ACCEPTED 13-14-00684-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 3/26/2015 2:25:51 PM DORIAN RAMIREZ CLERK
CAUSE 13-14-00684-CR
IN THE THRITEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT FILED IN -- 13th COURT - - ----- OF APPEALS CORPUS CHRISTI/EDINBURG, --- TEXAS CORPUS CHRISTI, TEXAS - - ---- AM ------ 3/26/2015 - - ID -2:25:51 PM - ---- VO ------ DORIAN - - E. RAMIREZ ---- ---- Clerk
EUGENIO VALDEZ, APPELLANT RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS VS. 3/26/2015 2:25:51 PM DORIAN E. RAMIREZ Clerk THE STATE OF TEXAS
APPELLANT’S AMENDED BRIEF
Trial Cause 14-04-27914-D; Victoria Co. District Court
Submitted by
W. A. (BILL) WHITE Attorney for Appellant POB 7422, Victoria, TX 77903 (361) 575-1774 voice & fax TBN 00788659
NO ORAL ARGUMENT REQUESTED
1 IDENTITY OF PARTIES
The parties are appellant, Eugenio Valdez, and the State. Appellant was a resident of Victoria County during trial.
Appellant was represented at trial by James Beeler, Attorney at Law, POB 1841, Port Lavaca, TX 77979. Appellant is represented on appeal by W. A. (Bill) White, Attorney at Law, POB 7422, Victoria, Texas 77903.
The State was represented at trial by Jacquelyn Johnson and Johna Stallings, ADAs, of the Victoria County District Attorney’s Office, 205 N. Bridge St., Suite 301, Victoria, Texas 77901.
Appellant’s counsel anticipates that the State’s reply brief will be prepared and filed by Brendan Guy, ADA, Victoria County District Attorney’s Office, 205 N. Bridge St., Suite 301, Victoria, Texas 77901 or another attorney at said office’s designation.
2 TABLE OF CONTENTS
Page
Index of Authorities 4
Appellant’s Brief 5
Statement of the Case and Statement of Facts 5
Issue Presented 6
Summary of Argument 6
Argument 6
Prayer 10
Certificate of Service 11
Certificate of Compliance 11
3 INDEX OF AUTHORITIES
Cases Page
Jackson v. State, 287 S.W.2d 346 (Tex.App-Houston 2009)
4 CAUSE 13-14-00684-CR Trial Cause 14-04-27914-D
EUGENIO VALDEZ, Appellant IN THE THIRTEENTH
VS. COURT OF APPEALS AT
THE STATE OF TEXAS CORPUS CHRISTI, TEXAS
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW APPELLANT, EUGENIO VALDEZ, through
counsel of record, W. A. (BILL) WHITE, Attorney at Law,
presenting:
STATEMENT OF THE CASE AND STATEMENT OF FACTS
Appellant was indicted by the Victoria County grand
jury in April 2014 for aggravated assault. On
11/03/14, jury selection began, with trial on the
merits beginning 11/04/14. Appellant pled “not
guilty”. Appellant’s jury convicted him of aggravated
assault as alleged in the indictment on 11/05/14, and
punishment commenced on 11/06/14 before the same jury.
Appellant pled “not true” to two felony enhancement
paragraphs alleged in a State’s notice of intent.
5 Appellant did not testify at either stage of his trial.
After the jury found both enhancement allegations to be
true, it assessed punishment at 99 years in prison. The
trial judge then sentenced appellant to same. (RR Vol.
5, pp. 67 and 70).
Appellant timely filed notice of appeal.
ISSUE PRESENTED
THE PROSECUTION IMPORPERLY COMMENTED IN OPENING STATEMENT AT GUILT/INNOCENCE ON APPELLANT’S SUBSEQUENT ELECTION NOT TO TESTIFY
SUMMARY OF ARGUMENT
During opening statement at the guilt/innocence
phase of trial, the State made remarks which, given
that appellant later opted not to testify, constituted
an improper comment on his exercise of his right to
remain silent.
