Dejesus Fobbs v. State

Opinion

ACCEPTED 01-15-00043-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 4/27/2015 3:16:31 PM CHRISTOPHER PRINE CLERK

NO. 01-15-00043-CR

FILED IN IN THE COURT OF APPEALS 1st COURT OF APPEALS HOUSTON, TEXAS 4/27/2015 3:16:31 PM FOR THE CHRISTOPHER A. PRINE Clerk FIRST DISTRICT OF TEXAS

HOUSTON, TEXAS

DEJESUS FOBBS, APPELLANT

VS.

THE STATE OF TEXAS, APPELLEE

BRIEF FOR THE APPELLANT

TRIAL COURT CAUSE NUMBER 22960 IN THE 356TH 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 joel@searsandbennett.com

Attorneys for DEJESUS FOBBS

ORAL ARGUMENT WAIVED 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 R......................... R.R. (volume and page)

ii TABLE OF CONTENTS

PAGE

List of Parties .................................. ii

Table of Contents ............................... iii

List of Authorities ........................... v

Statement of the Case ......................... 9

Appellant’s First Issue ........................ 10

THE TRIAL COURT ERRED IN FAILING TO INCLUDE AN APPLICATION PARAGRAPH FOR THE TEX. CODE CRIM. PROC. § 38.23 INSTRUCTION. APPELLANT DID NOT OBJECTION TO THE ABSENCE OF THIS INSTRUCTION AND THEREFORE MUST SHOW EGREGIOUS HARM.

Statement of Facts ............................. 10

Summary of Argument ............................ 15

Argument and Authorities ....................... 15

Appellant’s Second Issue ........................ 27

THE TRIAL COURT COMMITTED REVERSABLE ERROR BY ADMITTING EXTRANEOUS OFFENSE EVIDENCE AS CONTEXTUAL EVIDENCE. THE ADMISSION OF A FIREARM WAS NOT NECESSARY CONTEXTUAL EVIDENCE AND UNFAIRLY PREJUDICED APPELLANT’S TRIAL.

Statement of Facts ............................. 27

Summary of Argument ............................ 27

iii Argument and Authorities ....................... 28

Appellant’s Third Issue ........................ 35

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING A NONCERTIFIED COPY OF A JUDGMENT DURING THE PUNISHMENT PHASE OF THE TRIAL. THE JUDGMENT WAS NOT PROPERLY AUTHENTICATED.

Statement of Facts ............................. 35

Summary of Argument ............................ 37

Argument and Authorities ....................... 37

Appellant’s Fourth Issue ....................... 35

THE EVIDENCE IS LEGALLY INSUFFICIENT TO PROVE THE FIRST ENHANCEMENT PARAGRAPH WAS A VALID PRIOR CONVICTION FOR THE USE OF AN ENHANCEMENT. THE JUDGMENT STATES ON ITS FACE THAT IT COULD BE A STATE JAIL CONVICTION AND THEREFORE IT COULD NOT BE USED TO ENHANCE A NON-SATE JAIL FELONY OFFENSE.

Conclusion and Prayer .......................... 43

Certificate of Service ......................... 43

iv LIST OF AUTHORITIES

CASES Allen v. State, 253 S.W.3d 260 (Tex. Crim. App. 2008) 18

Allen v. State, 253 S.W.3d at 264 (footnotes omitted) 18

Avila v. State, 18 S.W.3d 736, 741–42 (Tex. App.-San Antonio 2000, no pet.) ..............................38

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) ...............................................45

Brooks v. State, 323 s.w.3d 893, 912 (Tex. Crim. App. 2010) ...............................................44

Brooks, 323 S.W.3d at 899 ............................45

Carlock v. State, 99 S.W.3d 288, 294-95 (Tex. App.— Texarkana 2003) .................................36, 38

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)) .............................45

Garcia v. State, 367 S.W.3d 683, 686-687 (Tex. Crim. App. 2012) ..........................................44

Garrett v. State, 875 S.W.2d 444, 447 (Tex. App.-Austin 1994, pet. ref'd) ...................................28

Garza v. State, 963 S.W.2d 926, 931 (Tex. App.-San Antonio 1998, no pet.) ..........................30, 39

Hutch v. State, 922 S.W.2d 166, 172-73 (Tex. Crim. App. 1996) overruled on other grounds Gelinas v. State, 398 S.W.3d 708 (Tex. Crim. App. 2013) ...................16

v Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) .........................44, 45

Jackson, 443 U.S. at 320 .............................46

Jackson, 443 U.S. at 326 .............................46

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998) ...........................................30, 39

Jones v. State, 815 S.W.2d 667, 669 (Tex. Crim. App. 1991) ...............................................16

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) ...........................................30, 39

Laster, 275 S.W.3d at 518 ............................46

Mays v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991) id. at 86–87 n. 4 ...............................23, 24, 28

Middleton v. State, 125 S.W.3d 450, 457 (Tex. Crim. App. 2003) ..........................................17

Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000) ...............................................40

