RECEIVED
Court of Appeals
NOV 20 2015
Lisa Matz
NO. 05-11-010161-CR
Clerk, 5th District
& 05-11-010162-CR
FILED IN
Court of Appeals
IN THE
FIFTH COURT OF APPEALS NOV 2 0 2015
Lisa Matz
SITTING AT DALLAS
Clerk, 5th District
ARAMANDO SOTO,
Appellant,
VS.
THE STATE OF TEXAS,
Appellee.
BRIEF FOR APPELLANT
Appealed from Cause numbers: F10-19502-H & F10-190503-H
in the Criminal District Court Number 1, of Dallas County, Texas
The Honorable Robert Burns, presiding.
ARAMANDO SOTO,
APPELLANT-PRO SE
#1740241-COFFIELD UNIT
2661 F.M. 2054
TENNESSEE COLONY,TX 75884
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.1(a),
Appellant Aramando Soto, submits the following list of names
and addresses of all parties to the Trial Court's judgment and
and the names and address of all trial and appellate counsel:
APPELLANT: Aramando Soto
TDCJ #:1740241
H.H. Coffield Unit
2661 F.M. 2054
Tennessee Colony,TX 75884
COUNSEL FOR APPELLANT IN Frank Jackson
THE TRIAL COURT: 2612 Boll Street
Dallas, Texas 75204
ATTORNEY FOR APPELLANT IN
THE COURT OF APPEALS Velenca Bush
1000 North Central Expwy. # 400
Dallas, Texas 75231
APPELLEE: THE STATE OF TEXAS
COUNSEL FOR THE STATE OF TEXAS SUSAN HAWK
CRIMINAL DISTRICT ATTORNEY
OF DALLAS COUNTY, TEXAS
APPELLATE DIVIS0N
133 NORTH RIVERFRONT BLVD-LB-2
DALLAS, TEXAS 75207
SOTO V STATE-APPELLANT BRIEF PAGE,ii
TABLE OF CONTENTS
Identity of Parties ii
Index of Authorities 1
References to the Record 3
Statement of the Case 4
Statement of Facts 5
Issues Presented 9
Issue One 10
The record on appeal is incomplete, therein denying the
Appellant the right to a meaningful appeal.
Issue Two 13
The appellant was entitled to confront the witnesses
against him, this included the right to physical presence
of the witness before the jury and the appellant without
appellant's having to call the witness.
Issue Three 17
The trial court erred in receiving the 'in court identif-
iction' evidence over appellant's objection.
Issue Four 21
The trial court erred in failing to sustain appellant's
timely objection to inflammatory and prejudicial photo
graphs .
Issue Five 25
Trial counsel was ineffectvie for failing to move to
suppress evidance describing tests to which appellant,
while under arrest, had been subjected.
Conclusion 28
Prayer for Relief 29
Certificate of Service 29
Certificate of Mailing 30
SOTO V STATE-APPELLANT BRIEF PAGE,iii
INDEX OF AUTHORITIES
PAGE(S)
Aldrich v. State,
296 S.W.3d 225 (Tex. App.-Fort Worth 2009) 15
Brooks v. State,
132 S.W.3d 702 (Tex.App.-Dallas 2004) 13
Bullcoming v. New Mexico,
131 S. Ct. 2547 (2011) 14
Cain v. State,
947 S.W.2d 262 (Tex. Crim. App. 1997) 12
215 S.W.3d 870,(Tex. Crim. App. 2007) 22
Connor v. State,
67 S.W.3d 192 (Tex.Crim.App. 2001) 22
Crawford v. Washington,
541 U.S. 2678 (2004) 14
Erazo v. State,
144 S.W.3d 487 (Tex. Crim.App. 2004) 23
Escamilla v. State,
556 S.W.2d 796 (Tex .Crim. App. 1977) 27
Giglibobianco v. State,
210 S.W.3d 637 (Tex .Crim. App. 2006) 22
Hernandez v. State,
726 S.W.2d 53 (Tex. Crim. App. 1986) 26
Kimmelman v. Morrison,
47
7 U.S. 365 (1986) 26
Loserth v. State,
985 S.W.2d 536 (Tex. App.-San Antonio) 18,20
Melendez-Diaz v. Massachusetts,
557 U.S. 305 (2009) 11,12,13,14
SOTO V STATE-APPELANT BRIEF PAGE, 1
PAGE(S)
Old Chief v. United States,
519 U.S. 172 (1997) 22
Prible v. State,
175 S.W.3d 724 (Tex.Crim.App. 2005) 23
Russeau v. State,
171 S.W.3d 871 (Tex.Crim.App. 2005) 15
State v. Creel,
895 S.W.2d 899 (Tex.Crim.App. 199 ) 10
Strickland v. Washington,
466 U.S. 668 (1984) 26
Tanguma v. State,
47 S.W.3d 633 (Tex.App.-Texarkana 2000) 11
TEX. R. APP. PROC. 38.1(a)
TEX. R. EVID. Rule 403
TEX. TRANSPORTATION CODE § 724.011
SOTO V STATE-APPELANI BRIEF PAGE, 2
REFERENCES TO THE RECORD
There are five (5) Volumes of the Reporters Record, and one
Clerk's Record for each case in this appeal. References to the
the Reporter's Record are designated as "RR#:#)," and continue
through each day of trial. References to the clerk's record
is designated as "(CR:# Cause #).
