ACCEPTED 13-14-00517 THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 4/17/2015 9:25:33 PM DORIAN RAMIREZ CLERK
CAUSE NO. 13-14-00517-CR
IN THE COURT OF APPEALS OF FILED IN 13th COURT OF APPEALS THE STATE OF TEXASCORPUS CHRISTI/EDINBURG, TEXAS THIRTEENTH JUDICIAL DISTRICT AT CORPUS CHRISTI 4/17/2015 9:25:33 PM DORIAN E. RAMIREZ Clerk FREDERICK O'NEAL SCOTT, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On Appeal from Cause Number 14-05-12, 033; In the 24th Judicial District Court of DeWitt County, Texas The Hon. Stephen Williams, Judge Presiding
APPELLANT'S FffiST AMENDED BRIEF
LUIS A. MARTINEZ P.O. Box410 Victoria, Texas 77902-0410 (361) 676-2750 (Cell Telephone) (361) 575-6764 (Office Telephone) (361) 575-8454 (Facsimile) lamvictoriacounty@gmail.com
ATTORNEY FOR APPELLANT, FREDERICK O'NEAL SCOTT
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 38.l(a), the parties to the suit are as
follow:
APPELLANT FREDERICK O'NEAL SCOTT
APPELLEE THE STATE OF TEXAS
TRIAL JUDGE HON. STEPHEN WILLIAMS
STATE'SATTY AT TRIAL: HON. MICHAEL SHEPPARD 24th Judicial District Attorney DeWitt County Courthouse 307 N. Gonzalez Cuero, Texas 77954
DEFENSE ATTY AT TRIAL: HON. KEITH WEISER P.O. Box 1093 Victoria, Texas 77902-1093
APPELLATE STATE'S ATTY: HON. ROBERT LASSMAN 24th Judicial District Attorney DeWitt County Courthouse 307 N. Gonzalez Cuero, Texas 77954
APPELLATE DEFENSE ATTY: HON. LUIS A. MARTINEZ P.O. Box 410 Victoria, Texas 77902
1 TABLE OF CONTENTS
Page(s)
IDENTITY OF THE PARTIES .................................................................. i.
TABLE OF CONTENTS ........................................................................... ii.
INDEX OF AUTHORITIES ................................................................... .iii.
I. RECORD BEFORE THE COURT .................................................. 2
II. STATEMENT OF THE CASE ........................................................ 3
III. ISSUE PRESENTED ....................................................................... 4
ISSUE NUMBER ONE:
THE TRIAL COURT ERRED IN EXCLUDING APPELLANT'S EVIDENCE OF THE ALLEGED VICTIM'S SCHOOL BEHAVIOR AND SUCH EVIDENCE WAS CRITICAL TO THE HEART OF APPELLANT'S TRIAL DEFENSE DENYING HIM DUE PROCESS ......................... .4
IV. STATEMENT OF THE FACTS ..................................................... .4
V. SUMMARYOFTHEARGUMENT .................................... 8
VI. ARGUMENT ON THE MERITS .................................................... 9
VII. CONCLUSION AND PRAYER .................................................... 19
VIII. CERTIFICATE OF COMPLIANCE ............................................. 20
IX. CERTIFICATE OF SERVICE ....................................................... 21
11 INDEX OF AUTHORITIES
Texas Cases:
Bennett v. State, 726 S.W.2d 32 (Tex. Crim. App. 1986) ........................ 11
Davis v. State, 104 S.W.2d 177 (Tex.App.-Waco, 2003, no pet.) ............... 11, 12, 16, 19
Ex parte: Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991).................. 11
Echavarria v. State, 362 S.W.3d 148 (Tex. App.-San Antonio, 2011)............................. 11, 12
Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004) ......................... 14
Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009)..................... 12
Lopezv. State, 86 S.W.3d228 (Tex. Crim. App. 2002) ............................. 9
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) .......... 9, 13
Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999) .................. 13, 16
Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002)..................... 17, 18
Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002) .......................... 16
Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007)...................... 17
Wiley v. State, 74 S.W.3d 399 (Tex. Crim. App. 2002)............................ 17
111 Texas Statutes:
Tex. Pen. Code §9.31 ................................................................................ 11
Tex. Pen. Code §9.61. ....................................................... 5, 8, 9, 10, 11, 12
Tex. Pen. Code §12.42 ................................................................................ 3
Tex. Pen. Code §22.04 ................................................................................ 3
Texas Rules:
Tex. R. ofEvid. 403 .............................................................. 8, 9, 12, 13, 19
Tex. R. ofEvid. 404, 404(b)............................................................... 15, 16 CAUSE NO. 13-14-00517-CR
IN THE COURT OF APPEALS OF THE STATE OF TEXAS THIRTEENTH ruDICIAL DISTRICT AT CORPUS CHRISTI
FREDERICK O'NEAL SCOTT,
Appellant,
THE STATE OF TEXAS,
Appellee.