Peters v. State, 93 S.W.3d 347, 353-54 (Tex. App.— Houston [14TH Dist.] 2002, pet. ref’d)...............29

Pondexter v. State, 942 S.W.2d 577, 583–85 (Tex. Crim. App. 1996) ..........................................28

Riley v. State, 830 S.W.2d 584, 586–87 (Tex. Crim. App. 1992) ...............................................17

Rogers v. State, 853 S.W.2d 29, 33-34 (Tex. Crim. App. 1993) ...............................................26

vi Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App. 2009) ...............................................17

Sakil v. State, 287 S.W.3d at 26 quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) ...17

Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982) ................................46

Wagner v. State, No. 14-01-00392-CR, 2002 WL 31662410, at 4 (Tex. App. Nov. 27, 2002)(Not designated for publication) ....................................31, 40

Webb v. State, 36 S.W.3d at 182–83 ...............31, 39

Williams, 547 S.W.2d at 20 ...........................16

Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) ....................................................28

STATUTES Tex. Code Crim. Proc. § 38.23 ...........12, 15, 16, 32

Tex. H & S Code 481.116(b) .......................43, 47

Tex. H & S Code 481.116(c) .......................... 47

Tex. Penal Code § 12.35(a) ...........................43

Tex. Penal Code § 12.42(d) .......................43, 47

former Tex. Penal Code § 12.42(a)(1)[now Tex. Penal Code § 12.425] ......................................43

RULES

Tex. R. App. P. 44.2(b) ..........................30, 38

vii Tex. R. Crim. Evid. 404(b)(former) .......23, 25, 26, 29

Tex. R. Evid. 901 ................................35, 37

Tex. R. Evid. 901(a) .................................34

Tex. R. Evid. 901(b)(7) ..............................35

Texas Rule of Evidence 902(4) ........................35

viii NO. 01-15-00043-CR

IN THE

COURT OF APPEALS

FOR THE

FIRST DISTRICT OF TEXAS

v.

Appealed from 356TH District Court of Hardin County, Texas Cause No. 22960

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 brief.

9 STATEMENT OF THE CASE

Appellant was charged by indictment with Possession

of a Controlled Substance, to-wit cocaine, in the amount

of four grams or more but less than two hundred grams.

C.R.—2. Appellant pled not guilty to the allegation and

a trial by jury began on December 15, 2014. R.R.V—1;

R.R.VI—35-36. After hearing the evidence and the

argument of counsel, the jury returned a verdict of

“Guilty” on December 16, 2014. R.R.VI—221; C.R.—125.

The Defendant elected for the jury to assess punishment,

and after hearing evidence and argument of counsel on

the issue of punishment, the jury assessed his

punishment at ninety-nine (99) years in the

Institutional Division of Texas Department of Criminal

Justice and no fine. R.R.VII—130-131; C.R.—131.

Judgment and Sentence was entered and signed on December

17, 2014; as well as the trial court’s certification of

Defendant’s right to appeal. C.R.—154-155, 142. Notice

of Appeal was timely filed on December 17, 2014 and

again on December 18, 2014. C.R.—143, 156. 10 APPELLANT’S FIRST ISSUE

THE TRIAL COURT ERRED IN FAILING TO INCLUDE AN APPLICATION PARAGRAPH FOR THE TEX. CODE CRIM. PROC. § 38.23 INSTRUCTION. APPELLANT DID NOT OBJECTION TO THE ABSENCE OF THIS INSTRUCTION AND THEREFORE MUST SHOW EGREGIOUS HARM.

STATEMENT OF FACTS

The Charge of the Court during guilt innocence

contained a general instruction to the jury:

“You have a right to consider all of the facts that

are shown by the evidence, and to draw natural and

reasonable inferences from such facts. You alone have

the authority and duty to determine what the facts are

in this case. No evidence obtained by an officer or

other person in violation of any provisions of the

Constitution or laws of the State of Texas, or the

Constitution or laws of the United States of America,

shall be admitted in evidence against the accused on the

trial of any criminal case, [sic] If you believe or have

a reasonable doubt that the evidence was obtained in

violation of these provisions, then and in such event,

11 you shall disregard any such evidence so obtained. In

evaluating the evidence, you must totally disregard what

you believe is my opinion about any factual matter.”

C.R.—121.

The Charge of the Court did not contain an

application paragraph applying the general Tex. Code of

Crim. Proc. § 38.23 instruction. C.R.—119-124.

Officer Travis Hartless was a patrolman with the

Silsbee Police Department. R.R.VI—44. On the evening

of May 19 and the morning of May 20, 2014, he was on

patrol. R.R.VI—46. He had been notified about some car

burglaries in the area. R.R.VI—46-47. About 2:20 am,

Officer Hartless came to 345 West Avenue L during his

routine patrol. R.R.VI—48. He noticed an interior

light on inside a vehicle about 2:30 a.m. and he stopped

to investigate. R.R.VI—49-50. He walked up to the car

and knocked on the glass; the person in the car rolled

down the window about three inches. R.R.VI—53. Officer

Hartless asked the person in the vehicle, “What’s going

on?” and he could also smell the odor of burnt marijuana 12 coming out of the vehicle. R.R.VI—54. Officer Hartless

asked the person to step out of the car and when he did,

Officer Hartless recognized Appellant. R.R.VI—55. He

patted Appellant down for weapons, handcuffed him, and

placed him in the back of the patrol car. R.R.VI—55-57.