..
SOTO V STATE-APPELLANT BRIEF PAGE, 3
STATEMENT OF THE CASE
On July 18, 2011, Appellant Aramando Soto, pled not guilty
to the offenses of Intoxication Manslaughter in Cause Nos. F10-
19052 and F10-19053, involving the deaths of Tuong-Lee and her
8-month son Tri Khuu. (RR2:6) On July 19, 2011 trial began.
Following a jury trial, Appellant was convicted of intoxication
Manslaughter in both causes and sentenced to 20 years imprison
ment in the Texas Department of Criminal Justice in each case.
The trial court ordered the sentences to be served consecutively.
(RR4;181-45) Appellant timely filed Notice of appeal on August
22, 2011. (CR1:71:F10-109502); (CR1:72:F10-190503).
Appellant counsel Valencia Bush filed an Anders Brief on
or about February 29, 1012; however, Appellant was nevex properly
notified of his right to file a pro se Appeal brief.
Appellant filed a writ of habeas corpus pursuant to article
11.07 of the Texas Code of Criminal Procedure, where he estab
lished that his appellant counsel rendered ineffective assistance
of counsel. The Texas Court of Criminal Appeals granted relief
in Writ Numbers: WR82,563-01 and WR82,563-02, giving Appellant
an opportunity to file an out-of-time-pro-se responsive brief
alerting the court of appeals of any matters that might be argu
able in a brief on the merits appealing his judgment of convict
ion. This brief in due on November 13, 2015.
SOTO V STATE-APPELLANT BRIEF PAGE,4
STATEMENT OF FACTS
On September 6, 2010, a 2006 Chevrolet Silverado Pickup,
in which Appellant, Aramando Soto was an occupant collided with
a Nissan Sentra. This collision occured at appx 4:45 a.m. on
1-30 in Dallas, Dallas County, Texas (RR3:27).
The indictments, in these actions alleged that Appellant
was the operator the the Chevrolet Pickup (truck), that he was
intoxicated, and by reason of that intoxication caused the deaths
of Tuong Vyt Le, and Tri Khuu, by accident and mistake. (RR3:10).
State's witness, Issac Lozano, testified as a witness
to the accident that Prior to the collision the truck was "going
from lane to lane," (RR3:27) while traveling above the speed
limit. (RR3:26). Lozano, never approached the truck,(RR3:30)
but heard two voices comming from the truck, one was in pain,
the other laughing. (RR3:30). The fact that there were two
occupants to the truck was corroborated by State's witness,
Claudia Rodriquez-Hernandaz, (RR3:63). Ms. Hernandaz was unsure
as to the identity of the driver of the truck; however, over
Appellant's objection, the jury received in court identification
of appellant as the driver of the truck. (RR 3:64-65).