On Appeal from Cause Number 14-05-12, 033; In the 24th Judicial District Court ofDeWitt County, Texas The Hon. Stephen Williams, Judge Presiding
APPELLANT'S FIRST AMENDED BRIEF
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Appellant, FREDERICK O'NEAL SCOTT, by and
through his attorney of record, and would respectfully present to this Court
his brief on the merits in the above-referenced and entitled cause of action.
Appellant would respectfully show unto the Court of Appeals as follows: This action arises from the proceedings held in DeWitt County, Texas,
in Trial Court Cause No. 14-05-12, 033-CR; State of Texas v. Frederick
O'Neal Scott; In the 24th Judicial District Court of DeWitt County, Texas,
the Honorable Stephen Williams, Judge Presiding.
In this matter, the Plaintiff was the "STATE OF TEXAS" and
FREDERICK O'NEAL SCOTT was the Defendant. In this brief Appellant,
FREDERICK O'NEAL SCOTT, will be referred to as "APPELLANT" and
the Appellee, the State of Texas, as the "STATE."
I. RECORD BEFORE THE COURT
The Clerk's Record consists of one (1) volume that will be referenced
by citation using the abbreviations "CR" referring to the Clerk's Record
followed by the appropriate page number. For example, page three of the
Clerk's Record will be cited as [CR-3].
The Reporter's Record furnished to Appellant consists of five (5)
volumes, including exhibits. The Reporter's Record will be cited using the
abbreviation "RR," followed by a numeral to indicate the appropriate page
number(s). For example, page four of volume five of the Reporter's Record
will be cited as [RR-V-4].
2 II.
STATEMENT OF THE CASE
Appellant appeals the judgment and sentence imposed following his
jury trial for "INJURY TO A CHILD & REPEAT OFFENDER," a Second
Degree Felony, pursuant to Tex. Pen. Code §22.04 (offense) and §12.42
(enhancement).
Appellant was formally charged with "INJURY TO A CHILD" in a
one-count indictment with one enhancement paragraph filed with the DeWitt
County District Clerk on May 29, 2014. [CR-7].
Vair dire began in this case on, or about, Monday, August 18, 2014.
[RR-II-11]. Ajury was chosen and sworn that day. [RR-II-162-166].
On, or about, Tuesday, August 19, 2014, Appellant's trial began.
[RR-III-7]. The De Witt County District Attorney read the indictment aloud
to the jury to which Appellant entered a plea of"Not Guilty." [RR-III-7-8].
Appellant's trial continued from that day until Wednesday, August 20,
2014, when the jury delivered a verdict of "Guilty." [RR-IV-83]. The case
was reset for a punishment hearing before the bench on, or about,
Wednesday, August 27, 2014. [RR-IV-86].
On, or about, Wednesday, August 27, 2014, the Trial Court conducted
a punishment hearing. After considering the arguments of counsel and the
3 evidence presented by both parties during the punishment hearing, the Trial
Court assessed Appellant's punishment as imprisonment in the Institutional
Division of the Texas Department of Criminal Justice for twelve (12) years
and costs of court. [RR-V-64; CR-99-10 I].
