Dejesus Fobbs v. State

Opinion

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

Peters 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

v.

Appealed from the 356TH Judicial District Court of Hardin County, Texas Cause No. 22,960

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.

7 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 11 _/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.