First responder and State's witness, Deputy Nelms, arrived
to find appellant laying on the ground and complaining of pain
to his head. (RR 3:82). Deputy Helms identified the truck as
belonging to the Appellant from the witness at the scene of
SOTO V STATE-APPELLANT BRIEF PAGE, 5
of the accident. (RR3:90) He further identified blood on
the air bag of the truck. (RR3:90-91) Detective Embry testified
to removing, pursuant to a search warrant, the trucks Air-bag
Control Module, (ACM) (RR3:94). He delivered the ACM to a retired
Dallas Police Investigator to analyze the data. This because
the Dallas Sherrif's Department did not have a system capable
of this function. (RR3:95) Appellant objected to the evidence
allegedly contained in the ACM. Detective Embry established
through this objected to evidence that the ACM suppressed the
passenger side air bag; allegedly, as it was unoccupied. (RR3:
111) Detective Embry also entered into evidence data of the
of the trucks speed five seconds before impact-94 M.P.H.- the
engine R.P.M.-3456- and the precentage of throttle-100%- and
the fact that up to one second before the impact the brakes
were not applied. (RR3:113-115) Again, over objection Detective
Embry introduced a video depiction of the accident as he alleged
it occured. This video was complied from accident reports,
not prepared by Detective Embry and the objected to A.CM. data.
Deputy Whaley, from the Physical Evidence Section of the
of the Dallas County Sheriff's office, testified that pursuant
to a search warrant, he recovered the air-bag from the truck
in order to have it tested for forensic purposes. (RR3:220-225).
Courtney Ferreira, a forensic biologist at the Southwestern
Institute of Forensic Sciences (SWIFS) analysed the blood on
air-bag and was able to determine from a "blood standard"from
SOTO V STATE-APPELLANT BRIEF PAGE, 6
the Appellant. (RR4:14-22)
Finally, the stated presented medical evidence from Janis
Townsend-Parchman, one of the Dallas County Medical Examiners.
Over objection, the Medical Examiners introduced photos of
the two decedents of the accident. After which the state and
the Defense rested. The charge was submitted to the jury and
who returned a verdict of Guilty.
SOTO V STATE-APPELLANT BRIEF PAGE, 7
ISSUES PRESENTED
ISSUE ONE: The record on appeal is incomplete, therein denying
the appellant the right to a meaningful appeal.
ISSUE TWO: The appellant was entitled to confront the witnesses
against him, this included the right to physical presence of
of the witness before the jury and the appellant without appel
lant having to call the witness.
ISSUE THREE: The trial court erred in receiving the "in court
identification" evidence over appellant's objection.
ISSUE FOUR: The trial court erred in failing to sustain appel
ant 's timely objection to inflammatory and prejudicial photo-
graphs.
ISSUE FIVE: Trial counsel was ineffective for failing to move
suppress evidance describing tests to which appellant, while
under arrest, had been subjected.
SOTO V. STATE-APPELLANT BRIEF PAGE, 9
ISSUE ONE
The record on appeal is incomplete, therein denying the
Appellant the right to a meaningful appeal.
FACTS
Appellant Counsel, Valencia Bush, requested preparation
of the Reporter's Record and designated the matters to be incl
uded (CR:61) Specifically, she requested that "all matters heard
outside the presence of the jury, including pre-trial, trial...
and bench conferences, objections, rulings, and remarks of the
Court..." (CR:62) (emphasis added). There were multible Bench
conferences which are not included in the record: (RR3:53, RR3:
99, RR3: 121, RR3, 148, RR3: 186, RR3, 207).
The failure to not record the bench conferences resulted
in objections, rulings and limiting instructions of the court
and counsel not being preserved for appellate review..
ARGUMENT & AUTHORITIES
Texas Rules of Appellate Procedure, rule 13.1, provides:
"The official court reporter... must: (a) unless excused by
agreement of the parties... make a full record of the proceedings
..." These duties were explained in State v. Creel,
895 S.W.
2d 899 (Tex.App.1992 .)(the duties imposed on the court reporter
by the rule of appellate procedure governing the creation of
transcripts are not met by simply filing the reporter's record
SOTO,V. STATE-APPELLANT BRIEF PAGE,10
with the appropriate court; the record must be complete and
and accurate." Importantly appellate courts have held that
"the burder to record all bench conferences in on the court
reporter and not the defendant. And that a defendants failure
to object to the recordation, does not prevent appellate review
of the error. See, Tanguma v. State,
47 S.W.3d 633 (Tex.App.-
Texarkana 2000).
In order to determine if the error was or was not harmless
beyond a reasonable doubt, the consequesce of the unrecorded
bench conferences has to be determined from the context in the
record surrounding the bench conferences that were not recorded.