The Trial Court indicated in its "Trial Court's Certification of
Defendant's Right of Appeal" that this matter was not a plea bargain case,
and that Appellant has the right to appeal. [CR-73].
Appellant's Notice of Appeal was timely filed. [CR-76].
III.
ISSUE PRESENTED
THE TRIAL COURT ERRED IN EXCLUDING APPELLANT'S EVIDENCE OF THE ALLEGED VICTIM'S SCHOOL BEHAVIOR AND SUCH EVIDENCE WAS CRITICAL TO THE HEART OF APPELLANT'S TRIAL DEFENSE DENYING HIM DUE PROCESS.
IV. STATEMENT OF THE FACTS
Prior to the trial of this case, Appellant's trial counsel filed his
"Memorandum of Law: Use of The Complaining Witness' School
Disciplinary History." [CR-27]. By and through his trial counsel, Appellant
clearly, unequivocally and in writing, asserted a justification defense
4 afforded him under §9.61 of the Texas Penal Code. Id. In the same motion,
Appellant contended that:
Scott intends to introduce evidence that he reasonably believed his actions were necessary to discipline the child as he did. To support this reasonable belief, Scott intends to introduce the child's numerous behavior problems observed by teachers at school, including stabbing a classmate with a pencil. Scott intends to offer business records of the child's bad behavior as well as testimony from the child's teachers.
[CR-27].
During his testimony before the Jury, Appellant was asked the
following by his trial counsel:
Q: Mr. Scott, on or about August the 20th 2013 do you believe that any discipline that you gave A.R. that you were justified?
A: Very justified.
Q: And that's based on the information we went over the other day, that chart?
A: Yes, it is.
Q: You feel like you were justified under the statute, under the Penal Code?
A: Yes. She was given a spanking because she injured her little sister to where she actually drew blood. Yes, it was justified.
[RR-IV-12].
5 Following Appellant's testimony, the jury was excused. [RR-IV-13].
Outside the presence of the jury, Appellant's counsel questioned Appellant
about Defendant's Exhibit 8, copies of the business record affidavit and
records that had been filed July 8, 2014. [RR-IV-13]. Appellant testified
that he was familiar with the records. Appellant's counsel inquired of
Appellant whether he knew about the incidents reported amongst the
records. Id. Appellant testified he was aware of an incident that occurred
on September 17, 2012 where the alleged victim was disrespectful, would
not stay in her seat and was throwing, kicking, and shoving her chair and
desk. [RR-IV-15]. Appellant also agreed that he was aware of an incident
on November 8, 2012, where the alleged victim had been moaning and
making noises while the teacher was talking and giving directions, and that
the alleged victim got out of her seat and stabbed another student with a
recently sharpened pencil. [RR-IV-15]. Appellant also said he was aware of
an incident on November 13, when the alleged victim was alleged to have
pinched another student hard enough to break the skin. [RR-IV-16].
Appellant was also aware that on November 16, 2012, A.R. was suspended
from school for behavior. [RR-IV-17]. Appellant testified he was aware of
a November 27, 2012, incident as well. On that date, the alleged victim
would not do what the teacher had asked and repeated for 15 minutes that
6 her stomach hurt. After being taken to the nurse's office where it was
discovered there was nothing wrong with the alleged victim's stomach, she
was taken to the office. At the office the alleged victim, the alleged victim
would not stop crying and screaming for about 45 minutes. She was crying
because she did not like people telling her what to do. Her mother arrived
and took her home for the day. [RR-IV-17]. Appellant was also aware that
on November 30, the alleged victim was disruptive in class, including
throwing erasers and kicking a trash can. [RR-IV-18]. Appellant recalled
that the alleged victim had been suspended twice when asked about a
February 21, 2013, incident for physical aggression that lead to the alleged
victim being sent home and ordered to serve an in-school suspension the
next day. [RR-IV-19].