ARGUMENT
During opening statement at guilt/innocence, the
State’s prosecutor stated:
6 “January 18, 2014, it’s approximately 2:00 in the
morning. The evidence is going to tell a story about
three individuals – three individuals covered in blood.
Only two of those three individuals remember what
happened and only one individual is responsible for the
entire incident.” (RR Vol. 4, p. 12, lines 14-19)
(italics added)
Testimony during guilt/innocence established that
appellant (Eugenio Valdez aka “Tony”), the complaining
witness (Lorenzo Gonzales, Jr.), and a witness named
Lisa Lopez, all visited the Coyote Bar as a group in
Victoria County, Texas on the date alleged in the
indictment. These are the “three individuals”.
While in the bar, an unknown party struck appellant
with a pool stick. Lorenzo and Lisa then tried to
drive appellant home, where he could better nurse his
wounds. Inside the car on the way to appellant’s home,
appellant got angry with Lorenzo because he did not
help defend him against the person who hit him with the
stick. Physical combat ensued between the two men,
7 with Lisa witnessing. During this fight, Lorenzo was
cut deeply with a knife and went to a local emergency
room (ER).
Testimony further revealed that appellant was
intoxicated at the ER. According to a police officer
witness who arrived at the ER to investigate on the
night in question, appellant was too intoxicated to be
questioned. (RR Vol. 5, p. 151, lines 10-15)
The prosecutor’s statement, “Only two of those
three individuals remember what happened …”, is a clear
reference to the complaining witness and to Lisa, the
eyewitness to the stabbing. The implication that the
third individual (appellant) did not remember the
incident can be construed as a comment on why he would
later choose not to testify during guilt/innocence.
Thus, the State asked the jury with these remarks
to speculate in advance as to why appellant might elect
not to testify later at guilt/innocence, in violation
of the court’s instructions. Those instructions in the
court’s charge state, “In this case, the defendant has
8 elected not to testify, and you are instructed that you
cannot and must not refer to nor allude to that fact
throughout your deliberations, nor take it into
consideration for any purpose whatsoever as a
circumstance against the defendant.” (RR Vol. 4, p.
178, lines 2-7)
In addition, by implying that appellant would not
later testify due to an inability to recall the event,
the State suggested that appellant was so intoxicated
on the night in question that he may have flown into a
chemically induced rage and did in fact commit the
crime alleged. Thus, the State subtly used appellant’s
later election not to testify as evidence against him.
While the State obviously could not have foreseen
with certainty that appellant would elect silence at
guilt/innocence, it gambled he might not, and could
later use his inability to speak with police at the ER
against him if he did in fact choose to testify (i.e.,
“How do you remember so well now, Mr. Appellant?”).
9 Defense counsel at trial lodged no objection to
these remarks.
To preserve error for review, a defendant must
timely object to the error during trial. If the
objection is overruled, the defendant has preserved
error. When the objection is sustained, and the
defendant desires to preserve argument that the error
incurably infected his right to a fair trial, he should
request an instruction to disregard and move for a
mistrial. See Jackson v. State, 287 S.W.3d 346, 353-354
(Tex.App.-Houston [14th Dist.] 2009, no pet.).
