Dejesus Fobbs v. State

ACCEPTED
01-15-00043-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/5/2015 1:01:11 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00043-CR
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
FOR THE 10/5/2015 1:01:11 PM
CHRISTOPHER A. PRINE
FIRST DISTRICT OF TEXAS Clerk
HOUSTON, TEXAS
DEJESUS FOBBS, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
REPLY BRIEF FOR THE APPELLANT
CAUSE NUMBERS 22,960
IN THE 356TH JUDICIAL DISTRICT COURT OF
HARDIN COUNTY, TEXAS
SEARS & BENNETT, LLP
JOEL H. BENNETT
STATE BAR NO. 00787069
1100 NASA PARKWAY, SUITE 302
HOUSTON, TEXAS 77058
(281) 389-2118
FAX (866) 817-5155
Attorneys for DEJESUS FOBBS
LIST OF PARTIES
Presiding Judge Honorable Steven Thomas
Appellant Dejesus Fobbs
Appellee The State of Texas
Attorney for Appellant Ms. Stella Morrison
(Trial only) 4231 Lakeshore Drive
Port Arthur, Texas 77642
Mr. Bryan Laine
1045 Redwood
Kountze, Texas 77625
Attorney for Appellant Mr. Joel H. Bennett
(Appeal only) Sears & Bennett, LLP
1100 Nasa Parkway, Ste 302
Houston, Texas 77058
Attorney for Appellee Mr. David Sheffield
(Trial and Appeal) Mr. Bruce Hoffer
Ms. Kendra Walters
Hardin County District
Attorney’s Office
P. O. Box 1409
Kountze, Texas 77625
Attorney for Appellee Ms. Sue Korioth
(Appeal only) P.O. Box 600103
Dallas, Texas 75630
CITATION TO THE RECORD
Clerk’s Record ...................... C.R. (volume and page)
Reporter’s Record ................... R.R. (volume and page)
ii
TABLE OF CONTENTS
PAGE
List of Parties .................................. ii
Table of Contents ............................... iii
List of Authorities ........................... v
Appellant’s Reply to Issue No. Two ............ 7
APPELLANT’S COMPLAINT REGARDING THE
IMPROPER ADMISSION OF THE FIREARM AND
MAGAZINE WAS PROPERLY PRESERVED. THE
EXTRANEOUS OFFENSE WAS NOT NECESSARY
CONTEXTUAL EVIDENCE AND THEREFORE
INADMISSIBLE.
Statement of Facts ............................. 12
Summary of Argument ............................ 12
Conclusion and Prayer .......................... 12
Certificate of Service ......................... 13
iii
LIST OF AUTHORITIES
CASES
Devoe v. State, 354 S.W.3d 457 (Tex. Crim. App. 2011) .8
Mayes, 816 S.W.2d at 86 n. 4 ......................... 10
Pet. v. State, 93 S.W.3d 347, 353-54 (Tex. App.—
Houston [14TH Dist.] 2002, pet. ref’d)............9, 11
Rogers v. State, 853 S.W.2d 29, 33-34 (Tex. Crim. App.
1993) ............................................9, 10
RULES
Tex. Rule Evid. 404(b) ........................ 8, 10, 11
iv
NO. 01-15-00043-CR
IN THE
COURT OF APPEALS
FOR THE
FIRST DISTRICT OF TEXAS
HOUSTON, TEXAS
DEJESUS FOBBS, Appellant
v.
THE STATE OF TEXAS, Appellee
Appealed from the 356TH Judicial District Court
of Hardin County, Texas
Cause No. 22,960
REPLY BRIEF FOR THE APPELLANT
TO THE HONORABLE COURT OF APPEALS:
Now comes DEJESUS FOBBS, by and through his attorney
of record Joel H. Bennett, of Sears & Bennett, LLP, and
files this reply brief.
5
Appellant relies on his original brief for the
merits of Issues Numbers One, Three, and Four.
Appellant’s Reply Brief is in response to Issue No. Two.
APPELLANT’S REPLY REGARDING ISSUE NUMBER TWO
APPELLANT’S COMPLAINT REGARDING THE
IMPROPER ADMISSION OF THE FIREARM AND
MAGAZINE WAS PROPERLY PRESERVED. THE
EXTRANEOUS OFFENSE WAS NOT NECESSARY
CONTEXTUAL EVIDENCE AND THEREFORE
INADMISSIBLE.
ADDITIONAL STATEMENT OF FACTS
No additional statement of facts is needed.
SUMMARY OF REPLY ARGUMENT
The State’s response to Appellant’s Second Issue
attempts intermingle the extraneous offenses of
possession of the firearm and the possession of the
synthetic marijuana. Appellant’s issue is restricted to
the introduction of the handgun and magazine.
Appellant’s issue was properly preserved, as
affirmatively stated by the trial court. The State
wholly failed to explain how the presentation of the
evidence would have been incomplete or curtailed by the
6
exclusion of the extraneous offense.