Appellant's counsel specifically asked Appellant:
Q: Mr. Scott, did you use the belt or had you reached the point where you used the belt to discipline A.R. because her past experience, her past poor behavior at school and at home, and you had used all available methods up to then?
A: Yeah, because this, like I said, is the last day or right at the time when they took her, so, yeah, because, like I said, if a child is rebellious like that and a child just constantly won't do what you say, so, yeah, it's applicable here. Like I said, I had already tried things like time out and
7 grounding and a lot of things like that that did not work with A.R.. In fact, she laughed at things like that.
[RR-IV-25].
After Appellant testified outside the presence of the jury, Appellant's
Counsel argued to the Trial Court:
I believe we have shown justification. I believe there's sufficient evidence for a charge on justification. As such, I believe the case that I filed the memo on give me authority to bring in these limited five or six incidents at school that he said he's familiar with, present them to the jury. [RR-IV-25-26].
The Court sustained the State's objection to Defendant's Exhibit 8,
excluding the proffered evidence under a 403 analysis, and admitted the
exhibit for appellate purposes as a Court's Exhibit. [RR-IV-29].
The Charge of the Court given to the jury in this matter included
instructions and definitions regarding Texas Penal Code §9.61. [CR-65-66].
v. SUMMARY OF THE ARGUMENT
Appellant was accused of spanking the alleged victim 1 with a belt
after she pinched her sister hard enough to draw blood. Prior to trial and at
1 For purposes of this brief, the child involved will be referred to as "alleged victim" or "A.R."
8 trial, Appellant asserted a justification defense found in Texas Penal Code
§9.61. Appellant attempted to show evidence to the jury that the alleged
victim had previously used a pencil to stab another student, pinched another
student at school and had also been placed in in-school-suspension for being
physically aggressive, all of which Appellant was aware. The Trial Court
erroneously excluded the testimony and evidence under Rule 403 denying
Appellant Due Process as provided by the United States Constitution.
VI.
ARGUMENT ON THE MERITS
THE TRIAL COURT ERRED IN EXCLUDING APPELLANT'S EVIDENCE OF THE ALLEGED VICTIM'S SCHOOL BEHAVIOR AND SUCH EVIDENCE WAS CRITICAL TO THE HEART OF APPELLANT'S TRIAL DEFENSE DENYING HIM DUE PROCESS.
A. The applicable standard of review is abuse of discretion.
Generally, a trial court's evidentiary rulings are reviewed under an
abuse of discretion standard. Lopez v. State, 86 S.W.3d 228, 230
(Tex.Crim.App. 2002). A trial court's ruling should not be disturbed unless
it lays outside the "the zone of reasonable disagreement. Id. (citing
Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991).
9 B. Texas Penal §9.61 allows the defense of justification and prescribes its elements.
Texas Penal Code §9.61 1s applicable to the evaluation of
Appellant's point of appeal. This section of the Texas Penal Code allows:
The use of force, but not deadly force, against a child younger than 18 years:
(1) if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and
(2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.
Tex. Pen. Code §9.61.
C. Appellant clearly asserted the justification defense found in Texas Penal Code §9.61 throughout his trial.
In this case, Appellant clearly asserted the defense of justification
pursuant to Texas Penal Code §9.61. His pre-trial filings clearly asserted the
defense. See [CR-27; 30-33]. Appellant's trial counsel also argued and
pursued the defense of justification during his trial and Appellant testified
about same. e.g. see [RR-IV-12-25]. Tellingly, the Trial Court's charge to
the jury included instructions and definitions regarding the justification
defense and in loco parentis. [CR-65-66].
10 D. Texas Penal Code §9.61 has been analyzed for application using settled self-defense precedent.
In Davis v. State, the Waco Court of Appeals, citing the "dearth" of
authority on the proper application of Texas Penal Code §9.61, looked to
settled case law on self-defense to assist in determining whether the trial
court abused its discretion by excluding proffered evidence that was
virtually identical to the proffered evidence in Appellant's case. See Davis
v. State, 104 S.W.3d 177 (Tex.App.-Waco, 2003, no pet.). The Davis
court found that because Texas Penal Code §9.61 focused on what "the actor
reasonably believes," it is virtually identical to the self-defense statute.