In one instance, trial counsel objected to the admissibility
of reports generated by the Air Bag Control Module, as the proper
predicate had not been laid. The court held a bench-confer
ence, the contents were not included in the record. Appellant
is unable to appeal any unrecorded objections, and rulings or
remarks of the judge. The objected to evidence was then admitted
and presented to the jury. (RR3:98)
Next, Appellant objected to the introduction of an accident
reconstruction under the Confrontation Clause of the United
States Constitution and the United States Supreme Court's ruling
in Melinda-Diaz vs. Massachusetts,
557 U.S. 305 (2009). Once
again there was a bench conference,(RR3:121) the contents of
which were not perserved for appellate review. Appellant has
been deprived the ability to challange any of the objections,
SOIO V STATE-APPELLANT BRIEF PAGE,11
rulings or remarks of the court. The objected to evidence was
was then admitted into evidence.
When the Defense once again objected to evidence he believed
was in violation of Melinda-Diaz,
557 U.S. 305 (2009) the court
hend another unrecorded bench conference. Appellant is therefore
unable to seek appellate review of any of the objections made
by trial counsel, or the rulings or remarks of the court. The
objected to evidence was entered into evidence.
Finally, Appellant objected to a lab report which contained
evidence of alcohol and drug use prior the the accident. Once
again the court had a bench conference off the record, Appellant
is therefore unable to seek review of any of trial counsel's
objections, the ruling and remarks of the court. The evidence
was then submitted to the jury.
As a result of the imcomplete record on appeal appellant
will be denied his right to a meaningful appeal. The Texas
Court of Criminal Appeals has remarked: "where the error involved
defies analysis by harmless error standards or the data is in
sufficient to conduct a meaningful harm analysis, the the error
will not be proven harmless beyond a reasonable doubt..." Cain
v. State,
947 S.W.2d 262 (Tex.Crim.App.1997 ).
SOTO V STATE-APPELLANT BRIEF PAGE,12
The appellant was entitled to confront the witnesses against
him. This included the right to physical presence of the witness
before the jury and the appellant without appellant's having
to call the witness.
FACTS
Appellant objected to the introduction of a video accident
reconstruction. (RR3:121) Deputy Embry, testified that someone
else did the acutal reconstruction. (RR:3120) The trial Court,
at first, sustained the objection, and after and unrecorded
bench conference, and subsequent arguments of counsel for the
state and defense, overruled appellant's objection based on
Melendez-Diaz v. Massachuetts,
129 S. Ct. 2527 92009.
ARGUMENTS AND AUTHORITIES
"The Sixth Amendment to the United States Constitution
provides that 'In all criminal prosecutions, the accused shall
enjoy the right...to be confronted with the witnesses against
him"'. Brooks v. State, 132 S.W. 3d 702,709 (Tex.App.-Dallas
2004). The principle concern of the Confrontation Clause is
"to insure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context
of an adversary proceeding before the trier of fact." Brooks
Id.
SOTO V STATE-APPELLANT BRIEF PAGE,13
In Melendez-Diaz v. Massachuetts, the U.S. Supreme Court
held that a certificate presenting forensic lab results was
testimonial evidence and that defendants thus have the Sixth
Amendment right to cross-examine the analyst. Two years after
the Supreme Court ruled in Melendez-Diaz, it decided Bullcoming
v. New Mexico,
131 S. Ct. 2547 (2011). That Court held that
surrogate testimony violated the Confrontation clause when the
report is admitted into evidence and the surrogate neither obser
ved, or offered an expert opinion on, the forensic evidence.
In Bullcoming, a crime of driving while intoxicated, an
analyst's report on blood alcohol was intorduced into evidence.
The analyst who had performed the test was on leave, the state
called another analyst as a witness. This surrogate witness
was familiar with the procedures of the lab but did not observe
or play any role in the test of the blood. Instead of offering
an independent opinion of the defendant's blood alcohol content,
he simply read from the report. Bullcoming, 131 S.Ct. @ 2712.
The Court's holding treated the case as a straight forward
application of Crawford and Melendez-Diaz°: The analyst's report
could not be introduced into evidence without the analyst's
testimony unless the analyst was unavailable and the defendant
had an opportunity to cross-examine him.