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ACCEPTED 13-14-00684-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 3/26/2015 2:25:51 PM DORIAN RAMIREZ CLERK
CAUSE 13-14-00684-CR
IN THE THRITEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT FILED IN -- 13th COURT - - ----- OF APPEALS CORPUS CHRISTI/EDINBURG, --- TEXAS CORPUS CHRISTI, TEXAS - - ---- AM ------ 3/26/2015 - - ID -2:25:51 PM - ---- VO ------ DORIAN - - E. RAMIREZ ---- ---- Clerk
EUGENIO VALDEZ, APPELLANT RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS VS. 3/26/2015 2:25:51 PM DORIAN E. RAMIREZ Clerk THE STATE OF TEXAS
APPELLANT’S AMENDED BRIEF
Trial Cause 14-04-27914-D; Victoria Co. District Court
Submitted by
W. A. (BILL) WHITE Attorney for Appellant POB 7422, Victoria, TX 77903 (361) 575-1774 voice & fax TBN 00788659
NO ORAL ARGUMENT REQUESTED
1 IDENTITY OF PARTIES
The parties are appellant, Eugenio Valdez, and the State. Appellant was a resident of Victoria County during trial.
Appellant was represented at trial by James Beeler, Attorney at Law, POB 1841, Port Lavaca, TX 77979. Appellant is represented on appeal by W. A. (Bill) White, Attorney at Law, POB 7422, Victoria, Texas 77903.
The State was represented at trial by Jacquelyn Johnson and Johna Stallings, ADAs, of the Victoria County District Attorney’s Office, 205 N. Bridge St., Suite 301, Victoria, Texas 77901.
Appellant’s counsel anticipates that the State’s reply brief will be prepared and filed by Brendan Guy, ADA, Victoria County District Attorney’s Office, 205 N. Bridge St., Suite 301, Victoria, Texas 77901 or another attorney at said office’s designation.
2 TABLE OF CONTENTS
Page
Index of Authorities 4
Appellant’s Brief 5
Statement of the Case and Statement of Facts 5
Issue Presented 6
Summary of Argument 6
Argument 6
Prayer 10
Certificate of Service 11
Certificate of Compliance 11
3 INDEX OF AUTHORITIES
Cases Page
Jackson v. State, 287 S.W.2d 346 (Tex.App-Houston 2009)
4 CAUSE 13-14-00684-CR Trial Cause 14-04-27914-D
EUGENIO VALDEZ, Appellant IN THE THIRTEENTH
VS. COURT OF APPEALS AT
THE STATE OF TEXAS CORPUS CHRISTI, TEXAS
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW APPELLANT, EUGENIO VALDEZ, through
counsel of record, W. A. (BILL) WHITE, Attorney at Law,
presenting:
STATEMENT OF THE CASE AND STATEMENT OF FACTS
Appellant was indicted by the Victoria County grand
jury in April 2014 for aggravated assault. On
11/03/14, jury selection began, with trial on the
merits beginning 11/04/14. Appellant pled “not
guilty”. Appellant’s jury convicted him of aggravated
assault as alleged in the indictment on 11/05/14, and
punishment commenced on 11/06/14 before the same jury.
Appellant pled “not true” to two felony enhancement
paragraphs alleged in a State’s notice of intent.
5 Appellant did not testify at either stage of his trial.
After the jury found both enhancement allegations to be
true, it assessed punishment at 99 years in prison. The
trial judge then sentenced appellant to same. (RR Vol.
5, pp. 67 and 70).
Appellant timely filed notice of appeal.
ISSUE PRESENTED
THE PROSECUTION IMPORPERLY COMMENTED IN OPENING STATEMENT AT GUILT/INNOCENCE ON APPELLANT’S SUBSEQUENT ELECTION NOT TO TESTIFY
SUMMARY OF ARGUMENT
During opening statement at the guilt/innocence
phase of trial, the State made remarks which, given
that appellant later opted not to testify, constituted
an improper comment on his exercise of his right to
remain silent.
ARGUMENT
During opening statement at guilt/innocence, the
State’s prosecutor stated:
6 “January 18, 2014, it’s approximately 2:00 in the
morning. The evidence is going to tell a story about
three individuals – three individuals covered in blood.
Only two of those three individuals remember what
happened and only one individual is responsible for the
entire incident.” (RR Vol. 4, p. 12, lines 14-19)
(italics added)
Testimony during guilt/innocence established that
appellant (Eugenio Valdez aka “Tony”), the complaining
witness (Lorenzo Gonzales, Jr.), and a witness named
Lisa Lopez, all visited the Coyote Bar as a group in
Victoria County, Texas on the date alleged in the
indictment. These are the “three individuals”.