Davis v. State, 104 S.W.3d 177, 180-181 (Tex.App.-Waco, 2003, no pet.);
see also Tex. Pen. Code §9.61, Tex. Pen. Code §9.31.
When a jury considers whether a defendant acted in self-defense, it
must "view the reasonableness of the defendant's actions solely from the
defendant's standpoint." Davis v. State, 104 S.W.3d at 180 (citing Ex parte
Drinker!, 821 S.W.2d 953, 955 (Tex.Crim.App. 1991); see also Bennett v.
State, 726 S.W.2d 32, 37-38 (Tex.Crim.App. 1986). The reasonableness of
the belief is measured by the objective standard of an "ordinary and prudent
man." Echavarria v. State, 362 S.W.3d 148, 154 (Tex.App.-San Antonio,
2011 ). Although a jury employs an objective standard to determine the
reasonableness of the defendant's belief, it must view the facts from the
11 defendant's perspective. Echavarria v. State, 362 at 154 (citing Davis v.
State, 104 S.W.3d 177, 181(Tex.App.- Waco2003, no pet.)
The Davis court found that the above referenced principles
necessarily apply when a jury determines whether a defendant reasonably
believes that the force he used was "necessary to discipline the child or to
safeguard or promote his welfare." Davis v. State , 104 S.W.3d 177, 181
(Tex.App.-Waco, 2003, no pet.) see also Tex. Pen. Code §9.61(a)(2).
E. The Trial Court's ruling on the State's 403 objection was erroneous.
It is important to note that the Trial Court excluded Appellant's
proffered evidence under Rule 403. The Trial Court's exclusion of
Appellant's evidence on this ground is indicative that the Trial Court found
that the evidence was probative. Relevant evidence may be excluded under
Rule 403 only if its probative value is substantially outweighed by the
danger of unfair prejudice. Hammer v. State, 296 S.W.3d 555, 568 (Tex.
Crim. App. 2009); see Tex. Rule ofEvid. 403 .
Under Rule 403, it is presumed that the probative value of relevant
evidence exceeds any danger of unfair prejudice. The rule envisions
exclusion of evidence only when there is clear disparity between the degree
of prejudice of the offered evidence and its probative value. Hammer v.
State, 296 S.W.3d at 568.
12 Although evidence may be probative, Rule 403 requires a balancing
of the evidence between its probative value and the prejudicial value. A
reviewing court cannot simply conclude, "the trial judge did in fact conduct
the required balancing and did not rule arbitrarily or capriciously." Mozon v.
State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)(citing Montgomery v.
State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991). A trial court's ruling
must be measured against the relevant criteria by which a Rule 403 decision
is made. Id. In other words, the reviewing court must look at the
proponent's need for the evidence in addition to determining the relevance
of the evidence. Id.
While this brief addresses the necessity of showing A.R. 's past
aggressive and assaultive behavior in order to understand the indicted
measures undertaken by Appellant infra., it is important to note that the
record does not support a finding of prejudice to the State that would have
resulted. The Trial Court did not address how any "unfair prejudice" caused
Appellant's proffered evidence's probative value to be substantially
outweighed by unfair prejudice. Put simply, the Trial Court's ruling had no
factual basis to support it.
A proper rule 403 analysis includes the following factors: 1) the
probative value of the evidence; (2) the potential to impress the jury in some
13 irrational, yet indelible way; (3) the time needed to develop the evidence;
and (4) the proponent's need for the evidence. Erazo v. State, 144 S.W.3d
487, 489 (Tex. Crim. App. 2004).