In this case, the state offered into evidence a short video
0 Crawford v. Washington,
541 U.S. 2678 (2008)
Melendez-Diaz v. Massachuetts, 129 S.Ct 2527 (2009)
SOTO V STATE-APPELLANT BRIEF PAGE,14
of the accident reconstruction. (RR3120) The surrogate test
imony was offered by Deputy Embry; he makes clear he played
no part in the preparation of the accident reconstruction. (RR3:
120-21) This reconstruction, prepared by another person, was
assembled from photographs, officer reports, and information
contained in the air-bag-control-module And while the state
argued that the video was only introduced for demonstration
purposes, the appellant correctly pointed out to the court:
Deputy Embry was "just reading from a report that was generated
by someone else."171
S.W. 3d 871 (Tex.Crim.App. 2005) our own high court found that
the admission of disciplinary eports, which described the obser
vations of the officers who made them was error. The admission
of those reports violated the hearsay rule and the Confrontation
Clause since none of the persons who prepared the reports test
ified at trial. The Court found this error was not harmless
due to any affect on future dangerousness. Also, Adlrich v.
State,
296 S.W. 3d 225 (Tex.App.-Fort Worth 2009, pet. ref'd)
(Intoxication manslaughter)(trial court erred in permitting
reading of statements since the defendant did not hav an opport
unity to cross-examine the declarants. Harm was shown because
SOTO V STATE-APPELLANT BRIEF PAGE,15
the confrontation clause violation affected the defendant's
substantial rights.)
In conclusion, the appellant made the proper objection
to the introduction of this video, the state did not allow
appellant the opportunity to cross-examine the person who prep-
pare the video, Appellant was denied his rights under the United
States Constitution's Sixth Amendment right to confrontation.
SOTO V STATE-APPELLANT BRIEF PAGE,16
ISSUE THREE
The trial court erred in receiving the "in court identif-
ation" evidence over appellant's objection.
FACTS
During trial Claudia Hernandez testified that she was in
volved in the collision. (RR3:61 She explained that after the
accident occured she stayed in her car. (RR3:62) And that she
saw two people in the white truck that caused the collision.
(RR3:63) Ms. Hernandez was able to identify the driver because
"he's the one who was arrested by the police and he just passed
by me." (RR3:63) When questioned about the events following
the collison, she testified: "I saw two men in the white truck.
...both of them were wearing white T-shirts. One of them was,
like, yelling something, like, don't call the police." (RR3:63)
When questioned as to the identification of the appellant she
stated: " I'm not sure, but I think he looks like that man in
black."
Defense counsel objected and the objection was sustained
by the court. (RR3:64) After further questioons, Ms. Hernandez
once again identified appellant in the courtroom. Trial counsel
objected to the identification first as hearsay, and the court
sustained the objection, However, when trial court objected
that: "she said she was not sure,"(RR3:65) the court overruled
SOTO V STATE-APPELLANT BRIEF TSGEJ7
that objection. (RR3:65)
ARGUMENTS AND AUTHORITIES
It is fundamental that the pretrial identification not
be so unnecessarily suggestive and conductive to irreparable
mistaken identification as to amount to a denial of due process,
factors to be considered when determining the origin of the
courtroom identification are:
1. The witnesses opportunity to observe the alleged
criminal act;
2. Existence of any discrepancy between any pretrial
identification and the defendant's actual descript
ion ;
3. Failure to identify the defendant on prior occasions;
4. The lapse of time between the alleged act and
the identification.
See Loserth v. State,
985 S.W.2d 536 (Tex.App.-
San-Antonio 1998, pet ref'd)
Prior identification:
States witness Ms. Hernandez tesified that she was able
identify the driver because " he's the one who was arrested
by the police and he just passed by me."(RR3:63) Unquestionably,
this identification as the appellant as the driver is flawed.
Ms. Hernandez, was only able to testify that appellant was the
the one that was arrested. Her statement that she knew appellant
was the driver as he was the one was arrested, demonstrates
the court's error in receiving the in court identification over
appellants objection.
SOTO V STATE-APPELLANT BRIEF PAGE,18
Failure to identify the appellant on a prior occasion:
During the trial, the state asked Ms. Hernandez:
Q: ... do you see him here in the courtroom today?