While in the bar, an unknown party struck appellant
with a pool stick. Lorenzo and Lisa then tried to
drive appellant home, where he could better nurse his
wounds. Inside the car on the way to appellant’s home,
appellant got angry with Lorenzo because he did not
help defend him against the person who hit him with the
stick. Physical combat ensued between the two men,
7 with Lisa witnessing. During this fight, Lorenzo was
cut deeply with a knife and went to a local emergency
room (ER).
Testimony further revealed that appellant was
intoxicated at the ER. According to a police officer
witness who arrived at the ER to investigate on the
night in question, appellant was too intoxicated to be
questioned. (RR Vol. 5, p. 151, lines 10-15)
The prosecutor’s statement, “Only two of those
three individuals remember what happened …”, is a clear
reference to the complaining witness and to Lisa, the
eyewitness to the stabbing. The implication that the
third individual (appellant) did not remember the
incident can be construed as a comment on why he would
later choose not to testify during guilt/innocence.
Thus, the State asked the jury with these remarks
to speculate in advance as to why appellant might elect
not to testify later at guilt/innocence, in violation
of the court’s instructions. Those instructions in the
court’s charge state, “In this case, the defendant has
8 elected not to testify, and you are instructed that you
cannot and must not refer to nor allude to that fact
throughout your deliberations, nor take it into
consideration for any purpose whatsoever as a
circumstance against the defendant.” (RR Vol. 4, p.
178, lines 2-7)
In addition, by implying that appellant would not
later testify due to an inability to recall the event,
the State suggested that appellant was so intoxicated
on the night in question that he may have flown into a
chemically induced rage and did in fact commit the
crime alleged. Thus, the State subtly used appellant’s
later election not to testify as evidence against him.
While the State obviously could not have foreseen
with certainty that appellant would elect silence at
guilt/innocence, it gambled he might not, and could
later use his inability to speak with police at the ER
against him if he did in fact choose to testify (i.e.,
“How do you remember so well now, Mr. Appellant?”).
9 Defense counsel at trial lodged no objection to
these remarks.
To preserve error for review, a defendant must
timely object to the error during trial. If the
objection is overruled, the defendant has preserved
error. When the objection is sustained, and the
defendant desires to preserve argument that the error
incurably infected his right to a fair trial, he should
request an instruction to disregard and move for a
mistrial. See Jackson v. State, 287 S.W.3d 346, 353-354
(Tex.App.-Houston [14th Dist.] 2009, no pet.).
Regardless, any comment by the State on an
accused’s right not to testify at trial is plagued with
constitutional infirmities. Applying procedural bars
or the harmless error doctrine only encourages similar
remarks and arguments in future trials in all Texas
counties. Accordingly, appellate counsel argues in
good faith for a change, extension, or modification of
existing law in the cause at bar. The right to remain
silent at trial must remain inviolate.
10 PRAYER
Appellant prays that conviction be reversed and
that this cause be remanded for new trial.
Respectfully submitted,
/s/ W. A. White W. A. (BILL) WHITE ATTORNEY FOR APPELLANT POB 7422, Vict., TX 77903 (361) 575-1774 voice/fax TBN 00788659
CERTIFICATE OF SERVICE
I certify that a true and correct copy or duplicate
original of the foregoing has been provided to Brendan
Guy, ADA, Victoria Co. District Attorney’s Office, 205
N. Bridge, Suite 301, Victoria, TX 77901 via U.S. mail,
facsimile, electronic delivery, or hand-delivery on
this the 26th day of March 2015.
/s/ W. A. White W. A. White
CERTIFICATE OF COMPLIANCE
I certify that this brief contains 1,244 words.