As for the first factor, the evidence was probative in that it sought to
show that A.R. had in the recent past, stabbed a classmate with a pencil,
pinched another student and had displayed aggressive behavior, all of which
Appellant knew when she pinched her sister. In other words, A.R. had
continued to be aggressive and hurt other children despite intervention at
school and at home with other methods of discipline. Whether wrong or
right, these things were known to Appellant when he chose to spank A.R.
Factor one weighs in favor of inclusion of Appellant' s proffered evidence.
As for factor two, there is nothing irrational or indelible to be taken
by the evidence. If the evidence suggested to the jury that the child required
some discipline, it would not keep them from deciding the reasonableness of
Appellant's choice to spank A.R. Factor two weighs in favor or inclusion of
Appellant's proffered evidence.
Appellant's counsel was able to go through the reports in short order
outside the presence of the jury, and there is nothing to suggest that allowing
the presentation of the proffered evidence would have caused any undue
14 delay. Factor three weighs in favor of inclusion of Appellant's proffered
evidence.
As for factor four, Appellant could not show to the jury that A.R.
had a pattern of aggressive behavior to justify his chosen discipline without
being able to establish a pattern.
It does appear from the State's argument to the Trial Court, that they
were concerned with timeliness of the behavior and the fact that A.R. 's
misbehavior, assaultive behavior and disrespectful actions occurred at
school, rather than at home.
To be clear, the incidents that Appellant recalled and was aware of
occurred less than one year from the offense charged. The State's arguments
address the weight to be given the evidence, rather than to its admissibility.
To be sure, the State could have argued these points to the jury had they
been allowed to hear of A.R.'s school behavior evidence.
In short, the record does not support that the Trial Court engaged in
the required balancing. Further, the record does not support exclusion of
Appellant's evidence, but rather, inclusion.
F. Evidence of A.R.'s school behavior records is admissible under 404(b) or 404 generally.
Again, review of cases regarding self-defense is instructive in
this case. Evidence of a murder victim's prior acts of violence may be
15 admissible under Rule 404(b) to show the state of mind of a defendant who
claims he acted in self defense. Torres v. State, 71 S.W.3d 758, 760 n.4
(Tex.Crim.App. 2002); Mozon v. State, 991 S.W.2d 841, 846
(Tex.Crim.App. 1999); see also Tex. R. of Evid. 404(b). Further, a
defendant must be able to show that he was aware of the prior acts. Torres,
71 S.W.3d 758 at 760 n.4; Mozon, 991 S.W.2d at 845.
In this connection, the Davis court found that evidence of a child's
prior acts of misbehavior, of which the defendant was aware, is admissible
under Rule 404(b) to show the state of mind of a defendant who claims that
he reasonably believed it was necessary to use the amount of force he did to
discipline a child. Davis v. State, 104 S.W.3d 177, 181 (Tex.App.-Waco,
2003).
In this case, Appellant proffered to the Trial Court that he was aware
of several incidents where A.R. had stabbed and pinched fellow classmates
and had been disruptive enough to be sent home or serve in-school
suspension. Appellant further proffered to the Trial Court that he had
employed other means of discipline that A.R. had "laughed at."
Regardless of how the jury might have considered these in deciding
the charge against Appellant, Appellant was deprived of the right to have
16 them consider it all. Moreover, it was proper for Appellant to present them
in his defense.
G. The excluded evidence was critical to the heart of Appellant's trial defense and denied Appellant Due Process.
Generally, the erroneous exclusion of a defendant's evidence
generally constitutes non-constitutional error. Walters v. State, 247 S.W.3d
204, 221 (Tex. Crim. App. 2007). However, if the evidence forms such a
vital portion of the case that exclusion effectively precludes the defendant
from presenting a defense, the ruling violates the defendant's constitutional
right to due process and to present a meaningful defense. See Potier v.
State, 68 S.W.3d 657, 665 (Tex.Crim.app. 2002).