A. I'm not sure, but I think he looks like that man in black.
Q- ... Which one in black?
A. The guy in black with a tie on and also some white, but
I'm not sure.
State: Let the record reflect aht this witness is refering
to the Defendant Aramando Soto.
Trial counsel: ... I object
Court: Okay. Sustained... Ask you next question.
Q. The person you're referring to, in the black, with the
the white and the tie on, where is he sitting? Can you
point?
A. Here straight from me.
Q. Okay. And if we were to count the chairs here and I was
sitting in chair 1,2 and so on, which chair would he be
sitting in?
A. Four
Q. Okay. And claudia, is that the man that you later came
to know as Aramando Soto?
Trial counsel: Objection Your Honor. She said she's not even
sure if he's the one who was at the site.
Court: That objection is overruled.
Trial counsel: I object to the hearsay, Your Honor. It's not
whether or not she found it out, it's how she found it
out. If she found it out through hearsay.
Court: That objection is sustained.
Trial Counsel: Your Honor, I'll object to that. She has not
identified the Defendant. she's said she's not sure.
Court: Well, that' overruled; you over objection is overruled.
SOTO V STATE-APPELLANT BRIEF PAGE,19
This testimony demonstrates that Ms. Hernandez never ident
ified appellant as the person she saw at the site. She twice
told the court, she was not sure, but when pressed by the state
to identify the appellant she was only able to point out the
person she said "looks like the man... but I'm not sure."
(RR3:64) The court's acceptance of this identification gives
rise to a very substantial likelihood of irreparable misidentif-
ication. The witness was very indifinite and there was a subst
antial lapse of time between the crime and the in court identif
ication. See Loserth,
985 S.W. 2d 536 (Tex.App.-San Antonio
1998)
In conclusion, the Trial court erred in receiving the
in court identification evidence over the appellants objection,
and appellant was irreparable harmed as Ms. Hernandez was the
only person, who testified that she could identify the appellant
as the driver of the truck that caused the accident.
SOTO V STATE-APPELLANT BRIEF PAGE,20
ISSUE FOUR
The trial court erred in failing to sustain appellant's
timely objection to inflammatory and prejudicial photographs.
FACTS
The State Called Janis Townsend Parchman, one of the Dallas
County Medical examiners. Dr. Parchman testified that as part
of the autopsy photographs were taken (RR4:31) The state sought
to introduce the photographs.
During a voir dire examination by Defense Counsel, (RR4:34)
Dr. Parchamn was questioned as to the necessity of the photo
graphs being shown to the Jury. (RR4:34) And she testified that
experience, many people could not evision the injuries and they
needed to see the photographs.(RR4:35)
Trial Counsel objected to the introduction of the photo
graphs as being "prejudicial and flamatory [sic]." The objection
was overruled.
ARGUMENT AND AUTHORITIES
Rule 403, of the Texas Rules of Evidence provides:
Although relevant, evidence may be excluded if the
its probative value is substantially outweighted by
the danger of unfair purjudice, confusion of the issues
or misleading the jury, or by considerations of undue
delay or needless presentation of cumulative evidence.
The Rule exludes evidence when there is a "clear disparity
between the degree of prejudice of the offered evidence and
SOTO V STATE-APPELLAI!^, BRIEF PAGE,21
of the offered evidence and its probative value." Connor v.
State,
67 S.W.3d 192, 202 (Tex.Crim.App. 2001) The first factor,
and the one complained of by appellant, leads to the exclusion
of relevant evidence is the phrase "unfair prejudice" which
refers not to the evidence's potentially adverse or detrimental
effect but to "an undue tendency to suggest decision on an im
proper basis, commonly, though not necessarily, an emotional
one." Giglibobianco v. State, 210 S.W. 3d 637,641 (Tex.Crim.
App. 2006) See also, Old Chief v. United States,
519 U.S. 172,
(1997)(defining "unfair prejudice as "the capacity of some
of some concededly relevant evidence to lure the fact-finder
into declaring guilt on a ground different from proof specific
to the offense charged")
Texas Courts have set out a more elaborate balancing test
for determining whether the danger of unfair prejudice substanti
ally outweighs the evidence's probative value. The Court of
Criminal Appeals has suggested that:
[Courts] must balance (1) the inherent probative
force of the proffered item of evidence along with
(2) the proponents need for that evidence against
(3) any tendency of the evidence to confuse or distract
the jury tht has not been equipped to evaluate the
the probative force of the evidence, and (6) the likel
ihood that the presentation of the evidence will con
sume an inordinate amount of time or merely repeat
evidence already admitted. Casey v. State,
215 S.W.
3d 870, (Tex.Crim.App. 2007)
In the present case, it was undisputed that both of the
victims of the accident were deceased. The state had no lig-
itmate need to offer the autopsy photographs to the jury.