ARGUMENT AND AUTHORITIES
In the State’s Brief, the State alleges that
Appellant failed to preserve this error by failing to
object to the introduction of the synthetic marijuana
and the gun. As set forth in the Statement of Facts in
Appellant’s Original brief, Appellant objected to the
introduction of the evidence of the gun and magazine
each and every time the State offered evidence of the
gun and magazine. Appellant objected to the testimony,
the introduction of the photographs, and to the gun and
magazine itself. R.R.VI—29-20, 63-64, 75, and 78-79.
The trial court specifically held that Appellant had
preserved his objection and his objection was
abundantly clear. R.R.VI—78-79. The State argues that
Appellant waived any objection because he did not
object to the introduction of the synthetic marijuana.
Appellant’s complaint involves the gun and magazine,
not the synthetic marijuana.
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Additionally, the State argues that the evidence
was admissible as contextual evidence. But, the State
fails to argue or explain how the evidence was
necessary contextual evidence to explain the possession
of the cocaine. Only contextual evidence which
includes extraneous offenses that is necessary to the
jury’s full understanding of the primary offense is
admissible.
The State cites Devoe v. State, 354 S.W.3d 457
(Tex. Crim. App. 2011) for the position that the
evidence of the gun and magazine was admissible as
contextual evidence. Appellant would submit that Devoe
supports his position, “But, under Rule 404(b), same-
transactional contextual evidence is admissible only
when the offense would make little or no sense without
also bringing in that evidence, and it is admissible
‘only to the extent that it is necessary to the jury’s
understanding of the offense.’” Devoe v. State, at 469.
The State make no argument or any explanation of how
8
the jury’s understanding of the events surrounding the
primary offense would be limited or make “little or no
sense” without the admission of the evidence of the gun
and magazine.
Additionally, the State wholly failed to
distinguish Rogers v. State, 853 S.W.2d 29, 33-34 (Tex.
Crim. App. 1993) and Peters v. State, 93 S.W.3d 347,
353-54 (Tex. App.—Houston [14TH Dist.] 2002, pet.
ref’d). Both of which require the exclusion of the gun
and magazine. In Rogers, the Court of Criminal Appeals
held it was error to admit evidence of possession of
marijuana that was found along with the
methamphetamine. The Court specifically held, “The
State could simply have described the events of
appellant's arrest without mentioning that marijuana
was found, in addition to methamphetamine. The jury's
understanding of the instant offenses would not have
been impaired or clouded had the State described
appellant's arrest without including the evidence
9
concerning the marijuana. Such omission would not have
caused the evidence regarding the instant offenses
(burglary and possession of methamphetamine) to appear
incomplete.” Rogers v. State, 853 S.W.2d at 34. Just
as in the Rogers case, the omission of the gun and
magazine would not have caused the evidence regarding
the possession of the cocaine to appear incomplete.
Similarly, the Fourteenth Court of Appeals held,
“And, it would have been a simple matter to describe
the circumstances surrounding the entry without
mentioning the shotgun under the bed and the marijuana
cigarette burning in the ashtray. See Mayes, 816 S.W.2d
at 86 n. 4. In short, because the evidence did not
directly relate to a fact of consequence in the case
and was intended to prove that appellant acted in
conformity with a (bad) character, the evidence fell
within Rule 404(b)'s prohibition. Moreover, the shotgun
was not necessary to the jury's understanding of the
offense or the circumstances concerning the entry; it
10
was not admissible as an exception under Rule 404(b).
The trial court erred in admitting the evidence.”
Peters v. State, 93 S.W.3d 347, 354. The State has
failed to explain why Appellant’s case is factually
different that the Rogers case and the Peters case and
why a different result should occur. The State’s
position on appeal is contrary to the well established
law of this State.
For all the reasons given in Appellant’s brief and
this Reply brief, Appellant’s Second Issue should be
sustained, Appellant’s convictions reversed, and the
case remanded for further proceedings.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, the Appellant,
DEJESUS FOBBS, prays that the Judgment of the Trial
Court be reversed and the case remanded for further
proceedings consistent with the judgment of this
Honorable Court.
Respectfully submitted,
SEARS & BENNETT, LLP
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_/s/ Joel H. Bennett_____________
JOEL H. BENNETT
Texas State Bar No. 00787069
1100 Nasa Parkway, Suite 302
Houston, Texas 77058
Telephone: (281) 389-2118
Facsimile: (866) 817-5155
joel@searsandbennett.com
ATTORNEY FOR DEJESUS FOBBS
CERTIFICATE OF SERVICE
I hereby certify that Appellant’s Brief has been
served upon Sue Korioth by email at suekorioth@aol.com
and the Hardin County District Attorney’s Office by
facsimile to 409-246-5142 on this the 5th day of
October, 2015.
_/s/ Joel H. Bennett_____________
Joel H. Bennett
Certificate of Compliance
In compliance with TRAP 9.4(i), I certify that the
word count in this reply brief is approximately 1383
words.
_/s/ Joel H. Bennett_____________
Joel H. Bennett
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