only identifying identification
witness during cross-examination. Siqueiros v. State, 685 S.W.2d at 71;
Simmons v. State, 457 S.W.2d at 571; Ferrell v. State, 429 S.W.2d at 903.
Appellant cross-examined numerous State witnesses, and he did not
Appellant Brief (Cooley, Temmie) Page 27
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necessary impeach any of them - Appellant simply showed that the State did
not present legally sufficient evidence tying him to the presently-charged
offense.
The Prior Conviction Was Too Remote to be Admissible Under Texas
Rule of Evidence 404(b)
A reviewing court must consider the remoteness of the prior
extraneous act because remoteness reduces its probative value. Clark v.
State, 693 S.W.2d 35, 36- 37 (Tex. App. Houston [1st Dist.] 1985, pet. ref.);
Plante v. State, 692 S.W.2d 487, 491 (Tex. Crim. App. 1985). There is no “per
se” rule regarding when an extraneous offense becomes too remote for
admission. Templin v. State, 711 S.W.2d at 32-33. However, as a general
rule, the greater the time period between the charged and extraneous
offenses, the greater the likelihood of error in admitting the evidence of the
extraneous offense. See Reyes v. State, 69 S.W.3d 725, 740 (Tex. App.
Corpus Christi 2002); Messenger v. State, 638 S.W.2d at 885 (Court of
Criminal Appeals reversed a conviction where nineteen days elapsed
between the extraneous offense and the offense charged and tried before the
trial court), overruled on other grounds by Almanza v. State, 686 S.W.2d
157, 157 (Tex. Crim. App. 1984); Bachhofer v. State, 633 S.W.2d 869, 872
(Tex. Crim. App. 1982) (Court reversed the conviction where 52 months
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elapsed between the between the extraneous offense and the offense charged
and tried before the trial court); Collazo v. State, 623 S.W.2d 647, 648 (Tex.
Crim. App. 1981) (Court of Criminal Appeals reversed where one year
elapsed between the extraneous offense and the offense charged and tried
before the trial court); James v. State, 554 S.W.2d 680, 683 (Tex. Crim. App.
1977) (Court of Criminal Appeals reversed where 33 months elapsed
between the extraneous offense and the offense charged and tried before the
trial court); Ford v. State, 484 S.W.2d at 731 (Court of Criminal Appeals
reversed where two months elapsed between the extraneous offense and the
offense charged and tried before the trial court); Robledo v. State, 480
S.W.2d 401, 402 (Tex. Crim. App. 1972) (Court of Criminal Appeals reversed
where 51 months elapsed between the extraneous offense and the offense
charged and tried before the trial court); and Ybarra v. State, 401 S.W.2d
608, 609 (Tex. Crim. App. 1966) (Court of Criminal Appeals held that the
unlawful sale of alcoholic beverages two years prior to and after current
charged offense are inadmissible).
Examples of cases where the offenses were held sufficiently close in
time to be probative include Cantrell v. State, 731 S.W.2d at 90 (Court of
Criminal Appeals allowed evidence of other armed robberies committed 10
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months prior to commission of charged offense); Castillo v. State, 739
S.W.2d 280, 290 (Tex. Crim. App. 1987) (Court of Criminal Appeals allowed
evidence of several robberies with same characteristics that were committed
one month apart); Robinson v. State, 701 S.W.2d 895, 898 (Tex. Crim. App.
1985) (Court of Criminal Appeals allowed evidence of unlawful
appropriation of property that occurred six months prior to charged
offense); Voelkel v. State, 501 S.W.2d 313, 315 (Tex. Crim. App. 1973) (Court
of Criminal Appeals allowed evidence of embezzlement that occurred eight
years prior to charged offense); and Stringer v. State, 845 S.W.2d 400, 402
(Tex. App. Houston [1st Dist.] 1992, pet. ref.) (Reviewing court allowed
evidence of admitting evidence of sexual assault that occurred five years
prior to charged offense).
The factors used to measure the probative value of extraneous offense
evidence are: (1) the similarity between the extraneous offense and the
offense charged; (2) the closeness in time of the extraneous offense to the
charged offense; and (3) the availability of alternative sources of proof. See
Robinson v. State, 701 S.W.2d at 898-899; Corley v. State, 987 S.W.2d 615,
619 (Tex. App. Austin 1999).