SOTO V STATE-APPELLANT BRIEF PAGE,22
Several recent cases have held that the admission of photo-
graphs-particularly those of autopsies and crime vitims-should
be analyzed more rigorously under Rule 403. In Prible v. State,
175 S.W. 3d 724 (Tex.Crim.App. 2005). The court of criminal
appeals held that the admission of numerous post-autopsy photo
graphs of three young children's lungs and tracheas was error
under Rule 403 when capital murder defendant was charged only
the deaths of the childrens parents. Although the cause of
children's deaths by smoke inhalation was of some probative
value to corroborate the testimony of the State's witness, intro
ducing the post-autopsy photographs of the children was unfairly
prejudicial and threatened to confuse the disputed issues.
Similarly, in Erazo v. State, 144 S.W. 3d 487,488 (Tex.Crim.
App. 2004) the court held it was error to admit a photograph
of a fetus removed f4rom the murder victim's womb during the
the autopsy. The court distinguished between the admissibility
of crime-scene photographs, which depict the dircet results
of a defendant's actions, and other photographs such as those
taken after an autopsy, which demonstrate the collateral results
of a crime or illustrate the steps in the investigatory process.
Here the admission of photographs,of a infant was so pred-
duical as to confuse the issues. As the sole issue here at trial
was whether Appelant was the driver of the vehicle which caused
the accident. In this issue, the evidence was not overwhelming;
both witnesses to the accident saw two occupants to the vehicle.
SOTO V STATE-APPELLAOT BRIEF PAGE,23
Neither witness was able to positively identify the Applicant
as the driver of the vehicle. The photographs were only introdu-
uced to so inflame the jury so they would return a verdict
of guilty.
SOTO V STATE-APPELLANT BRIEF PAGE,24
ISSUE FIVE
Trial Counsel was ineffective for failing to move to sup
press evidance describing tests to which appellant, while under
arrest, had be subjected.
FACTS
The applicant was arrested at the scene of the accident.
(RR3:63) Deputy Nelms noticed what appeared to be blood on
on the driver's side air-bag. (RR3:89) Deputy Brroadnax, testif-
ified he was present at the hospitial during the "mandatory
blood" draw. (RR3:159) Heather Cowan, a registered nurse, per
formed the blood draw at the direction of law enforcement. (RR3:
182) Erin Spargo, Deputy Chief of Forensic Chemistry with South
western Institute of Forensic Sciences (SWIFTS) analyzed the
mandatory blood for purposes of blood and alcohol content. (RR3:
195) Derric Whaley, a detective at the Dallas County Sheriff's
Office, Physical Evidence Section pursuant to a search warrant
removed the driver's air bag from the truck involved in the
in the accident. (RR3:224) And delivered the air bag to
SWIFTS for forensic testing. (RR3:224). Alexander Nham the
Forensic Biologist at SWIFTS, analyzed the air bag for blood.
(RR3:230) The blood was sent to the DNA section of the SWIFTS
facility for analysis. (RR3:234). Finally, Courtney Ferreira,
the Forensic Biologist at SWIFTS analyzed the blood sample for
SOTO V STATE-APPELLANT BRIEF PAGE,25
DNA comparison (RR4:19) The blood sample from the air bag was
compared to a known blood sample-obtained without any warrant
in the mandatory blood draw- of the appellant. (RR4:19)
Trial Counsel never questioned the orgin of the blood
sample used for comparison. (RR4:19)
ARGUMENT AND AUTHORITIES
"[T]he right to counsel is the right to effective assistance
of counsel." Kimmelman v. Morrison, 47
7 U.S. 365,377 (1986).
Article 1, Section 10 of the Texas Constitution entitles a def
endant to effective assistance of counsel. Hernandez v. State,
726 S.W. 2d 53,56-57 (Tex.Crim.App. 1986) .r .
Effective representation in a non-capital case is evaluated
under the standard articulated in Strickland v. Washington,
466
U.S. 668 (1984).