Officer Hartless then searched the car due to the odor

of burnt marijuana. R.R.VI—57.

Officer Hartless testified that he saw bags of Kush,

K2, in the open top center console, a synthetic

marijuana. R.R.VI—62. He believed it was synthetic

marijuana but the substance was not tested. R.R.VI-64.

He also found a small bag of what the officer believed

to be marijuana. R.R.VI—65. At this point, he goes

back to Appellant and searches him. R.R.VI—65. During

the search, he located a magazine with ammunition in it

in Appellant’s pocket. R.R.VI—66. Officer Hartless

then searched under Appellant’s cap and located two

baggies of suspected cocaine on Appellant’s head.

R.R.VI—67-68. Officer Hartless goes back to the vehicle

to search further and locates a handgun. R.R.VI—73-74. 13 Officer Hartless took a photograph of the money,

handgun, magazine, Kush, cocaine, and marijuana he

recovered from Appellant and the vehicle; the photograph

is State’s Ex. # 3. R.R.VI—77-78, 79.

During cross-examination, Officer Hartless admitted

that he took no photographs at the scene. R.R.VI—88.

There are no pictures of any burnt marijuana. R.R.VI—

88. Officer Hartless testified that he saw burnt

marijuana but he did not recover the burnt marijuana.

R.R.VI—89.

SUMMARY OF ARGUMENT

The trial court erred in failing to submit an

application paragraph for the exclusionary rule

instruction. The jury was properly instructed about the

general provision that they may not consider any

evidence found by the police in violation of the

Constitution or laws of the United States or State of

Texas. But the application paragraph authorizes the

jury to act and applies the law to the facts of this

case. Appellant did not object at trial and therefore, 14 he must show egregious harm that deprived him of a fair

and impartial trial.

ARGUMENT AND AUTHORITIES

The defense in Appellant’s case centered around the

legality of the search of Appellant and the subsequent

discovery of cocaine in Appellant’s cap. The trial

court properly instructed the jury on the general law

regarding the exclusionary rule of Tex. Code Crim. Proc.

§ 38.23. But, the application paragraph of a jury

charge is the portion of the charge that authorizes the

jury to act. A proper application paragraph should

instruct the jury on the legal consequences of the

facts as they find them to be (or a failure to prove

certain facts beyond a reasonable doubt) and how those

facts are applied to the applicable law in this

particular case.

“[I]t is important to note that the error occurred

in the application paragraph. The application paragraph

is that portion of the charge which authorizes the jury

to act. Jones v. State, 815 S.W.2d 667, 669 (Tex. Crim. 15 App. 1991). Consequently, even though the charge

elsewhere contained a correct statement of art. 38.23,

that instruction did not authorize the jury to consider

or not consider the evidence obtained from appellant's

stop. It is not sufficient for the jury to receive an

abstract instruction on the law. Williams, 547 S.W.2d at

20. An abstract charge does not inform the jury of what

facts, if found by it, would permit the jury's

consideration of the contested evidence. Ibid. Rather,

the authority to consider or not consider the evidence

obtained from appellant's stop came solely from the

erroneous application paragraph. The Court of Appeals

did not consider that the correct statement of art.

38.23 did not authorize the jury to correctly apply the

law.” Hutch v. State, 922 S.W.2d 166, 172-73 (Tex.

Crim. App. 1996) overruled on other grounds Gelinas v.

State, 398 S.W.3d 708 (Tex. Crim. App. 2013).

The Court of Criminal Appeals has consistently held

that an application paragraph is a necessary portion of

the charge, “It is true that we have held that a jury 16 charge should contain the abstract portion of the charge

and the application portion. Riley v. State, 830 S.W.2d

584, 586–87 (Tex. Crim. App. 1992).” Middleton v. State,

125 S.W.3d 450, 457 (Tex. Crim. App. 2003).

Appellant failed to object to the erroneous

instruction at trial. As such, the standard of review

upon appeal to entitle him to a reversal is higher.

When reviewing complaints regarding the jury charge,

the first step is to determine whether there was error

in the charge. Sakil v. State, 287 S.W.3d 23, 25 (Tex.

Crim. App. 2009). If there was error and no

corresponding objection, “the error must be

‘fundamental,’ and reversal is required ‘only if the

error is so egregious and created such harm’ that the

defendant did not have a fair and impartial trial.”

Sakil v. State, 287 S.W.3d at 26 quoting Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

The test for evaluating whether a particular

defendant suffered fundamental error that deprived him

of a fair and impartial trial was explained in Allen v. 17 State, 253 S.W.3d 260 (Tex. Crim. App. 2008). The

Court of Criminal Appeals held, “In examining the

record for egregious harm, vel non, a reviewing court

should consider...1) the entire jury charge, 2) the

state of the evidence, including the contested issues

and the weight of the probative evidence, 3) the final

arguments of the parties, and 4) any other relevant

information revealed by the record of the trial as a

whole. Jury charge error is egregiously harmful if it

affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a

defensive theory.” Allen v. State, 253 S.W.3d at 264

(footnotes omitted).