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While there are certainly similarities between the 1989 offense and the
2001 offense, as discussed above, there are ample differences. More
importantly, there is a 12-year time period between the two offenses. This
time period renders the 2001 extraneous offense too remote to be admissible
during the guilt / innocence phase of the trial for the 1989 offense.
This Court should also consider whether there were intervening acts of
misconduct between the old extraneous offense and the current offense
charged. If there were no such intervening acts of misconduct, the old
offense should not be admissible. Lang v. State, 698 S.W.2d 735 (Tex. App.
El Paso 1985, no pet.); Bachhofer v. State, 633 S.W.2d at 872; McDonald v.
State, 513 S.W.2d 44, 50-52 (Tex. Crim. App. 1974) (Where there are several
intervening acts of similar misconduct between the presently-charged
offense and the older extraneous offense, the older extraneous offense was
admitted). There is no evidence that Appellant committed any intervening
acts of misconduct between the 1989 offense and the 2001 conviction.
Role of the Trial Court and Texas Rule of Evidence 403
The trial court must determine whether the extraneous offense is
relevant to prove a material issue other than the defendant’s character. TEX.
RULE EVID. 402; Huddleston v. United States, 485 U.S. 681, 686 (1988);
Appellant Brief (Cooley, Temmie) Page 31
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Turner v. State, 754 S.W.2d 668, 672 (Tex. Crim. App. 1988). The trial court
must also determine whether such offense serves to make more probable
either an elemental fact, an evidentiary fact that inferentially leads to an
elemental fact, or defensive evidence that undermines an elemental fact.
Montgomery v. State, 810 S.W.2d at 390-392.
Rule 403 of the Texas Rules of Evidence provides “although relevant,
evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, or needless presentation of
cumulative evidence.” TEX. RULE EVID. 403. When a Rule 403 objection is
made and then overruled, the trial court necessarily conducts a balancing
test by considering and overruling the objection. Parmer v. State, 38 S.W.3d
661, 670 (Tex. App. Austin 2000, pet. ref.); Howland v. State, 966 S.W.2d
98, 103 (Tex. App. Houston [1st Dist.] 1998), affirmed, 990 S.W.2d 274
(Tex. Crim. App. 1999); Yates v. State, 941 S.W.2d 357, 367 (Tex. App. Waco
1997, pet. ref.). It is not necessary for a trial court to put its findings and
conclusions about a Rule 403 objection on the record. Green v. State, 934
S.W.2d at 104. In Parmer v. State, the Fourth Court of Appeals held that
when a Rule 403 objection is made and overruled, the trial court performed
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a balancing test in that moment. Parmer v. State, 38 S.W.3d at 670. A
balancing test does not need to be performed on the record to render the
balancing test completed. Id.; Green v. State, 934 S.W.2d 92, 104 (Tex.
Crim. App. 1996).
Texas Rule of Evidence 403 recognizes that relevance alone does not
ensure admissibility. J. McLaughlin, Weinstein’s Federal Evidence
§403.02[1][a] at 403-406 (2006 rev.) (Discussion of Rule 403 of the
Federal Rules of Evidence). A cost/benefit analysis must often be conducted
by the trial court. Id. Relevant evidence may be excluded if its probative
value is not worth the problems that its admission may cause. Id. The issue
is whether the “search for truth will be helped or hindered by the
interjection of distracting, confusing, or emotionally charged evidence. In
making this determination, the [trial] court must assess the probative
value of the proffered item as well as the harmful consequences specified in
Rule 403 that might flow from its admission.” Id.
The key phrases in this analysis are “probative value” and “unfair
prejudice.” Probative value means more than simply relevance. Old Chief v.
United States, 519 U.S. 172, 184 (1997) (Discussion of Federal Rule of
Evidence 403). Probative value is the inherent probative force of an item of
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evidence; that is, how strongly it serves to make more or less probable the
existence of a fact of consequence to the litigation-coupled with the
proponent’s need for that item of evidence. See Montgomery v. State, 810
S.W.2d at 390 (“[w]hen the proponent [of an item of evidence] has other
compelling or undisputed evidence to establish the proposition or fact that
the [item of evidence] goes to prove, the [probative value of the item of
evidence] will weigh far less than it otherwise might in the probative versus-
prejudicial balance.”).