In Wiley v. State, the Texas Court of Criminal Appeals discussed its
decision in Potier. The Court of Criminal Appeals discussed two ways in
which a ruling excluding evidence might rise to the level of violating the
constitutional right to present a meaningful defense. Wiley v. State, 74
S.W.3d 399, 405 (Tex.Crim.App. 2002). The first involves an evidentiary
ruling that categorically and arbitrarily prohibits a defendant from offering
relevant evidence that is vital to his defense. Id. The second involves "a
trial court's clearly erroneous ruling excluding otherwise, relevant, reliable
evidence [that] 'forms such a vital portion of the case that exclusion
17 effectively precludes the defendant from presenting a defense." Id. (quoting
Potier, 68 S.W.3d at 665).
The Trial Court's ruling excluding the school incidents violated
Appellant's constitutional right to due process and to present a meaningful
defense under the applicable standards in Potier. Without the evidence of
A.R.'s past behavior, Appellant was not able to provide a context for the
discipline chosen on, or about, August 19, 2013, and the reasonableness of
the force he deemed necessary to promote the welfare of A.R. The Trial
Court's ruling left the indicted incident in a vacuum without context and the
ability for the jury to consider that context. The jury did not get to hear that
A.R. had numerous incidents where she had injured other students. The
jury did not get to hear that A.R. had been rebellious, disruptive and
physically aggressive at school. These incidents were known to Appellant.
For the jury to be able to accurately judge his chosen means of discipline
and the reasonableness of the discipline imposed on A.R., they needed to
know "the whole story." At the very least, the jury needed be provided
with evidence of that which was known to Appellant.
18 VII.
CONCLUSION and PRAYER
Appellant respectfully requests that this Honorable Court of Appeals
evaluate the issues in this matter as its' sister court did in Davis v. State, 104
S.W.2d 177 (Tex.App-Waco, 2003, no pet.). Further, he asks that this
Court of Appeals find that the exclusion of evidence of A.R. 's past incidents
at school did not allow him to put on the heart of his defense, and denied
him due process guaranteed by the United States Constitution.
Appellant was entitled to defend himself by showing the jury what
was known to him when he chose to discipline A.R. and the means and
amount of force he chose to provide that discipline. The Trial Court
acknowledged that Appellant had asserted and provided evidence to merit an
instruction on a justification defense in the jury charge in his case.
However, the Trial Court's Rule 403 ruling kept him from presenting the
heart of his defense, which left the jury without the context necessary to
judge Appellant's actions. The Trial Court's action excluding Appellant's
evidence of prior misbehavior denied Appellant of due process and, as such,
this Honorable Court of Appeals should reverse Appellant's conviction.
WHEREFORE, PREMISES CONSIDERED, Appellant, FREDERICK
O'NEAL SCOTT, prays that this Honorable Court reverse and render the
19 conviction and sentence, or in the alternative, reverse and remand this case for
a new trial on guilt/innocence and sentencing, and for any further relief that
Appellant is entitled to in law, or, in equity.
Respectfully submitted,
LUIS A. MARTINEZ P.O. Box410 Victoria, Texas 77902-0410 (361) 676-2750 (Cell Telephone) (361) 575-6764 (Office Telephone) (361) 575-8454 (Facsimile) lamvictoriacou mail.com
By: Luis A. · rtinez State Bar No. 24010213
ATTORNEY FOR THE APPELLANT, FREDERICK O'NEAL Scorr
VIII.
CERTIFICATE OF COMPLIANCE
In accordance with Texas Rule of Appellate Procedure 9.4(i)(3), the
undersigned, Luis A. Martinez, I hereby certify that the number of words in
Appellant's First Amended Brief submitted on April 17, 2015, excluding
those matters listed in Rule 9.4(i)(3), is 3, 453 words.
~-f{J 20 IX.
CERTIFICATE OF SERVICE
I, hereby certify that a true, correct and complete copy of the
foregoing First Amended Appellant's Brief has been served to those named
below in the manner indicated on this the 17th day April, 2015.
Via Email Mr. Robert Lassman DeWitt Co. Dist. Atty's Office De Witt County Courthouse 307 N. Gonzalez Cuero, Texas 77954