The factors to be reviewed in determining the harm

in this case weigh heavily in favor of finding harm to

Appellant. The charge as a whole simply asked the jury

to decide whether or not Appellant possessed cocaine or

whether they had a reasonable doubt thereof. This was

the sole question posed to the jury. The central issue

of the defense was that the State failed to prove to the 18 jury the factual issues regarding the legality of the

search. Namely, the defense focused on the officer’s

failure to preserve any alleged burnt marijuana.

Appellant’s vehicle was searched after the officer

claimed he smelled burnt marijuana. He testified that

he saw the burnt marijuana but failed to document that

through a photograph or even recover the evidence that

would support his search.

The defense’s argument at the guilt-innocence phase

of the trial was that the State failed to bring

sufficient evidence to support a legal search. R.R.VI—

208. The defense argued that no arrest should be made

without probable cause. R.R.VI—213. The State’s

response to the defense’s argument was just believe the

officer. R.R.VI—214. “Isn’t that what we want?”

R.R.VI—214.

The jury was never given the opportunity to decide

the central issue in the case. Did or did the State not

prove beyond a reasonable doubt the existence of the

burnt marijuana that led to the search and then the 19 arrest that led to the discovery of the cocaine. Jury

charge error is egregiously harmful if it affects the

very basis of the case, deprives the defendant of a

valuable right, or vitally affects a defensive theory.

The failure of the trial court to provide the avenue for

the jury to act in this case deprived Appellant of his

right to have the jury decide the factual issue

surrounding the legality of the search. This failure

strikes at the very heart of the defensive issue of this

case. The failure to provide the application paragraph

prevented the jury from deciding all the factual issues

in this case and thereby deprived Appellant of a fair

trial.

For all the foregoing reasons, Appellant’s First

Issue should be sustained, Appellant’s case be reversed,

and the case remanded for further proceedings.

APPELLANT’S SECOND ISSUE

THE TRIAL COURT COMMITTED REVERSABLE ERROR BY ADMITTING EXTRANEOUS OFFENSE EVIDENCE AS CONTEXTUAL EVIDENCE. THE ADMISSION OF A FIREARM WAS NOT NECESSARY CONTEXTUAL EVIDENCE AND UNFAIRLY PREJUDICED 20 APPELLANT’S TRIAL.

During the officer’s search of Appellant and

Appellant’s vehicle, he discovered a magazine loaded

with ammunition in Appellant’s pocket and a handgun in

the vehicle. R.R.VI—66, 74. Appellant had objected to

the admission any evidence of a gun during his motion in

limine, then he renewed his objection during the

testimony, and again when the State offered pictures of

the weapon and magazine. R.R.VI—29-20, 63-64, 75, and

78-79. The trial court stated that he would take it

under consideration during the hearing on the Motion in

Limine, then overruled the objections when Appellant

renewed the objections during the testimony. R.R.VI—30,

64. The trial court specifically stated that the

evidence was contextual. R.R.VI—64. When the State

moved to admitted State’s Exhibits 4 and 3 (pictures of

the gun and magazine), Appellant again renewed his

objection to the introduction of the gun and magazine.

R.R.VI—75, and 78-79. The trial court specifically held 21 that Appellant had preserved his objection and his

objection was abundantly clear. R.R.VI—78-79. The

trial court again overruled his objection.

An extraneous offense is admissible as contextual

evidence if it is necessary to provide background

information or if the narration of the events would make

little or no sense without the admission of the

extraneous offense. The events surrounding Appellant’s

arrest for possession of cocaine could have easily and

fully been described to the jury without the admission

of the handgun.

Extraneous offenses may be admitted during a trial

if they are contextual evidence of the charged offense

and the introduction of such evidence is necessary to

the jury’s understanding of the current offense. In

Appellant’s case, the State was allowed to introduce

evidence, over objection, that Appellant was in

possession of a magazine loaded with ammunition and a 22 pistol was found in the vehicle where he was sitting

when the officer approached. The State offered this

evidence as contextual evidence. The trial court agreed

and admitted the evidence.

Not all extraneous acts are admissible just because

they were discovered at the same time or occurred during

the same criminal episode. The test for whether such

evidence is properly admissible is whether or not the

such evidence is “necessary” to the jury’s understanding

of the events. If it is not necessary, the evidence

should be excluded.