The second key phrase of Rule 403, “unfair prejudice,” refers to a
tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one. State v. Mechler, 153 S.W.3d 435, 440 (Tex.
Crim. App. 2005); Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App.
1999). Evidence might be unfairly prejudicial if, for example, it arouses the
jury’s hostility or sympathy for one side without regard to the logical
probative force of the evidence. K. Broun, et al., McCormick on Evidence
§185 at 737 (6th ed. 2006).
Rule 403 also discusses other issues relevant to the trial court’s
analysis. “Confusion of issues” refers to a tendency to confuse or distract the
jury from the main issues in the case. S. Goode, et al., Texas Practice: Guide
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to the Texas Rules of Evidence, § 403.2 at 165 (3rd ed. 2002). “Misleading
the jury” refers to a tendency of certain evidence to be given undue weight by
the jury on other than emotional grounds. Id. § 403.2 at 164. The Court of
Criminal Appeals has provided a Rule 403 analysis based upon the following
factors: (1) the probative value of the evidence, (2) the potential of the
evidence to impress the jury in some irrational yet indelible way, (3) how
much trial time the state needs to develop the evidence such that the jury
will be diverted from the charged offense, and (4) how great is the State’s
need for the extraneous evidence. State v. Mechler, 153 S.W.3d at 440;
Montgomery v. State, 810 S.W.2d at 389-390.
The defendant need not object to the admission of extraneous offense
instruction to be entitled to a contemporaneous limiting instruction of the
extraneous offense evidence to the purpose that justified its admission.
Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001). But if the
defendant makes an objection, the defendant should object specifically that
the probative value was outweighed by the danger of unfair prejudice to
defendant. Yohey v. State, 801 S.W.2d 232 (Tex. App. San Antonio 1990,
pet. ref.); Malone v. State, 849 S.W.2d 414 (Tex. App. Beaumont 1993, no
pet.). In this case Appellant did specifically object that the probative value of
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admission of the 2001 conviction was outweighed by the danger of unfair
prejudice to him.
Rule 403 Factors
When determining if admission would create unfair prejudice, the
court must balance: (1) the inherent probative force of the proffered item of
evidence along with (2) the proponent’s need for that evidence against (3)
any tendency of the evidence to suggest decision on an improper basis, (4)
any tendency of the evidence to confuse or distract the jury from the main
issues, (5) any tendency of the evidence to be given undue weight by a jury
that has not been equipped to evaluate the probative force of the evidence,
and (6) the likelihood that presentation of the evidence will consume an
inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). As
the Court of Criminal Appeals has noted, “these factors may well blend
together in practice.” Id. at 642. “[Rule 403] envisions exclusion of evidence
only when there is a ‘clear disparity between the degree of prejudice of the
offered evidence and its probative value.’” Hammer v. State, 296 S.W.3d 555,
568–69 (Tex. Crim. App. 2009) (quoting Conner v. State, 67 S.W.3d 192,
202 (Tex. Crim. App. 2001)).
Appellant Brief (Cooley, Temmie) Page 36
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“Probative value” means more than simply relevance; it “refers to the
inherent probative force of an item of evidence - that is, how strongly it
serves to make more or less probable the existence of a fact of consequence
to the litigation - coupled with the proponent’s need for that item of
evidence.” Gigliobianco, 210 S.W.3d at 641.
In this case, there is simply no reason that the State needed to offer
evidence of the 2001 conviction to prove the 1989 case. Evidence of the 2001
case carried absolutely no probative force in the current case. A defendant is
entitled to be tried on the accusation in the indictment, and not for a
collateral crime or being a criminal generally. Templin v. State, 711 S.W.2d,
30, 32 (Tex.Crim.App. 1986); TEX. R. EVID. 404(b).
As for the third factor, it “refers to a tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one.” Id.
The only possible result of allowing the jury to hear evidence of the 2001
conviction would be that their decision on the current case would be made
on an improper basis.
The fourth factor “refers to a tendency to confuse or distract the jury
from the main issues in the case.” Id. “Evidence that consumes an inordinate
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amount of time to present or answer, for example, might tend to confuse or
distract the jury from the main issues.” Id.