In order to prevail on a claim of ineffectivness an appellant
must show both:
Deficient performance- that trial counsel's performance
failed to constitute "reasonably effective assistance,"
i.e., counsel's representation fell below an objective
standard of reasonableness under prevailing professional
norms; and
Prejudice-that there was a "reasonable probability" the
result of the proceeding would have been different but
for counsel' deficient performance, i.e., a probability
sufficient to undermine the outcome of the proceeding.
In the instant case the appellant was entitled to suppres
sion of the results of the DNA test which was obtained without
his consent or warrant. Tex.Transp. Code §724.011 provides:
"If a person is arrested for an offense arising out
SOTO V STATE-APPELLANT BRIEF PAGE, 26
of acts alleged to have been committed while the person
was operating a motor vehicle in a public place...
the person is deemed to have consented...to submit
to the taking of one or more specimens of the person's
...blood for analysis to determine the alcohol con
centration or the presence in the person's body of
a controlled substance, drug, dangerous drug, or other
substance.
There is nothing in the statute that permits the taking
of blood for purposes of obtaining a DNA profile of the appellant
The taking of a blood sample from a defendant under arrest is
a search and sizure within the meaning of Art. 1 Section 9 of
Texas Constitution, "thus the state was required to comply
with the provision of Tex.Code Crim. proc. art 1.06 and Chapter
18. Escamilla v. State,556 S.W. 2d 796 (Tex.Crim.App. 1977).
Consequently, has trial counsel objected to the introduct
ion of the blood evidence obtained in violation of Texas Law
and the Texas Constitution, there was a resonable probability
had trial counsel objected to this evidence, the court would
supressed it.
Appellant was harmed by the introduction of the evidence,
there was not clear identification of appellant as the driver
of the truck. Both witneses at the scene failed to identify
appellant as the driver. Importantly, both witnesses testified
there were two occupants of the truck which caused the collision.
The State never answered the question of "What happened to the
other Guy?" Therefore there is a reasonable probability ap
pellant could not have been convicted without this evidence.
SOTO V STATE-APPELLANT BRIE PAGE,27
CONCLUSION
This appellant as presented five (5) non-frivolous issues
that were available for appeal. Appellant has been prejudiced
in the preparation of this brief due to teh incomplete records
provided by the court. Appellant never received from the court
the now seceret bench conferences, never received any of
photos, maps, statements, reports search warrants, toxicology
reports, chain of custody reports, SWIFTS reports, a copy of
the slide show, or disc crash demo, copies of the the jail
call CD.
Moreover, has been prejudiced by the inadequate law-library,
services in prison, the unreasonable time constraints in lieu
of the unconstitutional access to courts provided by TDCJ.
Consequently, due to the incomplete record, and inadequate law
library, appellant asks the court, in the interest of justice,
to appoint another attorney to re-brief the issues presented.
Further, appellant asks the court to allow the new attorney
to brief any issues he or she should discover.
SOTO V STATE-APPELLANT BRIEF PAGE,28
PRAYER FOR RELIEF
For all of these reasons, appellant asks the court to appoint
new counsel to brief the issues raised in his pro se brief,
to provide a complete record so the issues can be properly raised
in the new brief.
Appellant prays for any other relief to which he may be ent-
titled.
Respectfully sifbmit^d,
Aramando Soto,
Appellant pro se
#1740241-Coffield Unit
2661 F.M. 2054
Tennessee Colony,TX 75884
CERTIFICATE OF SERVICE
I certify that a true and correct copy of Appellant's pro
sey brief was mailed to the attorney representing the state-
Susan Hawk, 133 North Riverfront Blvd-LB-2- on this \Q day
November, by United States First Class Mail, proper postage
attached.
Aramando Soto
SOTO V STAIE-APPELLANT BRIEF PAGE,29
CERTIFICATE OF MAILING
I certify that Appellant's pro se brief was deposited in
institutional mail system here at the H.H. Coffield Unit on
this 1Q day of November, 2015, proper United States Postage
attached.
X
Aramando Soto
SOTO V STATE-APPELLANT BRIEF PAGE,30