“The evidence pertaining to appellant's

possession, use and sale of marijuana constitutes

‘same transaction contextual evidence’ rather than

‘background contextual evidence’, as such evidence

is of ‘acts, words and conduct’ of appellant at the

time of his arrest. See [Mays v. State, 816 S.W.2d

79 (Tex. Crim. App. 1991) id. at 86–87 n. 4. Same

transaction contextual evidence is admissible as an

exception under [Tex. R. Evid.] Rule 404(b) where 23 such evidence is necessary to the jury's

understanding of the instant offense:

Same transaction contextual evidence is deemed

admissible as a so-called exception to the

propensity rule where ‘several crimes are

intermixed, or blended with one another, or

connected so that they form an indivisible criminal

transaction, and full proof by testimony, whether

direct or circumstantial, of any one of them cannot

be given without showing the others.’ [citation

omitted] The reason for its admissibility ‘is

simply because in narrating the one it is

impracticable to avoid describing the other, and

not because the other has any evidential purpose.’

[citation omitted] Necessity, then, seems to be one

of the reasons behind admitting evidence of the

accused's acts, words and conduct at the time of

the commission of the offense. [citation omitted]

[Mays v. State, 816 S.W.2d 79 (Tex. Crim. App.

1991) Id. at 86–87 n. 4. 24 “Necessity, then, is an ‘other purpose’ for

which same transaction contextual evidence is

admissible under Rule 404(b). Only if the facts and

circumstances of the instant offense would make

little or no sense without also bringing in the

same transaction contextual evidence, should the

same transaction contextual evidence be admitted.

“In narrating appellant's arrest for the

instant offenses it would not have been

impracticable to avoid describing the recovery of

the marijuana and appellant's confessed use and

sale of marijuana. See id. 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 concerning the marijuana. Such omission

would not have caused the evidence regarding the 25 instant offenses (burglary and possession of

methamphetamine) to appear incomplete. Further,

omission of the objectionable portion of

appellant's written confession would not have

rendered the remaining portions of the confession

confusing or questionable. We hold that the

evidence concerning the marijuana was not

‘necessary’ to the jury's understanding of the

offenses of burglary and possession of

methamphetamine and was therefore not admissible as

same transaction contextual evidence under Rule of

Criminal Evidence 404(b). The court of appeals

erred in holding that such evidence was admissible

as “res gestae” of the offense.”

Rogers v. State, 853 S.W.2d 29, 33-34 (Tex. Crim.

App. 1993)(Emphases added).

Similarly in this case, the State’s case of

Possession of Cocaine would have not been impacted. The

State’s description of the event was not dependant upon

or related to the possession of the magazine and 26 firearm. Officer Hartless testified that he approached

the vehicle out of concern for car burglaries in the

area, he smelled the odor of burnt marijuana, and

searched the vehicle due to the odor of marijuana.

After discovering synthetic marijuana and marijuana, he

searched Appellant and discovered cocaine inside the

baseball cap Appellant was wearing. R.R.VI—48-49, 50,

54, 61-62, 65, 68.

The handgun was not found until the officer decided

to inventory the vehicle, which was after the officer

had located the cocaine. R.R.VI—74. The magazine was

located in Appellant’s pocket after the officer located

the marijuana but prior to the discovery of the cocaine.

R.R.VI—66. The State was able to fully describe why he

approached Appellant, why he decided to search the

vehicle, and then why he further searched Appellant and

located the cocaine. All of this testimony was done

without any need to mention the loaded magazine located

in Appellant’s pocket and prior to the discovery of the

firearm. 27 “Same transaction contextual evidence is admissible

only when the offense would make little or no sense

without also bringing in the same transaction evidence.

Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000);

Pondexter v. State, 942 S.W.2d 577, 583–85 (Tex. Crim.

App. 1996). Nor do we believe that the evidence of the

shotgun and the marijuana was so intertwined with the

issue of consent that the jury could not understand the

testimony without it. See Garrett v. State, 875 S.W.2d

444, 447 (Tex. App.-Austin 1994, pet. ref'd). On the

contrary, the testimony concerning the consent of the

officers could have been easily understood, and

certainly more clear, without the introduction of the

extraneous evidence. See Wyatt, 23 S.W.3d at 25. 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 28 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 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, 353-54 (Tex. App.—

Houston [14TH Dist.] 2002, pet. ref’d)(Emphasis added).

As in the Peters case, the State could have—and in

fact did—tell the entire factual basis that led to the

discovery of the cocaine without the necessity of

introducing evidence of the handgun. The cocaine was

found prior to the officer locating the gun. Any

argument that the introduction of the handgun was

necessary to the search for and locating of the cocaine

is simply false and unsupported by the facts. The fact

that the officer found a magazine with ammunition is

also without consequence to the finding of the cocaine.

Clearly, the officer was not looking for a firearm 29 inside Appellant’s cap. Therefore, the trial court

erred in admitting evidence of the gun and the magazine

as contextual evidence.

“Having found error in the trial court's ruling, we

must determine whether appellant was harmed by the

improper admission of the evidence. Because no

constitutional error is involved when evidence of an

extraneous offense is admitted without notice, we look

to whether the error affected appellant's substantial

rights. Tex. R. App. P. 44.2(b). The substantive right

affected by the admission of an extraneous offense is

the right to a fair trial. See Garza v. State, 963

S.W.2d 926, 931 (Tex. App.-San Antonio 1998, no pet.).