Evidence presented by the State was for an offense that occurred
twelve years after the case for which Appellant was on trial. Further, the
evidence did take an inordinate amount of time at trial to develop and
present. The State did not just offer evidence that Appellant had previously
been convicted of murder, they, essentially, tried him for the 2001 offense
during the trial for the 1989 offense by calling the investigating officer, two
separate DNA witnesses, and the medical examiner who performed the
autopsy in the 2001 case. In addition, a number of photographs and forensic
reports were offered.
The fifth factor “refers to a tendency of an item of evidence to be given
undue weight by the jury on other than emotional grounds.” Id. “For
example, ‘scientific’ evidence might mislead a jury that is not properly
equipped to judge the probative force of the evidence.” Id. This factor
similarly favors admissibility. Hearing that a person has been convicted of a
violent murder will always result in a jury placing undue weight on that
information. Essentially, Appellant was painted as a “murderer in general,”
rather than being tried on just the facts of the 1989 offense.
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The final factor concerns “the efficiency of the trial proceeding rather
than the threat of an inaccurate decision.” Id. Other than a few similarities
that would be present in a number of murder offenses, the State showed no
connection between the 2001 conviction and the 1989 case. And as stated
above, the State spent a great deal of time introducing evidence of the 2001
case through multiple witnesses and exhibits. For all of these reasons, we
conclude the trial court did not abuse its discretion when it overruled
appellant’s rule 403 objection. See TEX. R. EVID. 403; Gigliobianco, 210
S.W.3d at 641–42.
The Trial Court’s Error Was Not Harmless
The trial court’s error was not harmless because when one eliminates
the evidence of the 2001 conviction, there simply is insufficient evidence to
prove that Appellant committed the presently-charged offense. See TEX.
RULE APP. PROC. 44.2(a). The trial court’s error clearly contributed to the
jury’s verdict the error. Connor v. State, 773 S.W.2d 13, 15 (Tex. Crim. App.
1989).
In applying the harmless error rule, a reviewing court “should not
focus upon the propriety of the outcome of the trial, but instead should be
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concerned with the integrity of the process leading to the conviction. Harris
v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1990). The reviewing court
“should examine the source of the error, the nature of the error, whether or
to what extent it was emphasized by the State, its probable collateral
implications, and how much weight a juror would probably place upon the
error.” Id. In this case, the integrity of the process that led to Appellant’s
conviction is suspect. The State heavily emphasized the evidence of the 1989
conviction, so it is likely that the collateral implications severely harmed
Appellant. Consequently, it is reasonable to conclude that the jury placed
great weight on the error.
Conclusion
The trial court erred and abused its discretion by allowing the State to
present evidence of the 2001 conviction for murder because (1) evidence of
the 2001 conviction presented to the jury during the innocence/guilt phase
was not admissible based upon motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake or accident, and flight; and (2)
the probative value of admitting evidence of the 2001 conviction for murder
was substantially outweighed by the danger of unfair prejudice, confusion of
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the issues, and clearly misled the jury. Appellant thus asks this Court of
Appeals to reverse the judgment of conviction and sentence for murder and
remand this case back to the trial court for a new trial, and order that the
evidence of the 2001 conviction not be allowed during the innocence/guilt
portion of the trial.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this
Court will reverse the judgment of the trial court and enter a judgment of
acquittal, or in the alternative, remand the case to the trial court.
Respectfully Submitted,
/s/ Stephanie Hudson
Stephanie Hudson
STEPHANIE DUECKER HUDSON, PLLC
1333 W. McDermott Dr., Suite 150
Allen, TX 75013
469.519.7815
972.530.6218 Fax
stephaniehudsonlaw@gmail.com
State Bar No. 24007130
Attorney for Appellant
Appellant Brief (Cooley, Temmie) Page 41
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CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing
Appellant’s Brief has been served on the Collin County Criminal District
Attorney’s Office, 2100 Bloomdale Road, Suite 20004, McKinney, TX
75071.
/s/ Stephanie Hudson
Stephanie Hudson
CERTIFICATE OF COMPLIANCE
This brief complies with the word limitations in Texas Rule of
Appellate Procedure 9.4(i)(2). In reliance on the word count of the
computer program used to prepare this brief, the undersigned attorney
certifies that this brief contains 6,393 words, exclusive of the sections of the
brief exempted by Rule 9.4(i)(1).
/s/ Stephanie Hudson
Stephanie Hudson
Appellant Brief (Cooley, Temmie) Page 42
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