An error affects a substantial right when the error had

a substantial and injurious effect or influence on the

jury's verdict. King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997). If the error had no influence

or only a slight influence on the verdict, it is

harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.

Crim. App. 1998). However, if we harbor ‘grave doubts’ 30 the error did not affect the outcome, we must treat the

error as if it did.” See Webb v. State, 36 S.W.3d at

182–83.” Wagner v. State, No. 14-01-00392-CR, 2002 WL

31662410, at 4 (Tex. App. Nov. 27, 2002)(Not designated

for publication).

The State compounded the harm of the erroneous

admission of the firearm and magazine by emphasizing the

presence of the gun and magazine during final argument.

R.R.VI—215-216. The State argued that the officer was

keeping “you” (the jury) safe from people with drugs and

guns. The defense’s argument at the guilt-innocence

phase of the trial was that the State failed to bring

208. The defense argued that if there was sufficient

probable cause to search for the burnt marijuana and you

claim you saw it, then show me the marijuana.

The State countered the defense’s argument by

telling the jury to use its common sense that Appellant

was a drug dealer. The State argued he had large

amounts of cash, the gun, the magazine with ammunition, 31 marijuana, and cocaine. R.R.VI—215. The State

described it as a war on drugs and a war on Appellant.

R.R.VI—215.

As discussed in Appellant’s first issue, the jury

was not properly instructed on the application of the

exclusionary rule for Tex. Code Crim. Proc. § 38.23.

This failure to give the proper instruction, coupled

with the improper admission of the handgun and the

State’s argument emphasizing the possession of the

handgun certainly should cause grave concerns about the

decision of the jury. The defense was forced to argue

to the jury to find Appellant not guilty due to the

failure of the State to properly prove to the jury the

grounds for the search of Appellant—an search that was

based upon evidence that was never recovered or

photographed by the State. The erroneous admission of

the handgun and subsequent “war on” Appellant as argued

by the State calls into grave doubt whether Appellant

was given a fair trial and the proper chance for the

jury to make the very difficult choice of finding him 32 “Not Guilty”, even though the evidence showed that the

cocaine was found inside his cap.

For all the foregoing reasons, Appellant’s Second

APPELLANT’S THIRD ISSUE

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING A NONCERTIFIED COPY OF A JUDGMENT DURING THE PUNISHMENT PHASE OF THE TRIAL. THE JUDGMENT WAS NOT PROPERLY AUTHENTICATED.

During the punishment phase of the trial, the State

introduced a non-certfied copy of a judgment in cause

number 14,045. R.R.VII—52-53, 55-56; R.R.VIII—36-39.

Appellant objected to the admission of this document on

the grounds that it had not been properly authenticated

and that it was not a certified copy of the judgment.

R.R.VII—55-56. The State responded by arguing that the

cause number was referenced in State’s exhibit 12A.

R.R.VII—55. The trial court overruled Appellant’s

objection and admitted the document. R.R.VII—56. 33 SUMMARY OF ARGUMENT

The trial court committed reversible error by

admitting a noncertified copy of a judgment of a

previous conviction against Appellant. The record is

wholly void of any proper authentication of the

judgment. The use of this prior conviction harmed

Appellant as the State used such evidence to argue to

the jury that Appellant should receive a maximum

sentence, which the jury did impose.

The Rules of Evidence require that prior to a

document’s admission into evidence, it must be properly

authenticated. “To satisfy the requirement of

authenticating or identifying an item of evidence, the

proponent must produce evidence sufficient to support a

finding that the item is what the proponent claims it

is.” Tex. R. Evid. 901(a). The Exhibit 12B was not

authenticated by certification as a public document or

by any other means.

“In this case, Carlock distinguishes Bautista 34 because in that case the parole officer testified using

certified copies of the judgments against the

defendant, whereas in this case copies of the judgments

were admitted into evidence that were not certified.

Carlock contends the ‘appropriate’ method to introduce

the prior judgments was to obtain certified copies and

offer those judgments under Texas Rule of Evidence

902(4) as certified public records. Rule 902 describes

documents that are self-authenticating, and Carlock's

suggested method is certainly the traditional method of

introducing a prior judgment. However, if a document is

not self-authenticated under Rule 902, it still can be

authenticated under Rule 901.

“Rule 901(b)(7) illustrates how to authenticate

public records and reports. Tex. R. Evid. 901(b)(7). To

authenticate a public record which is authorized by law

to be recorded or filed in a public office, the

testifying witness must be able to provide evidence

that the writing is from the public office that keeps

that type of record. Id. Carlock contends the parole 35 officer could not authenticate the judgments because

she was not the custodian of those records and

therefore could not authenticate the judgments by ‘mere

testimony that he or she once supervised a Defendant on

parole.’ Carlock is correct. The parole officer was

able to testify she was familiar with the defendant and

his previous criminal record; however, her testimony

was not sufficient to authenticate the two judgments

because she was unable to provide the necessary proof

that those two judgments were from the public office

responsible for maintaining those records. Because the

judgments were not certified copies, authentication was

required and the parole officer's testimony was not

enough.”

Carlock v. State, 99 S.W.3d 288, 294-95 (Tex. App.—

Texarkana 2003).

In the present case, there was even less evidence

supporting the admission of the uncertified copy of the

judgment. In Carlock, the parole officer testified that

the defendant in that case was on his case load under 36 the judgment offered and admitted in that case. The

parole officer testified that she was familiar with his

file and but she was unable to provide the necessary

proof that those two judgments were from the public

office responsible for maintaining those records. In

Appellant’s case, the uncertified copy was admitted

through a fingerprint expert who had no personal

knowledge about the judgment and sentence or the

defendant.

In Carlock, the Court of Appeals found that the

admission of the judgment was harmful to the defendant

and reversed his conviction. “It was error for the

trial court to admit the two uncertified copies of the

judgments because the testimony of the parole officer

was insufficient to authenticate the documents under

Rule 901. See Tex. R. Evid. 901. This error was

obviously harmful to Carlock. The jury assessed

punishment at ninety-nine years' imprisonment, which was

only permissible because of the enhancements. Therefore,

Carlock's third point of error is sustained.” Carlock v. 37 State, 99 S.W.3d at 295.

Appellant’s case presents a somewhat different harm

analysis. Like Carlock, Appellant was sentenced to

ninety-nine years in prison and was twice enhanced.

Unlike Carlock, the judgment introduced against

Appellant was not one of the enhancement paragraphs.

Because this is not a constitutional error, the

erroneous admission of evidence will be disregarded if

it did not adversely affect substantial rights or the

jury's verdict, or had only a slight effect on the

jury's verdict. Avila v. State, 18 S.W.3d 736, 741–42

(Tex. App.-San Antonio 2000, no pet.). Tex. R. App. P.

44.2(b).

rights. Tex. R. App. P. 44.2(b). The substantive right 38 affected by the admission of an extraneous offense is

Crim. App. 1998). However, if we harbor ‘grave doubts’

the error did not affect the outcome, we must treat the

error as if it did. See Webb v. State, 36 S.W.3d at

182–83. In assessing the likelihood that the error

adversely affected the jury's decision, we consider

everything in the record, including all testimony and

evidence admitted for the jury's consideration, the

nature of the evidence supporting the verdict, the

character of the alleged error, and how the error might

have been considered in connection with other evidence

in the case. See Morales v. State, 32 S.W.3d 862, 867 39 (Tex. Crim. App. 2000). We may also consider the

State's theory of the case, any defensive theories,

closing arguments, and voir dire. Id.” Wagner v.

State, No. 14-01-00392-CR, 2002 WL 31662410, at 4 (Tex.

App. Nov. 27, 2002)(Not designated for publication).

In Appellant’s case, he was assessed the maximum

punishment allowed by law. The difference between 99

years and life in prison is academic, at best. The

State’s argument was that Appellant should be given the

maximum sentence because of his prior offenses. The

State specifically mentioned the eight month sentence in

cause number 14,045 in the beginning of its final

argument. R.R.VII—121-122. The defense also addressed

the issue of whether the prior judgments were properly

authenticated. R.R.VII—115. The sentence handed down

by the jury was for the maximum sentence. The State

argued that due to the number of prior judgments to

which Appellant had been sentenced, he should receive

the maximum sentence. The specific reliance on this

improperly admitted judgment to argue to the jury that 40 Appellant should receive the maximum sentence causes

grave doubt that the error did not contribute to the

sentence. Therefore, Appellant has suffered harm due to

the improper introduction of this exhibit.

For all the foregoing reasons, Appellant’s Third

APPELLANT’S FOURTH ISSUE

THE EVIDENCE IS LEGALLY INSUFFICIENT TO PROVE THE FIRST ENHANCEMENT PARAGRAPH WAS A VALID PRIOR CONVICTION FOR THE USE OF AN ENHANCEMENT. THE JUDGMENT STATES ON ITS FACE THAT IT COULD BE A STATE JAIL CONVICTION AND THEREFORE IT COULD NOT BE USED TO ENHANCE A NON-SATE JAIL FELONY OFFENSE.

The State gave Notice of Enhancements. C.R.—8-9.

The first enhancement paragraph alleged the following:

“And it is further presented in and to said Court that,

prior to the commission of the aforesaid offense

(hereafter styled the primary offense), on or about

January 29, 1998, in cause number 13997 in 356th

41 District Court of Hardin County, Texas, the defendant

was convicted of the felony offense of Possession of a

Controlled Substance”. C.R.—8.

The judgment entered into evidence during the trial

states that Appellant was previously conviction in

cause number 13997 under P.C. 481.116(b), (c).

R.R.VIII-32-35.

The judgment also states that the original term of

probation was for seven years and the probation was

revoked for a term of four years. R.R.VIII—32-35. The

judgment is silent as to whether there was a deadly

weapon. R.R.VIII—32-35. The judgment is also silent

as to whether there were any enhancement paragraphs.

R.R.VIII—32-35.

The judgment introduced into evidence states on its

face that the conviction was for either a State Jail

Felony offense for the Possession of a Penalty Group 2

substance or for a third degree felony for the

possession of a Penalty Group 2 substance. Therefore, 42 the evidence is legally insufficient to show that

Appellant was convicted of a prior non-state jail felony

that was a valid felony conviction to be used as an

enhancement.

The evidence adduced at trial is legal insufficient

to support valid enhancement because the judgment

introduced at trial alleges either a state jail or a

third degree. The judgment is insufficient to prove

valid enhancement as a matter of law. A State Jail

felony under Tex. Penal Code § 12.35(a) cannot be used

to enhance a non-state jail offense to habitual status.

Tex. Penal Code § 12.42(d).

Possession of a Controlled Substance under Tex. H &

S Code 481.116(b) is a state jail felony. Such a

felony could be punished as a third degree felony if

there were two prior state jail convictions. See former

Tex. Penal Code § 12.42(a)(1)[now Tex. Penal Code §

12.425]. Under the judgment entered into evidence, the

facts do not prove beyond a reasonable doubt that the 43 prior conviction could be used to enhance a non-state

jail felony offense.

The appropriate standard of review of the

sufficiency of the evidence was set for the by the

Court of Criminal Appeals in Brooks v. State, 323

s.w.3d 893, 912 (Tex. Crim. App. 2010), “As the Court

with final appellate jurisdiction in this State, n48 we

decide that the Jackson v. Virginia standard is the

only standard that a reviewing court should apply in

determining whether the evidence is sufficient to

support each element of a criminal offense that the

State is required to prove beyond a reasonable doubt.

All other cases to the contrary, including Clewis, are

overruled.”

The Court of Criminal Appeals again addressed the

proper review of the sufficiency of the evidence. In

Garcia v. State, 367 S.W.3d 683, 686-687 (Tex. Crim.

App. 2012), the Court held:

“To determine whether evidence is sufficient to

support a conviction, a reviewing court views all 44 the evidence in the light most favorable to the

verdict to decide whether any rational trier of

fact could have found the essential elements of the

offense beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893,

895 (Tex. Crim. App. 2010). This requires the

reviewing court to defer to the jury's credibility

and weight determinations because the jury is the

‘sole judge’ of witnesses' credibility and the

weight to be given testimony. Jackson, 443 U.S. at

319; Brooks, 323 S.W.3d at 899. A reviewing court

determines whether the necessary inferences are

reasonable based upon the combined and cumulative

force of all the evidence when viewed in the light

most favorable to the verdict. Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing

Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim.

App. 2007)). When the record supports conflicting

inferences, a reviewing court must presume that the 45 fact finder resolved the conflicts in favor of the

prosecution and defer to that determination. See

Jackson, 443 U.S. at 326.

“Evidence is insufficient to uphold a

conviction when the record contains no evidence, or

merely a ‘modicum’ of evidence, probative of an

element of the offense. See Jackson, 443 U.S. at

320 ("[A] 'modicum' of evidence [cannot] by itself

rationally support a conviction beyond a reasonable

doubt."); Laster, 275 S.W.3d at 518 ("After giving

proper deference to the factfinder's role, we will

uphold the verdict unless a rational factfinder

must have had reasonable doubt as to any essential

element."). If a reviewing court finds the evidence

insufficient under this standard, it must reverse

the judgment and enter an order of acquittal. Tibbs

v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 72 L.

Ed. 2d 652 (1982).”

In this case, the evidence admitted during the

trial leaves open the question as to whether the 46 judgment was for a state jail offense (481.116(b)) or a

third degree offense (481.116(c)). The actual term of

the sentence is for four years in the Institutional

Division of the Texas Department of Criminal Justice.

This would indicate that the judgment was not for a

state jail felony. But, a state jail felony could be

punished as a third degree felony if there were two

prior state jail convictions to enhance the punishment

under the then existing Tex. Penal Code § 12.42(d).

Included in the Reporter’s Record as Exhibit 12,

R.R.VIII—17-19, are original judgment and indictment in

that matter. These documents were not admitted into

evidence and therefore are not available to support a

finding of a third degree felony. If the Court finds

that since these documents are part of the appellate

record and available to settle the issue regarding the

proper level of offense in cause number 13997, then the

Court will also find that Appellant was never charged

with the possession of a Penalty Group 2 substance.

These documents demonstrate that the judgment entered 47 into evidence in Appellant’s case is unsupported by an

indictment for the offense for which he was sentenced.

The indictment included within the un-admitted Exhibit

12 shows that Appellant was charged with the possession

of cocaine, a penalty group one substance under 481.115,

not a penalty group 2 substance under 481.116.

Therefore, the evidence is insufficient to support the

first enhancement alleged against Appellant.

For all the foregoing reasons, Appellant’s Fourth

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, the Appellant,

DeJesus Fobbs, prays that the Judgment of the Trial

Court be reversed and remanded for further proceedings

consistent with the judgment of this Honorable Court.

Respectfully submitted,

SEARS & BENNETT, LLP

_/s/ Joel H. Bennett_____________ 48 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 27th day of April, 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 7512 words.